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.
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