Perez v Holmes

[2003] QCA 453

SUPREME COURT OF QUEENSLAND

CITATION:

Perez v Holmes & Anor [2003] QCA 453

PARTIES:

HUGO ALBERTO PEREZ
(plaintiff/respondent)
v
DANIEL DAVID HOLMES
(first defendant/first appellant)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second defendant/second appellant)

FILE NO/S:

Appeal No 162 of 2003
DC No 920 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury – Quantum Only

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2003

JUDGES:

McMurdo P, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed
2. Substitute $192,414.00 for $250,000.00 in the judgment    of the District Court
3. The respondent is to pay the appellants’ costs of and incidental to the appeal to be assessed

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – PAIN AND SUFFERING – where respondent brought proceedings against appellants for damages for injuries to back and knee arising out of motor vehicle collision – where appellants found to be liable and respondent awarded damages of $45,000 for pain and suffering – where appellant had pre-existing complaints with respect to back and knee – whether recent single judge quantum decisions indicate an upper limit of $30,000 for pain and suffering and loss of amenities – whether learned primary judge was correct in assessing damages on the basis that respondent’s present condition was entirely due to motor vehicle collision

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 – PARTICULAR CASES – where exacerbation of existing injuries – where was evidence that present condition would have existed in seven years even without accident – where learned trial judge assessed economic loss over 10 year period – whether economic loss should have been assessed over seven year period

Horvath v Rajic & Ors [2001] QDC 358; DC No 511 of 1999, 10 August 2001, cited
Keenan v Kedron-Wavell Services Club Inc DC No 1868 of 2001, 31 January 2003, cited
Poole v Piggott [2000] QDC 254, cited
Venables v Gould & Anor [2001] QDC 320; DC No 4432 of 1998, 15 December 2001, cited

COUNSEL:

K S Howe for the appellants
No appearance for the respondent

SOLICITORS:

Walsh Halligan Douglas for the appellants
No appearance for the respondent

1. MCMURDO P:  I agree with the reasons for judgment of Williams JA and with the orders proposed.

1. WILLIAMS JA:  The respondent brought proceedings in the District Court at Southport claiming damages for personal injury arising out of a motor vehicle collision which occurred on 9 March 2000.  Liability was not admitted; the respondent merely being put to proof.  There is no challenge to the finding of liability in the respondent’s favour.  The learned trial judge, as disclosed by…