For the Defendant - April 2017

Welcome to the latest edition of our newsletter to keep our clients up to date with the latest developments in personal injury and insurance law in Queensland & what they mean for you.

 No Joy for the Plaintiff on Appeal

 In Lehmann v Warren & Anor [2017] QDC 69, (delivered 23 March 2017), His Honour Judge Devereaux dismissed the Appeal brought by a Plaintiff following a quantum only Magistrates Court trial. Whilst there were 8 grounds to the Appeal it can be distilled down to whether the learned Magistrate had erred by finding the Plaintiff had not proved she had sustained any future loss of earning capacity.

 The Appellant argued the Magistrate had not made any adverse findings about her credit and therefore should have made allowance for future economic loss. The District Court gave that short shrift citing numerous issues within the available evidence casting aspersions on it. Criticisms were also levelled at the Plaintiff’s medico-legal expert Dr Malcolm Wallace. In fairness to Dr Wallace those criticisms arose because he was not briefed with all the relevant material (the fault of his instructing solicitors).

 The Appellant also argued the learned Magistrate had erred by failing to provide adequate reasons citing McMurdoch P in Martin v Rowling & Anor [2005] QCA 128 where the learned President said:

 “in giving reasons for decisions, a judicial officer is obliged to adequately disclose the process of judicial reasoning so that justice is not only done but seen to be done.  A Judge she refer to relevant evidence; set out any material findings of fact and any conclusions or ultimate findings of fact reached; give reasons for making the relevant findings of fact and conclusions or for preferring 1 conclusion to another and explain how the law has been applied to the facts found.  This is because the reasons must place the parties in a position to understand why the decision was made sufficiently to allow the exercise of any right of Appeal so that any appellant court considering the decision can understand the reasoning process.  The obligation to give adequate reasons does not require the reasons to necessarily be lengthy or elaborate but they should articulate the essential ground or grounds upon which the decision rests”.

 In response to that aspect of the Appeal the Court said the reasons, whilst brief, were reasons nonetheless and appropriate given it is a busy Court and it was a quantum only trial.

 Practical Significance

The case turns on its own facts but reinforces the notion that an Appellant Court is reluctant to disturb a lower Courts finding without compelling reasons to do so. The changes to the jurisdictional limits in 2010 have seen more Trials run in the Magistrates Court. Contrary to the belief of some Plaintiff firms these lower Courts will still make little or low awards for future economic loss if justified on the evidence which are unlikely to be overturned on Appeal to the District Court. 

 DNA Evidence Proves Decisive

In Lee v Lee & Ors [2017] QSC 42, both parties agreed the driver of the insured vehicle was wholly to blame for the accident. The key issue was the identity of the driver. The defendant insurer denied liability on the basis that the driver was the plaintiff, and not the first defendant - his father.

 The plaintiff was rendered unconscious by the collision and had no recollection of it. Nonetheless, both the plaintiff and his father gave evidence that the father was the driver. His Honour found both to be unreliable witnesses.

 DNA was obtained from three blood swabs taken from separate parts of the driver’s side airbag. All three swabs matched with a single person – the plaintiff. There was no mixed or other DNA. The plaintiff contended the source of the blood was him wiping his hands on the airbag, rather than the impact of the collision.

 In rejecting this assertion, his Honour placed significant weight on the evidence of Dr Shelley Robertson, a specialist in forensic medicine and pathology. Her opinion was that the significant deposits of the plaintiff’s blood found on the airbag were more likely to be consistent with direct contact with the bleeding source.

 Weight was also given to the neurosurgeon Dr Weidmann’s evidence that the catastrophic cervical spine injury sustained by the plaintiff was a hyperextension, likely caused by the forceful impact of a deployed airbag to his face.

 His Honour therefore concluded that the plaintiff was the driver of the insured vehicle.

 Quantum Appeal Unsuccessful

 In AAI Limited v McQuitty[2016] QCA 326, the respondent suffered catastrophic injuries in a car accident, including a closed head injury causing severe traumatic brain injury, fractures to his C5 and C6 vertebral facet joints and a fracture of the C5 vertebrae itself. The defendant CTP insurer unsuccessfully appealed the primary judge’s findings concerning 3 heads of damage:

 (1)   General Damages

The Appellant argued that the Trial Judge erred in two respects:

 (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”);

 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.

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

 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 Care

The Appellant argued that the Trial Judge erred in two respects:

 (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.

 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, consistent with the decision in Van Gervan v Fenton, being an average of 6.5 hours per day. 

 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 Trial Judge erred in two respects:

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

 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, and that the Respondent was entitled to spend judgment monies as he saw fit and this did not determine the measure of his loss.

 (ii)            assessing 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.

 Conclusion

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