AAI Limited v McQuitty [2016] QCA 326

Case name:     AAI Limited v McQuitty [2016] QCA 326

Judges:             Gotterson and Morrison JJA, Dalton J

Court:               Queensland Court of Appeal

Delivered:        6 December 2016

Background

The Respondent suffered multiple injuries in a car accident, the worst of which was a closed head injury causing severe traumatic brain injury, and also fractures to his C5 and C6 vertebral facet joints and a fractured part of the C5 vertebrae itself.

This was an appeal by the CTP insurer in respect of the Primary Judge’s findings concerning 3 heads of damage –

(1)           General Damages

The Appellant argued that the Trial Judge erred in:

(i)             not reducing the Injury Scale Value (“ISV”) on the basis of the Respondent’s “pre-injury challenging and permanent personality traits” as a pre-existing condition within Section 7(1) of the Civil Liability Regulation 2003 (“CLR”);

(ii)            not having regard to the factors prescribed by Section 9 of the CLR in fixing the ISV.

(2)           Past Care

The Appellant argued that the Trial Judge erred in:

(i)             electing to award past care based on the Respondent’s needs at a commercial cost in In circumstances where the Respondent received gratuitous care from his family and friends post-accident;

(ii)            not awarding damages on the basis of past care actually provided to the Respondent, rather than on the basis of the Respondent’s needs.

(3)           Future Care

The Appellant argued that the Trial Judge erred in:

(i)             applying commercial agency rates to calculate future care damages;

(ii)            assessing the Respondent’s life expectancy.

Justice Dalton of the Queensland Court of Appeal delivered the Judgment on 6 December 2016 with which the other members of the Court of Appeal concurred.

1. General Damages

Her Honour reviewed, inter alia, the following sections of the CLR:

“7. Aggravation of pre-existing condition

This section applies if an injured person has a pre-existing condition

(1) This section applies if an injured person has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV.

(2) In considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury …

9. Other matters to which the court may have regard

In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case.

Examples of other matters—

….

• the effects of a pre-existing condition of the injured person
• difficulties in life likely to have emerged for the injured person whether or not the injury happened”

On Appeal it was unchallenged that the Plaintiff in the accident had suffered a moderate brain injury which fell under Item 7 of Schedule 4 of the CLR.

However the Trial Judge’s assessment of an ISV of 50 was challenged on appeal on the basis that the Trial Judge erred in applying ss 7 and 9 of the CLR.

Justice Dalton found that once a Plaintiff makes a prima facie case that incapacity has resulted from a Defendant’s negligence that the Defendant bears the onus of proving that the incapacity was wholly or partly the result of some pre-existing condition to show what part of (this Respondent’s) loss was not caused by it.

Her Honour found that if the Respondent did suffer from pre-existing personality disorder that condition would fall within the meaning of Section 7 of the CLR, but that neither party at the trial at first instance focused on this issue, and the 2 expert psychiatrists were not cross-examined about this issue.

As such Justice Dalton found that “… in the absence of a sound evidentiary basis for concluding that pre-morbidly the Plaintiff had a personality disorder, as opposed to personality traits, the Trial Judge was correct in his view that there was no pre-existing condition within the meaning of Section 7 …” of the CLR.

Her Honour found that whilst the Trial Judge did not expressly discuss Section 9 of the CLR, there was no doubt that the Trial Judge appreciated the Plaintiff’s personality pre-accident, and had regard to the relevant factors in fixing the ISV.

2. Past Gratuitous Care

At Trial the court heard evidence that the Plaintiff had no motivation or initiative to perform ADL and was cared for by first his mother (who subsequently passed away) and then by friends.

The Trial Judge accepted the evidence of psychiatrists that the Respondent received 5.5 hours care per day but awarded past gratuitous care damages on the basis of what the Respondent needed, being an average of 6.5 hours per day.  The Court of Appeal elected not to intervene with that decision in keeping with Van Gervan v Fenton, and also on the basis of Ovitir in the High Court’s decision in CSR Ltd v Eddy.

The Trial Judge had awarded past care on the commercial cost of care, rather than the amount which the care agencies paid their workers. Somewhat unusually, where this rate exceeded the rate claimed by the plaintiff (which it did in every year claimed), his Honour allowed the claimed rates.[1]

The Appellant challenged the Trial Judge’s allowed rate for past care based on the decision of Waller v Suncorp Metway Insurance Ltd in which case there was evidence that carers could be engaged directly (i.e. not through an agency, for a price which was lower than the agency rate).

Justice Dalton distinguished this case from Waller on the basis that the Respondent did not have a need for constant care, and also there was no evidence presented to the Court that the Respondent could have employed carers at a rate at which an agency paid its carers, or that the Respondent could have engaged such carers regularly and reliably for the times he required them.  Her Honour found the Trial Judge to be correct in ordering past services at the agency rate.

3. Future Care

The Appellant argued that the Respondent’s intention to buy a home with the judgment sum and live with a previous carer in that home was insufficient to justify an award for future care based not on the agency rate, but on a lesser value.

Justice Dalton rejected that argument and that the Trial Judge was correct in calculating future care applying agency rates in accordance with Shaw v Menzies & Anor, and that the Respondent was entitled to spend judgment monies as he saw fit and this did not determine the measure of his loss.

As to the Respondent’s life expectancy Her Honour found that the Trial Judge was entitled to accept the evidence of one of the treating psychiatrists on this issue, and reject the Defendant’s expert psychiatric evidence on that issue as the basis to find that the Plaintiff’s life expectancy was 7 years higher than pleaded or submitted.

The Court of Appeal dismissed the appeal and ordered the Appellant to pay the Respondent’s costs of the appeal on the standard basis.

David Bray
Legal Practitioner Director
Bray Lawyers