Attard v Hore - [2003] QCA 536

SUPREME COURT OF QUEENSLAND

CITATION:

Attard v Hore & Anor [2003] QCA 536

PARTIES:

LORETTA KAY ATTARD
(plaintiff/respondent)
v
BENJAMIN PETER HORE
(first defendant)
QBE INSURANCE LIMITED
(second defendant/appellant)

FILE NO/S:

Appeal No 3813 of 2003
SC No 30 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury-Quantum only

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

5 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2003

JUDGES:

de Jersey CJ, McPherson JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed
2. The appellant pay the respondent’s costs of the appeal to be assessed

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where appellant appeals against the assessment of damages made by primary judge – whether the assessment of damages was manifestly excessive – whether an inadequate discount was applied in the assessment of damages for past economic loss – no proper ground for interfering with the award – appeal dismissed

COUNSEL:

K N Wilson SC for the appellant
D V C McMeekin SC for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellant
Macrossan & Amiet for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Mullins J. I agree with the orders proposed by her Honour, and her reasons.

McPHERSON JA: For the reasons given by Mullins J, with which I agree, this appeal should be dismissed with costs.

MULLINS J: The respondent who was the plaintiff at trial obtained a judgment against the appellant which was the second defendant at the trial in the sum of $87,522.38. The appellant was ordered to pay the plaintiff’s costs of the action assessed on an indemnity basis, but limited to the costs which would have been recoverable if the action had been brought in the District Court and to exclude the respondent’s costs of the application to transfer the action from the District Court to the Supreme Court.

The respondent’s claim was for damages for personal injuries sustained in a motor vehicle accident which occurred on 4 August 1998. Liability for the accident was apportioned by the learned trial judge as to 25% to the first defendant and 75% to the respondent. There is no challenge to the findings on liability.

By its notice of appeal, the appellant appeals against that part of the judgment in which the learned trial judge assessed the respondent’s damages in the sum of $350,089.52 and the order made as to costs. At the hearing of the appeal, the appellant abandoned the appeal against the costs order, except to the extent that any success on the appeal against the assessment may affect the costs order made at trial.

Findings of the trial judge

The respondent was born in June 1968. She was therefore 30 years old at the date of accident and 34 years old when…

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 Attard v Hore

Details

AGLC: Attard v Hore [2003] QCA 536
Case: [2003] QCA 536
Decision Date: 5 December 2003

CaseChat Overview and Summary

The appeal before the court involves Attard, the appellant, and Hore, the respondent. The dispute arises from a personal injury claim where the primary judge assessed the damages awarded to Attard following a car accident. Attard challenges the assessment of damages, arguing that the amount awarded was manifestly excessive and that an inadequate discount was applied to the damages for past economic loss. The appeal was heard in the court of appeal, which was tasked with determining whether the assessment of damages was erroneous and if the appeal had merit.

The court was required to decide whether the primary judge's assessment of damages was manifestly excessive, particularly in the context of the economic loss component. The appellant argued that the award did not adequately consider the evidence presented regarding the impact of the injuries on Attard's earning capacity. The court also had to examine whether the primary judge applied an appropriate discount to the economic loss damages, considering the factors relevant to the calculation of such damages. These issues were pivotal in determining the fairness and accuracy of the damages awarded.

After a thorough review of the evidence and the arguments presented by both parties, the court found that there was no proper ground to interfere with the primary judge's assessment of damages. The court concluded that the damages awarded were not manifestly excessive and that the primary judge had appropriately considered the evidence regarding economic loss. The appeal was dismissed as the court found no basis to alter the damages awarded by the primary judge. Consequently, the appeal was unsuccessful, and the respondent was awarded the costs of the appeal, which are to be assessed.

In summary, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The court upheld the primary judge's assessment of damages, finding no grounds for interference. The outcome reflects the court's confidence in the primary judge's evaluation of the evidence and the appropriate application of legal principles in assessing the damages.

Orders

Orders of the court

1. Appeal dismissed

2. The appellant pay the respondent’s costs of the appeal to be assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Attard v Hore & Anor [2003] QCA 536
PARTIES:	LORETTA KAY ATTARD (plaintiff/respondent) v BENJAMIN PETER HORE (first defendant) QBE INSURANCE LIMITED (second defendant/appellant)
FILE NO/S:	Appeal No 3813 of 2003 SC No 30 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Personal Injury-Quantum only
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	5 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2003
JUDGES:	de Jersey CJ, McPherson JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed 2. The appellant pay the respondent’s costs of the appeal to be assessed
CATCHWORDS:	DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where appellant appeals against the assessment of damages made by primary judge – whether the assessment of damages was manifestly excessive – whether an inadequate discount was applied in the assessment of damages for past economic loss – no proper ground for interfering with the award – appeal dismissed
COUNSEL:	K N Wilson SC for the appellant D V C McMeekin SC for the respondent
SOLICITORS:	McInnes Wilson Lawyers for the appellant Macrossan & Amiet for the respondent