The recent decision of McQuitty provides important guidance to Queensland personal injury practitioners with respect to the impact of hypothetical events, pre-existing injuries or conditions and the assessment of damages. The probability test applied by His Honour Jackson J may assist defendants to reduce an award of damages in claims for personal injuries where the plaintiff has pre-existing injuries or conditions which had a probability of impacting a head of damage.
In McQuitty the plaintiff was a passenger in a car involved in a serious motor vehicle accident. Liability was admitted. Quantum was in dispute. The plaintiff had a troubled past having a history of substance abuse, limited work history, behavioural issues and had been involved in at least two previous serious motor vehicle accidents.