Assessing damages in light of pre existing conditions: the test in Malec v Hutton affirmed - 14 April 2016

In McQuitty v Midgley & Anor [2016] QSC 36, the plaintiff suffered multiple injuries, the most significant of which was a severe brain injury, as a result of a motor vehicle accident on 28 August 2003.  He was 20 years of age at the time of the accident and brought an action via his litigation guardians claiming damages from the driver of the vehicle and the relevant CTP insurer. 

Liability was admitted, however, quantum was in issue largely due to the plaintiff’s troubled past in his short life leading up to the time of the accident.  He had a very difficult upbringing, had been homeless, a habitual abuser of drugs and alcohol, involved in physical altercations and minor criminal offences, and engaged in what could be considered antisocial behaviour. The plaintiff was “quick to anger” and “lacked ordinary social skills”. In addition, he had been involved in two prior significant motor vehicle accidents in 1999 and 2001.

Following the subject incident, the plaintiff required direction to shower and eat, however could complete simple tasks like making a cup of tea and a sandwich unassisted. He also required some assistance in the community, but given his pre-incident personality issues, he may have required this assistance in any event.

The Court observed that assessment of damages required a comparison between what has actually happened and the hypothetical scenario of what would have happened but for the accident on 29 August 2003.  The court compared the tests in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 with the test in Malec v JC Hutton  Pty Ltd (1990)169 CLR 638.

The plaintiff submitted that the test in Watts and Purkess should be followed.  That test, as per Justice Menzies in Watts, held that:

 “where a plaintiff is in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation.”

The court found that this test was inconsistent with the test in Malec and, to the extent of any inconsistency, Malec overruled Watts and Purkess.  The test in Malec provides for assessment of a plaintiff’s loss by reference to the probability of a pre-existing condition affecting the plaintiff in the future, to the extent the plaintiff now experiences as a result of the accident. The test, applied in this case, posited that the relevant question is the probability that the plaintiff’s pre-injury conditions would have created a need for care and anger management. The degree of probability would reduce the damages assessed for future care and treatment of his anger issues arising from the accident.

The court noted that preferring the test in Malec above that in Watts and Purkess in no way detracts from the egg shell skull principle (that a defendant must take a plaintiff as they find them).

The plaintiff claimed for care on the basis of a requirement for 24 hours of care per day, largely relying on a report by occupational therapist, Helen Coles.  The court noted that there was “distinction between the evidence of opinion about the needs of a patient that an occupational therapist may give and the facts as to what care has been provided.”

The Court awarded damages to the plaintiff comprising of general damages, past and future care only. Future care was awarded at 6.5 hours per day for the next 47 years (significantly less than 24 hour care claimed by the plaintiff). No awards were made for special damages or economic loss (there was opinion that the plaintiff, on the balance of probability, would have been on a long term pension even if the accident had not occurred). Damages were assessed at $2,719,500.05.

Take away points

  • This decision is an important Supreme Court of Queensland case for personal injury matters.
  • With Malec preferred, the case confirms that the assessment of past and future hypothetical facts is required to be done on “the degree of probability”
  • Each case, however, will turn on its facts and the evidence presented regarding the plaintiff’s pre-injury state.  

For more information or discussion, please contact HopgoodGanim Lawyers' Insurance & Risk team.  

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