Brown v Hale - [1995] QCA 3

IN THE COURT OF APPEAL	[1995] QCA 003
SUPREME COURT OF QUEENSLAND

Appeal No. 140 of 1994

Brisbane

[Brown v. Hale]

BETWEEN:

GLENDA MAREE BROWN

Plaintiff Respondent

AND:

SPENCER MORAY HALE

Defendant Appellant
Davies JA
McPherson JA
Lee J

Judgment delivered 03/02/1995

Judgment of the Court

Appeal dismissed with costs

CATCHWORDS: PERSONAL INJURIES - assessment of damages based on favourable credit findings - interference with - economic loss - whether non-compensible injury would have excluded respondent from work force in any event - rule in Watts v. Rake - general approach on appeal - whether totality of award excessive - Griffiths v. Kerkemeyer damages - appropriate rate of interest

Counsel:	D Fraser QC for the appellant A J H Morris QC, with him R J Pack, for the respondent
Solicitors:	Lang Hemming & Hall for the appellant Suthers and Taylor for the respondent

Hearing date: 2 November 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 140 of 1994

Brisbane

Before Davies JA

McPherson JA
Lee J
[Brown v. Hale]

BETWEEN:

GLENDA MAREE BROWN

Plaintiff Respondent

AND:

SPENCER MORAY HALE

Defendant Appellant

JUDGMENT - THE COURT

Judgment delivered 03/02/1995

This is an appeal against an assessment of damages for personal injuries in the Trial Division. The respondent was injured in a motor vehicle accident at Brisbane on 12 July 1982 when the driver's side of the vehicle which she was driving was struck at an intersection by a vehicle driven by the appellant. Liability was admitted on the basis that the respondent's damages were to be reduced by 15 percent for contributory negligence. The net award was in the sum of $561,570.

After the accident the respondent was treated as an outpatient at the Princess Alexandra Hospital. The following day she visited her general practitioner complaining of pain in the cervical spine and left leg. Her complaints having substantially improved, she returned to her former work as a clerk at the Australian Tax Office (the "ATO") approximately two weeks later. On 9 August 1982 she again visited her general practitioner complaining of headaches and problems with her left knee. She ceased employment with the ATO soon after, claiming an inability to cope as a result of her injuries from the accident. She also resigned her long standing position in the army reserve due to an inability to perform the tasks required of her.

She moved to Lismore to commence study at the Lismore teachers' college and married in July 1983. Soon after she and her husband returned to Townsville. Throughout this period she continued to suffer pain in the leg and neck areas.

On 29 March 1984 the respondent underwent an arthroscopy to the left knee which revealed a tear of the medial meniscus displaced in the intercondylar notch. There was also a ruptured anterior cruciale ligament which was considered irreparable. The joint appears to have normalised for a time but soon reverted to its troublesome state. The medical evidence, which his Honour…

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 Brown v Hale

Details

AGLC: Brown v Hale [1995] QCA 3
Case: [1995] QCA 3
Decision Date: 3/02/1995

CaseChat Overview and Summary

This case involves an appeal against an assessment of damages for personal injuries awarded in the Trial Division of the Supreme Court of Queensland. The respondent, Glenda Maree Brown, was injured in a motor vehicle accident caused by the appellant, Spencer Moray Hale. Liability was admitted by the appellant, but it was agreed that the respondent's damages would be reduced by 15 percent for contributory negligence. The trial judge awarded the respondent $561,570 in damages. The appellant appealed the award, arguing that the assessment was excessive and based on errors of fact and law.

The court identified several issues for determination on appeal. The first issue was whether the trial judge was correct in finding that the respondent's degenerative lower back condition would not have excluded her from the workforce. The appellant argued that the evidence established that the lower back condition would have prevented the respondent from working, and that the trial judge should have discounted the award for economic loss accordingly. The second issue was whether the trial judge erred in calculating the Fox v. Wood component of the damages award. The appellant argued that the trial judge should have applied a more precise approach based on the respondent's actual tax circumstances. The third issue was whether the trial judge erred in awarding damages for psychiatric injury and interest on past Griffiths v. Kerkemeyer damages.

The court found in favour of the respondent on all issues. The court found that the trial judge was correct in concluding that the respondent's lower back condition would not have excluded her from the workforce, and that the appellant had not discharged the onus of proving that such a result was likely. The court found that even if the trial judge had erred in calculating the Fox v. Wood component, the overall award was not excessive and the court was not entitled to interfere merely for the sake of obtaining arithmetical perfection. The court also found that the trial judge had properly assessed damages for psychiatric injury and interest on past Griffiths v. Kerkemeyer damages.

The appeal was dismissed with costs. The court ordered that the appellant pay the respondent's costs of the appeal, to be taxed if not agreed.

Orders