In Armstrong v. Mitchell-Smith and Anor1 His Honour Justice McMeekin had to decide a trial involving a 16 year old at the time of the accident who was a passenger in a rollover collision. His left hand was crushed requiring an amputation of the left middle finger at the head of the proximal phalanx. It was his dominant hand, and he also sustained an injury to the left index finger. Justice McMeekin has provided a supplementary decision dealing with costs2.

Background

The Claimant put forward a claim that he sustained a cognitive head injury as well as injuries to his left hand and arm. The Court determined that there was no cognitive head injury on the basis of the Ambulance records, Hospital files and the lack of complaint to various doctors.

Dr Cook assessed that the amputation of the left middle finger was equivalent to 16% loss of function of the hand. The impairment to the left ring finger was a 45% of that finger but 5% only of the hand. The combined affect of these injuries converted to 11% whole person impairment.

There was no other Orthopaedic evidence called.

The Claimant at the time of the accident was 16 years and completing Grade 11. He claimed his results were affected as well as Grad 12. He said that but for the accident he was going to become an Industrial Electrician. His eventual apprenticeship was one of cabinet-maker.

Determination

For General Damages it was confirmed that the Injury Scale Item was 114 which had a range of 5 to 20.

It was determined that the appropriate ISV was going to be 18 given the multiple injuries, which is a monetary amount of $22,800.00.

On the assessment of past economic loss the Court had to determine as to what was the prospect of the Plaintiff obtaining an apprenticeship in the desired field of Electrical engineering. It was confirmed that he was able to obtain employment as a cabinet-maker and was performing well in that occupation. A global allowance was assessed at $24,000.00 for past economic loss on account of income lost over the first school holiday period.

On future economic loss the parties could not be any more different, the Plaintiff was submitting a loss of $1 million compared to the Defendant on a global basis of $200,000.00.

The Court determined that although he had a capacity to obtain pre accident an apprenticeship and qualify as an Industrial Electrician he had not demonstrated to the Court that that avenue of work was foreclosed. Although there were a number of barriers concerning his employment those barriers had been overcome with him successfully undertaking the apprenticeship in cabinet-making.

It was confirmed that he may require a sympathetic employer or be self employed and run his business at a less profitable rate than a non-injured person.

The loss of income was assessed at 35% of a qualified Industrial Electrician of $1,900.00 net per week for his working life at $400,000.00.

On the issue of gratuitous care the Plaintiff failed to provide evidence to show that he met the threshold of six hours per week for 26 weeks.

The Judgment was given in favour of the Plaintiff at $491,917.25.

Cost determination

In a subsequent decision, the Defendant Insurer was seeking that it should recover its costs after its UCPR offer made at $500,000.00 plus costs had lapsed and the Judgment was for a sum of money that was less than its offer.

However, the offer was framed that it required the Plaintiff to sign a “suitably worded Discharge to the satisfaction of the Defendants”.

Although evidence was put forward before the Court that the Plaintiff’s solicitor had seen the Discharges previously from this Insurer, the Court held that it was a term that the Defendant Insurer imposed and it could quite easily have put with the offer the Discharge document. In absence of the Discharge it was reasonable for the Plaintiff to not accept the offer.

In the circumstances, His Honour Ordered that the Plaintiff recover his costs on a standard basis and the Defendant was not able to avail itself to a cost penalty for running the trial as against the Plaintiff.

Conclusion

It was a lucky escape for this Plaintiff on the issue of costs. That may reflect the result concerning the Judgment was only short of the Defendant’s offer by $7,722.75. One could ask why the Plaintiff’s solicitor was not asked, if you were prepared to recommend the offer, why did you not communicate to the Defendant that if it is supplied the Discharge they would recommend to their client the acceptance of the offer. In absence of that question being asked and answered one wonders whether a result on costs would have been different.