Ketchell v RACQ insurance Limited - [2021] QDC 307

DISTRICT COURT OF QUEENSLAND

CITATION:

Ketchell v RACQ insurance Limited [2021] QDC 307

PARTIES:

Robin Ali Richard Ketchell

(Plaintiff)

v

Hayden Andrew Deacon

(First Defendant)

AND

RACQ Insurance Limited

(ABN 50 009 704 152)

(Second Defendant)

FILE NO:
93 of 2019

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

16 December 2021

DELIVERED AT:

Townsville

HEARING DATE:

16, 17 and 18 November 2020

JUDGE:

Coker DCJ

ORDER:

1.   Judgment for the plaintiff against the second defendant in the sum of Four Hundred and Seventy-Nine Thousand, Eight Hundred and Eighty-Four Dollars and Seventy Cents ($479,884.70).

2.   Any written submission as to costs claimed by the plaintiff are to be filed and served within 35 days of today and any submission by the second defendant are to be filed and served within 49 days of today.

3.   Unless otherwise requested in writing, any determination as to costs will be conducted in chambers.

CATCHWORDS:

TORTS – NEGLIGENCE – MOTOR VEHICLE ACCIDENT – where the plaintiff was a patron in attendance at a hotel – where the driver of a motor vehicle lost control of the vehicle crashing into patrons at the hotel – where liability of the driver and third party insurer is admitted – where the dispute arises as to the extent of the plaintiff’s injuries – whether pre-existing conditions are significant in respect of the plaintiff’s current health – whether any psychological condition of the plaintiff is attributable to the motor vehicle incident.

DAMAGES – MEASURE OF DAMAGES IN PERSONAL INJURIES – GENERAL PRINCIPLES – assessment of damages pursuant to the Civil Liability Act (2003) – where the extent and assessment of damages is in issue – where damages are assessed in line with the finding of injuries attributable to the motor vehicle incident.

LEGISLATION:

Civil Liability Act 2003 (Qld), s 51, s 54, s 55, s 61 and s 62

Civil Liability Regulation 2014 (Qld)

Motor Accident Insurance Act 1994 (Qld), s 52

CASES:

Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312

Ballesteros v Chidlow [2006] QCA 323

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Cootes v Concrete Panels & Ors [2019] QSC 146

Graham v Baker (1961) 106 CLR 340

Jones v Schiffmann (1971) 124 CLR 303

Krobath v Theiss Pty Ltd [2018] QSC 309

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Nucifora & Another v AAI [2013] QSC 338

Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211

Walters v McGrath & Anor [2009] QSC 158

COUNSEL:
A. Philp QC for the Plaintiff
J. Trevino for the Plaintiff
M. Grant-Taylor QC for the Second Defendant

SOLICITORS:
Roati Legal for the Plaintiff

Quinlan Miller Treston for the Second Defendant

Introduction

Robin Ali Richard Ketchell, the plaintiff, was outside the front of the Royal Hotel at 46 Lannercost Street, Ingham on the evening of the 4^th April 2014. At about 9.53pm on that day, a Holden motor vehicle, registration number 439TKR, driven by Hayden Andrew Deacon was travelling…

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: [2021] QDC 307
Decision Date: 16 December 2021

CaseChat Overview and Summary

The plaintiff, Ketchell, commenced proceedings against RACQ Insurance Limited in the District Court of Queensland, seeking damages for personal injuries sustained in a motor vehicle accident. The accident occurred when the driver of a vehicle lost control and crashed into patrons at a hotel where the plaintiff was present. The liability of both the driver and the third-party insurer, RACQ Insurance, was admitted, leaving the extent of the plaintiff’s injuries as the primary issue in dispute. Specifically, the court had to determine the extent to which pre-existing conditions influenced the plaintiff’s current health status and whether any psychological conditions suffered by the plaintiff were attributable to the motor vehicle incident.

The court examined the evidence presented to assess the extent of the plaintiff’s injuries and the degree to which they were exacerbated by the accident. In doing so, the court considered the findings of medical experts, the plaintiff’s personal medical history, and the impact of the accident on the plaintiff’s life. The key issue was to disentangle the effects of the accident from pre-existing conditions and to attribute the psychological injuries to the incident where appropriate. The court found that while the plaintiff had pre-existing conditions, the motor vehicle incident significantly contributed to the exacerbation of these conditions and the development of new psychological issues.

Following the assessment, the court awarded the plaintiff damages of Four Hundred and Seventy-Nine Thousand, Eight Hundred and Eighty-Four Dollars and Seventy Cents ($479,884.70). The judgment emphasised the necessity of distinguishing between the effects of the accident and pre-existing conditions to accurately quantify the damages. The court ordered that submissions on costs be filed within the specified timeframes and noted that any cost determination would typically be made in chambers unless otherwise requested.

Orders

Orders of the court

1. Judgment for the plaintiff against the second defendant in the sum of Four Hundred and Seventy-Nine Thousand, Eight Hundred and Eighty-Four Dollars and Seventy Cents ($479,884.70).

2. Any written submission as to costs claimed by the plaintiff are to be filed and served within 35 days of today and any submission by the second defendant are to be filed and served within 49 days of today.

3. Unless otherwise requested in writing, any determination as to costs will be conducted in chambers.

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:	Ketchell v RACQ insurance Limited [2021] QDC 307
PARTIES:	Robin Ali Richard Ketchell (Plaintiff) v Hayden Andrew Deacon (First Defendant) AND RACQ Insurance Limited (ABN 50 009 704 152) (Second Defendant)
FILE NO:	93 of 2019
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	16 December 2021
DELIVERED AT:	Townsville
HEARING DATE:	16, 17 and 18 November 2020
JUDGE:	Coker DCJ
ORDER:	1. Judgment for the plaintiff against the second defendant in the sum of Four Hundred and Seventy-Nine Thousand, Eight Hundred and Eighty-Four Dollars and Seventy Cents ($479,884.70). 2. Any written submission as to costs claimed by the plaintiff are to be filed and served within 35 days of today and any submission by the second defendant are to be filed and served within 49 days of today. 3. Unless otherwise requested in writing, any determination as to costs will be conducted in chambers.
CATCHWORDS:	TORTS – NEGLIGENCE – MOTOR VEHICLE ACCIDENT – where the plaintiff was a patron in attendance at a hotel – where the driver of a motor vehicle lost control of the vehicle crashing into patrons at the hotel – where liability of the driver and third party insurer is admitted – where the dispute arises as to the extent of the plaintiff’s injuries – whether pre-existing conditions are significant in respect of the plaintiff’s current health – whether any psychological condition of the plaintiff is attributable to the motor vehicle incident. DAMAGES – MEASURE OF DAMAGES IN PERSONAL INJURIES – GENERAL PRINCIPLES – assessment of damages pursuant to the Civil Liability Act (2003) – where the extent and assessment of damages is in issue – where damages are assessed in line with the finding of injuries attributable to the motor vehicle incident.
LEGISLATION:	Civil Liability Act 2003 (Qld), s 51, s 54, s 55, s 61 and s 62 Civil Liability Regulation 2014 (Qld) Motor Accident Insurance Act 1994 (Qld), s 52
CASES:	Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312 Ballesteros v Chidlow [2006] QCA 323 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Cootes v Concrete Panels & Ors [2019] QSC 146 Graham v Baker (1961) 106 CLR 340 Jones v Schiffmann (1971) 124 CLR 303 Krobath v Theiss Pty Ltd [2018] QSC 309 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Nucifora & Another v AAI [2013] QSC 338 Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211 Walters v McGrath & Anor [2009] QSC 158
COUNSEL:	A. Philp QC for the Plaintiff J. Trevino for the Plaintiff M. Grant-Taylor QC for the Second Defendant
SOLICITORS:	Roati Legal for the Plaintiff Quinlan Miller Treston for the Second Defendant