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Clark v Hall

Clark v Hall

Case [2006] QSC 274 26 September 2006

Negligence

Apportionment of Damages

Contributory Negligence

General Damages

Economic Loss

Loss of Future Earning Capacity

Tort Law

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SUPREME COURT OF QUEENSLAND

CITATION:

Clark v Hall and Anor [2006] QSC 274

PARTIES:

TAMMY-LEE CLARK (plaintiff)

v

MICHAEL JOHN COLCHESTER HALL (first defendant)

SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 966 (second defendant)

FILE NO/S:

BS 5949 of 2005

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September and 26 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15 August 2006 and by written submissions on various dates to 25 September 2006

JUDGE:

White J

ORDER:

1. Judgment for the plaintiff in the sum of $285,260

2. The second defendant pay the plaintiff’s costs on the indemnity basis

CATCHWORDS:

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – plaintiff injured in collision when standing between her car and trailer retrieving tools to change a flat battery – dispute of fact as to whether plaintiff failed to operate hazard lights on her car and trailer – first defendant driving without due care and attention – first defendant collided with back of plaintiff’s trailer – whether there was contributory negligence due to the plaintiff positioning herself between her car and trailer and/or her alleged failure to operate hazard lights

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – plaintiff injured in road accident due to first defendant’s negligence – plaintiff sustained open fracture of right great toe and other more minor injuries – plaintiff later experienced psychological injuries related to the accident – measure of general damages according to the injury scale value, Civil Liability Act 2003 s 62 and Civil Liability Regulation 2003 Schedule 4

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – plaintiff injured in road accident due to first defendant’s negligence – plaintiff sustained injuries that effectively ceased her employment to the date of trial – plaintiff had a mixed history of employment but at the date of the accident had found a job that suited her – plaintiff’s injuries necessitated retraining for a different type of work – measure of damages for past economic loss and loss of future earning capacity

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – reasons given to parties for the purpose of checking figures before judgment entered – after reasons given, Court of Appeal handed down a judgment which contradicted the reasons on a point of statutory interpretation – ability of judge to amend reasons and figures constituting the judgment

Civil Liability Act 2003 (Qld) ss 51, 55, 59, 61, 62.
Civil Liability Regulation 2003 (Qld) ss 6, Schedule 3 ss 1-6, 8-11, 14, Schedule 5 ss 4, 12, Schedule 6, Schedule 7.
Evidence Act 1977 (Qld) s 79(3).
Personal Injuries Proceedings Act 2002 (Qld) s 54.

Autodesk Inc v Dyason (1993) 176 CLR 300, cited
Carroll v Coomber and Anor [2006] QDC 146, discussed.
Coop v Johnston [2005] QDC 79, discussed.
Delaney v Shepherd & Anor [2000]…

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 Clark v Hall

Details

AGLC: Clark v Hall [2006] QSC 274
Case: [2006] QSC 274
Decision Date: 26 September 2006

CaseChat Overview and Summary

In the case of Clark v Hall, the plaintiff, Ms Clark, sought damages from the first defendant, Mr Hall, and his insurer, the second defendant, following an accident where she was injured while standing between her car and trailer to retrieve tools to change a flat battery. The plaintiff claimed damages for injuries sustained in the accident, including an open fracture of her right great toe, other minor injuries, and psychological injuries related to the accident. The first defendant was found to have driven without due care and attention, colliding with the back of the plaintiff's trailer. The dispute centred on whether the plaintiff had been negligent by positioning herself between her car and trailer and/or by allegedly failing to operate hazard lights.

The court was required to determine whether the plaintiff's actions constituted contributory negligence, which could reduce the damages awarded. The court also needed to decide the measure of general damages for the plaintiff's injuries, including the assessment of psychological injuries, and the measure of damages for past economic loss and loss of future earning capacity. The court needed to interpret relevant statutory provisions, particularly in relation to the assessment of damages and the apportionment of damages where contributory negligence is found.

The court found that the plaintiff was not contributory negligent in positioning herself between her car and trailer, as it was a reasonable action under the circumstances. The court found that there was insufficient evidence to conclude that the plaintiff failed to operate the hazard lights. The court awarded general damages for the plaintiff's injuries, including psychological injuries, and assessed damages for past economic loss and loss of future earning capacity. The court also considered the impact of the Civil Liability Act 2003 and the Civil Liability Regulation 2003 Schedule 4 on the apportionment of damages. The court amended the reasons and figures constituting the judgment to reflect the Court of Appeal's interpretation of the statutory provisions.

The court ordered that judgment be entered in favour of the plaintiff in the sum of $285,260 and that the second defendant pay the plaintiff's costs on the indemnity basis.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $285,260

2. The second defendant pay the plaintiff’s costs on the indemnity basis

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

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Clark v Hall [2006] QSC 274

Most Recent Citation

Freeleagus v Nominal Defendant [2007] QCA 116

Cases Citing This Decision

Marshall v Corbett [2023] QDC 211
Citation 1 (Para 4)

…Clark v Hall [2006] QSC 274, [80]; Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd [2009] SASC 145, [16]-[22].…
Snell v BP Refinery (Bulwer Island) Pty Ltd [2013] QSC 284
Citation 2

…whether the plaintiff was entitled to damages in the amount claimed Cameron v Foster & Anor [2010] QSC 372 Clark v Hall & Anor [2006] QSC 274 Corkery & Ors v Kingfisher Bay Resort Village Pty Ltd & Anor [2010] QSC 161 Jones v Mollking Holdings Pty Ltd [2010] QSC 134 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638…
Foster v Claybourn's Discount Tiles P/L [2010] QDC 290
Citation 3 (Para 1)

…In assessing damages under the Civil Liability Act 2003 and the Civil Liability Regulation 2003, assistance is available from Clark v Hall [2006] QSC 274 .…
Vos v Hawkswell [2010] QCA 92
Citation 4 (Para 1)

…iple. Liability must be determined by reference to the particular facts of each case.[11] [10][1975] Qd R 287 at 294, 295. [11] Clark v Hall and Anor [2006] QSC 274 at [23].…
Freeleagus v Nominal Defendant [2007] QCA 116
Citation 5 (Para 1)

…railer could easily have pulled off the carriageway onto the shoulder of the road and so obviated all risk of an accident. [18] Clark v Hall and Anor [2006] QSC 274 at 23. [19](1997) Aust Torts Reports 81-442. [20](1997) 25 MVR 479.…

See all citing cases →

Cases Cited

Kriz v King [2006] QCA 351
Citation 1 (Para 1)

…the arithmetical calculations and Mr Grant-Taylor was obtaining instructions about costs the Court of Appeal handed down its decision in Kriz v King [2006] QCA 351 on 15 September 2006. The court was confronted with the competing interpretations of s 59(1)(c) discussed above. The President with whose reasons Jer…
Carroll v Coomber and Anor [2006] QDC 146
Citation 2 (Para 1)

…Those cases are Coop v Johnston [2005] QDC 79 and Carroll v Coomber and Anor [2006] QDC 146. In each of those cases the plaintiff had very widespread and continuing injuries. In Coop v Johnston the plaintiff suffered a number of injuries the most severe of which was a cervical spine injury which produced neck pai…
Grice v State of Queensland [2005] QCA 272
Citation 3 (Para 1)

…The Court of Appeal in Grice v State of Queensland [2005] QCA 272 agreed with the trial judge who had interpreted that legislation literally and concluded that the plaintiff was only disentitled to damages for gratuitous services under s 54(2) if both (a) and (b) were met. The court was confronted with a second r…
Coop v Johnston [2005] QDC 79
Citation 4 (Para 1)

…Those cases are Coop v Johnston [2005] QDC 79 and Carroll v Coomber and Anor [2006] QDC 146. In each of those cases the plaintiff had very widespread and continuing injuries. In Coop v Johnston the plaintiff suffered a number of injuries the most severe of which was a cervical spine injury which produced neck pa…
Queensland Pork Pty Ltd v Lott [2003] QCA 271
Citation 5

…rittenden (1965) 114 CLR 164, distinguished. Queensland Pork Pty Ltd v Lott [2003] QCA 271, cited Suncorp Insurance and Finance v Fitchett (1997) 25 MVR 479, distinguished. White v May (1995) 22 MVR 473, distinguished. COUNSEL: R Lynch for the plaintiff M Grant-Taylor SC for the defendants SOLICITORS: McInnes Wil…
Goode v Thompson [2002] QCA 138
Citation 6 (Para 1)

…not necessarily relate to all the gratuitous assistance. Mr Grant-Taylor submitted that observations made by the Court of Appeal in Goode v Thompson [2002] QCA 138 particularly at [25] and [26] suggested that a lesser amount of $15.00 per hour should be allowed. But those comments were made in the context of an…
Delaney v Shepherd [2000] QCA 107
Citation 7 (Para 1)

…that the cost of travelling to work ought to be deducted as an outgoing necessary for the realisation of earning capacity, Delaney v Shepherd & Anor [2000] QCA 107 at [5]. Exhibit 13 demonstrates the distance to and from the plaintiff's residence and her work, being 16.17 km. At $0.50 per km for four days per we…
Suncorp Insurance and Finance v Fitchett [1997] QCA 104
Citation 8

…LR 164, distinguished. Queensland Pork Pty Ltd v Lott [2003] QCA 271, cited Suncorp Insurance and Finance v Fitchett (1997) 25 MVR 479, distinguished. White v May (1995) 22 MVR 473, distinguished. COUNSEL: R Lynch for the plaintiff M Grant-Taylor SC for the defendants SOLICITORS: McInnes Wilson for the plaintiff Quinlan Miller Treston for the de…
Kars v Kars [1995] QCA 410
Citation 9 (Para 1)

…de in the context of an administration charge and whether the services could be provided directly from a large pool of unskilled unemployed, see also Kars v Kars (1995) Australian Torts Reports 81 – 369 at 62, 817. The rate of $18.79 per hour is the award rate; whether or not services could be provided at a lesser ra…
Autodesk Inc v Dyason (No 2) [1993] HCA 6
Citation 10

…(3). Personal Injuries Proceedings Act 2002 (Qld) s 54. Autodesk Inc v Dyason (1993) 176 CLR 300, cited Carroll v Coomber and Anor [2006] QDC 146, discussed. Coop v Johnston [2005] QDC 79, discussed. Delaney v Shepherd & Anor [2000] QCA 107, followed. Elford v SA High General Insurance Company Limited [1994] 1 Qd R 2…
Fox v Wood [1981] HCA 41
Citation 11 (Para 1)

…f $9,248.68 which the plaintiff is obliged to refund to the insurers. They may be recovered as damages in accordance with the principle in Fox v Wood (1981) 148 CLR 438.…
Purkess v Crittenden [1965] HCA 34
Citation 12

…onal Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, applied. Purkess v Crittenden (1965) 114 CLR 164, distinguished. Queensland Pork Pty Ltd v Lott [2003] QCA 271, cited Suncorp Insurance and Finance v Fitchett (1997) 25 MVR 479, distinguished. White v May (1995) 22 MVR 473, distinguished. COUNSEL: R Lynch for…
National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15
Citation 13 (Para 1)

…ages should not, therefore, be brought into account consistently with the principles enunciated in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569.…

Legislation Cited

Civil Liability Act 2003 (Qld) 51, 55, 59, 61, 62
6 mentions (from Para 1)
Evidence Act 1977 (Qld) 79(3)
2 mentions (from Para 1)
Personal Injuries Proceedings Act 2002 (Qld) 54
2 mentions (from Para 1)

CITATION:	Clark v Hall and Anor [2006] QSC 274
PARTIES:	TAMMY-LEE CLARK (plaintiff) v MICHAEL JOHN COLCHESTER HALL (first defendant) SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 966 (second defendant)
FILE NO/S:	BS 5949 of 2005
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 September and 26 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	14, 15 August 2006 and by written submissions on various dates to 25 September 2006
JUDGE:	White J
ORDER:	1. Judgment for the plaintiff in the sum of $285,260 2. The second defendant pay the plaintiff’s costs on the indemnity basis
CATCHWORDS:	TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – plaintiff injured in collision when standing between her car and trailer retrieving tools to change a flat battery – dispute of fact as to whether plaintiff failed to operate hazard lights on her car and trailer – first defendant driving without due care and attention – first defendant collided with back of plaintiff’s trailer – whether there was contributory negligence due to the plaintiff positioning herself between her car and trailer and/or her alleged failure to operate hazard lights TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – plaintiff injured in road accident due to first defendant’s negligence – plaintiff sustained open fracture of right great toe and other more minor injuries – plaintiff later experienced psychological injuries related to the accident – measure of general damages according to the injury scale value, Civil Liability Act 2003 s 62 and Civil Liability Regulation 2003 Schedule 4 TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – plaintiff injured in road accident due to first defendant’s negligence – plaintiff sustained injuries that effectively ceased her employment to the date of trial – plaintiff had a mixed history of employment but at the date of the accident had found a job that suited her – plaintiff’s injuries necessitated retraining for a different type of work – measure of damages for past economic loss and loss of future earning capacity PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – reasons given to parties for the purpose of checking figures before judgment entered – after reasons given, Court of Appeal handed down a judgment which contradicted the reasons on a point of statutory interpretation – ability of judge to amend reasons and figures constituting the judgment Civil Liability Act 2003 (Qld) ss 51, 55, 59, 61, 62. Civil Liability Regulation 2003 (Qld) ss 6, Schedule 3 ss 1-6, 8-11, 14, Schedule 5 ss 4, 12, Schedule 6, Schedule 7. Evidence Act 1977 (Qld) s 79(3). Personal Injuries Proceedings Act 2002 (Qld) s 54. Autodesk Inc v Dyason (1993) 176 CLR 300, cited Carroll v Coomber and Anor [2006] QDC 146, discussed. Coop v Johnston [2005] QDC 79, discussed. Delaney v Shepherd & Anor [2000]…