CSS v KD  WADC 82 – Judgment delivered May
On 26 May 2010 the Plaintiff was making a left turn off Canning
Highway when he was hit from behind by a Transperth bus driven by
After he was freed from the vehicle paramedics requested the
Plaintiff go to hospital in an ambulance, however, he reported that
he was 'okay' and refused to go. As soon as the Plaintiff
arrived home after the accident he began feeling pain and had
approximately one week off work.
After returning to work he found it very uncomfortable to sit
for longer than 20 minutes and had a number of other restrictions.
Although he was never certified as fit only for office duties after
the accident, he couldn't do anything but office duties.
He remained in a non-operational police officer role from the
time of the accident until he accepted a severance in December
2013, leaving the police in March 2014.
Matters in Issue
Although the Defendant admitted the accident was caused by her
negligence she denied the Plaintiff suffered anything other than
some relatively minor soft tissue injuries and associated pain
symptoms to the left shoulder, neck and lower back as a result.
His Honour Derrick DCJ proceeded on the basis that the Defendant
was negligent as alleged in the Plaintiff's particulars of
negligence and as in the majority of CTP cases, the issues for
what injuries (and associated symptoms) the Plaintiff suffered
as a result of the accident, and
what (if any) loss and damage has the Plaintiff suffered as a
consequence of the injuries suffered by him as a result of the
At trial the parties each lead evidence from numerous medical
specialists. The Plaintiff led evidence from his GP, a neurologist,
occupational physician and a psychiatrist. The Defendant called an
orthopaedic surgeon, two neurosurgeons, two occupational
physicians, pain specialist, forensic psychologist and a
Overall the trial Judge did not find the way in which the
Plaintiff gave his evidence was particularly impressive, often
being difficult and evasive in cross-examination. Parts of his
evidence made little sense and were deemed untruthful by the Judge.
It was also found that he omitted evidence of prior injuries to
After carefully considering the voluminous factual and medical
evidence, His Honour Derrick DCJ found the accident was a necessary
condition of or at least materially contributed to some of his
Specifically it was held that the accident caused the Plaintiff
to suffer soft tissue injuries to his cervical spine and lumbar
spine and that these soft tissue injuries caused him to suffer the
associated symptoms. However, His Honour was not satisfied on the
balance of probabilities that the Plaintiff was still, as at around
the middle of 2012, suffering from any significant soft tissue
injuries or associated symptoms and the finding was the result of
the weight of expert evidence lead by the Defendant.
Assessment of Damages
In Australia a Plaintiff is compensated for loss of earning
capacity, not loss of earnings. An injured Plaintiff recovers not
merely because his or her earning capacity has been diminished but
because the diminution of his or her earning capacity is or may be
productive of financial loss.
The Plaintiff's award in this case was substantially reduced
because he continued to work in the years following the accident
and His Honour Derrick DCJ determined that as a result of the
accident he had only suffered a 20% past loss of his earning
capacity and a 20% future loss for three years.
He was awarded a total of $102,448 which was an excellent result
for the Defendant and highlights the benefit of strong medical
The decision is a very useful reference point as to how evidence
is assessed and given, or not given weight and the assessment of
damages in the WA CTP scheme.
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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