Little v McCarthy - [2014] QSC 274

SUPREME COURT OF QUEENSLAND

CITATION:

Little v McCarthy & Anor [2014] QSC 274

PARTIES:

REECE RAYMOND LITTLE
(First Plaintiff)

And

KAITLIN MAREE CRUST
(Second Plaintiff)
v

KALEM JOESEPH MCCARTHY
(First Defendant)

And

ALLIANZ AUSTRALIA INSURANCE LIMITED
ABN 15 000 122 850
(Second Defendant)

FILE NO/S:

S28/2014

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 November 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

7, 8 and 9 October 2014

JUDGE:

McMeekin J

ORDER:

1. Judgment for the plaintiff in the sum of $254,560.42

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where liability admitted – where plaintiff was injured in a motor vehicle accident – where plaintiff suffered soft tissue damage to his lower back – where plaintiff alleges ongoing pain due to his injuries – where plaintiff is not medicated for his injuries - where plaintiff is employed by his father’s company - where plaintiff works excessive hours as a qualified trades person – whether the pain is at the level described by the plaintiff - whether the plaintiff has suffered loss of earning capacity – whether the plaintiff requires ongoing therapy for his injuries

Civil Liability Act 2003 (Qld)

Civil Liability Regulation 2003 (Qld)

Allwood v Wilson& Anor [2011] QSC 180 cited
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 cited
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 applied
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 cited
Paul v Rendell (1981) ALR 469 cited
Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana“) [1924] 20 LI L Rep 140 cited
Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54 cited

COUNSEL:

GF Crow QC and Ms M Willey for the plaintiff

AM Arnold for the defendants

SOLICITORS:

Maurice Blackburn Lawyers for the plaintiff

McInnes Wilson Lawyers for the defendants

McMeekin J: The first plaintiff, Reece Raymond Little, claims damages for personal injuries suffered on the 26^th February 2012 in a motor vehicle accident. Liability is admitted. I am required to assess damages. The claim made by the second plaintiff, Kaitlin Maree Crust, has been settled.

The Legislation

The assessment is governed by the provisions of the Civil Liability Act 2003 (Qld) (”the Act”) and the Civil Liability Regulation 2003 (Qld) (“the Regulation”). I have set out my view as to how these provisions should be applied in Allwood v Wilson& Anor [2011] QSC 180. I will not repeat myself. So far as I am aware that approach has not been the subject of criticism by any appellate court and is in conformity with the approach of other trial judges. I will adopt that approach here.

The Plaintiff

Mr Little was born on the 5^th April 1985. He was 26 years of age when injured and is now aged 29…

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 Little v McCarthy

Details

AGLC: Little v McCarthy [2014] QSC 274
Case: [2014] QSC 274
Decision Date: 12 November 2014

CaseChat Overview and Summary

In the case of Little v McCarthy, the plaintiff, Little, sought damages for personal injuries sustained in a motor vehicle accident involving the defendant, McCarthy. The dispute centred around the extent of Little's injuries and the resulting damages. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were threefold. Firstly, whether the pain experienced by Little was indeed as severe as claimed, given that he did not require medication for his injuries. Secondly, whether Little had suffered any loss of earning capacity as a result of the accident. Lastly, the court had to determine whether Little required ongoing therapy for his injuries and if such therapy was necessary due to the accident.

The court assessed the evidence and concluded that Little's pain was genuine and warranted compensation. It found that the plaintiff's employment with his father's company and his demanding work schedule as a qualified tradesperson did not diminish the legitimacy of his claims. The court further determined that while Little did not require ongoing therapy, he had suffered a loss of earning capacity due to the impact of the accident on his ability to work. The court awarded Little damages in the sum of $254,560.42.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $254,560.42

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:	Little v McCarthy & Anor [2014] QSC 274
PARTIES:	REECE RAYMOND LITTLE (First Plaintiff) And KAITLIN MAREE CRUST (Second Plaintiff) v KALEM JOESEPH MCCARTHY (First Defendant) And ALLIANZ AUSTRALIA INSURANCE LIMITED ABN 15 000 122 850 (Second Defendant)
FILE NO/S:	S28/2014
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	12 November 2014
DELIVERED AT:	Rockhampton
HEARING DATE:	7, 8 and 9 October 2014
JUDGE:	McMeekin J
ORDER:	1. Judgment for the plaintiff in the sum of $254,560.42
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where liability admitted – where plaintiff was injured in a motor vehicle accident – where plaintiff suffered soft tissue damage to his lower back – where plaintiff alleges ongoing pain due to his injuries – where plaintiff is not medicated for his injuries - where plaintiff is employed by his father’s company - where plaintiff works excessive hours as a qualified trades person – whether the pain is at the level described by the plaintiff - whether the plaintiff has suffered loss of earning capacity – whether the plaintiff requires ongoing therapy for his injuries Civil Liability Act 2003 (Qld) Civil Liability Regulation 2003 (Qld) Allwood v Wilson& Anor [2011] QSC 180 cited Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 cited Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 applied Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 cited Paul v Rendell (1981) ALR 469 cited Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana“) [1924] 20 LI L Rep 140 cited Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54 cited
COUNSEL:	GF Crow QC and Ms M Willey for the plaintiff AM Arnold for the defendants
SOLICITORS:	Maurice Blackburn Lawyers for the plaintiff McInnes Wilson Lawyers for the defendants