Baxter v Insurance Australia Ltd

[2015] ACTSC 273

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Baxter v Insurance Australia Limited

Citation:

[2015] ACTSC 273

Hearing Date:

20 May 2015

DecisionDate:

8 September 2015

Before:

Mossop AsJ

Decision:

See [39]

Category:

Principal Judgment

Catchwords:

PERSONAL INJURY – Motor vehicle accident – assessment of damages – appeal by way of rehearing – consideration of reliability of evidence of plaintiff at trial – consideration of reliability of expert medical opinion where opinion based substantially on complaints and history provided by plaintiff – appropriateness of reference to and consideration of earlier decisions in assessment of general damages

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 99

Court Procedures Rules 2006 (ACT)

Cases Cited:

Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325

Davies v Grgic [2006] ACTSC 14
De Marco v Italo-Australian Club (ACT) Ltd [2010] ACTSC 28
Eames v Shain [2012] ACTSC 116
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Tsueneaki v Stewart [2013] ACTCA 34
Urbaniak-Bak v Prail [2014] ACTSC 171

Vulin v Cox [2005] ACTCA 22

Parties:

Tristan Baxter (Appellant)

Insurance Australia Limited t/as NRMA Insurance (Respondent)

Representation:

Counsel

Mr S Pilkinton SC (Appellant)

Mr K Rewell SC (Respondent)

Solicitors

Blumers Personal Injury Lawyers (Appellant)

HWL Ebsworth (Respondent)

File Number:

SCA 107 of 2014

Decision under appeal:

Court/Tribunal:             ACT Magistrates Court

Before:  Magistrate Morrison

Date of Decision:         27 November 2014

Case Title:  Baxter v Song & Anor

Court File Number:       CS 715 of 2013

Introduction

1. This is an appeal against a decision of a Magistrate who was assessing damages arising out of a motor vehicle accident.  The appellant was the plaintiff below. The hearing took place over four days in May and September 2014.  The judgment was given on 27 November 2014.

1. The grounds of appeal that were pursued are as follows:

His Honour erred in:

a.assessing general damages at $20,000 given his findings about the impact of the accident on the plaintiff;

b.calculating interest on past general damages given his error as to the correct level of general damages;

c....

d.calculating a buffer for future economic loss of only $5,000 given his findings about the Appellant's capacity for work, the Appellant's training and experience for work and given the impact of the accident on him;

e.failing to have regard to the evidence of Dr Le Leu and Dr McBurnie in his assessment of damages such evidence being relevant to general damages, interest on general damages, future out of pocket expenses and future economic loss;

f.failing to give adequate reasons in his assessment of damages such evidence being relevant to general damages, interest on general damages, future out of pocket expenses and future economic loss. [sic]

Nature of the appeal

1. The appeal is an appeal by way of rehearing.  The required approach to such an appeal is summarised in Urbaniak-Bak v Prail [2014] ACTSC 171 at [51]-[54].

The decision below

1. The appellant and another person were passengers in a motor vehicle which was involved in a collision while travelling…