The recent decision of McQuitty provides important
guidance to Queensland personal injury practitioners with respect
to the impact of hypothetical events, pre-existing injuries or
conditions and the assessment of damages. The probability test
applied by His Honour Jackson J may assist defendants to reduce an
award of damages in claims for personal injuries where the
plaintiff has pre-existing injuries or conditions which had a
probability of impacting a head of damage. 1
In McQuitty the plaintiff was a passenger in a car
involved in a serious motor vehicle accident. Liability was
admitted. Quantum was in dispute. The plaintiff had a troubled past
having a history of substance abuse, limited work history,
behavioural issues and had been involved in at least two previous
serious motor vehicle accidents.
The plaintiff contended that the "pre-existing behaviours
were not relevant to decrease the amount of damages to be
awarded" on the basis that "the defendant must take the
plaintiff as they find them" (the egg-shell skull rule).
2 In support of this position the plaintiff relied upon
the decision of Watts v Rake (1960) 108 CLR 158 and
Purkess v Crittenden (1965) 114 CLR 164 which would
require the Court to assess "whether the pre-injury evidence
was sufficiently precise and definite
(author's emphasis added) to displace an inference that the
disabling condition was caused by the injury".
Jackson J considered the plaintiff's reliance on Watts v
Rake and Purkess v Crittenden was inconsistent with
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 which
requires the assessment of past and future hypothetical events on
the basis of the "degree of probability" "having
regard to the possibilities between 0 per cent and 100
percent". 4 His honour determined that in the event
of any inconsistency the rule in Malec was to be preferred.
5 Accordingly, the defendant was not required to
undertake a precise assessment of probabilities, rather the Court
is only required to evaluate possibilities with appropriate
allowanced being made for these contingencies. 6
The McQuitty decision clarifies the evidence required
by a defendant to establish possible contingences which may have
contributed to a plaintiff's condition and related head of
damage. With a lower threshold to be applied in such cases a
defendant may successfully reduce an award of damages where a
pre-existing condition had a possibility of harmful consequences to
A further matter of interest to practitioners is the commercial
care rate for gratuitous care applied by His Honour at $44.25 per
hour. It is assumed that the hourly rate applied for gratuitous
care will be subject to the appeal.
1 The outcome of the Appeal filed by the
defendant insurer on 30 March 2016 is awaited. At present date the
plaintiff has not filed a cross appeal with respect to the
application of the probability applied by his honour.
2 At paragraph 
3 At paragraph 
4 At paragraph 
5 At paragraph 
6 At paragraph 
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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