Hurley v Lang  WADC 117 – Judgment
delivered August 2016
The Plaintiff was involved in two separate motorcycle accidents,
the first on 10 May 2013 and the second on 29 October 2013. Both
accidents involved cars failing to give way causing the Plaintiff
to be "thrown" from his Harley Davidson.
Liability was clear on both occasions and both Defendants
admitted they were negligent in the manner of their driving.
Whilst the Plaintiff claimed a multitude of injuries for both
accidents, the most significant were a fractured right wrist,
grazes and abrasions from the first accident, and a 25cm laceration
to the left calf and left knee anterior cruciate ligament tear as a
result of the second accident.
Although negligence was admitted, there was significant
variation in medical opinions and therefore causation, capacity and
quantum of damages was in dispute. It was noted that he had a
significant medical history and had records revealed he complained
of shoulder and/or back pain from the middle of 2010 until January
The Defendants lead evidence from orthopaedic surgeon, Frederick
Phillips and occupational physician, Joel Silbert. Both concluded
that by late 2014, the Plaintiff had made a full recovery and
required no further treatment or investigation. They also
considered the Plaintiff clearly had the capacity to work full-time
in any of his pre-accident occupations.
The Plaintiff called a number of specialists, including
orthopaedic surgeon, Barrie Slinger, who concluded that by late
2015 the Plaintiff was only capable of returning to lighter
Assessment of Damages
Immediately prior to the first accident, the Plaintiff was
earning an income equivalent to $143,000 gross per annum. Due to
his incapacity between 7 March 2013 and 10 May 2013 for the first
incident and for six months following the second accident he was
awarded 72,000 net for lost earning capacity.
Non-pecuniary loss was assessed at 7.5% for the first accident
and 12.5% for the second accident. This equated to general damages
of $9,950 and $30,250, respectively.
These figures combined with interest, superannuation, gratuitous
services, medical expense and travel resulted in a total award of
The use of surveillance footage at various stages in this
litigation caused some of the medical specialists to conclude there
were discrepancies between the Plaintiffs' activities and
presentation at medical reviews.
Also the plaintiff's repeated contention that following the
first accident he never returned to work, but was rather
"helping out a mate" with his businesses, was
also not accepted.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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