Nucifora v AAI Limited

[2013] QSC 338

SUPREME COURT OF QUEENSLAND

CITATION:

Nucifora & Another v AAI Limited [2013] QSC 338

PARTIES:

Michael John NUCIFORA

First Plaintiff

Arianne Kerry NUCIFORA

Second Plaintiff

And

AAI LIMITED

(ABN 48 005 297 807)

Defendant

FILE NO/S:

Rockhampton S 288 of 2013

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

13 December 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

3, 4 December 2013.

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff in the sum of $329,161.78

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTION FOR TORT – MEASURE OF DAMAGES – LOSS OF EARNING CAPACITY – where plaintiff injured in motor vehicle accident – where liability admitted – where plaintiff suffers from back, neck and shoulder pain and anxiety as a result of accident – whether the plaintiff has suffered a loss of earning capacity.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – where claim for paid services in the future.

Civil Liability Act (Qld) 2003, s55, 59

Civil Liability Regulation 2003 (Qld), Sch 4.

Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312, followed

Ballesteros v Chidlow & Anor [2006] QCA 323, cited

Carroll v Coomber & Anor [2006] QDC 146, cited

Clement v Backo [2007] 2 Qd R 99, cited

CSR Ltd v Eddy (2005) 226 CLR 1, cited

Graham v Baker (1961) 106 CLR 340, cited

Kawecki v Tobin & Suncorp Metway Ltd [2007] QDC 321, cited

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, cited

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

Paul v Rendell (1981) 55 ALJR 371, cited

Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211, cited

COUNSEL:

Mr B Whitten for the Plaintiff

Mr GF Crow QC for  the Defendant

SOLICITORS:

Rees R & Sydney Jones for the Plaintiff

Grant and Simpson Lawyers for the Defendant

1. MCMEEKIN J: The plaintiffs, Mr and Mrs Nucifora, suffered personal injury in a motor vehicle accident which occurred on 6 July 2011. They claimed damages. Liability was admitted. The second plaintiff’s claim was settled. The first plaintiff’s claim was not. I am required to assess damages.

1. Mr Nucifora was born on 1 November 1972 and so is presently aged 41 years and was 39 years of age when injured.

1. In the subject accident Mr Nucifora suffered the following injuries:

   (i)         compression fracture of the thoracic spine of T10;

   (ii)        fractured sternum;

   (iii)       fractured ribs eight and nine;

   (iv)       soft tissue damage to the right-hand;

   (v)        soft tissue damage to the cervical spine;

   (vi)       soft tissue injury to the coccyx;

2. It is agreed that as a result of the injuries Mr Nucifora has an adjustment disorder with anxiety.

1. The parties have reached agreement on a number of matters:

   (i)        the assessment of damages is governed by the provisions of the Civil Liability Act 2003 and regulations made pursuant to that Act;

   (ii)       the appropriate ISV…