Hunt v Lemura - [2011] QSC 378

SUPREME COURT OF QUEENSLAND

CITATION:

Hunt v Lemura & Anor [2011] QSC 378

PARTIES:

CARLA LOUISE HUNT
(Plaintiff)
v
CARL SEBASTIAN LEMURA
(First Defendant)
AUSTRALIAN ASSOCIATED MOTOR INSURERS (ACN 004 791 744)
(Second Defendant)

FILE NO/S:

564 of 2010

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

2 December 2011

DELIVERED AT:

Cairns

HEARING DATE:

3-5 October 2011

JUDGE:

Henry J

ORDER:

Judgment for the plaintiff in the sum of $140,594.32

CATCHWORDS:

DAMAGES – PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – QUANTUM – Where plaintiff injuries in a motor vehicle accident – liability admitted by the second defendant – assessment of damages pursuant to the Civil Liability Act 2003 (Qld) for general damages – ISV assessment – cervical and lumbar spine soft tissue injury – adverse psychological reaction, past economic loss, future economic loss, past and future care and assistance and future treatment and medical expenses – where assessment made as to reliability of witness

Civil Liability Act 2003 (Qld) – ss 51, 55, 59, 60, 60(2), 61.

Civil Liability Regulation 2003 (Qld) – Schedule 3 ss 3, 4, 5, 9, 10, 12; Schedule 4; Schedule 6A.

COUNSEL:

A R Philp SC with P Lafferty for the plaintiff
G Crow SC for the defendants

SOLICITORS:

Roati & Firth Solicitors for the plaintiff
Miller Harris Lawyers for the defendant

Carla Hunt claims damages for personal injuries suffered as a result of a collision by Carl Lemura’s motor vehicle into the rear of a motor vehicle driven by Mrs Hunt in congested traffic in Mackay on 22 July 2008.

Mr Lemura and his compulsory third party insurer, AAMI, admit Mr Lemura breached his duty of care to Mrs Hunt[1] and have not disputed they are liable for the loss and damage caused to Mrs Hunt by the collision. It is the nature and extent of the injuries sustained and the quantum of damages occasioned by those injuries that is in dispute.
[1]Amended Defence [2]

Mrs Hunt pleads the collision caused whiplash injuries to her cervical, thoracic and lumbar spines which have caused and will in the future continue to cause, significant loss. Her future economic loss and future expenses represent a substantial majority of her damages claim.

Mr Lemura and AAMI plead Mrs Hunt did not suffer the injury or, alternatively, that it was a minor and short-term injury. They plead she had pre-existing cervical, thoracic and lumbar disorders which she has understated and that she has overstated the nature and extent of any current cervical, thoracic and lumbar symptoms.

Mrs Hunt’s evidence of her injury

Following the accident Mrs Hunt experienced pain in her neck, chest and back. She was taken to Mackay Base Hospital, examined and discharged. She continued to suffer from ongoing neck and back pain and repeatedly sought out medical assistance for it.

Mrs Hunt’s evidence was that since the accident she has experienced[2] a constant ache in her neck, thoracic spine and lumbar spine which increases in intensity during the day and results in…

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 Hunt v Lemura

Details

AGLC: Hunt v Lemura [2011] QSC 378
Case: [2011] QSC 378
Decision Date: 2 December 2011

CaseChat Overview and Summary

In the case of Hunt v Lemura, the plaintiff, Hunt, sought damages for injuries sustained in a motor vehicle accident. The accident was caused by the second defendant, and liability was admitted. The court was tasked with assessing the damages under the Civil Liability Act 2003 (Qld), focusing on general damages, including the injury severity value (ISV) assessment, past and future economic losses, and care and treatment expenses. The court also had to consider the reliability of the witnesses.

The key legal issues involved the quantification of damages, particularly the assessment of the ISV for the plaintiff's cervical and lumbar spine injuries, as well as the adverse psychological reaction stemming from the accident. The court was required to evaluate the past economic loss, future economic loss, past and future care and assistance needs, and future treatment and medical expenses. Additionally, the court needed to assess the reliability of the witnesses to ensure a fair and accurate determination of damages.

The court, after considering all the evidence and arguments presented, determined the appropriate amount of general damages to be awarded to the plaintiff. The assessment included the injury severity value for the plaintiff's injuries, taking into account the cervical and lumbar spine soft tissue injuries, as well as the psychological impact. The court also evaluated the past economic loss, future economic loss, care and assistance needs, and future treatment and medical expenses. After weighing the evidence and ensuring the reliability of the witnesses, the court awarded the plaintiff a total of $140,594.32 in damages.

The final orders of the court were to enter judgment for the plaintiff in the sum of $140,594.32, reflecting the comprehensive assessment of the damages in accordance with the applicable statutory provisions and regulations.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $140,594.32

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hunt v Lemura & Anor [2011] QSC 378
PARTIES:	CARLA LOUISE HUNT (Plaintiff) v CARL SEBASTIAN LEMURA (First Defendant) AUSTRALIAN ASSOCIATED MOTOR INSURERS (ACN 004 791 744) (Second Defendant)
FILE NO/S:	564 of 2010
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	2 December 2011
DELIVERED AT:	Cairns
HEARING DATE:	3-5 October 2011
JUDGE:	Henry J
ORDER:	Judgment for the plaintiff in the sum of $140,594.32
CATCHWORDS:	DAMAGES – PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – QUANTUM – Where plaintiff injuries in a motor vehicle accident – liability admitted by the second defendant – assessment of damages pursuant to the Civil Liability Act 2003 (Qld) for general damages – ISV assessment – cervical and lumbar spine soft tissue injury – adverse psychological reaction, past economic loss, future economic loss, past and future care and assistance and future treatment and medical expenses – where assessment made as to reliability of witness Civil Liability Act 2003 (Qld) – ss 51, 55, 59, 60, 60(2), 61. Civil Liability Regulation 2003 (Qld) – Schedule 3 ss 3, 4, 5, 9, 10, 12; Schedule 4; Schedule 6A.
COUNSEL:	A R Philp SC with P Lafferty for the plaintiff G Crow SC for the defendants
SOLICITORS:	Roati & Firth Solicitors for the plaintiff Miller Harris Lawyers for the defendant