District Court Assessment of Damages in the Western Australian CTP scheme

CSS v KD [2016] WADC 82 – Judgement delivered May 2016

On 26 May 2010 the Plaintiff was making a left turn off Canning Highway when he was hit from behind by a Transperth bus driven by the Defendant.

After he was freed from the vehicle paramedics requested the Plaintiff go to hospital in an ambulance, however, he reported that he was ‘okay’ and refused to go. As soon as the Plaintiff arrived home after the accident he began feeling pain and had approximately one week off work.

After returning to work he found it very uncomfortable to sit for longer than 20 minutes and had a number of other restrictions. Although he was never certified as fit only for office duties after the accident, he couldn’t do anything but office duties.

He remained in a non-operational police officer role from the time of the accident until he accepted a severance in December 2013, leaving the police in March 2014.

Matters in Issue

Although the Defendant admitted the accident was caused by her negligence she denied the Plaintiff suffered anything other than some relatively minor soft tissue injuries and associated pain symptoms to the left shoulder, neck and lower back as a result.

His Honour Derrick DCJ proceeded on the basis that the Defendant was negligent as alleged in the Plaintiff’s particulars of negligence and as in the majority of CTP cases, the issues for determination were:

  • what injuries (and associated symptoms) the Plaintiff suffered as a result of the accident, and
  • what (if any) loss and damage has the Plaintiff suffered as a consequence of the injuries suffered by him as a result of the accident?

At trial the parties each lead evidence from numerous medical specialists. The Plaintiff led evidence from his GP, a neurologist, occupational physician and a psychiatrist. The Defendant called an orthopaedic surgeon, two neurosurgeons, two occupational physicians, pain specialist, forensic psychologist and a psychiatrist.


Overall the trial Judge did not find the way in which the Plaintiff gave his evidence was particularly impressive, often being difficult and evasive in cross-examination. Parts of his evidence made little sense and were deemed untruthful by the Judge. It was also found that he omitted evidence of prior injuries to specialists.

After carefully considering the voluminous factual and medical evidence, His Honour Derrick DCJ found the accident was a necessary condition of or at least materially contributed to some of his injuries.

Specifically it was held that the accident caused the Plaintiff to suffer soft tissue injuries to his cervical spine and lumbar spine and that these soft tissue injuries caused him to suffer the associated symptoms. However, His Honour was not satisfied on the balance of probabilities that the Plaintiff was still, as at around the middle of 2012, suffering from any significant soft tissue injuries or associated symptoms and the finding was the result of the weight of expert evidence lead by the Defendant.

Assessment of Damages

In Australia a Plaintiff is compensated for loss of earning capacity, not loss of earnings. An injured Plaintiff recovers not merely because his or her earning capacity has been diminished but because the diminution of his or her earning capacity is or may be productive of financial loss.

The Plaintiff’s award in this case was substantially reduced because he continued to work in the years following the accident and His Honour Derrick DCJ determined that as a result of the accident he had only suffered a 20% past loss of his earning capacity and a 20% future loss for three years.

He was awarded a total of $102,448 which was an excellent result for the Defendant and highlights the benefit of strong medical evidence.

The decision is a very useful reference point as to how evidence is assessed and given, or not given weight and the assessment of damages in the WA CTP scheme.

For more information about this Update please contact partner Ashley Crisp on (08) 9321 3755. 

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.