Eustace v Dubrava

Case [2023] QDC 100

DISTRICT COURT OF QUEENSLAND

CITATION:

Eustace v Dubrava & Anor [2023] QDC 100

PARTIES:

ROSS GRAEME EUSTACE

(plaintiff)

v
YVETTE DUBRAVA

(first defendant)
and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(second defendant)

FILE NO/S:

3988/18

DIVISION:

Civil Division

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 June 2023

DELIVERED AT:

Brisbane District Court

HEARING DATES:

6, 7 & 8 March 2023

JUDGE:

McGinness DCJ

ORDERS:

1.   Judgement for the plaintiff in the sum of $12,966.90.

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff was injured in a motor vehicle accident – where liability is admitted – where dispute as to the nature and extent of the physical injuries caused by the motor vehicle accident – whether permanent or temporary aggravation of a pre-existing physical injury

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff was injured in a motor vehicle accident – liability admitted – where dispute as to the nature and extent of psychological injury, if any, caused by the motor vehicle accident

LEGISLATION:

Civil Liability Act 2003 (Qld) s 60

Civil Liability Regulation 2014 (Qld)

CASES:

Allwood v Wilson & Anor [2011] QSC 180
Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1986] AC 717
Baldock-Davis v Popham and Anor [2023] QSC 24
Bell v Mastermyne Pty Ltd [2008] QSC 331
Camden v MacKenzie [2008] 1 Qd R 39
Collings & Anor v Amaroo (Qld) Pty Ltd & Anor [1997] QCA 224
Fox v Percy (2003) 214 CLR 118
Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors [2018] 1Qd R 132
McDonald v FAI General Insurance Co Ltd [1995] QCA 436
Nichols v Curtis & Anor [2010] QCA 303
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403

Purkess v Crittenden (1965) 114 CLR 164

COUNSEL:

A C Canceri for the plaintiff

R Morton for the first and second defendants

SOLICITORS:

CMC Lawyers for the plaintiff
McInnes Wilson Lawyers for the first and second defendants

Introduction

  1. On 15 August 2017 the plaintiff, Mr Eustace was driving his motor vehicle in a northerly direction along Maroochy Boulevard at Maroochydore.  He was travelling in the right-hand middle lane. The plaintiff stopped his vehicle behind four to five other cars at the intersection where the traffic lights were red.  He was stopped in the lane adjacent to a right-hand turning lane. The first defendant, Ms Dubrava’s vehicle was stopped behind him. She negligently moved her car forward and collided with the rear of the plaintiff’s vehicle.

  2. The plaintiff claims damages from the first defendant and second defendant (her insurer) for the injuries he suffered as a result of the collision.  Liability is admitted. 

The plaintiff’s case

  1. The plaintiff pleads that as a result of the accident the following injuries were sustained, namely:

    (a)permanent aggravation of a pre-existing cervical and lumbar spine pain.

    (b)right scapular pain.

    (c)psychiatric injury consisting of a major depressive order with anxious mood or alternatively, an adjustment disorder.

  2. The plaintiff claims general damages…

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Details
AGLC
Eustace v Dubrava [2023] QDC 100
Case
[2023] QDC 100
Decision Date

CaseChat Overview and Summary

In the case of Eustace v Dubrava, the plaintiff sought damages for injuries sustained in a motor vehicle accident for which the defendant admitted liability. The primary issues before the court were the nature and extent of the physical and psychological injuries caused by the accident. The court was tasked with determining whether the plaintiff's injuries were permanent or temporary, and if there was any aggravation of pre-existing conditions.

The court examined the evidence regarding the plaintiff's employment history and the reasons for his termination from employment at Stellar. It was noted that the plaintiff had similar issues prior to the accident, and the termination was largely due to matters unrelated to the accident. The court found that the plaintiff's neck and back problems, which were aggravated by the accident, had resolved by 23 April 2018. There was no evidence of a discernible increase in psychiatric symptoms post-accident. Additionally, the cervical spine surgery performed in 2019 was deemed unrelated to the accident. The court concluded that the plaintiff's employment termination was not connected to the accident.

In assessing the damages, the court applied the Civil Liability Act 2003 and the Civil Liability Regulation 2014, considering the approach outlined in Allwood v Wilson & Anor. The court identified the dominant injury and determined the appropriate injury severity value, taking into account the overlapping effects of multiple injuries and the overall adverse impact on the plaintiff. The court also considered factors such as the plaintiff's age, pain, and loss of amenities of life.

ORDERS:
1. Judgment for the plaintiff in the sum of $12,966.90.

Orders

Orders of the court

1. Judgement for the plaintiff in the sum of $12,966.90.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

When asked about his efforts to obtain work in the future, the plaintiff acknowledged he was not looking for work at present because he was caring for his father who is aged 77. He maintained his intention was to get some sort of work but could not whilst he cared for his father and further, he could not find any work.[213][213]T2-13 ll.1-20.Conclusion – Work Termination It may be that since the accident, the plaintiff’s sore neck, dead arm, paraesthesia, headaches, and symptoms of depression adversely affected his temperament, coping abilities and ability to reach performance indicators. However, the employment records, including counselling sessions and disciplinary hearings, show he had exactly the same problems complying with his conditions of employment prior to the accident. I am satisfied the major reason his employment was terminated was because of the matters listed in the termination letter rather than because of any pain, physical or psychiatric injuries arising from the accident. I am not satisfied on balance that there is any causal connection between the termination and the aggravation of the plaintiff’s pre-existing neck and back problems. The plaintiff suffered significant pre-existing neck pain, right shoulder pain and lower back pain prior to the accident on 15 August 2017. The accident caused the plaintiff to sustain an aggravation of his pre-existing neck and back problems. The aggravation was temporary, and the condition had resolved to its pre-accident state by no later than 23 April 2018. Any neck, back or other pain suffered after 23 April 2018 was caused by the plaintiff’s pre-existing condition and/or by other factors unrelated to the accident. The cervical spine surgery performed in 2019 by Dr Zeller was unrelated to the accident. There was no discernible increase in the plaintiff’s psychiatric symptoms in the period between the accident and 23 April 2018. The plaintiff’s termination from his employment at Stellar was not related to the accident. The plaintiff’s claim falls to be assessed under the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2014 (CLR). McMeekin J in Allwood v Wilson & Anor[214] discussed the approach to be taken when assessing general damages under the CLA. In particular in that case, he discussed the approach to be taken where there are multiple injuries alleged. The relevant parts of that judgment are reproduced below:[20]This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range (“the maximum dominant ISV”) adequately reflects the adverse impact of all the injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected. In arriving at an appropriate ISV the court needs to bear in mind that the effects of multiple injuries commonly overlap. [21]Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards, sight must not be lost of the overriding purpose of the ISVs prescribed – to reflect the level of adverse impact of the injury on the injured person. [22]The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use in so far as they are relevant to the particular case but is not necessarily limited to those factors: Sch 3 s. 8.[23]Additionally, in assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case: Sch 3 s 9. The examples provided of other matters are the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life. In assessing an ISV for multiple injuries, the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries can be considered.[24]The extent of whole person impairment is an important consideration “but not the only consideration affecting the assessment of an ISV”: Sch 3 s 10. The dictionary defines “whole person impairment” (“WPI”) in relation to an injury as an estimate “… expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform activities of daily living other than employment.”[215][214] [2011] QSC 180[215]Citations omitted.

Ratio Decidendi

Legal Principle Established

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