Lewin v Gould - [2014] QDC 231

DISTRICT COURT OF QUEENSLAND

CITATION:

Lewin v Gould & Anor [2014] QDC 231

PARTIES:

BRITNEY EILEEN LEWIN (BY HER LITIGATION GUARDIAN RACHEL EDITH LEWIN)
(plaintiff)

v

RENEE MAREE GOULD
(first defendant)

and

INSURANCE AUSTRALIA LTD (ACN 000016722)
(second defendant)

FILE NO/S:

4285/12

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16.10.14

DELIVERED AT:

Brisbane

HEARING DATE:

28 and 29 August 2014

JUDGE:

Farr SC DCJ

ORDER:

1. I order judgment for the plaintiff in the amount of $2,483.24.

2. I will hear the parties as to costs.

CATCHWORDS:

MOTOR VEHICLE ACCIDENT – liability admitted.

MOTOR VEHICLE ACCIDENT – PERSONAL INJURIES- QUANTUM – factual inaccuracies in evidence of plaintiff’s medical expert - where evidence of defendant Orthopaedic Surgeon preferred – where current symptomatology unrelated to motor vehicle accident - no functional incapacity - where amount awarded would have been $7,031.60.

COUNSEL:

M Horvath for the plaintiff

J McClymont for the defendants

SOLICITORS:

Smiths Lawyers for the plaintiff

DLA Piper for the first and second defendants

The plaintiff, through her mother and litigation guardian, claims damages for personal injuries arising from a motor vehicle collision which occurred on 26 March 2010. Only quantum is in issue.

Background

The plaintiff was born on 22 August 2000. She attended grades 1 to 7 at Woodcrest State College before undertaking grade 8 and part of grade 9 at Springfield Central State High School. She has recently moved to New Zealand with her mother and brother and is continuing her education there.

The accident

The plaintiff was a front seat, seat-belted passenger in the family’s Holden Commodore when it was struck from behind, whilst stationary, by the first defendant’s car. The plaintiff had no warning of the impending collision and was looking straight ahead at the time of impact. Her upper body moved forward and back as a result of the impact.[1] The first defendant’s vehicle had been travelling at 40 to 50 km/h although she braked heavily prior to impact. The first defendant’s vehicle suffered some radiator damage, but both cars were able to be driven away after the collision.[2]
[1]Transcript p 1-18 line 43.
[2]Exhibit 12.

Aftermath

The plaintiff had “a bit of a sore neck and a headache” after the accident and said that she was “just not very well”.[3] She was taken to a doctor that day by her father and examined. She said that on a scale of 0 to 10, she felt a level of pain at “about a 4” and that it was “not too bad, but still pain”.[4]
[3]Transcript p 1-19 line 1.
[4]Transcript p 1-19 line 14.

What injury was suffered by the plaintiff in the accident?

In her statement of claim, the plaintiff pleads that she suffered the following injuries:

(a) back injury;

(b) shoulder injuries;

(c) neck injury;

(d) headaches.

There is no evidence (medical or otherwise) to support a finding that the plaintiff suffered a back injury or shoulder injuries.

Insofar as the plaintiff’s claim for damages for headaches, the…

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.

Continue reading Lewin v Gould

Details

AGLC: Lewin v Gould [2014] QDC 0
Case: [2014] QDC 231
Decision Date: 16 October 2014

CaseChat Overview and Summary

Lewin, the plaintiff, sought damages for personal injuries sustained in a motor vehicle accident against Gould, the defendant, whose liability was admitted. The plaintiff's expert evidence contained factual inaccuracies, which undermined the reliability of the claim for damages. The Orthopaedic Surgeon's evidence was deemed more reliable, as it was more consistent with the plaintiff's current symptomatology. The court found that the plaintiff's symptoms were unrelated to the accident, and there was no functional incapacity resulting from the incident. Therefore, the amount that would have been awarded was $7,031.60, but the court adjusted the quantum to $2,483.24, considering the factors outlined.

The court faced the task of determining the appropriate quantum of damages, considering the conflicting expert evidence and the lack of a direct link between the accident and the plaintiff's current symptoms. The court had to assess the credibility and reliability of the expert evidence presented by both parties, and ultimately, it favoured the defendant's expert's findings. In addition, the court needed to address the issue of functional incapacity, which was a crucial element in calculating the damages.

The court concluded that the plaintiff's expert evidence contained factual inaccuracies that significantly undermined its credibility. The court preferred the evidence of the defendant's Orthopaedic Surgeon, who provided a more consistent and reliable account of the plaintiff's current symptomatology. The court found that the plaintiff's symptoms were not related to the motor vehicle accident, and there was no functional incapacity as a result of the incident. Therefore, the court awarded a reduced amount of damages to the plaintiff, which was $2,483.24. The court also noted that it would hear the parties' submissions on costs.

The court ordered judgment for the plaintiff in the amount of $2,483.24 and directed the parties to provide their submissions on the costs of the proceedings. This decision highlights the importance of reliable and accurate expert evidence in personal injury claims and the court's willingness to adjust the quantum of damages to reflect the specific circumstances of the case.

Orders

Orders of the court

1. I order judgment for the plaintiff in the amount of $2,483.24.

2. I will hear the parties as to costs.

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

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CITATION:	Lewin v Gould & Anor [2014] QDC 231
PARTIES:	BRITNEY EILEEN LEWIN (BY HER LITIGATION GUARDIAN RACHEL EDITH LEWIN) (plaintiff) v RENEE MAREE GOULD (first defendant) and INSURANCE AUSTRALIA LTD (ACN 000016722) (second defendant)
FILE NO/S:	4285/12
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16.10.14
DELIVERED AT:	Brisbane
HEARING DATE:	28 and 29 August 2014
JUDGE:	Farr SC DCJ
ORDER:	1. I order judgment for the plaintiff in the amount of $2,483.24. 2. I will hear the parties as to costs.
CATCHWORDS:	MOTOR VEHICLE ACCIDENT – liability admitted. MOTOR VEHICLE ACCIDENT – PERSONAL INJURIES- QUANTUM – factual inaccuracies in evidence of plaintiff’s medical expert - where evidence of defendant Orthopaedic Surgeon preferred – where current symptomatology unrelated to motor vehicle accident - no functional incapacity - where amount awarded would have been $7,031.60.
COUNSEL:	M Horvath for the plaintiff J McClymont for the defendants
SOLICITORS:	Smiths Lawyers for the plaintiff DLA Piper for the first and second defendants