Ballesteros v Chidlow

Case [2006] QCA 323

SUPREME COURT OF QUEENSLAND

CITATION:

Ballesteros v Chidlow & Anor [2006] QCA 323

PARTIES:

MICHELLE THERESE BALLESTEROS
(plaintiff/appellant)
v
HERBERT HUGH CHIDLOW
(first defendant)
RACQ INSURANCE LIMITED ACN 009 704 152
(second defendant/respondent)

FILE NO/S:

Appeal No 9344 of 2005
SC No 10080 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury - Quantum Only

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2006

JUDGES:

McMurdo P, Fryberg and Douglas JJ
Separate reasons for judgment of each member of the Court, McMurdo P and Douglas J concurring as to the orders made, Fryberg J dissenting in part

ORDER:

1.     Appeal allowed
2.     Vary judgment sum from $99,819 to $124,979
3.     Parties are allowed seven days in which to make        submissions as to the appropriate costs orders in the        appeal and at first instance in accordance with        Practice Direction No 1 of 2005, par 37A

CATCHWORDS:

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES - where appellant was a passenger in a motor vehicle accident - where appellant brought an action for damages in negligence - where defendants admitted liability for the accident - where appellant contends that the primary judge's assessment of general damages, damages for past and future economic loss and damages for future care was wrong and inadequate - whether primary judge erred in the assessment of a number of heads of damages

Civil Liability Act 2003 (Qld), s 55, s 61, s 62

Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, applied
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, applied
New South Wales v Zerafa [2005] NSWCA 187; Appeal No 40378 of 2004, 3 June 2005, distinguished

Rogers v Brambles Australia Ltd [1998] 1 Qd R 212, cited

COUNSEL:

M Grant-Taylor SC, with P L Feely, for the appellant
R J Douglas SC for the respondent

SOLICITORS:

McInnes Wilson for the appellant
Cooper Grace Ward for the respondent

  1. McMURDO P:  The appellant plaintiff, Ms Ballesteros, was a passenger in a Corolla sedan driven by her mother when it collided with the first defendant Mr Chidlow's vehicle at an intersection at Dutton Park on 18 February 2003.  She was injured and brought an action in the Supreme Court in Brisbane for damages in negligence.  Mr Chidlow and the respondent second defendant, RACQ Insurance Limited, admitted liability for the collision.  After a three day trial the primary judge assessed damages at $99,819 and ordered that the respondent pay the appellant's costs on the standard basis on the applicable District Court scale where the sum recovered exceeds $50,000.

  1. The appellant contends that the primary judge erred in concluding that the appellant's complaints of lower back, hip and leg pain were not related to the motor vehicle accident and in the subsequent assessment of her general damages.  The appellant also contends that the judge's assessment of damages for past…

Continue reading Ballesteros v Chidlow

Sign in free to access the full text

Details
AGLC
Ballesteros v Chidlow [2006] QCA 323
Case
[2006] QCA 323
Decision Date

CaseChat Overview and Summary

In the case of Ballesteros v Chidlow, the appellant, who was a passenger in a motor vehicle accident, brought an action for damages in negligence against the defendants, who admitted liability for the accident. The primary dispute in this case was the quantum of damages awarded to the appellant for various heads of loss. The Court of Appeal was tasked with determining whether the primary judge's assessment of general damages, damages for past and future economic loss, and damages for future care was correct and adequate.

The central legal issue in this case was whether the primary judge erred in the assessment of a number of heads of damages. The appellant argued that the primary judge's assessment of damages was wrong and inadequate, particularly in relation to general damages, damages for past and future economic loss, and damages for future care. The court had to consider the principles of damages in tort, including the measure of damages for personal injuries, and whether the primary judge applied the correct legal standards and principles in assessing the damages.

The Court of Appeal found that the primary judge had erred in the assessment of the damages. The court found that the primary judge had underestimated the appellant's general damages, damages for past economic loss, and damages for future care. The court considered the evidence and the applicable statutory provisions and case law, including Elford v FAI General Insurance Co Ltd, Malec v JC Hutton Pty Ltd, and Rogers v Brambles Australia Ltd. The court concluded that the primary judge had not applied the correct legal principles and standards in assessing the damages, and that the damages awarded were inadequate.

The Court of Appeal allowed the appeal and varied the judgment sum from $99,819 to $124,979. The parties were allowed seven days in which to make submissions as to the appropriate costs orders in the appeal and at first instance in accordance with Practice Direction No 1 of 2005, par 37A.

Orders

Orders of the court

1. Appeal allowed

2. Vary judgment sum from $99,819 to $124,979

3. Parties are allowed seven days in which to make submissions as to the appropriate costs orders in the appeal and at first instance in accordance with Practice Direction No 1 of 2005, par 37A

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.