Lewin v Gould - [2015] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

Lewin v Gould & Anor [2015] QCA 107

PARTIES:

BRITNEY EILEEN LEWIN by her litigation guardian
RACHAEL EDITH LEWIN
(applicant)
v
RENEE MAREE GOULD
(first respondent)
INSURANCE AUSTRALIA LIMITED
ACN 000 016 722
(second respondent)

FILE NO/S:

Appeal No 10577 of 2014
DC No 4285 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2014] QDC 231

DELIVERED ON:

19 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2015

JUDGES:

Morrison JA and Mullins and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal is refused.

2. The applicant is to pay the respondents’ costs, of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – where the applicant sustained a whiplash type injury in a car accident – where the applicant sued for damages for the injuries – where the primary judge relied on the evidence of an orthopaedic specialist who said that such injuries normally resolve in two to three months, that he believed Ms Lewin’s injuries had done so and that her ongoing pain was not related to the accident – where relying on the information the primary judge refused the applicant’s claim for future economic loss – where the applicant contends that the primary judge’s finding of fact that her symptoms are not accident related is an error that needs to be corrected – whether the primary judge’s findings of fact is an error requiring appellate intervention

Lewin v Gould & Anor [2014] QDC 231, related
Mbuzi v Hornby[2010] QCA 186, cited
Pickering v McArthur[2005] QCA 294, cited

COUNSEL:

M Horvath for the applicant
J O McClymont for the respondent

SOLICITORS:

Smith’s Lawyers for the applicant
DLA Piper Australia for the respondent

MORRISON JA: Ms Britney Lewin was born on 22 August 2000. When she was about nine and a half years old she sustained a whiplash type injury, in a car accident on 26 March 2010.
She sued for damages for the injuries. At the trial Ms Lewin said that she experienced pain in her neck immediately after the accident, easing to occasional discomfort over the months to July 2010. However it started to get worse in about October 2010, and has been ongoing since.
The primary judge relied on the evidence of an orthopaedic specialist who said that: (i) such injuries normally resolve in two to three months; (ii) he believed Ms Lewin’s injuries had done so; (iii) her ongoing pain was not related to the accident, but likely caused by poor posture and the carrying of a backpack for school books.
On that basis the primary judge held that Ms Lewin experienced symptoms from the accident for two…

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 [2015] QCA 107
Case: [2015] QCA 107
Decision Date: 19 June 2015

CaseChat Overview and Summary

Lewin v Gould involved a plaintiff, Lewin, who sought damages for injuries sustained in a car accident, specifically a whiplash type injury. The defendant, Gould, was found liable for the accident. The primary judge assessed the evidence, including the testimony of an orthopaedic specialist, and concluded that Lewin’s injuries had resolved within two to three months, and her ongoing pain was unrelated to the accident. As a result, the primary judge dismissed Lewin’s claim for future economic loss. Lewin appealed, arguing that the primary judge's findings were erroneous and required correction.

The primary legal issue in this case was whether the primary judge's findings of fact were erroneous and warranted appellate intervention. Specifically, Lewin contended that the primary judge had incorrectly determined that her ongoing pain was unrelated to the accident. The court considered whether the primary judge's findings were open to the primary judge, considering the evidence, and whether any error was substantial enough to justify an appeal.

The court held that the primary judge's findings were open based on the evidence presented, particularly the orthopaedic specialist's testimony. The court found that the evidence supported the primary judge's conclusion that Lewin’s injuries had resolved within a normal timeframe and that her ongoing pain was not related to the accident. The court further found that there had been no substantial injustice caused by the primary judge's findings. The appeal was dismissed, and the costs of the application were awarded to the respondent.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicant is to pay the respondents’ costs, of and incidental to the application, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The evidentiary findings referred to above, which were open, compel the conclusion that there has been no substantial injustice.Conclusion I would refuse the application. I propose the following orders:1.The application for leave to appeal is refused.2.The applicant is to pay the respondents’ costs, of and incidental to the application, to be assessed on the standard basis. MULLINS J: I agree with Morrison JA. MARTIN J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lewin v Gould & Anor [2015] QCA 107
PARTIES:	BRITNEY EILEEN LEWIN by her litigation guardian RACHAEL EDITH LEWIN (applicant) v RENEE MAREE GOULD (first respondent) INSURANCE AUSTRALIA LIMITED ACN 000 016 722 (second respondent)
FILE NO/S:	Appeal No 10577 of 2014 DC No 4285 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – [2014] QDC 231
DELIVERED ON:	19 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	21 May 2015
JUDGES:	Morrison JA and Mullins and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is refused. 2. The applicant is to pay the respondents’ costs, of and incidental to the application, to be assessed on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – where the applicant sustained a whiplash type injury in a car accident – where the applicant sued for damages for the injuries – where the primary judge relied on the evidence of an orthopaedic specialist who said that such injuries normally resolve in two to three months, that he believed Ms Lewin’s injuries had done so and that her ongoing pain was not related to the accident – where relying on the information the primary judge refused the applicant’s claim for future economic loss – where the applicant contends that the primary judge’s finding of fact that her symptoms are not accident related is an error that needs to be corrected – whether the primary judge’s findings of fact is an error requiring appellate intervention Lewin v Gould & Anor [2014] QDC 231, related Mbuzi v Hornby[2010] QCA 186, cited Pickering v McArthur[2005] QCA 294, cited
COUNSEL:	M Horvath for the applicant J O McClymont for the respondent
SOLICITORS:	Smith’s Lawyers for the applicant DLA Piper Australia for the respondent