Allen v O'Donnell - [2021] QSC 63

SUPREME COURT OF QUEENSLAND

CITATION:

Allen v O’Donnell & Anor [2021] QSC 63

PARTIES:

BLAISE ANTHONY ALLEN

(plaintiff)

v
MATTHEW THOMAS O’DONNELL

(first defendant)
RACQ INSURANCE LIMITED
ACN 009 704 152
(second defendant)

FILE NO/S:

SC No 915 of 2019

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

25 March 2021

DELIVERED AT:

Rockhampton

HEARING DATE:

22, 23, 24, 25, 26 February 2021

JUDGE:

Crow J

ORDER:

1. Judgment for the plaintiff against the second defendant for $2, 499, 399.69.

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT GENERALLY – where the plaintiff suffered physical and psychological injuries in a motor vehicle accident – where liability is admitted – where the plaintiff claims damages for personal injuries arising from the motor vehicle accident – where damages are assessed under the Civil Liability Act 2003 (Qld)

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT GENERALLY – LOSS OF OPPORTUNITY - where a recruitment agent approached the plaintiff post-accident regarding employment in the mining industry - where the employment in question had a much larger salary range than plaintiff’s previous employment – where recruitment agency received hundreds of applications – whether the plaintiff was likely to have obtained such employment – whether it effects the calculation of future economic loss

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – GRATUITOUS CARE OR ASSISTANCE RENDERED TO CLAIMANT – GENERALLY - where plaintiff received past care and assistance – where the plaintiff will receive future care and assistance – assessment of damages for gratuitous care

Civil Liability Act 2003 (Qld), s 59, s 61

Civil Liability Regulation 2014 (Qld)

Alridge v Allianz Insurance [2009] QSC 257, cited
CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, followed
Munzer v Johnston & Anor [2008] QSC 162, applied
McAndrew v AAI Limited [2013] QSC 290 , applied
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, cited
Wilson v McLeay (1961) 106 CLR 523; [1961] HCA 56, cited

COUNSEL:

S J Deaves, with M M Willey, for the plaintiff
K S Howe, with M Forbes, for the second defendant

SOLICITORS:

Grant and Simpson for the plaintiff
Cooper Grace Ward for the second defendant

Background

On 5 January 2015 the plaintiff, Mr Allen, and his three children embarked on a journey from Townsville to Brisbane with the intention of staying at Mr Allen’s mother’s house for a holiday. Mr Allen’s then-partner and now wife, Dr Gail Kingston, was unable to join the family on the journey as she had work commitments in Townsville.
The journey from Townsville to Rockhampton was uneventful. Mr Allen drove the family’s Kia Carnival and insisted his three children inhabit the rear passenger seats. Mr Allen’s daughters were then aged 12 years, 9 years and his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v O'Donnell

Details

AGLC: Allen v O'Donnell [2021] QSC 63
Case: [2021] QSC 63
Decision Date: 25 March 2021

CaseChat Overview and Summary

In the case of Allen v O'Donnell, the plaintiff, Mr. Allen, brought an action against the defendant, Mr. O'Donnell, for damages resulting from a motor vehicle accident. The case was heard in a relevant Australian court, where the primary issue was the assessment of damages for the plaintiff's personal injuries. The defendant admitted liability, leaving the court to determine the extent of the damages, which included both physical and psychological injuries sustained by Mr. Allen.

The legal issues before the court involved the calculation of damages for the plaintiff's future economic loss, particularly in relation to potential employment in the mining industry that was proposed post-accident. Additionally, the court needed to assess damages for gratuitous care and assistance rendered to the plaintiff both in the past and anticipated in the future. The court considered evidence from non-expert witnesses, including the plaintiff's wife, who provided a detailed account of Mr. Allen's pre- and post-accident condition, highlighting significant changes in his physical, cognitive, and psychological state.

In its reasoning, the court found that Mr. Allen's emotional state and tangential responses during testimony affected his reliability, but his wife's evidence was deemed credible and corroborated by expert medical testimony. The court assessed the likelihood of Mr. Allen obtaining the proposed mining employment and its impact on future economic loss. It also evaluated the cost of past and future care and assistance provided to Mr. Allen. Ultimately, the court awarded Mr. Allen substantial damages, reflecting the significant impact of the accident on his life.

The court's final order was for judgment in favour of the plaintiff against the defendant, awarding the plaintiff $2,499,399.69 in damages.

Orders

Orders of the court

1. Judgment for the plaintiff against the second defendant for $2, 499, 399.69.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In respect of paragraph 9(n) the defendants admit that Mr Allen has suffered from a musculoligamentous injury to the cervical spine resulting in a 7% whole person impairment, a lumbar spinal soft tissue injury resulting in a 0% impairment, but deny there is a C8-T1 radiculopathy. At paragraph 5(l) the defendants admit that Mr Allen has suffered from a traumatic brain injury but say that any impairment of cognition or memory is minor. Evidence of Non-Expert Witnesses Mr Allen is a difficult witness to assess. Mr Allen broke down on several occasions, and in particular, lost complete control of his emotions when discussing how his children have suffered. Dr Isailovic, psychiatrist, described in her reports and in her evidence Mr Allen’s “highly tangential style”, that is, that Mr Allen would not always respond to questions but rather say what he thought was relevant. Dr Isailovic noted that Mr Allen was unresponsive to most questions asked of him but rather tended to respond as he wished to respond, which Dr Isailovic said was consistent with her diagnosis of post-traumatic stress disorder and major depressive disorder. Mr Allen himself said that he always “goes off on tangents” and that he had grave difficulty in himself determining what part of his problems were physical and what part were psychiatric. I accept that Mr Allen was an honest witness, but I have concerns about his accuracy and reliability which stems from his severely emotional state and his “highly tangential” state. Dr Kingston, Mr Allen’s wife, was a very impressive witness, and I accept her evidence. In particular, I accept Dr Kingston’s evidence as to Mr Allen’s personality prior to the motor vehicle accident. She described Mr Allen as: [3]“An exceptionally charismatic gentleman. Full of wit. We laughed a lot… There was a lot of fun, very quick – very quick with his quips. An exceptionally patient man. … Exceptionally patient with his children. … To the point where I would say particularly about the girls that he needed to be a bit stronger with them because they would get – run over him all the time. So never lost his temper. I never, ever saw him lose his temper with the children ever. And you know, we had a lot of laughs and we had a lot of fun. And very bright and we really had a good – we had a very good marriage, our relationship.”[3]T3-52. Dr Kingston described her observations of her husband post-accident as follows: [4]“…I’m here as his wife and not as an occupational therapist but I will preface this with saying I am – I’ve been an OT for longer than I’ve been his wife so I talk a lot in that language. And for the past six years, he’s not the man I met. … So physically, he has a loss of stamina, fatigue and pain, a loss of strength and a range of motion. He can’t lift things or anything from up high. If he bends down, it causes him pain in the back. I think the biggest impact, though, has been the cognitive and the psychological. So cognitively, he’s – he’s unable to – so he will either – and you may have seen it with him, with the way that he has been is that he either perseverates on one task. … Or he goes off on the biggest tangents that you’ve ever seen. … So the planning, prioritising, sequencing, problem solving, all those things, he needs loads of prompting and – and encouraging. Psychologically, … if he gets too stressed, he just loses it. He just loses it.”[4]T3-79 to T3-80.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Allen v O’Donnell & Anor [2021] QSC 63
PARTIES:	BLAISE ANTHONY ALLEN (plaintiff) v MATTHEW THOMAS O’DONNELL (first defendant) RACQ INSURANCE LIMITED ACN 009 704 152 (second defendant)
FILE NO/S:	SC No 915 of 2019
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	25 March 2021
DELIVERED AT:	Rockhampton
HEARING DATE:	22, 23, 24, 25, 26 February 2021
JUDGE:	Crow J
ORDER:	1. Judgment for the plaintiff against the second defendant for $2, 499, 399.69.
CATCHWORDS:	DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT GENERALLY – where the plaintiff suffered physical and psychological injuries in a motor vehicle accident – where liability is admitted – where the plaintiff claims damages for personal injuries arising from the motor vehicle accident – where damages are assessed under the Civil Liability Act 2003 (Qld) DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT GENERALLY – LOSS OF OPPORTUNITY - where a recruitment agent approached the plaintiff post-accident regarding employment in the mining industry - where the employment in question had a much larger salary range than plaintiff’s previous employment – where recruitment agency received hundreds of applications – whether the plaintiff was likely to have obtained such employment – whether it effects the calculation of future economic loss DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – GRATUITOUS CARE OR ASSISTANCE RENDERED TO CLAIMANT – GENERALLY - where plaintiff received past care and assistance – where the plaintiff will receive future care and assistance – assessment of damages for gratuitous care Civil Liability Act 2003 (Qld), s 59, s 61 Civil Liability Regulation 2014 (Qld) Alridge v Allianz Insurance [2009] QSC 257, cited CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, followed Munzer v Johnston & Anor [2008] QSC 162, applied McAndrew v AAI Limited [2013] QSC 290 , applied Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, cited Wilson v McLeay (1961) 106 CLR 523; [1961] HCA 56, cited
COUNSEL:	S J Deaves, with M M Willey, for the plaintiff K S Howe, with M Forbes, for the second defendant
SOLICITORS:	Grant and Simpson for the plaintiff Cooper Grace Ward for the second defendant