AAI Ltd v Marinkovic

Case [2017] QCA 54

SUPREME COURT OF QUEENSLAND

CITATION:

AAI Limited & Anor v Marinkovic [2017] QCA 54

PARTIES:

AAI LIMITED
(first appellant)
JOHN McNAUGHTON
(second appellant)
v
JACK MARINKOVIC
(respondent)

FILE NO/S:

Appeal No 6205 of 2016
DC No 2239 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


District Court at Brisbane – [2016] QDC 136

DELIVERED ON:

31 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2017

JUDGES:

Fraser and Morrison JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:

1.   Allow the appeal to the extent of awarding $16,824.10 for interest on past economic loss instead of $19,545.

2.   Set aside the judgment entered on 3 June 2016 and substitute judgment for $458,528.10.

3.   Otherwise dismiss the appeal.

4.   The appellants are to pay the respondent’s costs of and incidental to the appeal on the standard basis.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – where the respondent was injured in a motor vehicle accident caused by the second appellant – where the respondent had pre-existing injuries and suffered multiple injuries – where a number of injuries had to be assigned an ISV value  under the Civil Liability Regulation 2014 (Qld) – where the appellant contended that the trial judge erred in determining which was the dominant injury for the purpose of the Civil Liability Regulation 2014 (Qld) – where the appellant contended that this error was due to a lack of medical evidence – where the trial judge adopted an uplift of 25 per cent – where the uplift was awarded so that a psychiatric injury, which was not assessable under the ISV scales was accounted for – where the appellant contended there were no proper reasons for adopting an uplift – whether the trial judge correctly applied the ISV tables in the Civil Liability Regulation 2014 (Qld) – whether the amount award was the proper quantum of damages

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – where the respondent claimed to have suffered psychologically and physically – where the respondent claimed he was no longer capable of working – where the respondent refused a number of job offers – where the appellant challenged the respondent’s contention that he would have worked until he was 70 – where the trial judge made various findings as to the respondent’s credibility and reliability, including that the respondent had tendered false tax returns as part of his evidence of lost earning capacity – where the trial judge found that there was nonetheless a reduced earning capacity – where the appellants contended that the inconsistencies in the respondent’s evidence should have resulted in a finding that the respondent was unreliable – where the focus of the grounds of appeal was whether…

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AAI Ltd v Marinkovic [2017] QCA 54
Case
[2017] QCA 54
Decision Date

CaseChat Overview and Summary

The appeal in AAI Ltd v Marinkovic involved the respondent, Mr Marinkovic, who had been injured in a motor vehicle accident caused by the second appellant. The case was heard in the Supreme Court of Queensland, where the trial judge awarded Mr Marinkovic a total of $461,249 in damages, plus interest. The appellants contested the trial judge's determination of the measure of damages for personal injuries, particularly the identification of the dominant injury, the appropriate uplift for non-assessable psychiatric injuries, the credibility of Mr Marinkovic's evidence regarding his lost earning capacity, and the inclusion of damages for loss of superannuation. The appellants also argued that the trial judge had erred in calculating the final award by not deducting Centrelink payments received by Mr Marinkovic.

The central legal issues in the case revolved around the correct application of the ISV tables under the Civil Liability Regulation 2014 (Qld) to assess the injuries sustained by Mr Marinkovic, the proper quantum of damages awarded, and the credibility of Mr Marinkovic's evidence regarding his lost earning capacity. Additionally, the court had to determine whether the trial judge correctly included damages for loss of superannuation and whether a minor mathematical error in the assessment of damages warranted altering the award.

The court found that the trial judge had not erred in applying the ISV tables to assess Mr Marinkovic's injuries, noting that the judge had made findings supported by evidence despite some inconsistencies in Mr Marinkovic's accounts. The court upheld the trial judge's decision to award an uplift of 25% for non-assessable psychiatric injuries, finding that there were proper reasons for this decision. The court also found that the trial judge's assessment of Mr Marinkovic's lost earning capacity was supported by the evidence, despite some inconsistencies. Regarding the inclusion of damages for loss of superannuation, the court held that the trial judge was correct to award these damages as they were pleaded at trial. Finally, the court determined that a minor mathematical error in the assessment of damages did not significantly impact the final award and thus did not warrant altering it.

The court allowed the appeal to the extent of correcting the interest on past economic loss, setting aside the original judgment, and substituting a new judgment for $458,528.10. The appeal was otherwise dismissed, and the appellants were ordered to pay the respondent's costs of and incidental to the appeal on the standard basis.

Orders

Orders of the court

1. Allow the appeal to the extent of awarding $16,824.10 for interest on past economic loss instead of $19,545.

2. Set aside the judgment entered on 3 June 2016 and substitute judgment for $458,528.10.

3. Otherwise dismiss the appeal.

4. The appellants are to pay the respondent’s costs of and incidental to the appeal on the standard basis.

Background

Background to the litigation

At trial he was awarded a total of $461,249 in damages, plus interest of $19,852. The damages were assessed under the following heads:(a)general damages: $35,000;(b)past economic loss: $240,000;(c)past superannuation: $15,000;(d)interest on those components: $19,545;(e)future economic loss: $135,000;(f)special damages: $4,577; interest on that: $307; and(g)future expenses: $12,000.Some background facts There was no challenge to the learned trial judge’s summary of the background facts, and I gratefully adopt them below. Mr Marinkovic was born on 6 November 1956 and came to Australia in 1969. He left school at about age 16 and did a range of jobs, including qualifying as a boilermaker welder in a car factory. He also spent time driving trucks at a mine, and went overseas for three years, then worked for a time as a tiler’s labourer before obtaining a tiler’s license in 2004. He described various jobs associated with tiling work, some of which sounded quite physically demanding. He worked as an independent tradesman, doing both domestic and commercial jobs. In about 2005 he built a house as an owner builder, doing some of the work himself and helping other tradesmen do their work. The house was sold in 2009, at a reasonable profit. The first accident occurred on 7 October 2008. Mr Marinkovic had parked his van in front of the new house, and was reversing in order to U-turn it when there was a collision with a four wheel drive which was driven down the driveway of the house next door. He said that he suffered a sore neck as a result of the accident which interfered with his work for a time. Mr Marinkovic said that at the time when the second accident he was getting better again and doing lots of exercises on medical advice, and was wanting to do more work. The second accident occurred on 30 April 2010 when he was stationary behind traffic waiting for a traffic light when his vehicle was struck from behind with some force and without any warning. He hit his head on the windscreen, and his breath was knocked out of him. He was taken by ambulance to the QE2 Hospital where he was given morphine, but discharged early the next morning. The next day his neck and back felt sore, and he went to see a GP. He was treated initially with bed rest and hydrotherapy, but after a time shortage of funds drove him back to work, though he had great difficulty in working and needed to take frequent rest breaks.Findings at trial Having reviewed the medical evidence in some considerable detail,[1] the learned trial judge found that Mr Marinkovic suffered injuries in the second accident,[2] which caused an adverse psychological reaction,[3] that he has since suffered, and continues to suffer, significant pain, and that he was significantly worse off after the second accident, in terms of his physical condition, particularly his pain, his psychiatric condition (which was new) and the effect on his ability to work.[4][1]Marinkovic v McNaughton [2016] QDC 136 (Reasons) [5]-[34].[2]To the lower back and right shoulder, and an aggravation of a pre-existing condition of the neck.[3]An adjustment disorder with anxiety and depressed mood.[4]Reasons [60].

Evidence

Evidence Before The Court

In my view the learned trial judge cannot be shown to have been in error in this respect.Findings against the evidence? The focus of these grounds were the findings as to Mr Marinkovic’s lost earning capacity as reflected by his ability to work (before and after the first accident), his employment and offers of employment. In terms of specific employment issues the contentions attacked findings as to Mr Marinkovic’s reasons for rejecting certain employment with Mr Cowen, and the prospect of employment with Mr Pantic.Existence of lost earning capacity Subsequent to the first accident the histories given to the medical practitioners and Ms Coles pointed to limitations on Mr Marinkovic’s capacity to work. For example, the learned trial judge summarised the evidence from the GP,[51] Dr Todman,[52] Dr Morris,[53] Dr Pentis,[54] and Dr Tho.[55] His Honour also had regard to the evidence of Ms Coles.[56] The summaries are accurate reflections of their evidence.[51]Reasons [5].[52]Reasons [6], [9].[53]Reasons [10]-[11].[54]Reasons [14], [18].[55]Reasons [19].[56]Reasons [32], [56]. Subsequent to the second accident Mr Marinkovic was examined by some of the same medical practitioners, and others, giving them histories that revealed his limitations. For example, the learned trial judge summarised the evidence from Dr Todman,[57] Dr Morris,[58] Dr Pentis,[59] Dr Saines,[60] Dr Byth,[61] and Dr Chalk.[62] His Honour also referred to the evidence of Ms Coles.[63] Once again, the summaries are accurate reflections of their evidence.[57]Reasons [7]-[9].[58]Reasons [12]-[13].[59]Reasons [15]-[17].[60]Reasons [20]-[24].[61]Reasons [25]-[27].[62]Reasons [30]-[31].[63]Reasons [33]-[44]. The learned trial judge expressed the need for caution about the inconsistencies between Mr Marinkovic’s evidence and the histories given to the medical practitioners.[64][64]Reasons [50]. The learned trial judge also examined the documents relating to the claim from the first accident to see what they may reveal. His Honour concluded that:[65]“My view is that [Mr Marinkovic] in his oral evidence was inclined to minimise the effect of the first accident immediately prior to the second accident, but I think the more likely explanation for the documents used in the earlier proceeding is that they did not reflect such improvement as had occurred. A better indication is that that earlier claim was settled for a modest sum, a very modest sum in the light of the claims in the documents, which is consistent with [Mr Marinkovic’s] condition having in fact improved prior to the second accident so that his subsequent problems were not principally associated with the first accident.”[65]Reasons [52]. There was evidence from other witnesses that provided some support for the finding that Mr Marinkovic had limited capacity to work. The learned trial judge referred to the evidence from Mr Siljegovis, concluding that his evidence supported the proposition that Mr Marinkovic was able to work successfully as a tiling contractor prior to the first accident.[66] Mr Siljegovis gave evidence that before the second accident Mr Marinkovic was “a good tiler and a very hard working man”, whereas afterwards “he couldn’t work anymore … if I get him to do something he’ll probably come in two, three hours … And he used to sit down and he’d say mate, I can’t help you any more”.[67] The limited way in which Mr Marinkovic could work was expressed in this way: “He was trying to help us, you know … trying whatever he could to help us …”.[68][66]Reasons [43], [53].[67]AB 179 lines 20-30.[68]AB 183 line 19.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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