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Personal Injury Compensation

An issue of trust – can the District court dissolve an existing trust 900 577 aelegal

An issue of trust – can the District court dissolve an existing trust

LEVI JAKE SAUNDERS by his Next Friend CLAIRE MARIE MATTHEWS -v- TURNER [2020] WADC 133

The plaintiff was injured in a car accident in 2008 when he was 9 years old. His injuries were severe and included an acquired brain injury. In 2014 the District Court approved the compromise of the plaintiff’s claim in the amount of $7,000,000 plus trustees’ fees in the sum of $1,268,813 and costs to be taxed if not agreed.

The Judgment placed the judgment sum in a trust (Court Trust) the trustee of which was a private trust company (Trust Company).

In order to maximise the tax efficiency of the trust it was necessary for the Trust Company to apply to the State Administrative Tribunal (SAT) of Western Australia pursuant to the provisions of the Guardianship and Administration Act 1990 to be appointed as an administrator of the plaintiff’s estate. This enabled them to place the funds in a superannuation fund. A Guardian was also later appointed to the plaintiff.

Following a breakdown in the relationship between the Trust Company and the plaintiff’s mother there were a number of applications brought to SAT but the position of the Trust Company as the limited (and amended) administrator of the plaintiff’s estate in relation to his superannuation investment remained until 9 April 2019. SAT then set the administration order aside because there was no evidence to rebut the presumption of the plaintiff’s capacity. The guardianship order had been revoked at an earlier date.

The $7,000,000 was still in the superannuation fund but not under the supervision of a SAT administrator, nor under the supervision of the District Court as part of the Trust Fund.

Nonetheless, the plaintiff applied to court to set the Trust Fund aside. The question which arose was whether the District court has the jurisdiction to set aside a trust which it had created and if so, what factors should it consider.

The court stated that it had the power create a trust of monies recovered by a person under a disability pursuant to O 70 r 12 Rules of the Supreme Court 1971 (WA) but there is no corresponding express power to terminate the trust. The question thus arose whether there was an implied power to terminate the trust. The court looked at several decisions that had considered the matter but found a relevant old case where it was the held that:

If such an action had been brought in the Supreme Court, this Court would have all the powers conferred by s 16 and s 23 to make provision for the representation and protection of the interests of infants and disabled persons. Indeed, that is the purpose which authorises the rules contained in O 70, including the provisions obliging a disabled person to sue by a guardian ad litem, requiring prior approval of any compromise of a disabled person’s claim before it will be binding, and then stipulating for the control of moneys recovered by payment to a trustee appointed by, and subject to the direction of the court. This jurisdiction and these powers are, therefore, all ancillary to a claim directly within the civil jurisdiction of the District Court and no issue can possibly arise that, not being ancillary to the principal claim, they are outside the scope of that court’s equity jurisdiction such as led to the decision in Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers Compensation) Ltd (1991) 5 WAR 208.”

It is debatable whether that decision was binding on the District Court since that matter was heard in the Supreme Court and its remarks about the District Court were in passing.

The court went on to find that the findings of SAT regarding the plaintiff’s disability were not relevant to an application to terminate the trust. The court again relied upon the old case and found that it was obliged to decide the controversy in accordance with equitable principles to do justice in a particular case. The court then heard evidence from the plaintiff himself and from experts and concluded that the court should exercise its power to terminate the Court Trust.

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.

Compensation Reduced on Appeal 900 577 aelegal

Compensation Reduced on Appeal

NAGEL -v- TAHERE [2020] WADC 110

This case was an appeal from a decision of an assessor of Criminal Injuries Compensation (assessor) pursuant to the Criminal Injuries Compensation Act 2003 (Act). The Assessor assessed compensation in the amount of $7,500 in favour of Mr Tahere (respondent) because of an assault by Mr Nagel (appellant). However, pursuant to s 45(1)(b) of the Act, it was ordered that only $5,000 may be the subject of proceedings under part 6 of the Act (decision). This part of the Act  provides that if a compensation award is made in respect of any injury and a person is convicted of the offence,  then, subject to any order made under section 45(1), the CEO may give the offender written notice that requests the offender to repay to the State as a lump sum, the whole, or such part as is specified in the notice, of  the amount paid or payable under the award. The CEO is the chief executive officer of the department of the Public Service. In other words, the State recovers the compensation paid to the victim from the wrongdoer.

The respondent alleged that the appellant and a young woman came to his home on High Street, Fremantle. They knocked on his door and asked for medication belonging to the father of the woman. The respondent refused and the woman attempted to force her way in, a scuffle broke out which led to the appellant punching the respondent on the lip.

The appellant pleaded guilty to the charge on the above facts as put forward by the respondent.

However, after the award was made the appellant appealed the decision pursuant to s 55 of the Act and attempted to adduce new evidence on appeal in the form of four letters. The court held that in CIC matters the appeal is a fresh hearing and it is necessary for the court to determine all matters relating to the Application. It further held that the court has the power to receive additional evidence pursuant to s 56(1) of the Act but that the matter is to be determined on the facts on which the appellant was sentenced and were admitted, and it is therefore not re-litigated. However, it was open to the appellant to introduce more contextual information which is not inconsistent with the material facts comprising the elements of the offence, including that all relevant defences that have been conceded do not apply. It was on this basis that one of the four letters was admitted.

The admitted letter disclosed that the respondent had been involved in a physical altercation with the young woman when the appellant punched him to help her escape.

The court then re-assessed the respondent’s damages using a medical report from a Psychiatrist which had been filed. The respondent was found to suffer from an Adjustment Disorder, but that his symptoms did not meet the criteria for a Major Depressive Disorder, Post-Traumatic Stress Disorder or an exacerbation of a pre-existing mental disorder. The assault in question was found to only be a 10% contributor to the respondent’s condition, 90% was caused by an earlier assault.

The court awarded the respondent $5,000 of which $2,000 was subject to a s 48 of the Act (see below) reduction and only $3,000 was therefore the subject of these proceedings.

S 48 provides that if a compensation award made in favour of a victim who has suffered injury includes an amount in respect of treatment related expenses then the amount is not to be paid unless the Chief Assessor is given evidence that the expenses have been reasonably incurred by or on behalf of the victim for treatment of that the victim and was required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates.

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.

 

“Watch out below!” – the consequences of a roof collapse 900 577 aelegal

“Watch out below!” – the consequences of a roof collapse

GREENSLADE -v- HIEW [2020] WADC 120

This case concerned the liability of a landlord for injuries sustained by a tenant following a ceiling collapse in a rental premises. The tenant suffered a compression type injury emanating from a C6 nerve root injury that radiated from the spine to the left shoulder, arm, and hand.

The case turned on the duty of care owed by a landlord to a tenant for the maintenance of an occupied premises. The point of departure was the landlord does not enjoy immunity in the manner contemplated in Cavalier v Pope [1906] AC 428. The “Cavalier” approach is that a landlord who lets a house in a dangerous state is not liable to the tenant’s customers or guests for accidents happening during the term. The court held that, in the absence of fraud there is no law against letting a tumbledown house. The Court noted that the “Cavalier” case was no longer good law in Australia and had been rejected in the case of Northern Sandblasting v Harris (1997) 188 CLR 313.

The tenants further did not rely upon the Occupiers Liability Act 1985 (WA) (“Act”), but instead relied upon the common law principles established in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, which the court in the Cavalier case noted was the leading case on the subject.

In the Jones case, the plaintiff was the son of the tenants of a residential property owned by the defendant. He suffered injuries after walking through a glass door, believing it to be open. The glass door appeared to be in good repair and operating normally. Furthermore, the door was fitted in accordance with the with building standards and regulations applicable at the time of construction. But the regulations changed before tenancy started and the glass door was not in compliance with these new standards. Interestingly, the court held that that s 9(1) of the Act did not create a statutory duty of care for the landlord, but there was a common law duty. The court did not find that the landlord had breached his common law duty as the law does not require expert inspections of the house without the landlord being alerted to a problem.

The question therefor in this case was the nature of the landlord’s duty to the tenant. The court found that ‘the common law duty of care owed by a landlord to a tenant and other members of the tenant’s household is to take reasonable care to avoid foreseeable risks of harm to those persons having regard to all the circumstances of the case’. This duty is no more than a duty to take reasonable care and liability is not strict.

The next question was whether it is reasonable to require an owner of the premises to have them inspected by an expert before letting. The answer is that it depends on the facts of the case and the relevant circumstances will include both those of which the landlord knew and those of which the landlord ought reasonably to have known.

The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use for which it is let. This duty is discharged if the landlord takes reasonable steps to ascertain the existence of any such defects. If he discovers defects, he should take reasonable steps to remove them or to make the premises safe.

This duty does not require the institution of a system of regular inspection for defects during the tenancy. If there is no special contractual arrangement, notice of defect, or legislative requirement, the landlord does not usually have a special duty to inspect. There may be exceptions to this rule depending on the facts of the case. In this case the court found that there was nothing to alert the landlord to the problem with the ceiling and that she had therefore not breached her duty to the tenant. Consequently, she was not found liable in tort.

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.

House Fire Causes PTSD 900 577 aelegal

House Fire Causes PTSD

HUNTER [2020] WACIC 10

In this matter, the Chief assessor of Criminal Injuries Compensation awarded the Applicant $9,065 compensation for injuries and losses she suffered arising from a criminal injury. The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act).

The case involves a dispute between two families that lived across the road from each other. At 12.30 AM on Sunday, 20 March 2016 a certain PS was seen on the driveway of Kenneth John Buckeridge (Offender). The Offender told PS to leave his property which he duly did but not long thereafter, the Offender found that the lights and windscreen of his motor vehicle had been smashed. He immediately suspected PS and summoned the police (his suspicions being well founded as PS later pleaded guilty to this offence).

The police however left the scene without arresting the Offender who was intoxicated. The Offender thereafter decided on revenge by taking a can of petrol and setting fire to PS’s Holden Commodore. The Offender then went home. The Holden took flame and then exploded. This in turn set fire to a Ford Raider parked next to the Holden, and to a carport belonging to a certain MH and finally to the MH’s house.

The Offender became aware of the enormity of his actions and called for the fire brigades assistance. He also became aware that he had endangered the lives of the occupants of the home and so broke through a window to save them and cut himself while doing so. The two female occupants of the house, one of whom was the Applicant, had managed to escape through the back door.

The owner of the house suffered loss in the sum of approximately $400,000. The Applicant suffered a loss of approximately $4,000 in respect of her items in the house.

The subject of this application was the compensation sought by the Applicant for the psychological damage that she had suffered.

The Assessor recorded that the Applicant said that since the incident she:

  1. had trouble sleeping and was anxious;
  2. did not eat well and felt stressed;.
  3. started using antidepressants and sleeping tablets;
  4. had lost weight due to stress and developed high blood pressure;
  5. had started having disputes in the community; and
  6. doubted whether she would ever be able to get back to a normal life.

 

The Applicant further bolstered her case by providing a medico-legal report from a Counselling Psychologist who recorded her personal history and, importantly, concluded that the Applicant suffered post-traumatic stress disorder (PTSD) caused by several factors including:

  1. the house being set ablaze;
  2. seeing relatives of the man who set the fire; and
  3. hearing or speaking about the incident

which caused distress resulting in her having convulsions.

The psychologist further concluded that her symptoms were not severe but that she was troubled by an ongoing sense of agitation, some degree of sleep disturbance and an increased tendency to aggression.

He recommended 5 to 10 sessions of psychological counselling to help deal with her various symptoms which had improved over time.

The Assessor found that the Applicant suffered PTSD but that the criminal offence, namely the fire, was only one of the contributing causes to the development of PTSD and that there were other significant non-compensable contributors to its development.

Importantly, the assessor noted that the Applicant had not sought medical nor psychological treatment following the incident. This seemed to suggest to the assessor that the injury was not of a serious nature.

The Applicant was awarded:

  1. $6,500 compensation for the injury;
  2. $1,245 for future psychological counselling; and
  3. $1,320 for the psychologist’s report.

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.

Murder leads to compensation award 900 577 aelegal

Murder leads to compensation award

Penny 2020 [WACIC] 8

The case of Richard Penny (the Applicant) was assessed by a Criminal Injury Compensation Assessor and delivered on 21 May 2020.  In January 2017 the Applicant made an application for compensation under the Criminal Injury Compensation Act 2003 (the Act) in relation to the murder of Charmaine Lois Winmar (the Deceased) on 18 May 2013. On 20 April 2016 Kevin James Corbett (the Offender) was found guilty of the murder.

By way of brief background, the Offender and the Deceased were in a relationship between 2012 and the early parts of 2013. During this time the Deceased had often complained to others that the Offender had hurt her and that he was controlling, possessive and jealous. In February 2013 the Offender was incarcerated on unrelated charges. The Offender and the Deceased initially continued their relationship by sending letters and talking over the phone, however the Offender soon became jealous and possessive and the tone of his letters and phone calls became more aggressive. On 4 April 2013, the Offender telephoned the Deceased and threatened to kill her. In subsequent telephone calls he left messages indicating the number of days he had before being released and saying that when these days passed the deceased would be dead. Between 1 and 18 May 2013 the Offender called the Deceased’s phone 1,400 times and sent abusive messages. A month after his release, the Offender went to the Deceased’s residence and found her with the Applicant. The Offender proceeded to strike the Deceased multiple times and with multiple weapons, ultimately killing her. The Applicant was also struck by one of the weapons and lost consciousness and did not have any recollection of the events.

The Deceased and the Applicant had met in 2002 and shortly thereafter began a relationship that lasted for eight years. The couple resumed their relationship in 2013 shortly before the events described above. During their eight-year relationship there were six reported incidents of domestic violence committed by the Applicant against the Deceased, including one in which the Applicant was charged for assault occasioning bodily harm.

The Applicant made an application for compensation under sections 12 and 17 of the Act for personal injuries suffered as a result of the Offender’s actions as well as under section 35(2) for the mental and emotional distress he suffered from his partner’s murder. In this case the Assessor awarded the Applicant $25,000 in compensation for his injuries, bearing in mind the maximum compensation awardable is $75,000. In determining the amount of compensation the Applicant should receive, the Assessor gave consideration to the nature of the relationship between the Applicant and the Deceased, and in particular to the history of abuse and domestic violence. The Assessor also determined that but for her murder, the Deceased would have been entitled to seek compensation against the Applicant for her injuries and as such, the Assessor reduced the amount of compensation citing that the Applicant should not stand to benefit from her death.

The Applicant’s award was reduced by $10,000 in light of his previous actions against the Deceased, bringing his total compensation down to $15,000.

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.

Devastating wrist injury to international hairdresser – a hairy experience! 900 577 aelegal

Devastating wrist injury to international hairdresser – a hairy experience!

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.

Injured Policeman Receives $300 Compensation 900 577 aelegal

Injured Policeman Receives $300 Compensation

PEET [2020] WACIC 9

In the matter of Shane Geoffrey Peet, on 1 July 2020, the Chief Assessor for Criminal Injuries Compensation, awarded the applicant the sum of $300 compensation for an injury suffered during an arrest in his capacity as a Police Officer, on Thursday 26 January 2017 (incident).

The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003. The Applicant had been assaulted by the Offender while processing the Offender after an arrest. The Offender pled guilty to two counts of assault on a public officer (one relating to the applicant and another relating to the other officer who was assisting in the restraint of the Offender) as well as obstructing public officers with disorderly behaviour in a police station or lock-up.

The incident occurred at Cockburn Police Station. The Offender had come out of the holding cell following the initial computer capturing process and was asked to sign the forms, he refused to do so, attempted to leave the custody area and was apprehended by the Applicant and another officer. A struggle ensued and after this the Applicant realised he was in discomfort and pain. He said his left knee was sore from falling to the ground with the Offender and his upper back, neck, and arms and across his shoulders were sore from struggling with him whilst he resisted. He noticed reddening and early stages of bruising on the inside of both biceps from the struggle.

The Applicant attended St John of God Hospital Emergency Department and was subsequently discharged with a recommendation to carry out light duties only.

The evidence obtained by the Assessor was as follows:

  1. Photographs of the Applicant apparently showing slight bruising to the inner bicep of the right arm and some red markings to other parts of his body including the inner left arm near the armpit and a photograph of his left knee. The Assessor stated that she could not observe the injuries from the photograph.
  2. An email indicating that he had not seen his General Practitioner for any progress reports after 13 March 2018.
  3. St John of God Hospital Murdoch records showing that the applicant attended on 26 January 2017 with bruising to the medial arms, a sore neck, lower back, left knee, and inner upper arms. He was diagnosed with bruising and a spine strain.
  4. Prior medical records obtained from Point Walter Medical Centre indicated prior medical problems including a lumbar strain, depression, and a sleep disorder.
  5. A referral to a psychologist and to Injury Management and Rehabilitation Sports after the incident but the reasons for these referrals were unknown.
  6. A record showing that the Applicant was injured at work on 3 August 2018 while struggling with a person being restrained. This resulted in a bursitis for which he underwent a repeat steroid injection.
  7. There were several other referrals which were not linked to the injuries sustained during the incident.

The Applicant had submitted very little evidence to support his claim. The medical records had mostly been obtained by the Assessor at her own initiative and showed very little support for a serious injury. The case demonstrates the importance of ensuring that proper records are kept of the consequences of any criminal injury and that these records be submitted with the claim at time of submission. It is instructive to note that the time from the commission of the offence until the time that the compensation was awarded was almost 3 ½ years. 

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.

No Damages to Police Officer after Chase – Who is Sitting on the Fence? 900 577 aelegal

No Damages to Police Officer after Chase – Who is Sitting on the Fence?

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.

Cyclist suffers brain injury after driver negligence 900 577 aelegal

Cyclist suffers brain injury after driver negligence

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.

Christos v Curtin University – A long standing dispute 960 577 aelegal

Christos v Curtin University – A long standing dispute

The primary proceedings concerned a claim by the appellant (Dr Christos) against his former employer, Curtin University, (Curtin) for damages for psychiatric injury allegedly caused by Curtin’s breach of contract, negligence and breach of statutory duty.

In general terms, Dr Christos, whose employment was terminated by Curtin with effect from 28 October 2004, alleged that Curtin was in breach of contract and was negligent in the period 20 February 2003 to 28 October 2004:

(a)          for failing to assess and resolve, in accordance with Curtin’s grievance and dispute resolution policies and procedures, several grievance complaints made by Dr Christos against Curtin and members of its staff over a period commencing on 1 May 2002; and

(b)          in that Curtin and various staff members bullied, harassed and victimised him.

It was not in dispute that Curtin owed Dr Christos a duty of care. Nor was it in dispute that Dr Christos was psychiatrically disabled. The central issue in dispute was whether Curtin breached its duty of care and, if so, whether the breach was ‘a‘ cause of Dr Christos’s ongoing psychiatric illness.

The primary judge observed that a number of the events pleaded by Dr Christos had occurred prior to six years before the issue of the writ commencing the proceedings before him, namely on 20 February 2009, and that to the extent that Dr Christos sought to rely on breaches of contract or tortious damage which occurred prior to 20 February 2003, the claims were statute barred. However, his Honour recognised that the grievance proceedings that were set in train prior to 20 February 2003 were still of some significance because Dr Christos alleged that Curtin breached its obligations in failing to resolve the early grievance complaints.

In his findings, the primary judge stated that:

I find that Curtin through its staff did not bully, victimise or harass the plaintiff.  Whether there is a breach of a duty of care must depend on a finding that Curtin’s responses to the plaintiff were appropriate and, in the circumstances, reasonable.  In these circumstances, an inference cannot be drawn that the risk of psychiatric injury was foreseeable.

Dr Christos appealed and his senior counsel indicated that the appeal did not involve any challenge to the judge’s findings as to the absence of bullying or victimisation.  Senior counsel said, in effect, that the appeal only concerned Dr Christos’s case in relation to the failure to assess and resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2014 and summarised the substance of his case as follows:

  • In the relevant period from 20 February 2003 to 28 October 2004, a reasonable person in Curtin’s position would have foreseen a risk which was not far‑fetched or fanciful, that its conduct in dealing with Dr Christos’s grievances (lodged in 2002 and subsequently) would cause or aggravate a psychiatric injury in Dr Christos;
  • In order to avoid that risk of psychiatric injury, a reasonable person in Curtin’s position would, in the relevant period, have progressed and sought to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
  • In the relevant period, Curtin failed to progress and seek to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
  • That failure, in the relevant period, to progress and seek to resolve Dr Christos’s grievances materially contributed to his adjustment disorder, which is a recognised psychiatric injury.

None of the above grounds were established by Dr Christos and the appeal was subsequently dismissed for the following reasons:

  • It was open to the primary judge to conclude that even if Curtin had taken adequate steps to resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2004, that would not in itself have made any material difference to his psychiatric condition, because only a resolution satisfactory to him would have made any difference to his psychiatric state at the time.  In light of that finding, there was no suggestion that had the grievance process been completed within the relevant period, Dr Christos’s grievances would have been resolved to his satisfaction; and
  • The evidence of Dr Manners to which Dr Christos referred was in general terms, and was not directed to the specific question of whether delay in resolution of the grievances from 20 February 2003 to 28 October 2004 materially contributed to Dr Christos’s psychiatric injury. That evidence does not rise to the point where this court could say that the judge erred in concluding that the absence of resolution of grievances in the period 20 February 2003 to 28 October 2004 in fact made a material contribution to the nature or duration of, or materially exacerbated, Dr Christos’s adjustment disorder, or was a cause of his subsequent depressive disorder.

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.

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