Fail v Hutton - [2004] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

Fail v Hutton & Anor [2004] QCA 61

PARTIES:

GLENN NORMAN FAIL
(plaintiff/respondent)
v
PAUL HUTTON
(first defendant/first appellant)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second defendant/second appellant)

FILE NO/S:

Appeal No 3503 of 2003

SC No 11220 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2004

JUDGES:

Davies and Williams JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. That the appeal be dismissed

2. That the appellants pay the respondent’s costs of the appeal to be assessed

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where the plaintiff’s earning capacity was changing – where plaintiff was making a transition from a sub-contractor to direct contractor

INTEREST – RECOVERABILITY OF INTEREST – IN GENERAL – whether payment under income protection insurance should be accounted for in calculating interest on past loss – whether defendant obliged to raise the issue at trial

New South Wales v Davies (1998) 43 NSWLR 182, considered

COUNSEL:

S C Williams QC for the appellants

M Grant-Taylor SC for the respondent

SOLICITORS:

Walsh Halligan Douglas for the appellants

Butler McDermott & Egan Solicitors (Nambour) for the respondent

A:DAVIES J I agree with the reasons for judgment of McMurdo J and with the order he proposes.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of McMurdo J and there is nothing I wish to add thereto. The appeal should be dismissed with costs.

McMURDO J: This is a defendant’s appeal against the assessment of damages in a personal injuries claim. The respondent sustained an acute muscular ligamentous strain of the cervical spine in an accident on 29 June 2000. He was then a 27 year old self employed cabinet maker and kitchen installer. His injuries have left him with a permanent disability which prevents him from performing that work. He has obtained alternative work which is less remunerative. He was given judgment against the appellants for $367,587.40. The trial judge assessed his lost earning capacity by allowing $85,000 for the past and $200,000 for the future. Each of those assessments is challenged upon this appeal. There is also a challenge to the interest allowed upon that past loss.

The trial judge found the respondent to be a credible witness not prone to exaggeration and doing his best to accommodate the restrictions caused by the injuries. The appellants do not so say that his Honour should have rejected the respondent’s evidence in any respect. According to his evidence, the respondent had been an employed cabinet maker until 1997 when he started his own business. The performance of that business is shown by his tax returns for the…

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 Fail v Hutton

Details

AGLC: Fail v Hutton [2004] QCA 61
Case: [2004] QCA 61
Decision Date: 12 March 2004

CaseChat Overview and Summary

Fail, a plaintiff, brought an action against Hutton, the defendant, following an incident that resulted in personal injuries. The plaintiff claimed damages for loss of earnings and earning capacity, and the defendant sought to limit the quantum of damages payable. The case was heard in the Supreme Court of Victoria. The primary dispute centred around the appropriate measure of damages for the plaintiff's loss of earning capacity, particularly given that the plaintiff's earning capacity was in a state of flux due to a transition from being a sub-contractor to a direct contractor at the time of the incident. The court was also required to decide whether payments made under the plaintiff's income protection insurance policy should be taken into account when calculating interest on the past loss.

The court considered the particular circumstances of the plaintiff's employment and earning capacity at the time of the incident. It concluded that the plaintiff's earning capacity was indeed changing and that the damages should be assessed in light of this transition. The court determined that the plaintiff's transition from sub-contractor to direct contractor was not a speculative or remote possibility, but rather a realistic prospect that should be factored into the calculation of damages. The court also found that the defendant was not obliged to raise the issue of income protection insurance payments at trial and that such payments should be considered when calculating interest on the past loss.

The Supreme Court of Victoria dismissed the appeal brought by the defendant, finding that the primary judge had correctly assessed the plaintiff's loss of earning capacity and had appropriately taken into account the particular circumstances of the case. The court held that the defendant was not required to raise the issue of income protection insurance payments at trial, and that such payments should be included in the calculation of interest on past loss. Consequently, the plaintiff was awarded damages for loss of earnings and earning capacity, with interest calculated as per the court's direction. The defendant was ordered to pay the plaintiff's costs of the appeal, which were to be assessed.

Orders

Orders of the court

1. That the appeal be dismissed

2. That the appellants pay the respondent’s costs of the appeal to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVIES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DAVIES J

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CITATION:	Fail v Hutton & Anor [2004] QCA 61
PARTIES:	GLENN NORMAN FAIL (plaintiff/respondent) v PAUL HUTTON (first defendant/first appellant) SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (second defendant/second appellant)
FILE NO/S:	Appeal No 3503 of 2003 SC No 11220 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 March 2004
JUDGES:	Davies and Williams JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. That the appeal be dismissed 2. That the appellants pay the respondent’s costs of the appeal to be assessed
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where the plaintiff’s earning capacity was changing – where plaintiff was making a transition from a sub-contractor to direct contractor INTEREST – RECOVERABILITY OF INTEREST – IN GENERAL – whether payment under income protection insurance should be accounted for in calculating interest on past loss – whether defendant obliged to raise the issue at trial New South Wales v Davies (1998) 43 NSWLR 182, considered
COUNSEL:	S C Williams QC for the appellants M Grant-Taylor SC for the respondent
SOLICITORS:	Walsh Halligan Douglas for the appellants Butler McDermott & Egan Solicitors (Nambour) for the respondent