Kenny v Eyears

[2003] QSC 439

SUPREME COURT OF QUEENSLAND

CITATION:

Kenny & Anor  v Eyears & Anor [2003] QSC 439

PARTIES:

DEBORAH JOANNE KENNY
(first plaintiff)
and
JOHN ROBERT KENNY
(second plaintiff)
v
JAY EARLE EYEARS
(first defendant)
and
TRANSPORT ACCIDENT COMISSION

(second defendant)

FILE NO:

S9334 of 2002

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

23 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 – 8 August 2003

JUDGE:

Philippides J

ORDER:

Judgment for the first plaintiff against the defendants in the sum of $100,242

Judgment for the defendants against the second plaintiff

CATCHWORDS:

 DAMAGES – PERSONAL INJURIES – where plaintiff’s stationary vehicle struck from behind – where plaintiff suffered injury to her neck and back – assessment of damages

DAMAGES – LOSS OF CONSORTIUM

Motor Accident Insurance Act 1994 (Qld) s 55(1)(a), s 55D(1)

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
North v Thompson [1971] WAR 103
Sharman v Evans (1977) 138 CLR 563

Wynn v New South Wales Insurance Ministerial Corporation 133 ALR 154

COUNSEL:

R Stenson and K Jackson for the plaintiffs
M Grant-Taylor and D Schneidenin for the defendants

SOLICITORS:

Murphy Schmidt for the plaintiffs
Quinlan Miller & Treston for the defendants

PHILIPPIDES J: 

1. The first plaintiff, Mrs Deborah Kenny, seeks damages for injuries suffered as a result of a motor vehicle accident on 20 October 2000.  Mrs Kenny was the driver of a stationary vehicle which was struck from behind, pushing her car into the rear of the truck in front of her.  The second plaintiff, Mr John Kenny, seeks damages for loss of consortium.  All matters of liability have been resolved, leaving the assessment of damages as the only matter outstanding for determination.

1. Mrs Kenny, who was born on 4 January 1955, works as a Customer Service Officer with Qantas within the customer service department at the domestic terminal at Brisbane airport and has been employed there for some 29 years. 

THE EVIDENCE

Evidence of Mrs Kenny

1. Following the accident, Mrs Kenny experienced pain in her neck and shoulders, with stiffness through her neck, shoulders and back. The pain in the thoracic back and the lower back continued, with pain experienced across her right shoulder and a burning sensation as well as soreness in her lower back.  She experienced a burning sensation in her thoracic area when she bent forward with her hands in front of her.  She still had some occasional pain in her neck on movement.  Mrs Kenny indicated the lower area around the thoraso-lumbar junction and the upper scapular area to the left of the right shoulder blade as experiencing pins and needles sensations.  She also said that when lying on her left side at night, she experienced numbness in her legs.  She said that standing or sitting still and lying in bed could cause discomfort, and that sitting still caused stiffness and pins and needles in her thoracic area.

1. Mrs Kenny considered that for a period the pain affected her ability to relate with customers and people at work.  In February…