Hurley v Lang [2016] 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 2013.
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 work.
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 $136,109.20.
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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