WARRICK & ANOR -v- BRYAN [2005] WASCA 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 70 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:131/2003 | 1 OCTOBER 2004 | |
| Coram: | TEMPLEMAN J JENKINS J SIMMONDS J | 13/04/05 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | JOHN GEOFFREY WARRICK JUDITH WARRICK MURRAY BRYAN |
Catchwords: | Damages Tort Personal injury Family company in shop fitting industry Company income produced by respondents, other workers, subcontractors when required, and respondent's wife Loss of earning capacity Whether error in using respondent's pre-accident wage, his wife's pre-accident wage and all the company's profits to calculate respondent's lost earning capacity Practice and procedure Whether adjournment should have been granted due to late production of discoverable documents |
Legislation: | Nil |
Case References: | Husher v Husher (1999) 197 CLR 138 Mead Corp v Carbonless Papers (Australia) Pty Ltd [2002] WASC 268 Richardson v Whymark Nominees Pty Ltd [2004] WASCA 208 Andriolo v G & G Constructions Pty Ltd (1989) A Tort Rep 80-235 Bennett v Councillor [2001] WASCA 342 Browne v Dunn (1893) 6 R 67 Dal Zotto v Bonnani (1980) 47 FLR 239 Jones v Dunkel (1959) 101 CLR 298 Lago v Lago [1983] 2 Qd R 29 Lee v Sheard [1956] 1 QB 192 Marinovski v Zutti Pty Ltd & Panizutti [1984] 2 NSWLR 571 Metropolitan Police District Receiver v Croydon Corp (1957) 1 All ER 78 Pick v Wynes [1964] SASR 318 Randall v Dul (1994) 13 WAR 205 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WARRICK & ANOR -v- BRYAN [2005] WASCA 70 CORAM : TEMPLEMAN J
- JENKINS J
SIMMONDS J
- JUDITH WARRICK
Appellants (Defendants)
AND
MURRAY BRYAN
Respondent (Plaintiff)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FRENCH DCJ
Citation : BRYAN v WARRICK & ANOR [2003] WADC 174
File No : CIV 1133 of 2001
(Page 2)
Catchwords:
Damages - Tort - Personal injury - Family company in shop fitting industry - Company income produced by respondents, other workers, subcontractors when required, and respondent's wife - Loss of earning capacity - Whether error in using respondent's pre-accident wage, his wife's pre-accident wage and all the company's profits to calculate respondent's lost earning capacity
Practice and procedure - Whether adjournment should have been granted due to late production of discoverable documents
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellants (Defendants) : Mr J R Brooksby
Respondent (Plaintiff) : Mr K N Allan
Solicitors:
Appellants (Defendants) : Greenland Brooksby
Respondent (Plaintiff) : Ilberys Lawyers
(Page 3)
Case(s) referred to in judgment(s):
Husher v Husher (1999) 197 CLR 138
Mead Corp v Carbonless Papers (Australia) Pty Ltd [2002] WASC 268
Richardson v Whymark Nominees Pty…
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- WARRICK v Bryan [2005] WASCA 70
- Case
- [2005] WASCA 70
- Decision Date
CaseChat Overview and Summary
The appeal in Warrick v Bryan was brought before the court by the plaintiff, seeking review of a decision that awarded damages for personal injuries sustained by the plaintiff while working in a family-run shop fitting business. The defendants, Bryan, were employees of the plaintiff’s company, which specialised in shop fittings, and the plaintiff claimed damages due to injuries that affected his ability to work. The court was tasked with determining whether the damages awarded adequately reflected the plaintiff’s loss of earning capacity, considering the contributions of the defendants, other workers, and subcontractors to the company’s income. Additionally, the court had to assess whether the trial judge erred in calculating the damages by using the plaintiff's pre-accident wage, his wife's pre-accident wage, and the total profits of the company. Another issue was whether the trial judge should have granted an adjournment due to the late production of discoverable documents by the defendants.
The court considered the legal principles underpinning the calculation of damages for loss of earning capacity in the context of a family business. It evaluated the methodology used by the trial judge in determining the plaintiff’s lost earning capacity, focusing on the appropriateness of using the plaintiff’s pre-accident wage, his wife’s pre-accident wage, and the company’s total profits. The court also assessed whether the trial judge should have allowed an adjournment to accommodate the late disclosure of documents by the defendants, which could have potentially impacted the fairness of the trial. The appeal hinged on whether these factors warranted a re-evaluation of the damages awarded.
In its decision, the court found that the trial judge had erred in the method of calculating the plaintiff’s lost earning capacity. The use of the plaintiff’s pre-accident wage and his wife’s pre-accident wage, alongside the total profits of the company, did not accurately reflect the plaintiff’s individual contribution to the business. The court determined that the damages awarded were insufficient and did not properly account for the plaintiff’s specific loss. Furthermore, the court concluded that the trial judge should have granted an adjournment due to the late production of discoverable documents, which could have allowed for a fairer assessment of the plaintiff’s claims. Consequently, the appeal was allowed, and the case was remitted for a re-evaluation of the damages.
The court ordered that the appeal be allowed, and the case remitted for reassessment of the damages in light of the errors identified. The court did not provide specific details on the quantum of damages to be recalculated but directed that the trial judge should consider the plaintiff’s individual earning capacity and the impact of the defendants’ contributions to the company’s profits. The court also emphasised the importance of adhering to procedural fairness, indicating that any future failure to disclose documents timely should be appropriately addressed by the trial judge.
The court considered the legal principles underpinning the calculation of damages for loss of earning capacity in the context of a family business. It evaluated the methodology used by the trial judge in determining the plaintiff’s lost earning capacity, focusing on the appropriateness of using the plaintiff’s pre-accident wage, his wife’s pre-accident wage, and the company’s total profits. The court also assessed whether the trial judge should have allowed an adjournment to accommodate the late disclosure of documents by the defendants, which could have potentially impacted the fairness of the trial. The appeal hinged on whether these factors warranted a re-evaluation of the damages awarded.
In its decision, the court found that the trial judge had erred in the method of calculating the plaintiff’s lost earning capacity. The use of the plaintiff’s pre-accident wage and his wife’s pre-accident wage, alongside the total profits of the company, did not accurately reflect the plaintiff’s individual contribution to the business. The court determined that the damages awarded were insufficient and did not properly account for the plaintiff’s specific loss. Furthermore, the court concluded that the trial judge should have granted an adjournment due to the late production of discoverable documents, which could have allowed for a fairer assessment of the plaintiff’s claims. Consequently, the appeal was allowed, and the case was remitted for a re-evaluation of the damages.
The court ordered that the appeal be allowed, and the case remitted for reassessment of the damages in light of the errors identified. The court did not provide specific details on the quantum of damages to be recalculated but directed that the trial judge should consider the plaintiff’s individual earning capacity and the impact of the defendants’ contributions to the company’s profits. The court also emphasised the importance of adhering to procedural fairness, indicating that any future failure to disclose documents timely should be appropriately addressed by the trial judge.
Orders
Orders of the court
Appeal allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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