Ingersole v Nancarrow

[2016] QDC 315

DISTRICT COURT OF QUEENSLAND

CITATION:

Ingersole v Nancarrow & Anor [2016] QDC 315

PARTIES:

BENJAMIN JOHN INGERSOLE

(plaintiff)

AND

DANIEL NANCARROW

(first defendant)

AND

ALLIANZ AUSTRALIA INSURANCE LIMITED

(ACN 000 122 850)

(second defendant)

FILE NO/S:

DC No 1911 of 2015

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2016; 12 August 2016

JUDGE:

Reid DCJ

ORDER:

1.   Judgment for the plaintiff against the second defendant in the sum of $75,074.50.

CATCHWORDS:

TORTS – PERSONAL INJURIES - DAMAGES – MEASURE OF DAMAGES - GENERAL PRINCIPLES – where the Civil Liability Act applied – where s 55 of the Civil Liability Act applies when earnings can not be precisely calculated

Civil Liability Act2003 (Qld) s 55
Allianz Australia Limited v McCarthy [2012] QCA 312, considered

COUNSEL:

L.T. Barnes for the plaintiff

G.C. O’Driscoll for the first defendant and second defendant

SOLICITORS:

McKeering Down Lawyers for the plaintiff

McInnes Wilson for the first defendant and second defendant

Introduction

1. The plaintiff claims damages for personal injury suffered in a motor vehicle accident on 21 May 2013. The second defendant, which is the motor vehicle accident insurer of the first defendant’s vehicle, has admitted liability for the accident. I am required to assess the quantum of the plaintiff’s claim.

1. The plaintiff claims to have suffered injury to his lower back and seeks the following assessment of damages:

General damages  $12,570.00
Past economic loss  $25,692.50
Interest on $24,692.50 at 0.98% p.a.  $786.00
Future economic loss

oTeaching  $23,000.00

oSwimming instructor                  $69,930.00

Loss of superannuation (on $23,000)                  $2,185.00
Future paid assistance  $5,000.00
Future medical and related treatment                  $5,000.00
Special damages  $2,000.00
Interest on $1,494.75 at 0.98% p.a.  $47.58

TOTAL  $146,211.08

1. The defendant’s counsel identified two primary issues in dispute, namely:

1.          Whether the plaintiff’s ongoing back and hip pain is due to the accident or to a pre-existing degenerative condition and the extent of such injury; and

2.          Whether the plaintiff has, or will in the future, suffer diminution of his earning capacity and consequential economic loss, especially through a partnership he is a member of, Fast Lane Swimming.

Background

1. The plaintiff was born on 23 December 1976 so is almost 40 years of age.  He is a qualified teacher. Prior to the accident he was teaching health and physical education (HPE) at Wynnum State High School.  He has also been a swimming coach for about 20 years.  As a boy and young man he was an exceptional swimmer regularly competing in Australian championships.  Whilst he was not successful in making an Australian team he told me that he fairly regularly made finals of events at the Australian championships.  He continued competitive swimming up until he was about 21.

1. From a young age he has also taught swimming – initially at Capalaba Swimming Club, then at Thornlands, Iona College and most recently at Redlands College where he conducts his business – Fast Lane Swim Club - in partnership with…