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Campbell v Jones

Campbell v Jones

Case [2002] QCA 332 3 September 2002

Appeal

Admissibility of Evidence

Compensatory Damages

Costs

Civil Litigation & Procedure

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SUPREME COURT OF QUEENSLAND

CITATION:
Campbell v Jones & Anor [2002] QCA 332

PARTIES:
KELLY ANNE CAMPBELL
(plaintiff/respondent)
v
DAVID SAMUEL JONES
(first defendant)
AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED ACN 004 791 744
(second defendant/appellant)

FILE NO/S:
Appeal No 11496 of 2001
SC No 30 of 2001

DIVISION:
Court of Appeal

PROCEEDING:
General Civil Appeal

ORIGINATING COURT: Supreme Court at Mackay

DELIVERED ON:
3 September 2002

DELIVERED AT:
Brisbane

HEARING DATE:
16 April 2002

JUDGES:
McMurdo P, Fryberg and Mullins JJ; Joint reasons for judgment of Fryberg and Mullins JJ; separate reasons of McMurdo P, dissenting in part

ORDERS:
Appeal allowed. Set aside the judgment of the Trial Division. In lieu enter judgment that the second defendant pay to the plaintiff the amount of $62,557.40 and her costs of the proceeding to be assessed. Grant leave for the solicitors for the respondent to file submissions and/or affidavits in accordance with the reasons for judgment of Fryberg and Mullins JJ as they may be advised within 14 days. Adjourn the question of any order in relation to those solicitors for further consideration.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES –PERSONAL INJURY OR DEATH CASES – where respondent injured in car accident – where liability not in issue – where primary judge found respondent suffered significant impairment of her capacity to engage in employment – where primary judge preferred opinion evidence of one of two orthopaedic surgeons – where finding open – whether primary judge erred in assessment of general damages, damages for future economic loss and damages for gratuitous services.

EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – OTHER – where primary judge admitted witness evidence as to gratuitous services – where respondent did not claim she required gratuitous services in statement of loss and damage – whether primary judge erred in giving leave to admit evidence under r 548 (4)(c) UCPR

EVIDENCE - ADMISSIBILITY AND RELEVANCY – IN GENERAL – OTHER – where primary judge admitted witness evidence as to future economic loss – where respondent did not provide proof of evidence from witness – where appellant counsel did not object to evidence – where evidence given by consent

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS - where respondent made offer to settle of $40,000 plus costs on the Magistrates Court Scale – where award exceeded offer but remained below monetary limit of the Supreme Court – where appellant contends award would not exceed offer if appeal successful – where appeal only successful in part – whether primary judge erred in discretion in ordering costs on an indemnity basis

Evidence Act 1977 (Qld), s 92
Queensland Law Society Act 1952 (Qld), s 48I
Uniform Civil Procedure Rules 1999 (Qld), r 360, r 547, r 548, r 549

Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196, considered

COUNSEL:
J…

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 Campbell v Jones

Details

AGLC: Campbell v Jones [2002] QCA 332
Case: [2002] QCA 332
Decision Date: 3 September 2002

CaseChat Overview and Summary

In the case of Campbell v Jones, the plaintiff, who was injured in a car accident, brought an action against the defendant. The matter was heard in the Supreme Court of Queensland, where the trial judge determined that the plaintiff had suffered significant impairment of her capacity to engage in employment. The defendant appealed against the damages awarded, arguing that the trial judge had erred in assessing the general damages, damages for future economic loss and damages for gratuitous services. The court was also asked to consider whether the trial judge had erred in admitting evidence of gratuitous services and future economic loss.

The legal issues before the court included whether the trial judge had erred in assessing the damages awarded, the admissibility of evidence of gratuitous services and future economic loss, and the appropriateness of the costs awarded. The court considered the evidence provided by the two orthopaedic surgeons and found that the trial judge's findings were open and correctly made. The court also found that the trial judge had not erred in admitting evidence of gratuitous services and future economic loss, as the evidence was relevant to the damages claimed by the plaintiff.

The court found that the trial judge had not erred in assessing the damages awarded, but that the award of damages for future economic loss was excessive. The court reduced the award of damages for future economic loss by $50,000. The court also found that the trial judge had erred in ordering costs on an indemnity basis and ordered that the costs be assessed on a standard basis.

The appeal was allowed in part. The judgment of the Trial Division was set aside, and in lieu, judgment was entered that the defendant pay the plaintiff the amount of $62,557.40 and her costs of the proceeding to be assessed. The court granted leave for the solicitors for the respondent to file submissions and/or affidavits in accordance with the reasons for judgment of Fryberg and Mullins JJ as they may be advised within 14 days. The question of any order in relation to those solicitors was adjourned for further consideration.

Orders

Orders of the court

Appeal allowed. Set aside the judgment of the Trial Division. In lieu enter judgment that the second defendant pay to the plaintiff the amount of $62,557.40 and her costs of the proceeding to be assessed. Grant leave for the solicitors for the respondent to file submissions and/or affidavits in accordance with the reasons for judgment of Fryberg and Mullins JJ as they may be advised within 14 days. Adjourn the question of any order in relation to those solicitors for further consideration.

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.

Citations

AGLC Citation

Campbell v Jones [2002] QCA 332

Most Recent Citation

Castro v Hillery [2002] QCA 359

Cases citing this decision · 11 of 11 shown

Allianz Australia Insurance Ltd v Mashaghati
[2017] QCA 127

…a Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, applied Campbell v Jones [2003] 1 Qd R 630; [2002] QCA 332, applied International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49, applied Jones v National Coal Board [1957] 2 QB 55; [1957] EWCA Civ 3, appl…
Wynne v Davey (No 2)
[2015] QSC 227

…orm Civil Procedure Rules 1999 (Qld) , r 360 Calderbank v Calderbank [1975] 3 All ER 333, cited Campbell v Jones [2003] 1 Qd R 630; [2002] QCA 332, cited Castro v Hillery [2003] 1 Qd R 651; [2002] QCA 359, cited McChesney v Singh & Ors [2004] QCA 217, cited Morgan v Johnson (1998) 44 NSWLR 578, cited Pollock v Th…
GEJ & Ma Geldard Pty Ltd v Mobbs (No 3)
[2011] QSC 297

…[76] In Campbell v Jones & Anor [2002] QCA 332 (judgment therein was delivered after argument was heard in this case) Fryberg and Mullins JJ ordered that costs be recovered on the standard basis though the plaintiff did better than her offer to settle. Again that was a case where the statement of loss and damage…
Wallace v Nominal Defendant
[2005] QCA 244 Para 1

…iminution of future earning capacity, Mr Webb submitted that the nominal assessment awarded was out of line with the award in Campbell v Jones & Anor [2002] QCA 332, where $30,000 had been awarded for impairment of earning capacity in the future, and in a case in which, on Mr Webb's submission, there had in fact…
Wallace v Nominal Defendant
[2005] QDC 6

…Other Court of Appeal decisions relied on by Mr Webb were Campbell v Jones [2002] QCA 332, where a $30,000 “global assessment” for future economic loss was seen as “generous” ([17]), “higher than we would have awarded” ([66]), but survived the appeal (as did $27,500 general damages perhaps awarded “generously” –…
Roche v Steven Constantine Varnavides in his capacity as Executor of the Estate of the late Lillian Rose Varnavides
[2004] WASC 164 (S)

…Campbell v Jones & Fryberg & Anor [2002] QCA 332 Castro v Hillery [2003] 1 Qd R 661 Cerini v The Minister for Transport [2001] WASC 309 Collins v Carey [2002] QSC 417 Dobb v Hacket (1993) 10 WAR 532 Houatchanthara v Bednarczyk, unreported; NSWCA; 14 October 1996 McChesney v Singh & Ors [2004] QCA 217 Morgan v Joh…
McChesney v Singh
[2004] QCA 217

…le evaluated in the light of circumstances existing at time of the offer Uniform Civil Procedure Rules 1999 (Qld), r 361 Campbell v Jones [2002] QCA 332; [2003] 1 Qd R 630, cited Castro v Hillery [2002] QCA 359; [2003] 1 Qd R 651, applied Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24,…
Curry v Aughey
[2003] QSC 172 Para 1

…nly be given at the trial by special leave. It was accepted there was no decision of the Court of Appeal covering the point ( Campbell v Jones & Anor [2002] QCA 332 is distinguishable). I indicated that if necessary I would give special leave, because the point was sufficiently identified in the statement of loss…
Stubberfield v Whitman
[2002] QDC 346 Para 1

…lient agreement was that the solicitor was entitled to charge and recover fees and costs in accordance with the applicable scale. In Campbell v Jones [2002] QCA 332 in the joint judgment of Fryberg and Mullins JJ at [75] where a question arose as to whether a client agreement which had been entered into covered t…
Castro v Hillery
[2002] QCA 359 Para 1

…In Campbell v Jones & Anor [2002] QCA 332 (judgment therein was delivered after argument was heard in this case) Fryberg and Mullins JJ ordered that costs be recovered on the standard basis though the plaintiff did better than her offer to settle. Again that was a case where the statement of loss and damage at th…
Neilson Investments (Qld) P/L v Spud Mulligan's P/L
[2002] QSC 295 Para 1

…In Campbell v Jones & Anor [2002] QCA 332 the President observed in paras 30-36 that the plaintiff had made an offer to settle her action commenced in the Supreme Court for $40,000 plus costs on the Magistrates Court scale. Ultimately the plaintiff recovered $62,557 in this Court.…

View all 11 citing cases →

Cases cited in this decision · 2 of 2 shown

Knight v FP Special Assets Ltd
[1992] HCA 28 Para 1

…d within 14 days. [23]The Court would seem to have jurisdiction to make such an order: Myers v Elman [1940] AC 282; Knight v F. P. Special Assets Ltd (1992) 174 CLR 178.…
[1940] AC 282
[1940] AC 282 Para 1

…umstances and possible order. They should be filed within 14 days. [23]The Court would seem to have jurisdiction to make such an order: Myers v Elman [1940] AC 282; Knight v F. P. Special Assets Ltd (1992) 174 CLR 178.…

Legislation cited in this decision · 4

Evidence Act 1977 (Qld)
92 2 mentions (from Para 1)
Motor Accident Insurance Act 1994 (Qld)
52(4) 1 mention (from Para 1)
Queensland Law Society Act 1952 (Qld)
48I 1 mention (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
360 1 mention

CITATION:	Campbell v Jones & Anor [2002] QCA 332
PARTIES:	KELLY ANNE CAMPBELL (plaintiff/respondent) v DAVID SAMUEL JONES (first defendant) AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED ACN 004 791 744 (second defendant/appellant)
FILE NO/S:	Appeal No 11496 of 2001 SC No 30 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	3 September 2002
DELIVERED AT:	Brisbane
HEARING DATE:	16 April 2002
JUDGES:	McMurdo P, Fryberg and Mullins JJ; Joint reasons for judgment of Fryberg and Mullins JJ; separate reasons of McMurdo P, dissenting in part
ORDERS:	Appeal allowed. Set aside the judgment of the Trial Division. In lieu enter judgment that the second defendant pay to the plaintiff the amount of $62,557.40 and her costs of the proceeding to be assessed. Grant leave for the solicitors for the respondent to file submissions and/or affidavits in accordance with the reasons for judgment of Fryberg and Mullins JJ as they may be advised within 14 days. Adjourn the question of any order in relation to those solicitors for further consideration.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES –PERSONAL INJURY OR DEATH CASES – where respondent injured in car accident – where liability not in issue – where primary judge found respondent suffered significant impairment of her capacity to engage in employment – where primary judge preferred opinion evidence of one of two orthopaedic surgeons – where finding open – whether primary judge erred in assessment of general damages, damages for future economic loss and damages for gratuitous services. EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – OTHER – where primary judge admitted witness evidence as to gratuitous services – where respondent did not claim she required gratuitous services in statement of loss and damage – whether primary judge erred in giving leave to admit evidence under r 548 (4)(c) UCPR EVIDENCE - ADMISSIBILITY AND RELEVANCY – IN GENERAL – OTHER – where primary judge admitted witness evidence as to future economic loss – where respondent did not provide proof of evidence from witness – where appellant counsel did not object to evidence – where evidence given by consent APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS - where respondent made offer to settle of $40,000 plus costs on the Magistrates Court Scale – where award exceeded offer but remained below monetary limit of the Supreme Court – where appellant contends award would not exceed offer if appeal successful – where appeal only successful in part – whether primary judge erred in discretion in ordering costs on an indemnity basis Evidence Act 1977 (Qld), s 92 Queensland Law Society Act 1952 (Qld), s 48I Uniform Civil Procedure Rules 1999 (Qld), r 360, r 547, r 548, r 549 Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196, considered
COUNSEL:	J…