Monement v Faux - [2005] QSC 342

SUPREME COURT OF QUEENSLAND

CITATION:

Monement v Faux & Anor [2005] QSC 342

PARTIES:

CATHERINE MONEMENT
(plaintiff)
v
SHELLEY NICOLE FAUX
(first defendant)
and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(second defendant)

FILE NO:

BS1743/05

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

22 November 2005

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

1 September 2005

JUDGE:

Douglas J

ORDER:

Judgment for the Plaintiff for $392,708.04. Order the second defendant to pay the plaintiff’s costs on the standard basis until 2 March 2005 and thereafter the plaintiff pay the second defendant’s costs on the standard basis.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – where plaintiff suffered substantial injuries in a motor vehicle accident – where liability admitted – where injuries included head and facial fractures and lacerations, spinal fractures, fractures to both legs and right knee, multiple fractures to the pelvis, a left arm fracture and ulna nerve injury as well as an artery laceration, organ lacerations and bruising – assessment of damages

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – RE-EMPLOYMENT OF WORKER – where plaintiff worked as a patient or environmental services assistant at a hospital – where accepted that plaintiff would not be able to work again – assessment of damages

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON‑PECUNIARY DAMAGE – LOSS OF AMENITIES OR CAPACITY FOR ENJOYMENT – where doctor assessing plaintiff assessed that the plaintiff’s incapacity had worsened over time – where further hospital work required – assessment of damages

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – WHERE OFFER OF COMPROMISE MADE – where award of damages to plaintiff was less than the amount offered in the mandatory final offer required by s 51C(1)(a) of the Motor Accidents Insurance Act 1994 – where a subsequent offer pursuant to Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 that was also in excess of the amount awarded at trial – where defendant contended that the plaintiff should pay the defendant’s costs from the date of the first offer – where the defendant argued that it should pay the plaintiff’s costs from the second offer – whether the defendant ought pay the plaintiff’s costs from the first or second offer

Motor Accident Insurance Act 1994, s 51B, s 51C(1)(a), s 51C(7), s 51C(8), s 51C(10), s 55F
Uniform Civil Procedure Rules 1999, Part 5, Chapter 9

Kenny v Eyears [2004] QSC 59, distinguished
Quality Corp (Aust.) Pty Ltd v Milford Builders (Vic) Pty Ltd [2003] QCA 550, cited

COUNSEL:

J Given for the applicant
M…

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 Monement v Faux

Details

AGLC: Monement v Faux [2005] QSC 342
Case: [2005] QSC 342
Decision Date: 22 November 2005

CaseChat Overview and Summary

The case of Monement v Faux involved the plaintiff, Monement, who suffered significant injuries in a motor vehicle accident for which the defendant, Faux, admitted liability. The plaintiff sustained a wide range of injuries, including head and facial fractures, spinal and limb fractures, multiple pelvic fractures, an ulna nerve injury, an artery laceration, organ lacerations, and bruising. The dispute centred around the assessment of damages for the plaintiff's injuries, which included medical and hospital expenses, loss of earnings and earning capacity, non-pecuniary damages for loss of amenities or capacity for enjoyment, and the costs associated with the litigation process.

The primary legal issues before the court were the appropriate measure and assessment of damages for the plaintiff's injuries and the allocation of costs between the parties. The court had to determine the extent of the plaintiff's medical and hospital expenses, the loss of earnings and earning capacity due to the plaintiff's inability to work, the non-pecuniary damages for the loss of amenities and capacity for enjoyment, and the costs of the litigation. The court also needed to decide on the appropriate allocation of costs between the parties, particularly whether the plaintiff should bear the costs of the defendant's offers of compromise that exceeded the final award of damages.

The court assessed the plaintiff's damages based on the severity and impact of the injuries sustained. It considered the medical and hospital expenses incurred by the plaintiff, the loss of earnings and earning capacity due to the plaintiff's inability to work, and the non-pecuniary damages for the loss of amenities and capacity for enjoyment. The court awarded the plaintiff $392,708.04 in damages. Regarding the costs, the court ruled that the plaintiff was entitled to costs on the standard basis up until the date of the second offer by the defendant, after which the plaintiff would bear the defendant's costs on the standard basis. This decision was based on the defendant's offers of compromise that were in excess of the final award of damages.

The final orders of the court included a judgment for the plaintiff for $392,708.04, with the second defendant ordered to pay the plaintiff's costs on the standard basis until 2 March 2005, and thereafter, the plaintiff was to pay the second defendant's costs on the standard basis. This allocation of costs was determined based on the defendant's offers of compromise that exceeded the final award of damages.

Orders

Orders of the court

Judgment for the Plaintiff for $392,708.04. Order the second defendant to pay the plaintiff’s costs on the standard basis until 2 March 2005 and thereafter the plaintiff pay the second defendant’s costs on the standard basis.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Monement v Faux & Anor [2005] QSC 342
PARTIES:	CATHERINE MONEMENT (plaintiff) v SHELLEY NICOLE FAUX (first defendant) and ALLIANZ AUSTRALIA INSURANCE LIMITED (second defendant)
FILE NO:	BS1743/05
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	22 November 2005
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	1 September 2005
JUDGE:	Douglas J
ORDER:	Judgment for the Plaintiff for $392,708.04. Order the second defendant to pay the plaintiff’s costs on the standard basis until 2 March 2005 and thereafter the plaintiff pay the second defendant’s costs on the standard basis.
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – where plaintiff suffered substantial injuries in a motor vehicle accident – where liability admitted – where injuries included head and facial fractures and lacerations, spinal fractures, fractures to both legs and right knee, multiple fractures to the pelvis, a left arm fracture and ulna nerve injury as well as an artery laceration, organ lacerations and bruising – assessment of damages DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – RE-EMPLOYMENT OF WORKER – where plaintiff worked as a patient or environmental services assistant at a hospital – where accepted that plaintiff would not be able to work again – assessment of damages DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON‑PECUNIARY DAMAGE – LOSS OF AMENITIES OR CAPACITY FOR ENJOYMENT – where doctor assessing plaintiff assessed that the plaintiff’s incapacity had worsened over time – where further hospital work required – assessment of damages PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – WHERE OFFER OF COMPROMISE MADE – where award of damages to plaintiff was less than the amount offered in the mandatory final offer required by s 51C(1)(a) of the Motor Accidents Insurance Act 1994 – where a subsequent offer pursuant to Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 that was also in excess of the amount awarded at trial – where defendant contended that the plaintiff should pay the defendant’s costs from the date of the first offer – where the defendant argued that it should pay the plaintiff’s costs from the second offer – whether the defendant ought pay the plaintiff’s costs from the first or second offer Motor Accident Insurance Act 1994, s 51B, s 51C(1)(a), s 51C(7), s 51C(8), s 51C(10), s 55F Uniform Civil Procedure Rules 1999, Part 5, Chapter 9 Kenny v Eyears [2004] QSC 59, distinguished Quality Corp (Aust.) Pty Ltd v Milford Builders (Vic) Pty Ltd [2003] QCA 550, cited
COUNSEL:	J Given for the applicant M…