CATCHWORDS: DAMAGES - INTEREST - Interest on damages for pain and suffering and loss of amenities - rate of interest to be applied - where interest a component of general damages.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - PARTICULAR CIRCUMSTANCES - where plaintiff a garbage truck driver injured in motor vehicle accident - where plaintiff suffered back injury as result of accident - whether pre-existing medical condition of plaintiff impacts on award of damages.

Counsel: KS Howe for the Plaintiff.

WDP Campbell for the Defendant.

Solicitors: Baker Johnson Lawyers for the Plaintiff.

Hunt & Hunt Lawyers for the Defendant.

Hearing Dates: 8, 9, 12, 13 April 1999.
IN THE SUPREME COURT

OF QUEENSLAND No. 2478 of 1992

Brisbane

BETWEEN:

PETER JOHN O’BRIEN
Plaintiff

AND:

SHAUN McMULLEN
First Defendant

AND:

HUNTER BROS (QLD) PTY LTD
Second Defendant
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered on 7 September 1999

Peter O’Brien is a forty-two year old man who is married with two young children. He was injured in a motor vehicle accident on 28 January 1991. At that time he had been employed for twelve months as a garbage truck driver by Hunter Bros (Qld) Pty Ltd, the second defendant. He was a passenger in the front seat of the garbage truck when inattention by the driver, the first defendant, caused the truck to hit a pole and guard rail on the left-hand side of the road. The circumstances of the accident were described by the driver as follows:
“-- I asked Peter O’Brien for a cigarette. A carton or packet of cigarettes was flicked across, into the far right hand corner of the dashboard against the windscreen. Peter Wright was in the centre. He objected to me smoking and made a grab for the packet of cigarettes on the dashboard. He had to lean across in front of me to get them, and I was distracted and I could not see where I was going. At that point, we were very close to the gutter because the road curves around the right and the rear vision mirror on the left hand side hit the lamp-post and went with a pretty good crack. Then we were too close to the gutter and the left hand front wheel hit the gutter at which point I lost control. We mounted the gutter and hit the guardrail with the left hand front wheel. We continued along until the truck stopped.”

The truck was heading towards an overhead bridge over a train line and scraped up the guard rail for about 15-18 metres. Liability…

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 O'Brien v McMullen

Details

AGLC: O'Brien v McMullen [1999] QSC 208
Case: [1999] QSC 208
Decision Date: 7 September 1999

CaseChat Overview and Summary

In the Supreme Court of Queensland, Peter O'Brien, a garbage truck driver, brought an action against Shaun McMullen, the driver of the truck he was a passenger in, and Hunter Bros (Qld) Pty Ltd, his employer, for damages resulting from a motor vehicle accident that occurred on 28 January 1991. The primary issues in the case were the extent of the injuries sustained by Mr O'Brien as a result of the accident, the appropriate assessment of damages for pain and suffering and loss of amenities, and the calculation of economic loss, including lost earnings and superannuation entitlements. The court was also required to determine the impact of Mr O'Brien's pre-existing medical conditions on the assessment of damages.

The court found that Mr O'Brien had suffered significant injuries, including a whiplash injury to his cervical spine, a ligamentous injury to other areas, and a compression fracture of the T7 vertebra. The court accepted that the accident aggravated a pre-existing condition, but also found that the trauma rendered symptomatic an otherwise asymptomatic condition. The court rejected the defendants' submission that Mr O'Brien was exaggerating his condition or deliberately malingering, finding instead that he was suffering from chronic pain disorder and chronic dysthymic disorder as a result of the accident. The court awarded Mr O'Brien damages for pain and suffering and loss of amenities, along with interest on those damages, special damages, lost earnings, superannuation entitlements, and gratuitous services, less a WorkCover refund. The court calculated the total damages awarded at $471,036.00.

Orders