Evidence: Why it sets out an important foundation to support the strength of your case

Published 05 Feb 2018

Barrett v Richardson & Anor [2017] QDC 259

In a recent Judgement handed down by The District Court of Queensland, the Plaintiff in these proceedings, Ms Barrett, claimed damages for personal injury and consequential loss suffered as a result of a motor vehicle accident that occurred in 2014.

Background

Ms Barrett was the passenger of the motor vehicle involved in an accident. As a result of the accident she suffered four broken ribs and a collarbone on her left side, a black eye and bruising on top of her left forehead and cheek. While liability was admitted in this matter, it was agreed by the parties that any damages assessed by the Court, a reduction of 35% would be applied to take into account for the plaintiff’s own contributory negligence.

Evidence

In the evidence at Trial, Ms Barrett gave evidence that as a result of the accident she was unable to attend to her personal and domestic needs and required gratuitous care from her family members and friends for about three to four hours per day. At Trial, Ms Barrett’s son also gave evidence in relation to the nature and period of care provided.

In her evidence, Ms Barrett also submitted that despite the fact that she was not working in any paid employment at the date of the accident, she had been looking for work prior to the accident and had secured employment as a housekeeper. Ms Barrett submitted that as a result of her injuries she could not take up this job opportunity and consequently suffered an economic loss.

Under cross-examination Ms Barrett could not provide details of when she was offered the position, the date of when she attended the job interview with her prospective employer and there was no documentary evidence to prove that she had been offered paid employment. Ms Barrett nevertheless maintained that she had lost this opportunity as a result of the accident.

Medical Expert Evidence

The Plaintiff was assessed my two Orthopaedic Surgeons following the accident who were both called to give evidence. Dr Cheung in his evidence was of the opinion that despite Ms Barrett not working at the date of the accident, she remained totally unfit for work due to the clavicle fracture of the left side and her ability for employment may be very limited. Dr Cheung however noted that his assessment of the Plaintiff took place prior to her undergoing surgery and he had not assessed her after the surgery.

Dr Duke on the other hand who also gave evidence at Trial, had assessed the Plaintiff after her surgery, noting that the Plaintiff was still participating in social activities, and did not require any treatment in the foreseeable future for her injuries.

Decision

In his decision, His Honour noted that the plaintiff did not present overall as a reliable witness. His Honour accepted that the Plaintiff had indeed been injured as a result of the accident, but it was difficult for him to “tease out” what parts of the Plaintiff’s evidence was either entirely truthful or reliable. His Honour made reference to the evidence given by the Plaintiff at Trial in which she was not able to particularise any information, dates or names about the job opportunity she declined.

In his assessment for past care, His Honour made reference to the decision of Shaw v Menzies, where the Court of Appeal emphasised the need for evidence to support a claim for past care, otherwise claimants would miss out on the entitlement. His Honour in his decision explained that only a “paucity of evidence” was placed before the court on the issue of past care, with the only real evidence coming from the Plaintiff, her son and a basic schedule of care that failed to set out the time and how long family members provided the plaintiff with care. His Honour said the schedule of care was of little assistance.

The Court was prepared to accept that Ms Barrett received care for a period following the accident due to the nature of her injuries, however due to the paucity of the evidence available, His Honour was unable to find with sufficient confidence that gratuitous care was provided to the plaintiff other than for the initial period following the accident.

Having regard to the periods of care the court allowed, Ms Barrett did not meet the threshold of 6 hours per week for 6 consecutive months for past care as provided under section 59(1)(c) of the Civil Liability Act 2003 and therefore no award was made for gratuitous care.

In relation to the Plaintiff’s economic loss, His Honour after careful consideration of the evidence available, was not persuaded to award Ms Barrett compensation for economic loss. His Honour noted that there was no evidence placed before the Court that supported the Plaintiff’s assertions that she secured employment and she was unable to commence that employment opportunity. His Honour mentioned that he would have at least expected some sort of documentary evidence or witness available to support the plaintiff’s assertions.

In assessing the Plaintiff’s future economic loss, His Honour further emphasised that he could not consider that any award for future economic loss ought to be awarded because he rejected the Plaintiff’s evidence regarding the loss of opportunity, and the evidence of Dr Duke makes it difficult in his mind to support the conclusion that she would suffer loss in the future. Dr Duke discounted any ongoing functional impairment directly related to the shoulder injury, but also excluded the possibility that any reported and ongoing pain exhibited by the plaintiff at the time he saw her was in any way attributable to the injury.

In considering Dr Cheung’s evidence, His Honour noted that Dr Cheung had not seen the plaintiff at a time well before her operation was carried out and therefore was not persuaded to award Ms Barrett damages for future economic loss. In his final assessment for Damages and applying a 35% discount for contributory negligence, the damages were assessed at $10,635.66.

In this matter it was because of the lack evidence that the Plaintiff failed to establish that the subject accident caused her to suffer injury, loss and damages. This case highlights that well prepared evidence is vital in a personal injury claim because it sets out an important foundation to support the strength of your case. If you have been injured in a motor vehicle accident, our Personal Injury Compensation Lawyers can assist you in carefully preparing your case to ensure you achieve the maximum compensation entitlements. Please feel free to contact our Compensation Lawyers on our toll free contact number, 1800 004 878 and arrange a no obligation consultation with one of our Personal Injury Accredited Specialists.

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