Bailey v Nominal Defendant

[2004] QCA 344

SUPREME COURT OF QUEENSLAND

CITATION:

Bailey v Nominal Defendant [2004] QCA 344

PARTIES:

PETER JOHN BAILEY
(plaintiff/respondent)
v
NOMINAL DEFENDANT
(defendant/appellant)

FILE NO/S:

Appeal No 12006 of 2003
SC No 969 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

24 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2004

JUDGE:

Jerrard JA and Chesterman and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed.  Order below is varied by substituting the amount of $370,000.00 as the judgment sum in lieu of the amount of $523,481.65;

2. Appellant pay one half of the respondent’s cost of the appeal

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – APPORTIONMENT OF DAMAGES – where respondent suffered injuries when his vehicle was involved in a single car accident – where respondent was the only witness to the accident – where trial judge’s decision based on findings of credibility – whether trial judge misused his advantage in accepting respondent’s account 

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – APPORTIONMENT OF DAMAGES – where respondent suffered physical injuries in accident and subsequently suffered psychiatric injuries – where trial judge awarded damages for economic loss on basis that respondent had been discharged from the army because of his injuries – whether trial judge erred in so concluding – whether discharge resulted from misconduct of the respondent

Uniform Civil Procedure Rules 1999 (Qld), r 770(3)

Beard v Richmond & Ors (1987) Aust Torts Reports 80-129, distinguished
Devries v Australia National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 77 ALJR 989, distinguished

State Rail Authority of NSW v Weigold (1991) 25 NSWLR 500, applied

COUNSEL:

P A  Keane QC, with K N Wilson SC, for the appellant

J A Griffin QC, with P C Lafferty, for the respondent

SOLICITORS:

Walsh Halligan Douglas for the appellant

Roati and Firth for the respondent

1. JERRARD JA: In this appeal I have read and respectfully agree with the reasons for judgment of Philippides J, which held that the appellant fails to overturn the decision on liability.  I add the following comments.

1. As Philippides J recounts, a decision to discharge the respondent on disciplinary grounds was made on 20 October 1999 and his discharge was delayed until the receipt of the FMB (Final Medical Board) assessment.  That was received on 26 October 1999, assessing the plaintiff as grade 4, which would also result in an inevitable and immediate discharge.  But since a decision had been made to discharge him on disciplinary grounds, then unless the conduct constituting those grounds was related to his psychiatric condition and therefore to the accident, it is simply unfortunate for the respondent that his physical injuries and the resultant grade 4 assessment would have resulted in his discharge on medical grounds in any event. 

1. It is undeniable that the respondent would have suffered the loss of his army…