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Young v Rothin

Young v Rothin

Case [2009] ACTSC 71 1 July 2009

Negligence

Causation

Compensatory Damages

Loss of Earning Capacity

Tort Law

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JAMES BEST YOUNG v WILLIAM ARTHUR ROTHIN
[2009] ACTSC 71 (1 July 2009)

NEGLIGENCE – motor vehicle accident – rear-end collision – liability admitted.
DAMAGES – personal injury – motor vehicle accident – whiplash injury – ongoing pain and psychological sequelae.
DAMAGES – personal injury – buffer – when appropriate – when probability should be assessed.
DAMAGES – personal injury – loss of earning capacity – to be distinguished from loss of earnings.

Workers Compensation Act 1951 (ACT), s 184
Court Procedures Rules 2006 (ACT), r 1616, Schedule 2

Luntz H, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, 2002)

Livingston v Rawyards Coal Co (1880) 5 AC 25
Teubner v Humble (1963) 108 CLR 491

Van Gervan v Fenton (1992) 175 CLR 327

CSR Ltd v Eddy (2005) 226 CLR 1

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

GMH Ltd v Whetstone (1988) 50 SASR 199

Husher v Husher (1999) 197 CLR 138

Fox v Wood (1981) 148 CLR 438
Russell v J Hargreaves & Sons Pty Ltd (1957) 30 ALJ 533
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Lipovac and Anor v Hamilton Holdings Pty Ltd and Ors (1997) 136 FLR 400
Koeck v Persic (unreported, SCACT, Miles CJ, 26 March 1996)
Todorovic v Waller (1981) 150 CLR 402
Penrith City Council v Parks [2004] NSWCA 201
Barton v Samarkos Earthmoving Pty Ltd [2004] ACTCA 6
Ecob v Wentworth-Shields [2001] ACTSC 2
CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Causoski v Commonwealth of Australia [2004] ACTSC 103
Griffiths v Kerkemeyer (1977) 139 CLR 161

Grincelis v House (2000) 201 CLR 321
MBD(SA) Pty Ltd v Gogic (1991) 171 CLR 657

No. SC 336 of 2006

Judge: Refshauge J
Supreme Court of the ACT

Date: 1 July 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 336 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:JAMES BEST YOUNG

Plaintiff

AND:WILLIAM ARTHUR ROTHIN

Defendant

ORDER

Judge:  Refshauge J
Date:  1 July 2009
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $1,294,759.46.

On 11 December 2002, James Best Young, the plaintiff, was injured when a motor vehicle collided with the motor vehicle which he was driving. As a result, Mr Young has commenced this action for damages for personal injuries arising from the motor vehicle accident. Liability was admitted by the defendant and the matter proceeded as an assessment of damages only.
Mr Young was at the time of the accident 43 years old. He is a self employed company director of a number of companies that undertake varied work, particularly electrical and communications work, project management, value management and services facilitation.
Mr Young

Mr Young is now 50 years old. Born in Scotland, he has a brother…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Young v Rothin

Details

AGLC: Young v Rothin [2009] ACTSC 71
Case: [2009] ACTSC 71
Decision Date: 1 July 2009

CaseChat Overview and Summary

The case of Young v Rothin involved a rear-end motor vehicle collision, where the defendant admitted liability for the accident. The plaintiff, Young, sought damages for personal injury, including whiplash and ongoing pain and psychological sequelae. The court was required to determine the quantum of damages for Young's injuries and whether the defendant should be subject to a buffer in the assessment of those damages. Additionally, the court had to distinguish between the concepts of loss of earning capacity and loss of earnings.

The court considered the evidence presented regarding Young's injuries and the impact they had on his life, including his ongoing pain and psychological effects. The court determined that a buffer should be applied to the assessment of damages, as there was a probability that Young would recover more than the awarded damages. The court also considered the distinction between loss of earning capacity and loss of earnings, finding that Young's loss of earning capacity was a more appropriate measure of damages in this case.

After carefully considering the evidence and the legal principles, the court found that the plaintiff was entitled to damages in the sum of $1,294,759.46. This amount took into account the buffer and the various components of damages, including general damages for pain and suffering, loss of earning capacity, and other related costs. The court's judgment reflected a balanced approach to the assessment of damages in personal injury cases involving motor vehicle accidents.

The final orders of the court were that judgment be entered for the plaintiff in the sum of $1,294,759.46. This amount included compensation for Young's ongoing pain and psychological sequelae, as well as his loss of earning capacity. The court's decision provided a clear framework for the assessment of damages in similar cases, taking into account the unique circumstances of each plaintiff and the appropriate application of legal principles.

Orders

Orders of the court

Judgment be entered for the plaintiff in the sum of $1,294,759.46.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Young v Rothin [2009] ACTSC 71

Most Recent Citation

Carolyn Daphne Becker v Queensland Investment Corporation and Bovis Lend Lease Pty Ltd [2009] ACTSC 134

Cases citing this decision · 8 of 8 shown

Marhaba v Chen
[2024] ACTSC 241

…hority of New South Wales v Brown [2006] NSWCA 220; 66 NSWLR 540 Tsueneaki v Stewart [2013] ACTCA 34 Wainwright v Lee [2013] ACTSC 191 Young v Rothin [2009] ACTSC 71…
Austen v Tran
[2022] ACTSC 114

…t [2013] ACTCA 34 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 Young v Rothin [2009] ACTSC 71…
Amin v Vidal
[2020] ACTSC 227 Para 1

…i v Stewart [2013] ACTCA 34 at [30]. The compensation payable is for pain and suffering and loss of enjoyment of life, as to which see Young v Rothin [2009] ACTSC 71 at [200] and the cases there-cited.…
Oliver v Roberts
[2017] ACTSC 360 Para 1

…l said it would be open to me to award a lump sum by way of a buffer, but guided by his calculations to evaluate it. He referred me to Young v Rothin [2009] ACTSC 71 at [267] et seq. I proposes to award a sum by way of a buffer.…
Reeve v Commonwealth
[2014] ACTSC 1 Para 1

…not arisen and may not arise. That, of course, does not necessarily mean that damages should not make provision for a contingency. See Young v Rothin [2009] ACTSC 71 at [268].…
Singh v Rodden
[2013] ACTSC 272 Para 1

…tigation does not necessarily await a complete answer to all imponderables. This is the basis of an award in damages of a buffer as in Young v Rothin [2009] ACTSC 71 at [268]-[281]. There would be no such need if all possible outcomes were certain.…
William Keith Tobin v Commonwealth of Australia (No 2)
[2013] ACTSC 271 Para 1

…native, that can sometimes be used in personal injury litigation where a factor is speculative, that is, the awarding of a buffer (see Young v Rothin [2009] ACTSC 71 at [267]-[281]), is available.…
Carolyn Daphne Becker v Queensland Investment Corporation and Bovis Lend Lease Pty Ltd
[2009] ACTSC 134 Para 1

…sed, perhaps, to the degenerative changes to Mrs Becker’s spine. In my view, the best way to deal with that is to provide a buffer ( Young v Rothin [2009] ACTSC 71) in the sum of $20,000 which I allow.…

View all 8 citing cases →

Cases cited in this decision · 22 of 22 shown

Pollard v Baulderstone Hornibrook Engineering Pty Ltd
[2008] NSWCA 99 Para 1

…Subsequently, in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, McColl JA, in a judgment with which Mason P and Beazley JA agreed, held (at [84]) that “[a]s to future economic loss, it is appropriate to award damages by way of a buffer … when the impact of the injury upon the economic benef…
Leichhardt Municipal Council v Montgomery
[2007] HCA 6 Para 1

…by way of a buffer ”. McColl JA agreed with Hodgson JA. That decision was reversed by the High Court in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 but not on the issue of damages.…
Leichhardt Municipal Council v Montgomery
[2005] NSWCA 432 Para 1

…I also note that in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, the trial judge awarded a buffer for future economic loss in the sum of $160,000 which prompted the following comment from Mason P (at [2]):…
CSR Ltd v Eddy
[2005] HCA 64 Para 1

…etween special and general damages (see per Deane and Dawson JJ in Van Gervan v Fenton (1992) 175 CLR 327 (at 342) and per McHugh J in CSR Ltd v Eddy (2005) 226 CLR 1 (at 38)). The conventional approach, which I propose to follow, is to refer to non-pecuniary loss as “general damages” (see Carson v John Fairfax & S…
Olga Causoski v Commonwealth of Australia and TM Management & Total Maintenance Service Pty Limited (ACN 008 593 682)
[2004] ACTSC 103 Para 1

…what the plaintiff’s future may hold ”. This was reminiscent of the “ crystal ball ” of Crispin J in Causoski v Commonwealth of Australia [2004] ACTSC 103 (at [59]). The imponderables there made an estimate very difficult and probabilities quite meaningless, even were they able to be guessed. Nevertheless, it does…
Penrith City Council v Parks
[2004] NSWCA 201 Para 1

…t of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine” : Penrith City Council v Parks [2004] NSWCA 201 (at [5]) per Giles JA. It has been described by the ACT Court of Appeal as “ an award for contingent loss in the future which may or may not occur ”: Bar…
Paul Andrew Barton v Samarkos Earthmoving Pty Limited
[2004] ACTCA 6 Para 1

…y the ACT Court of Appeal as “ an award for contingent loss in the future which may or may not occur ”: Barton v Samarkos Earthmoving Pty Ltd [2004] ACTCA 6 (at [20]).…
Grincelis v House
[2000] HCA 42 Para 1

…The High Court held in Grincelis v House (2000) 201 CLR 321 that interest accruing on these damages at the rate set out in the Rules (see r 1616 of the Court Procedures Rules 2006 (ACT) and Schedule 2) should be awarded. In this case, I award the amount of $7,500.…
Husher v Husher
[1999] HCA 47 Para 1

…aution, for the compensation to which a person injured by a tortfeasor is entitled is not loss of wages but loss of earning capacity: Husher v Husher (1999) 197 CLR 138 (at 143).…
Carson v John Fairfax & Sons Ltd
[1993] HCA 31 Para 1

…he conventional approach, which I propose to follow, is to refer to non-pecuniary loss as “general damages” (see Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (at 60). Under this head of damages compensation is payable in this case for pain and suffering and loss of amenities or enjoyment of life. There was no…
Malec v JC Hutton Pty Ltd
[1990] HCA 20 Para 1

…below, I do not consider this to be an appropriate approach. It seems to me, following the injunction of the High Court in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, I should do my best to assess the probability of the relevant contingencies.…
Todorovic v Waller
[1981] HCA 72

…ipovac and Anor v Hamilton Holdings Pty Ltd and Ors (1997) 136 FLR 400 Koeck v Persic (unreported, SCACT, Miles CJ, 26 March 1996) Todorovic v Waller (1981) 150 CLR 402 Penrith City Council v Parks [2004] NSWCA 201 Barton v Samarkos Earthmoving Pty Ltd [2004] ACTCA 6 Ecob v Wentworth-Shields [2001] ACTSC 2 CSR Readym…
Fox v Wood
[1981] HCA 41

…Fox v Wood (1981) 148 CLR 438 Russell v J Hargreaves & Sons Pty Ltd (1957) 30 ALJ 533 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Lipovac and Anor v Hamilton Holdings Pty Ltd and Ors (1997) 136 FLR 400 Koeck v Persic (unreported, SCACT, Miles CJ, 26 March 1996) Todorovic v Waller (1981) 150 CLR 402 Penrith City Co…
Griffiths v Kerkemeyer
[1977] HCA 45 Para 1

…In Griffiths v Kerkemeyer (1977) 139 CLR 161, the High Court held that a plaintiff was entitled to recover the cost of domestic assistance required as a result of disability caused by the negligence of the defendant, even when provided at no cost to the plaintiff. As was held in Van Gervan v Fenton , the basis for th…
Gamser v Nominal Defendant
[1977] HCA 7

…this sense such an assessment is said to be “intuitive”. However, when Stephen J said in Gamser v The Nominal Defendant (1976 - 1977) 136 CLR 145 at 149 that an award of damages “is not common, nor should it ever be arrived at intuitively”, the reference is, as the succeeding sentences suggest, to the whole of…
Teubner v Humble
[1963] HCA 11 Para 1

…, an award of monetary compensation is intended, so far as it can, to compensate for non-pecuniary loss, such as pain and suffering: Teubner v Humble (1963) 108 CLR 491 (at 507). Arguably, in negligence cases there is no distinction between special and general damages (see per Deane and Dawson JJ in Van Gervan v Fent…
MBP (SA) Pty Ltd v Gogic
[1991] HCA 3 Para 1

…Interest on past general damages on the rate approved in MBD(SA) Pty Ltd v Gogic (1991) 171 CLR 657 amounts to $7,800 which I round to $8,000.…
Van Gervan v Fenton
[1992] HCA 54 Para 1

…t 507). Arguably, in negligence cases there is no distinction between special and general damages (see per Deane and Dawson JJ in Van Gervan v Fenton (1992) 175 CLR 327 (at 342) and per McHugh J in CSR Ltd v Eddy (2005) 226 CLR 1 (at 38)). The conventional approach, which I propose to follow, is to refer to non-pecun…
Ecob v Wentworth-Shields
[2001] ACTSC 2 Para 1

…In Ecob v Wentworth-Shields [2001] ACTSC 2, Miles CJ (though in dissent) said (at 2):…
Livingstone v Rawyards Coal Co
(1880) 5 App Cas 25 Para 1

…to consider the compensation to which Mr Young is entitled. In this, I am conscious of what fell from Lord Blackburn in Livingston v Rawyards Coal Co (1880) 5 App Cas 25 where his Lordship said (at 39):…
Livingstone v Rawyards Coal Co
(1880) 5 AC 25

…Livingston v Rawyards Coal Co (1880) 5 AC 25 Teubner v Humble (1963) 108 CLR 491…
Pty Ltd v Gogic
53 ER 671 Para 1

…Interest on past general damages on the rate approved in MBD(SA) Pty Ltd v Gogic (1991) 171 CLR 657 amounts to $7,800 which I round to $8,000.…

Legislation cited in this decision · 2

Court Procedures Rules 2006 (ACT)
1616 2 mentions (from Para 1)
Workers Compensation Act 1951 (ACT)
184 2 mentions (from Para 1)