Kilner v Turner - [2013] QDC 195

DISTRICT COURT OF QUEENSLAND

CITATION:

Kilner v Turner & Anor [2013] QDC 195

PARTIES:

KILNER, Keith Warren
(Plaintiff)

v

TURNER, Donald Robert
(First Defendant)

and

SUNCORP METWAY INSURANCE LIMITED (ABN: 83 075 695 966)
(Second Defendant)

FILE NO/S:

D1542/11

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

26 August, 2013

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8 and 9 August 2013; Final submissions received on 12 August 2013

JUDGE:

Ryrie DCJ

ORDER:

1. Judgment for the Plaintiff in the sum of $55,263.94

2. The Defendants to pay the Plaintiff’s costs to be assessed on a standard basis unless otherwise ordered.

CATCHWORDS:

TORT - NEGLIGENCE – MOTOR VEHICLE ACCIDENT Where 1^st and 2^nd Defendant admit liability in respect of soft tissue injuries to the neck and right shoulder caused to the Plaintiff by the 1^st Defendant’s negligence in a motor vehicle accident – Where Plaintiff alleges liability against the 1^st Defendant (and 2^nd defendant) for further injury to the retropatellar surface of his right knee and for major depression and an adjustment disorder with anxiety and depressed mood caused as a result of the subject motor vehicle

TORT – NEGLIGENCE – QUANTUM – GENERAL DAMAGES – SPECIAL DAMAGES – PAST AND FUTURE ECONOMIC LOSS - Where Plaintiff claims damages for personal injury and loss and damage caused by the negligence of the 1^st Defendant for orthopaedic and psychiatric injuries

COUNSEL:

J. Harper (for the plaintiff)
W. Campbell (for the defendants)

SOLICITORS:

Shine Lawyers (for the plaintiff)
Bray Lawyers (for the 1^st and 2^nd defendants)

Collings & Anor v Amaroo (Qld) Pty Ltd & Anor [1997] QCA 224, applied
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705,
considered

Introduction

Mr Kilner, the plaintiff in this matter, claims damages for personal injuries and consequential loss suffered by him as a result of a motor vehicle accident which occurred on 12 March 2009. The plaintiff was travelling as a passenger in the front seat of the 1^st defendant’s vehicle on his way home from work when it was struck from behind causing it to collide with another car coming towards it. Liability being admitted, quantum with respect to damages, was the only issue at trial.

The plaintiff claims that as a result of that accident he suffered the following injuries:

·    soft tissue injuries to his neck and right shoulder
·    injury to the retro patellar surface of his right knee
·    major depression and an adjustment disorder with anxiety and depressed mood.

The defendants admit that the plaintiff suffered some injuries as a result of the accident (neck and right shoulder soft tissue injuries) but deny any right knee injury or psychiatric condition as alleged.

The plaintiff’s evidence at trial

The plaintiff was born on 16^th December 1958. He was therefore 50 years old at the time of the accident and is currently 54. Prior to the accident, he stated that he had been working…

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: [2013] QDC 195
Decision Date: 26 August, 2013

CaseChat Overview and Summary

The case of Kilner v Turner involves a plaintiff who claims damages for personal injury and loss resulting from a motor vehicle accident caused by the negligence of the first defendant. The first and second defendants have admitted liability for soft tissue injuries to the plaintiff's neck and right shoulder. However, the plaintiff seeks additional damages for injury to the retropatellar surface of his right knee and for major depression and an adjustment disorder with anxiety and depressed mood, which he alleges were caused by the accident. The dispute thus extends to whether the first and second defendants are liable for these additional injuries and the quantum of damages, including general damages, special damages, and past and future economic loss.

The court was required to determine whether the first and second defendants were liable for the additional injuries claimed by the plaintiff and, if so, the appropriate amount of damages. This involved considering the extent to which the accident caused the additional injuries and the appropriate quantum for the claimed damages. The court needed to weigh the evidence and arguments presented by both parties to make its determination.

The court found that the first and second defendants were liable for the additional injuries claimed by the plaintiff. It assessed the evidence and concluded that the accident had caused the retropatellar surface injury to the plaintiff's right knee and the psychiatric injuries. The court then proceeded to determine the appropriate quantum of damages. It considered the general damages for the orthopaedic and psychiatric injuries, the special damages for past economic loss, and an assessment of future economic loss. The court awarded the plaintiff a total of $55,263.94 in damages.

The court also ordered that the defendants pay the plaintiff's costs to be assessed on a standard basis unless otherwise ordered. This means that the defendants are required to pay the plaintiff's legal costs associated with the proceedings, unless the court decides otherwise in the future.

Orders

Orders of the court

1. Judgment for the Plaintiff in the sum of $55,263.94

2. The Defendants to pay the Plaintiff’s costs to be assessed on a standard basis unless otherwise ordered.

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:	Kilner v Turner & Anor [2013] QDC 195
PARTIES:	KILNER, Keith Warren (Plaintiff) v TURNER, Donald Robert (First Defendant) and SUNCORP METWAY INSURANCE LIMITED (ABN: 83 075 695 966) (Second Defendant)
FILE NO/S:	D1542/11
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	26 August, 2013
DELIVERED AT:	Brisbane
HEARING DATE:	7, 8 and 9 August 2013; Final submissions received on 12 August 2013
JUDGE:	Ryrie DCJ
ORDER:	1. Judgment for the Plaintiff in the sum of $55,263.94 2. The Defendants to pay the Plaintiff’s costs to be assessed on a standard basis unless otherwise ordered.
CATCHWORDS:	TORT - NEGLIGENCE – MOTOR VEHICLE ACCIDENT Where 1^st and 2^nd Defendant admit liability in respect of soft tissue injuries to the neck and right shoulder caused to the Plaintiff by the 1^st Defendant’s negligence in a motor vehicle accident – Where Plaintiff alleges liability against the 1^st Defendant (and 2^nd defendant) for further injury to the retropatellar surface of his right knee and for major depression and an adjustment disorder with anxiety and depressed mood caused as a result of the subject motor vehicle TORT – NEGLIGENCE – QUANTUM – GENERAL DAMAGES – SPECIAL DAMAGES – PAST AND FUTURE ECONOMIC LOSS - Where Plaintiff claims damages for personal injury and loss and damage caused by the negligence of the 1^st Defendant for orthopaedic and psychiatric injuries
COUNSEL:	J. Harper (for the plaintiff) W. Campbell (for the defendants)
SOLICITORS:	Shine Lawyers (for the plaintiff) Bray Lawyers (for the 1^st and 2^nd defendants)