Hiscox v Woods & GIO General Ltd

[2001] QSC 430

SUPREME COURT OF QUEENSLAND

File No 6256 of 1999
[2001] QSC 430

BETWEEN:

STEPHEN HISCOX

Plaintiff

AND:

MADELLINE FRANCIS WOODS

First Defendant

AND:

GIO GENERAL LIMITED

(ACN 002 861 583)

Second Defendant

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:

16 November 2001

HEARING DATES:

19 – 21 September 2001

ORDER:

The plaintiff is awarded $522,706.92 damages.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – GENERAL – where plaintiff injured back in motor vehicle accident – where liability not in issue – where plaintiff had previous back injury however made good recovery from operation - where disparity between plaintiff’s actual and demonstrated physical disability.

Wynn v NSW Insurance Ministerial Corporation (1955) 133 ALR 154

Delaney v Shepherd & Shepherd (Unreported Queensland Court of Appeal, [2000] QCA 107)

Van Gervan v Fenton (1992) 175 CLR 327

COUNSEL:

C Newton for the plaintiff.

R Morton for the first and second defendants.

SOLICITORS:

Carter Capner Lawyers for the plaintiff.

McInnes Wilson Lawyers for the defendants.

1. The plaintiff was injured in a motor vehicle accident on 7 April 1997, when his vehicle was run into from behind by a vehicle driven by the first defendant.  Liability is not in issue but it is necessary for me to assess the plaintiff’s damages.

1. The plaintiff was born on 23 August 1963.  In 1983 he completed his apprenticeship as a carpenter and commenced work as a self-employed carpenter and sub-contractor.  The plaintiff married in 1988 and has three sons born on 19 December 1990, 10 May 1993 and 30 August 1997.

1. On 2 May 1994 the plaintiff injured his back doing heavy lifting and suffered from low back pain.  A CT scan on 29 September 1994 showed a small disc bulge at L5/S1. On 17 November 1994, Dr Toakley did an interlamina laminectomy and removed a large protruding discal hernia at the L5/S1 level of the plaintiff’s spine.  He was discharged on 19 November and made a good recovery from this operation.

1. The plaintiff was advised that as a consequence of the condition of his spine he should not continue in his previous employment.  He set about qualifying himself to do less physically demanding work in the building industry.  He therefore completed a supervisor’s course conducted by the Housing Industry of Australia Association in 1995.  In 1995 he commenced an Associate Diploma of Applied Science in Building at the Ithaca TAFE.  This was full-time for a year then part-time for three years.   In the event he has not completed the course.

1. In 1996 the plaintiff commenced with Devine Homes, initially without pay and then on a paid basis as a trainee estimator.  Towards the end of 1996 he accepted employment with Devine as a house and land coordinator on a gross salary of $45,000 with a $12,600 allowance.  At some time during this period he commenced building a house at Mt Tamborine which was occupied by him and his family when the construction, he did much of it himself, was sufficiently…