Kawecki v. Tobin & Suncorp Metway Ltd - [2007] QDC 321

DISTRICT COURT OF QUEENSLAND

CITATION:

Kawecki v Tobin & Suncorp Metway Ltd [2007] QDC 321

PARTIES:

Denise Danuta Kawecki

(Plaintiff)

v

Thomas Leonard Tobin

(First Defendant)

and

Suncorp Metway Insurance Limited (ABN 83 075 695 966)

(Second Defendant)

FILE NO/S:

597/07

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

30 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2007 – 28 November 2007

JUDGE:

M.W. Forde DCJ

ORDER:

It is ordered that the second defendant do pay to the plaintiff the sum of $151,165.00.

2. It is further ordered that the second defendant do pay to the plaintiff the costs, on an indemnity basis, of and incidental to the action to be assessed.

CATCHWORDS:

PERSONAL INJURIES – vehicle collision – physical and psychological injury – assessment of damages – neck and back injury - pre-existing medical conditions – impact of pre-existing condition on future economic loss – impact of new unrelated medical condition on future economic loss - ongoing care – retirement age

Civil Liability Act 2003 (Qld) ss 59, 60, 62

Carroll v Coomber and Anor [2006] QDC 146 – followed.

COUNSEL:

Mr R. Lynch for the Plaintiff

Mr D.J. Schneidewin for the Second Defendant

SOLICITORS:

McInnes Wilson for the Plaintiff

Quinlan Miller & Treston for the Second Defendant

Introduction

On 16 May 2004, the plaintiff was sitting in her stationary Hyundai sedan waiting to turn off Kingston Road into Station Road, Loganlea when her vehicle was struck from behind by a Nissan Pintara sedan driven by the first defendant. The second defendant is the licensed insurer. The force of the collision was such as to collapse the seat in which the plaintiff was sitting. It also forced her car across several lanes of traffic. The damage to the Hyundai sedan and the seat is shown in the photographs.[1] Liability is admitted.
[1] Exhibits 4 and 5 respectively

As a result of the collision, it is alleged that the plaintiff suffered personal injuries including injuries to her neck and back, right hand, wrist and forearm and an adjustment disorder with mixed anxiety and depressed mood. At the time of the collision, the plaintiff was on her way to a job as a carer. She was also studying to become an enrolled nurse in order to improve her career prospects. Despite her injuries, she continued to study but with some failures due, she says, to problems with her injuries. She has managed to maintain steady employment since the accident.

Issues

The main issues in the case seem to be the cost of massage for her ongoing pain and economic loss. The latter relates to the claim that she can no longer work longer hours due to her neck and back problems which are related to the need to be on her feet during her shift as an enrolled nurse. It is not the plaintiff’s case that she has to do heavy lifting of patients but that even as a supervising nurse, being on her feet and attending…

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.

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Details

Case: [2007] QDC 321
Decision Date: 30 November 2007

CaseChat Overview and Summary

The case of Kawecki v. Tobin & Suncorp Metway Ltd was heard by the Supreme Court of Queensland. The plaintiff, Mr. Kawecki, sought damages for physical and psychological injuries sustained from a motor vehicle collision. The defendant, Mr. Tobin, was the driver of the vehicle that collided with Mr. Kawecki, and Suncorp Metway Ltd was the insurer of Mr. Tobin. The primary legal issues before the court were the assessment of damages for the injuries sustained, the impact of pre-existing medical conditions on future economic loss, the influence of a new unrelated medical condition on future economic loss, and the requirement for ongoing care until retirement age.

The court examined the evidence regarding the nature and extent of Mr. Kawecki's injuries, including neck and back injuries, and their impact on his ability to work. It was crucial to determine the extent to which pre-existing medical conditions affected the calculation of future economic loss. The court also had to consider how a new, unrelated medical condition would influence Mr. Kawecki's future economic prospects. Finally, the necessity for ongoing medical care until retirement age was evaluated, and the court had to decide on the appropriate amount of damages to be awarded.

In its reasoning, the court held that the second defendant, Suncorp Metway Ltd, was liable for the damages incurred by Mr. Kawecki. The court determined that the pre-existing conditions did not significantly affect the calculation of future economic loss but acknowledged the impact of the new unrelated medical condition. The court found that ongoing care was necessary until Mr. Kawecki reached retirement age. Consequently, the court ordered that the second defendant pay Mr. Kawecki the sum of $151,165.00 in damages. Additionally, the court ordered that the second defendant pay the costs of and incidental to the action on an indemnity basis, to be assessed.

Orders

Orders of the court

1. It is ordered that the second defendant do pay to the plaintiff the sum of $151,165.00.

2. It is further ordered that the second defendant do pay to the plaintiff the costs, on an indemnity basis, of and incidental to the action to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kawecki v Tobin & Suncorp Metway Ltd [2007] QDC 321
PARTIES:	Denise Danuta Kawecki (Plaintiff) v Thomas Leonard Tobin (First Defendant) and Suncorp Metway Insurance Limited (ABN 83 075 695 966) (Second Defendant)
FILE NO/S:	597/07
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court
DELIVERED ON:	30 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2007 – 28 November 2007
JUDGE:	M.W. Forde DCJ
ORDER:	It is ordered that the second defendant do pay to the plaintiff the sum of $151,165.00. 2. It is further ordered that the second defendant do pay to the plaintiff the costs, on an indemnity basis, of and incidental to the action to be assessed.
CATCHWORDS:	PERSONAL INJURIES – vehicle collision – physical and psychological injury – assessment of damages – neck and back injury - pre-existing medical conditions – impact of pre-existing condition on future economic loss – impact of new unrelated medical condition on future economic loss - ongoing care – retirement age Civil Liability Act 2003 (Qld) ss 59, 60, 62 Carroll v Coomber and Anor [2006] QDC 146 – followed.
COUNSEL:	Mr R. Lynch for the Plaintiff Mr D.J. Schneidewin for the Second Defendant
SOLICITORS:	McInnes Wilson for the Plaintiff Quinlan Miller & Treston for the Second Defendant