McQuitty calls quits on the ‘probability’ test for assessing future hypothetical events

31 March 2016 Topics: Self-insurance

In the recent case of McQuitty v Midgley [2016] QSC 36, the Queensland Supreme Court re-evaluated the test for assessing the likelihood of a future hypothetical event occurring.

At the age of 20, Mr McQuitty sustained serious injuries in a high speed motor vehicle accident, including multiple cervical spine fractures and a severe brain injury. He claimed essentially full-time care for the remainder of his life.

Of particular relevance to the Court’s assessment of damages was Mr McQuitty’s pre-accident history. He endured an extremely prejudicial childhood, including expulsion from multiple schools. He suffered periods of homelessness and battled with heavy alcohol, amphetamines and cannabis use. A number of previous motor vehicle accidents caused him serious injuries. He had a history of assaulting emergency officers and of other minor criminal offences. Mr McQuitty displayed anger management issues and antisocial behaviour, underpinned by an underlying personality disorder.

The assessment of damages, therefore, necessarily required the Court to disentangle the likely future impact of Mr McQuitty’s past circumstances from the accident-related injuries. Might his history have, at some time in the future, resulted in the disabilities he now suffers?

The Court considered two different tests for assessing the likelihood of this future hypothetical event occurring:

  • According to Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, a defendant bears the burden of establishing the future nature and development of a pre-existing condition with a reasonable measure of precision.
  • According to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, a defendant is required to only ascertain ‘the degree of probability that an event would have occurred, or might occur’.

The first case establishes a test of probabilities, and the second only that of possibilities. The Court held the tests were inconsistent and that to the ‘extent of the inconsistency’ the tests in Watts and Purkess are overruled by Malec.

Accordingly, the impact of a future hypothetical event occurring ought to be assessed on the basis of the possibility of that occurrence, rather than the probability. That is, the test no longer involves a significantly precise assessment.

The decision will affect the resolution of the large number of personal injuries claims that are complicated by relevant (but often unrelated) pre and post-accident circumstances. The decision lowers the standard of proof required of defendants to argue a reduction of damages on account of unrelated conditions.

We understand the defendant intends to appeal the rates used by the Court to quantify Mr McQuitty’s almost $3 million damages award. Time will tell whether Mr McQuitty makes a cross-appeal in relation to the new test for assessing future hypothetical events.



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