Dunbar v Carapellotti - [2001] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION: Dunbar v Carapellotti & Anor [2001] QSC 101

PARTIES: ANDREW DUNBAR (by his next friend
KEITH DUNBAR)
(plaintiff)
v
RAYMOND CARAPELLOTTI
(defendant)
and
THE TRANSPORT ACCIDENT COMMISSION OF VICTORIA
(defendant by election)

FILE NO: No. 2418 of 1995

DIVISION: Trial

DELIVERED ON: 9 April 2001

DELIVERED AT: Brisbane

HEARING
DATES: 1 and 2 March 2001

JUDGE: Helman J.

CATCHWORDS: PERSONAL INJURIES – QUANTUM – permanent serious neurological disorder – application of Transport Accident Act
1986 (Vic), s 93(7)

Transport Accident Act 1986 (Vic), s 93(7)

John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109

COUNSEL: W D P Campbell for the plaintiff
T Matthews for the defendant by election

SOLICITORS: Murphy Schmidt for the plaintiff
Quinlan Miller & Treston for the defendant by election

[1] HELMAN J: This proceeding arises from a collision that took place in a street in Richmond, Victoria early in the morning of 9 December 1989. The defendant was driving a motor vehicle registered in Victoria when it hit the plaintiff as he walked across the street. As a result, the plaintiff suffered serious injuries and claims damages for negligence. The defendant by election is a body corporate established by the Transport Accident Act 1986 (Vic.). The defendant did not appear at the trial, which then proceeded in his absence. Liability to compensate the plaintiff is not in issue, so that the quantum of the plaintiff’s damages and the sum to be awarded to the plaintiff are the only issues for my determination.

[2] The plaintiff was born on 14 February 1966 and so was twenty-three years old when he was injured. He was taken by ambulance to St. Vincent’s Hospital, Fitzroy

2

where he was found to be unconscious and to have sustained a severe closed head injury. He was admitted to the neurosurgical unit. A computerized tomography scan demonstrated multiple intracerebral shearing haemorrhages particularly involving the deep right hemisphere structures and diffuse cerebral oedema. X-rays showed a fracture of the left radial head, fracture of the right superior pubic ramus, and fracture of the mandible. On 18 January 1990 he was transferred to Vaucluse Hospital, Brunswick for specialized neurosurgical rehabilitation. He was in a coma for some months, slowly emerging from it after approximately five months. It was then that he was able to demonstrate for the first time a capability to communicate, although he was ‘non-verbal’ for more than a year. He underwent three operations to release contractures of limbs: in September 1990, March 1991, and May 1991. He remained in the Vaucluse Hospital until January 1993 when he was transferred to the Maristowe Hospital. He stayed there for another five months until he went home to live with his parents in the small village of Maclagan in south-east Queensland forty-four kilometres from Dalby, near the Bunya Mountains.

[3] The plaintiff’s injuries have now stabilized, but he has been left with serious neurological impairment which will be permanent. Cognition is impaired; he has limited short-term memory capabilities,…

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 Dunbar v Carapellotti

Details

AGLC: Dunbar v Carapellotti [2001] QSC 101
Case: [2001] QSC 101
Decision Date: 9/04/2001

CaseChat Overview and Summary

Dunbar v Carapellotti is an action for damages for personal injuries sustained by the plaintiff as a result of a motor vehicle accident in Victoria. The defendant, Carapellotti, was driving the vehicle that collided with the plaintiff, Dunbar. Liability is not disputed, leaving only the quantum of damages to be determined. The case proceeded in the absence of Carapellotti, who did not appear at the trial. The Transport Accident Commission of Victoria was joined as a defendant by election under the Transport Accident Act 1986 (Vic). The court had to decide the appropriate amount of damages for pain and suffering, as well as pecuniary loss, considering the statutory caps and the plaintiff's permanent and severe neurological impairment.

The court assessed the damages based on the statutory framework provided by the Transport Accident Act 1986 (Vic). The plaintiff, Dunbar, suffered a severe closed head injury and multiple fractures, leading to significant and permanent neurological impairment. His injuries resulted in cognitive deficits, motor function impairments, and a substantial reduction in his quality of life. The court considered comparable Australian cases to determine the appropriate quantum of damages, applying the common law of Australia as recognized in John Pfeiffer Pty Ltd v Rogerson. The court awarded $163,026.67 for pain and suffering damages and $496,401.19 for pecuniary loss damages, including past and future loss of earning capacity, superannuation contributions, and interest.

The court's decision took into account the plaintiff's pre-accident career trajectory, his potential earnings in the public service, and the statutory caps on damages. The court also considered the plaintiff's capacity to manage his affairs and the potential need for a protection order. The final orders will include an assessment of the need for a protection order and any adjustments to the awarded damages, along with costs.

Orders