Martin v Martin - [2020] QDC 322

DISTRICT COURT OF QUEENSLAND

CITATION:

Martin v Martin & Anor [2020] QDC 322

PARTIES:

JASSAMAYN MARTIN

(Plaintiff)

v

MELLISHA MARTIN

(First Defendant)

AND

ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)

(Second Defendant)

FILE NO:

739 of 2020

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2020 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

2 and 3 December 2020

JUDGE:

Porter QC DCJ

ORDER:

Judgment be entered for the Plaintiff for $100,113;

The Second Defendant pay the Plaintiff’s costs of the proceedings on a standard basis, up to and including 30 November 2020; and balance of the costs incurred after that date on an indemnity basis.

CATCHWORDS:

DAMAGES – PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – QUANTUM – where plaintiff suffered personal injuries where car rear-ended another – where liability admitted – assessment of damages pursuant to the Civil Liability Act 2003 (Qld) – ISV assessment – where assessment of general damages, past and future economic loss in issue – where future earning capacity is in issue – where causation is in issue

LEGISLATION:

Civil Liability Act 2003 (Qld) s. 55

Civil Liability Regulations 2014 (Qld) item 88

CASES:

Allwood v Wilson & Anor [2011] QSC 180

Armstrong v Smith [2012] QSC 334

Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649

Graham v Baker (1961) 106 CLR 340

Husher v Husher (1999) 197 CLR 138

Medlin v The State Government Insurance Commission (1995) 182 CLR 1

Rotumah v NSW Insurance Ministerial Corp (NSWSC, Donovan AJ, 6 April 1998, unreported, BC9802306)

State of New South Wales v Moss [2000] NSWCA 133

COUNSEL:

G J Cross for the Plaintiff

M E Holmes for the Defendants

SOLICITORS:

Everingham Lawyers for the Plaintiff

McInnes Wilson for the Defendants

Introduction

In this case the plaintiff sues for damages for personal injury arising from a motor vehicle accident occurring on 3 October 2018. Liability is admitted. Quantum is disputed. Both counsel, commendably, provided detailed and helpful submissions on the afternoon of the second day of trial, even though the evidence only completed at 11am that morning.
Notwithstanding the larger sum in the claim, the plaintiff ultimately sought only $174,358. It is not a large claim. The defendants ultimately conceded that the range which the court could properly award for damages, even on its case, was between $25,000 and $41,000. Most of the difference related to the assessment for future economic loss. The difference between the parties narrows further once a few simple points are determined. Bearing in mind the limited issues and the comprehensive nature of the submissions, I consider it in the interests of justice to deliver a judgment orally, rather than to reserve the decision, which given the time of year would inevitably have been significantly delayed.

The Witnesses

The only lay witnesses were the plaintiff and her mother. Both presented as witnesses attempting to be truthful. Ms Martin was cross-examined about a number of incidents which were directed at impugning 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 Martin v Martin

Details

AGLC: Martin v Martin [2020] QDC 322
Case: [2020] QDC 322
Decision Date: 4 December 2020 (ex tempore)

CaseChat Overview and Summary

The case of Martin v Martin concerns a claim for damages arising from a motor vehicle accident that occurred on 3 October 2018. The plaintiff, Ms Martin, was injured when the car she was a passenger in was rear-ended by another vehicle. The defendants admitted liability for the accident, but disputed the amount of damages to be awarded to Ms Martin. The matter was heard in the District Court of Queensland, where the primary issue was the assessment of damages for personal injury under the Civil Liability Act 2003 (Qld). Specifically, the court needed to determine the quantum of general damages, past and future economic loss, and future earning capacity, as well as issues of causation.

The court was tasked with resolving inconsistencies between the plaintiff's testimony and contemporaneous medical records, as well as considering the impact of these discrepancies on the assessment of damages. Both counsel provided detailed submissions on the afternoon of the second day of trial, even though the evidence concluded at 11am that morning. The plaintiff sought $174,358 in damages, while the defendants conceded that the court could properly award a range between $25,000 and $41,000. The primary difference in the parties' positions related to the assessment of future economic loss. The court found that the defendants' expert witnesses provided more closely reasoned and persuasive evidence, both in writing and during cross-examination.

The court ultimately awarded Ms Martin $100,113 in damages, taking into account the evidence and submissions presented. The court also ordered the second defendant to pay the plaintiff's costs of the proceedings on a standard basis up to and including 30 November 2020, and on an indemnity basis for costs incurred after that date. The judgment was delivered orally, rather than being reserved, to ensure a timely resolution of the matter.

Orders

Orders of the court

1. Judgment be entered for the Plaintiff for $100,113;

2. The Second Defendant pay the Plaintiff’s costs of the proceedings on a standard basis, up to and including 30 November 2020; and balance of the costs incurred after that date on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Judgment be entered for the Plaintiff for $100,113; The Second Defendant pay the Plaintiff’s costs of the proceedings on a standard basis, up to and including 30 November 2020; and balance of the costs incurred after that date on an indemnity basis. In this case the plaintiff sues for damages for personal injury arising from a motor vehicle accident occurring on 3 October 2018. Liability is admitted. Quantum is disputed. Both counsel, commendably, provided detailed and helpful submissions on the afternoon of the second day of trial, even though the evidence only completed at 11am that morning. Notwithstanding the larger sum in the claim, the plaintiff ultimately sought only $174,358. It is not a large claim. The defendants ultimately conceded that the range which the court could properly award for damages, even on its case, was between $25,000 and $41,000. Most of the difference related to the assessment for future economic loss. The difference between the parties narrows further once a few simple points are determined. Bearing in mind the limited issues and the comprehensive nature of the submissions, I consider it in the interests of justice to deliver a judgment orally, rather than to reserve the decision, which given the time of year would inevitably have been significantly delayed. The only lay witnesses were the plaintiff and her mother. Both presented as witnesses attempting to be truthful. Ms Martin was cross-examined about a number of incidents which were directed at impugning the authenticity of her complaints as to pain from her neck and lower back injuries. Not only was I satisfied with her explanations, but seemingly, so were the defendants. No submission was made that I should reject either witness as untruthful. The defendant’s counsel disavowed any such suggestion, which I think was a proper concession on the evidence. However, there was a considerable body of contemporaneous medical records which appeared to tell a different story from that told by both witnesses in some key respects. There were also inconsistencies, particularly in Ms Martin’s reported symptoms and mental state and ambitions, which she reported to the OTs and doctors who examined her from time to time. Mr Cross submitted in broad terms I would not be too concerned about inconsistencies and dates and details for a witness who is only 18 now and was 16 when the accident happened. There is some merit in that, but, on the other hand, contemporaneous written records of what was said on important occasions such as being seen by doctors and occupational therapists in legal proceedings carries some weight. Ultimately the resolution of these issues must be done on a case-by-case basis. Apart from the two lay witnesses, the evidence was given by one psychiatrist, one orthopaedic surgeon, one neurologist and two occupational therapists. I should say that in broad terms, meaning no disrespect to anybody, I found the defendants’ expert witnesses’ evidence to be more closely reasoned and persuasive, both in writing and in cross-examination.

Ratio Decidendi

Legal Principle Established

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CITATION:	Martin v Martin & Anor [2020] QDC 322
PARTIES:	JASSAMAYN MARTIN (Plaintiff) v MELLISHA MARTIN (First Defendant) AND ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850) (Second Defendant)
FILE NO:	739 of 2020
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 December 2020 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	2 and 3 December 2020
JUDGE:	Porter QC DCJ
ORDER:	Judgment be entered for the Plaintiff for $100,113; The Second Defendant pay the Plaintiff’s costs of the proceedings on a standard basis, up to and including 30 November 2020; and balance of the costs incurred after that date on an indemnity basis.
CATCHWORDS:	DAMAGES – PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – QUANTUM – where plaintiff suffered personal injuries where car rear-ended another – where liability admitted – assessment of damages pursuant to the Civil Liability Act 2003 (Qld) – ISV assessment – where assessment of general damages, past and future economic loss in issue – where future earning capacity is in issue – where causation is in issue
LEGISLATION:	Civil Liability Act 2003 (Qld) s. 55 Civil Liability Regulations 2014 (Qld) item 88
CASES:	Allwood v Wilson & Anor [2011] QSC 180 Armstrong v Smith [2012] QSC 334 Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 Graham v Baker (1961) 106 CLR 340 Husher v Husher (1999) 197 CLR 138 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Rotumah v NSW Insurance Ministerial Corp (NSWSC, Donovan AJ, 6 April 1998, unreported, BC9802306) State of New South Wales v Moss [2000] NSWCA 133
COUNSEL:	G J Cross for the Plaintiff M E Holmes for the Defendants
SOLICITORS:	Everingham Lawyers for the Plaintiff McInnes Wilson for the Defendants