How much is a claim worth?: Evidence and Assessment

Transcription

1 How much is a claim worth?: Evidence and Assessment Trenton Schreurs Serena Taylor Ms Barrett, the plaintiff was travelling as a passenger in an unregistered vehicle on the Ring Road, Douglas on 20 May 2014 when the driver lost control, the vehicle sliding through the intersection, striking a gutter and rolling. Ms Barrett suffered multiple injuries as a result of the accident including four broken ribs, a broken left collarbone, a black eye and bruising. Ms Barrett received extensive physiotherapy and was allegedly supported by her family in the three months following the accident. On February 2016, 2 years after the accident she underwent a surgical procedure which was directly related to the subject accident. She further alleged that this operation made her unable to care for herself without the aid of her family for once again, three months. In compensation for Ms Barrett's injuries and significant loss suffered as a result of the accident, she filed a claim for damages. The Defendant argued that Ms Barrett was contributorily negligent because the driver was intoxicated and driving without a license and Ms Barrett ought to have known both of those things. In addition, they argued that Ms Barrett was intoxicated. Prior to trial, the parties agreed that Ms Barrett was 35% contributorily negligent and that any award would be discounted accordingly. Page 1 of 5

2 At the time of the accident, Ms Barrett had been in receipt of a disability support pension for a number of years having been diagnosed with epilepsy and a brain injury, amongst other medical conditions. Ms Barrett alleged that she had been offered a job pre-accident doing housekeeping at the Army Barracks in Townsville. She alleged that she had been unable to take up that job or other work due to her injuries. However, apart from her evidence in chief, no evidence was led in relation to her alleged job opportunity. Ms Barrett also alleged that she had received 3-4 hours gratuitous care and assistance per day for the three months post-accident and then again for three months post-surgery. Ms Barrett s son confirmed that he had provided Ms Barrett with gratuitous care. However, none of the other care providers were called, nor was there any evidence to support the extent of the claim. FINDING Judge Ryrie found that she was unable to award anything for past or future gratuitous care and assistance or past or future economic loss. In coming to her decision, Judge Ryrie noted that Ms Barret's evidence was not always consistent with other evidence. She found that there was a lack of evidence with regards to Ms Barrett s employment and care requirements. Judge Ryrie also had regard to Ms Barrett's pre-existing medical conditions together with a postaccident injury to her right shoulder which would have impacted both upon Ms Barrett s employment capacity and her ability to complete domestic chores. Judge Ryrie noted that the Plaintiff had not put forward any evidence to support her assertion that she had been offered work as a cleaner at the Army Barracks or that she had had to turn that work down due to the accident. She also concluded that there was no evidence before her to support the claim that Ms Barrett s injuries had caused her to experience a reduction of her earning capacity or financial loss. Judge Ryrie had regard to the Plaintiff s pre-accident sporadic work history as well as the fact that she was unemployed at the time of the subject accident. Judge Ryrie found it difficult to distinguish the care that would have been required in any event (due to unrelated medical conditions) and that required as a result of the accident. She ultimately concluded that she could not accept that Ms Barrett required the extent of care as alleged as a result of her accident-related injuries. Judge Ryrie assessed Ms Barrett as requiring 1 hour of care and assistance per day for the three months immediately following the accident and 1 hour of care and assistance per day for one month following her left collarbone surgery. Based upon that assessment, Ms Barrett could not meet the threshold provided under section 59 of the Civil Liability Act 2003 (Qld) which requires that gratuitous care and assistance be provided for at least 6 hours per week for a period of 6 months in order for such services to be awarded. A comparison of Ms Barrett s claim and award is as follows:- HEAD OF DAMAGE AMOUNT CLAIMED AMOUNT AWARDED Page 2 of 5

3 GENERAL DAMAGES $14, $14, SPECIAL DAMAGES $1, $1, INTEREST $12.56 $12.56 FUTURE SPECIAL DAMAGES $2, $0.00 FUTURE CARE & ASSISTANCE $10, $0.00 PAST CARE & ASSISTANCE $9, $0.00 PAST ECONOMIC LOSS $26, $0.00 FUTURE ECONOMIC LOSS $108, $0.00 SUB-TOTAL $171, $16, LESS 35% FOR CONTRIBUTORY NEGLIGENCE $60, $5, TOTAL $111, $10, Ms Barrett took the Nominal Defendant to Court claiming $171, for injuries suffered in a motor vehicle accident discounted by 35% for contributory negligence for an award of $111, Ms Barrett was awarded $10, [1] Page 3 of 5

4 WHAT CAN WE TAKE AWAY FROM THIS CASE? Every case turns on its own unique facts. However, some important tips that can be taken from this case include: Leave the Plaintiff to prove their case. If evidence is lacking, the Plaintiff s claims may fail at trial; If the Plaintiff is claiming gratuitous care and assistance, remember that they need to prove that they received 6 hours care and assistance for 6 months or they will not be awarded anything, even if it is agreed that some care was actually received; The credibility of witnesses plays a significant role in the outcome of a trial and it is useful to consider the credibility of a Plaintiff prior to proceeding to a trial. A copy of the decision can be found here. [1] Barrett v Richardson & Anor [2017] QDC 259 If you are in a similar position and are unsure what your claim may worth, or have any questions about the topics covered in this case please do not hesitate to get in contact with Principal, Trenton Schreurs of the McInnes Wilson Lawyers litigation team. Contact the article author for more info Trenton Schreurs Electronic Law Brisbane T: E: tschreurs@mcw.com.au Page 4 of 5

5 Serena Taylor Insurance Brisbane T: E: Page 5 of 5