McMillan v Kissick

[2006] QSC 202

SUPREME COURT OF QUEENSLAND

CITATION:

McMillan v Kissick & Anor [2006] QSC 202

PARTIES:

GRANT ROBERT McMILLAN
(plaintiff)
v
ERROL WILLIAM KISSICK and SUNCORP METWAY INSURANCE LIMITED ACN 83075 695 966
(defendants)

FILE NO/S:

BS 5105 of 2005

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

18 August 2006

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

2, 3, 4 May 2006

JUDGE:

Douglas J

ORDER:

Judgment for the plaintiff for $620,560.07.  Further submissions sought concerning costs.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – MEDICAL AND HOSPITAL EXPENSES – LOSS OF EARNINGS AND EARNING CAPACITY – GENERAL PRINCIPLES – where plaintiff injured in a motor vehicle accident – where plaintiff takes morphine to treat pain associated with those injuries – where plaintiff has been unable to work for a significant period since injuries sustained – where plaintiff’s quality of life has diminished – whether plaintiff’s loss attributable wholly to accident or partly to his psychiatric pre-disposition

Fox v Wood (1981) 35 ALR 607, applied

COUNSEL:

RC Morton for the plaintiff
DA Reid with him D Murphy for the defendants

SOLICITORS:

McDonnells Solicitors for the plaintiff
Jensen McConaghy for the defendants

1. Douglas J:  The plaintiff is a 31 year old man born on 5 August 1975. He was injured on 5 July 2002 in a motor vehicle accident a month before his twenty-seventh birthday.  Liability for his injuries is not in issue, but the effects of them are.

Plaintiff’s personal history

1. The plaintiff left school half way through year 11 in Victoria and appears to have had a difficult personal history.  He was jailed in Victoria for three months charged with manslaughter when he was aged about 17.  The charge arose out of the death of a three month old child of his then girlfriend.  He was committed for trial but the prosecution was later withdrawn.  He was later admitted to Glenside Clinic, a psychiatric clinic in Adelaide, when he was still a young man, apparently in the context of the break-up of a long term relationship.  He stayed there about two weeks.

1. In January 2000 he broke up with his then girlfriend.  He was made the subject of a domestic violence order after he assaulted her.  He told a doctor at the Royal Brisbane Hospital that she suffered a carpet burn to her face and bruises on her arms, apparently because of his treatment of her.  He had also been the subject of a previous domestic violence order in Victoria.

1. He also told a doctor at the Royal Brisbane Hospital in January 2000 that two to three years before that date he had had a motor vehicle accident in which he fractured his skull and nose after hitting a tree at 150 kms per hour after a “blackout”.  He said then he lost consciousness. 

1. The plaintiff was then aged 24 and claimed to have not used marijuana for the…