Busch v Parker

Case [2022] QSC 211

SUPREME COURT OF QUEENSLAND

CITATION:

Busch v Parker & Anor [2022] QSC 211

PARTIES:

Stephen Robert Busch

(Plaintiff)

v
Jason Edward Parker

(First Defendant)

AAI Limited Trading as Suncorp Insurance

(Second Defendant)

FILE NO/S:

SCR No 31 of 2019

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland at Cairns

DELIVERED ON:

30 September 2022.

DELIVERED AT:

Townsville

HEARING DATES:

31 January, 1, 2, 3 February, 14 April 2022

JUDGE:

North J

ORDER:

1.   Judgment for the plaintiff against the second defendant for $5,000.

2.   Order that the parties exchange and file submissions with respect to costs within 28 days.

CATCHWORDS:

PERSONAL INJURY – MOTOR VEHICLE ACCIDENT – WHIPLASH INJURY – ASSESSMENT OF DAMAGES – WHETHER THE PLAINTIFF HAS PROVEN INJURY AND DAMAGE

COUNSEL:

Self Represented for the Plaintiff

Mr Glen for the First and Second Defendants

SOLICITORS:

Self Represented for the Plaintiff

Jensen McConaghy Lawyers for the First and Second Defendants

Introduction

  1. The plaintiff was the driver of a motor vehicle involved in an accident with another vehicle on 10 March 2014.  He was then 48 years of age and at the time of the trial was 56 years of age (d.o.b. 23/08/1965).

  2. He claims damages for injuries he alleges were sustained in the motor vehicle accident. The defendants have admitted liability so consequently the issues are the nature and extent of a neck or cervical spine injury (if any) and the extent to which the neck or cervical spine injury was and remains productive of pain and suffering and of economic loss. [1]

    [1]     Paragraph [3] of the Amended Defence filed 14 June 2021 puts into issue whether the plaintiff sustained any injury and denies that, if the plaintiff sustained any injury, that he suffered the consequences he alleged.

  3. The issues joined between the parties are identified in the Statement of Claim filed on 22 January 2019 as amended by a document prepared by Mr Busch, who acts for himself, and described as a “Statement of Claim”.  At the outset of the trial I gave Mr Busch leave to read and file and rely upon the amendment to the pleadings.[2]  For the defendants they relied upon the amended defence filed on 14 June 2021 which appears to comprehensively identify the issues relied upon the defendants in the defence of the claim.

    [2]     A copy of which is MFI 3.

  4. Strictly speaking the amended defence pleaded to the original Statement of Claim and Mr Glen of counsel who appeared for the defendants was content to rely upon the detail of the amended defence. No issue was taken with this course by Mr Busch. The trial proceeded on the basis that the relevant pleadings therefore were the Statement of Claim, as amended by MFI 3 and the amended defence.

  5. I should mention that Mr Busch sought to rely upon a document as a response to the amended defence (see MFI 4) and that it take effect somewhat like a reply.  For the reasons I gave I refused leave…

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Details
AGLC
Busch v Parker [2022] QSC 211
Case
[2022] QSC 211
Decision Date

CaseChat Overview and Summary

In the matter of Busch v Parker, the plaintiff, Stephen Robert Busch, sought damages for injuries sustained in a motor vehicle accident involving the defendant, Jason Edward Parker. The dispute centred on whether the plaintiff had successfully proven the injury and the damages claimed. The case was heard in a relevant court in Australia. The court had to decide the nature and extent of the plaintiff's injuries and whether those injuries were a result of the motor vehicle accident. The court also had to determine if the plaintiff had suffered any loss of earning capacity and the appropriate amount of damages.

The plaintiff presented evidence that he had sustained injuries in the accident, including neck pain, severe headaches, and ongoing aches and pains. The plaintiff also provided evidence of his attempts to manage his pain through over-the-counter drugs, massages, and hot showers, as well as ceasing activities like touch football and spearfishing due to the effects of the accident. The court considered medical evidence, expert opinions, and the plaintiff's own testimony. The defendants argued that the plaintiff had not proven any loss of earning capacity and that the injuries were not as severe as claimed.

The court concluded that the plaintiff had not proven any loss of earning capacity, past or future. However, the court found that the plaintiff had sustained injuries as a result of the motor vehicle accident and awarded damages. The court assessed an injury severity value (ISV) of 2 or 3, amounting to $2,720 or $4,080. In addition, the court awarded a modest global allowance, resulting in a total award of $5,000 to the plaintiff.

In summary, the court found in favour of the plaintiff, awarding $5,000 in damages. The parties were ordered to exchange and file submissions regarding costs within 28 days.

Orders

Orders of the court

1. Judgment for the plaintiff against the second defendant for $5,000.

2. Order that the parties exchange and file submissions with respect to costs within 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In my reasons I propose to proceed by outlining the evidence called and given by the plaintiff including his evidence including that given in cross examination and then canvass the medical evidence including the experts I’ve referred to, the medical records, the employment records including relevant witnesses and other evidence (including the witnesses called by the defendants) before turning to my discussion and findings and assessment of damages.The evidence in chief of the plaintiff The plaintiff gave evidence reading from a prepared statement. No objection was taken to this course. The statement was not called for by Mr Glen and was not tendered into evidence. It is convenient to quote from the transcript what the plaintiff said excising from the transcript details for objections taken and matters objected to. The plaintiff’s evidence began:[5] “My name is Stephen Robert Busch. I’ll read out this witness statement. On the 10th of March 2014, I was involved in a MVA in Mount Isa. As I’ve stated before, it was around 3 pm, I was driving a 1995 small Nissan Skyline back to my workshop. I was completely stationary at the intersection of Fourth Avenue and 23rd Avenue awaiting to turn right with my right indicator on awaiting oncoming traffic when I was hit behind from another vehicle. My vehicle was then pushed some distance down the road before it came to a stop. As I stated, I alighted from the vehicle and felt this burning pain in my neck. I also observed that my vehicle had been a tyre service truck. This vehicle had tyres and equipment on the back of it. I spoke to the drive of the tyre service truck. He identified himself as Jason Edward Parker, and I must say for the record he was very apologetic which was good. We contacted the Mount Isa Police to request their attendance at the accident site. After this I then removed the vehicle from the carriageway. It – I only had to drive it a little way to get it off the roadside. The Queensland Ambulance Service did not attend the scnee. The Queensland Fire and Rescue Service did not attend the scene. Two Queensland Police officers attended the scene some 40 minutes after the collision. The police questioned myself and Jason Edward Parker and took statements.…”“… I did not receive medical attention that day. My vehicle was then towed away. The vehicle was later on assessed and written off by the insurance assessor. As I stated, after the vehicle was towed away I went back to work to complete our tasks for this shut down at that stage. I felt that I had to attend work as management responsibilities and to oversee this task was completed as it was very important. So I was supervising this task as well. I had had ongoing aches and pains in my neck and severe headaches at time ever since this accident. I have been alleviating this pain with a lot of the over-the-counter drugs and therapeutic massages, hot showers, pool exercises in order to keep functioning. I continued this treatment for work and everyday life until I could no longer tolerate this in early in 2019 where I sought medical treatment for a number of issues before and after that accident, all of which have healed and do not pose a problem at this point in time. One of these issues was a piece of crayfish shell that was imbedded in my palm on my left hand in which [indistinct] placed me in hospital for a week in the Townsville Hospital. At this point, you know, I was going through a very tumultuous period in my life due to a number of factors, including bankruptcy, divorce proceedings, and being away from the children, and then the process of moving houses from Mount Isa to Townsville. So it was a hard period. I visited more legal representatives for a divorce and mentioned my motor vehicle accident back in March two thousand and – back in – the motor vehicle accident back in March 2014. The very next day I went to North Queensland X-Rays for a CT scan. Since 2014, I have visited nine assessing doctors, seven of which were by my two legal representatives, and I visited two at the request of Jensen McConaghy Lawyers in 2021.…”“… As we proceed, I managed – like I said, I managed with over-the-counter drugs, massages, and hot showers and all that, pool exercises. My first legal representatives were advising me to continue to receive massages. I have continuously [indistinct] since I was 16 years old and never, ever thought I would end up a welfare recipient. I stopped playing touch football in 2017 due to jarring and the effects after the game. So I decided to stop altogether. I’ve also ceased my love of spearfishing, as well due to after effects of it all. I ceased full employment in two thousand and – in June 2018, when I was made redundant, and that continued – then I continued part-time work till March 2019. I worked at the gas plant in Wheatstone, the Wheatstone gas plant, and in that – you know, there’s people – there’s about 7,000 people there, so when the project was coming to an end, they made, you know, everyone redundant, and some stayed on as a maintenance person, but others were made redundant. …”“… Well my current situation is critical, as I’m in constant pain and aching. I don’t get a break; it’s day in and day out. I’ve had – I’ve got tingles in my fingers and toes as a result of this, and this has been ongoing for – I would probably say a year and a half now. I’m currently awaiting a consultation from Dr Guazzo or Dr Anderson. That’s on in April the 7th; I’ve been contacted. That’s all your Honour.”[5] T1-21 commencing at l34.

Decision

Reasons for decision

The submissions of the defendants are consistent with my findings concerning the nature and extent of the plaintiff’s injury. The plaintiff has failed to prove any loss of earning or capacity to earn income past or future. I accept the defendants’ submission that Item 89 of the relevant schedule is applicable. My assessment of the likely effects of the motor vehicle accident in the circumstances of the accident described by the plaintiff in his evidence[68] suggest to me however that an ISV of 2 or 3 might be appropriate, $2,720 or $4,080.[69] In addition a modest global allowance of the nature suggested by the plaintiff is appropriate. I assess the damages recoverable by the plaintiff at $5,000.[68] See [12] above.[69] Being, in my view, somewhat generous to the Plaintiff.Conclusion There should be judgment for the plaintiff against the second defendant for $5,000. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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