McChesney v Singh - [2003] QCA 498

SUPREME COURT OF QUEENSLAND

CITATION:

McChesney v Singh & Ors [2003] QCA 498

PARTIES:

TONI ANNE McCHESNEY (by her litigation guardian JANICE ANNE McCHESNEY)
(plaintiff/appellant)
v
MUKHTIAR SINGH
(first defendant)
PETER AARON HOPKINS
(second defendant)
SUNCORP INSURANCE & FINANCE
(third defendant)
SUNCORP GENERAL INSURANCE LIMITED
ACN 075 695 966
(fourth defendant/respondent)
FAI GENERAL INSURANCE COMPANY LTD
ACN 000 327 855
(fifth defendant)

FILE NO/S:

Appeal No 10012 of 2002
SC No 8851 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2003

JUDGES:

Davies and Williams JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – IN GENERAL – where appellant severely injured in traffic accident – where appellant 17 years old at time of accident – where suffered brain injury along with other permanent injuries – whether $150,000 for general damages in these circumstances is within appropriate range

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where appellant had left home and stopped attending school at the age of 15 – where appellant associated with “undesirable friends” – where appellant enrolled in TAFE course one month before accident with a view to qualifying as a mechanic – where evidence suggested minimal attendance at course – where future economic loss assessed on assumption that she would have qualified as a mechanic – where learned trial judge adopted discount of 25% for contingencies – whether discount within range of proper exercise of discretion

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – where learned trial judge awarded damages for future paid care and future gratuitous care – where surveillance was carried out to determine the amount of paid care actually given to appellant – where there were imperfections in surveillance – where learned trial judge did not make a separate additional award based on an assumption that appellant would have a child – whether learned trial judge was entitled to take surveillance evidence into account when assessing damages – whether damages awarded adequately incorporated a component for possible child care in future – whether learned trial judge’s assessment of damages for future gratuitous care was correct

Castro v Hillery & Ors [2001] QSC 510; SC No 11 of 1998, 21 December 2001, distinguished
Castro v Hillery & Ors [2002] QCA 359; Appeal No 590 of 2002, 20 September 2002, cited
Goode v Thompson & Anor [2001] QSC 287; SC No 5829 of 1999, 2 July 2001, cited
Goode v Thompson & Anor [2002] QCA 138

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 McChesney v Singh

Details

AGLC: McChesney v Singh [2003] QCA 498
Case: [2003] QCA 498
Decision Date: 14 November 2003

CaseChat Overview and Summary

In the matter of McChesney v Singh, the appellant, McChesney, sought to appeal the quantum of damages awarded by the trial judge in the Supreme Court of Victoria. McChesney, who was 17 at the time of the accident, suffered severe injuries including a brain injury and other permanent impairments. The primary focus of the appeal was the adequacy of the general damages awarded, as well as the assessment of future economic loss, future paid care, and future gratuitous care. The court was required to determine whether the trial judge's assessment of damages was within the appropriate range given the circumstances of the case.

The primary legal issues centred on the appropriateness of the $150,000 awarded for general damages, the correctness of the 25% discount applied to future economic loss, and the trial judge's approach to assessing damages for future paid and gratuitous care. Specifically, the court had to consider whether the trial judge's discount for contingencies was justified, and whether the surveillance evidence could be properly taken into account in assessing future paid care. Furthermore, the court had to examine whether the trial judge correctly incorporated a component for possible child care in the future gratuitous care assessment.

The Court of Appeal found that the trial judge's assessment of general damages was within the appropriate range, given the severity of McChesney's injuries and the life expectancy of a 17-year-old at the time of the accident. Regarding future economic loss, the court upheld the trial judge's application of a 25% discount for contingencies, considering the uncertainties regarding McChesney's employment prospects. The court also found that the trial judge was entitled to take the surveillance evidence into account when assessing future paid care, despite its imperfections. Additionally, the court concluded that the trial judge's assessment of damages for future gratuitous care was correct, including the absence of an additional award for potential child care. The appeal was therefore dismissed with costs.

Orders

Orders of the court

Appeal dismissed with 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

Full text does not contain this section.

CITATION:	McChesney v Singh & Ors [2003] QCA 498
PARTIES:	TONI ANNE McCHESNEY (by her litigation guardian JANICE ANNE McCHESNEY) (plaintiff/appellant) v MUKHTIAR SINGH (first defendant) PETER AARON HOPKINS (second defendant) SUNCORP INSURANCE & FINANCE (third defendant) SUNCORP GENERAL INSURANCE LIMITED ACN 075 695 966 (fourth defendant/respondent) FAI GENERAL INSURANCE COMPANY LTD ACN 000 327 855 (fifth defendant)
FILE NO/S:	Appeal No 10012 of 2002 SC No 8851 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2003
JUDGES:	Davies and Williams JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – IN GENERAL – where appellant severely injured in traffic accident – where appellant 17 years old at time of accident – where suffered brain injury along with other permanent injuries – whether $150,000 for general damages in these circumstances is within appropriate range DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where appellant had left home and stopped attending school at the age of 15 – where appellant associated with “undesirable friends” – where appellant enrolled in TAFE course one month before accident with a view to qualifying as a mechanic – where evidence suggested minimal attendance at course – where future economic loss assessed on assumption that she would have qualified as a mechanic – where learned trial judge adopted discount of 25% for contingencies – whether discount within range of proper exercise of discretion DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – where learned trial judge awarded damages for future paid care and future gratuitous care – where surveillance was carried out to determine the amount of paid care actually given to appellant – where there were imperfections in surveillance – where learned trial judge did not make a separate additional award based on an assumption that appellant would have a child – whether learned trial judge was entitled to take surveillance evidence into account when assessing damages – whether damages awarded adequately incorporated a component for possible child care in future – whether learned trial judge’s assessment of damages for future gratuitous care was correct Castro v Hillery & Ors [2001] QSC 510; SC No 11 of 1998, 21 December 2001, distinguished Castro v Hillery & Ors [2002] QCA 359; Appeal No 590 of 2002, 20 September 2002, cited Goode v Thompson & Anor [2001] QSC 287; SC No 5829 of 1999, 2 July 2001, cited Goode v Thompson & Anor [2002] QCA 138