Maric v Nguyen WADC 2 [2020] was a Motor Vehicle Accident injury case that was heard on appeal by Lonsdale DCJ in the District Court of Western Australia. The principle issue for consideration in this matter was the quantification of the Plaintiff’s damages as liability had already been accepted by the Insurance Commission of Western Australia (ICWA). This involved an assessment of the Plaintiff’s injuries and the consequences of those injuries in the past, and what consequences may arise in the future.

On 4 February 2015 the Plaintiff, who was right-handed, was injured in an accident whilst riding her motorcycle. The Plaintiff suffered multiple injuries as a result of the accident, but most significant of all was a comminuted fracture to her right wrist, which left her with a permanent disability. This was particularly important as the Plaintiff was employed as a hairdresser before the accident and could no longer work in her field. As a result, the Plaintiff had not worked for four years by the time her matter was heard on trial. The trial judge quantified her past loss of earnings at $351,278.

The Plaintiff also submitted that she would be unable to find employment in the future as she had trained and worked as a hairdresser her whole life. The judge, however, held that the Plaintiff was an intelligent and capable woman who would be able to retrain and re-enter the work force after studying for four years. The judge therefore awarded the Plaintiff four years of future loss of earning capacity, amounting to $349,570.

Prior to the accident, the Plaintiff was an extremely active person who enjoyed sports such as ‘Krav Maga,’ basketball, ping pong, tennis, and outdoor activities such as hiking and skiing, rock climbing, wind surfing and kite surfing. The Plaintiff also described riding her motorcycle as a passion but was no longer able to do any of these activities due to her injuries. The Plaintiff’s social life was also affected by the accident as she become more withdrawn and unwilling to go out. The Plaintiff lives in constant pain and described herself as feeling depressed. The judge found that due to the accident the Plaintiff had suffered considerable loss of amenities and diminution in her ability to partake in activities that she had previously enjoyed or might in the future have enjoyed. She was no longer able to be active, her social life had become non-existent and she would never be able to return to work as a hairdresser, which she loved. The judge accordingly awarded $106,250 (25% of the maximum amount) in general damages.

The Plaintiff also received compensation for gratuitous services, special damages, future medical expenses and future education expenses. In total, the Plaintiff’s final award amounted to $1,037,800.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

In the matter of Moala [2020] WACIC 1, the Claimant, a Police Officer was injured whilst executing an arrest warrant for the arrest of two offenders.  The Claimant and his Police Officer partner attended to search an address, in an industrial area, after having been informed that the offenders were there.  On arrival they noticed another Police Officer running to the back of the particular compound and in an attempt to assist, the Claimant and his Police Officer partner scaled the fence.  When the Claimant had reached the top of fence, he sat there with his legs on the inside of the premises and jumped down and landed awkwardly. Placing all his weight on his right ankle he felt excruciating pain and was unable to weight bear being subsequently diagnosed with a fractured tibia and was treated accordingly. The offenders were not found at the premises.

The Claimant made an application with the Office for Criminal Injuries Compensation for compensation for the injuries suffered “as a consequence of” the incident when he scaled the fence and fracture his tibia.

To award the Claimant compensation, an assessor for criminal injuries compensation must be satisfied that the injury occurred ‘as a consequence‘ of the commission of an offence or alleged offence. There are a number of court cases which have examined the meaning of the term ‘as a consequence of’ or variations thereof.

The Australian courts have stated that the common law principles of remoteness and foreseeability were not applicable. This approach was followed by the Western Australian courts where it was said that consideration of the phrase ‘as a consequence of’ is not to determine “whether the injury was remote or proximate” but whether it was as a consequence of the commission of the offence or the alleged offence. Foreseeability and remoteness are irrelevant to that determination. The phrase “as a consequence of” therefore requires a consideration of whether the injuries suffered by a person are “causally connected” to the offence to entitle a person to compensation.

The assessor was not convinced that the common-law common-sense test of negligence is appropriate in determining whether an injury occurred ‘as a consequence’ of an offence. This is particularly so when it has been established the common law principles of remoteness, proximity and foreseeability are irrelevant. Therefore, in her view, the assessor stated that the matter was simple: as a question of fact, did the Claimant suffer an injury as a consequence of the offence? This should not be clouded by principles of common law negligence or the substitution of other expressions to reach the determination.

The question to be determined by the assessor was whether the Claimant’s injury to his ankle occurred as a consequence of those offences/alleged offences committed by the offenders OR as a result of attempting to execute Arrest Warrants issued for the offenders. The Assessor was satisfied that:

• no offence or alleged offence occurred on the date upon which the Claimant suffered his injury;
• the claimant attended the premises in question as a result of arrest warrants issued with respect to the offenders’ failure to appear in Court;
• whilst the breach of Bail is an offence it is not in fact this breach which caused the Claimant’s injury;
• the Claimant’s injury was caused whilst the Claimant was carrying out his police duties as directed in executing arrest warrants previously issued;
• the injury arose as a consequence of the execution of the warrants and not the offence or offences upon which the Claimant relies;
• no offence occurred at the time the Claimant was injured.

Therefore, the assessor was not satisfied that the Claimant suffered injury as a consequence of the offences for which the offenders were convicted and there were no other alleged offences which caused the Claimant’s injury and refused his application.

Disclaimer: The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.

CLEARY -v- THE INSURANCE COMMISSION OF WESTERN AUSTRALIA [2019]

The plaintiff sought damages for personal injuries suffered on 27 April 2012, when a motor vehicle struck his bicycle from behind whilst he was stationary at traffic lights. The plaintiff commenced proceedings against the Insurance Commission of Western Australia (ICWA), the statutory body tasked to manage motor vehicle accident claims in WA, for the injuries sustained, namely:

• a head injury limited to a right occipital intracerebral haemorrhage and consequential encephalomalacia (or softening of part of the brain);
• bilateral visual field loss in the inferior left side quadrant of the eyes, as a result of the intracranial haemorrhage;
• significant right ear laceration that required surgical debridement and split skin ear grafting from a donor site on the plaintiff’s right thigh;
• fractures to the cervical vertebrae at C5, C6 and C7;
• fractures to the thoracic vertebrae at T1 and T2;
• fractures to ribs 1, 2, 4, 5, 6 and 7, with some displacement;
• partial tear to the supraspinatus tendon of the right shoulder;
• soft tissue injury and lateral meniscal injury causing existing degenerative changes in the right knee to become symptomatic;
• right knee effusion and aggravation for some time at least of pre-existing degeneration of the right knee;
• penetrating laceration of the left tibia;
• left pleural effusion of the lung; and
• bruising and abrasions, in particular, to the left temple, right shoulder, left elbow, right and left hands, and right posterior parietal scalp.

ICWA admitted that the plaintiff suffered the injuries mentioned above as a result of the driver’s negligence and the only issue for determination by the Court was the assessment of his damages, namely the extent of the plaintiff injuries suffered as a result of the driver’s negligence and the assessment of his lost earning capacity, both past and future.

In his particulars of damage, the plaintiff alleged that as a result of his injuries he lost significant consulting work and was unable to attend to the daily management of his business, resulting in its closure based largely on the claimed cognitive effects of his brain injury.

After multiple specialists gave evidence in regards to the plaintiffs long-term injuries the Court found that “…the effect of the head injury on the plaintiff’s cognitive abilities,…the work the plaintiff was doing became more difficult for him after the accident, it cost him more in effort to do that work, and that he derived less enjoyment from it.  However, I also find that he was able to effectively overcome these difficulties for a significant period after the accident, managing not only to sustain his pre-accident income but to substantially increase it in 2014 and 2015.

The Court concluded that “…the plaintiff’s ability to compete in that business had been reduced by his depression and loss of confidence and drive as a result of the cognitive effects of the brain injury.  In addition, I find the effects of his cognitive impairment and depression have diminished the plaintiff competitiveness in the job market generally to some extent”

The Court awarded the plaintiff $229,076 for past and future loss of earning capacity, $146,300 for pain and suffering being 35% of a most extreme case and medical costs amounting to a total of $437,328.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.