Perham v Connolly - [2003] QSC 467

SUPREME COURT OF QUEENSLAND

CITATION:

Perham v Connolly [2003] QSC 467

PARTIES:

CRAIG PERHAM

(plaintiff)

v

DAVID ANTHONY CONNOLLY
(defendant)

FILE NO/S:

SC 4712 of 2001

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

10 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15, 16, 17 July 2003

JUDGE:

Atkinson J

ORDER:

Judgment for the defendant

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – SOLICITOR – where plaintiff engaged solicitor to act on his behalf in a claim for damages for nervous shock suffered as a result of rescuing victims of a motor vehicle accident – where solicitor negligently failed to give required notice under the Motor Accident Insurance Act 1994 (Qld) to commence the action – where plaintiff claimed damages for loss of chance caused by solicitor’s negligence – whether the plaintiff’s claim for damages for nervous shock would have been successful.

TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – ONUS OF PROOF – PROOF OF DAMAGE – where plaintiff attended scene of fatal single vehicle accident caused by negligence of driver – where plaintiff claimed to have rescued injured passengers from the vehicle – where plaintiff claimed to have suffered symptoms of post-traumatic stress disorder, including flashbacks of the rescue, as a result of his involvement – where plaintiff’s version of events not supported by other eyewitnesses – whether plaintiff suffered post-traumatic stress disorder.

Motor Accident Insurance Act 1994 (Qld), s 37

Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449, 76 ALRJ 1348, cited
Chester v Waverly Corporation (1939) 62 CLR 1, discussed
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100, [2003] HCA 33, S111, 112 and 113 of 2002, 18 June 2003, cited
Hancock v Nominal Defendant [2001] QCA 227, Appeal No. 2634 of 2000, 8 June 2001, cited
Jaensch v Coffey (1984) 155 CLR 549, referred to
Johhson v Perez (1988) 166 CLR 351, cited
Kitchen v RAF Association [1958] 2 All ER 251, cited
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, cited
Nikolaou v Papasavas Phillips & Co (No. 2) (1989) 166 CLR 394, cited
Sweeney v Attwood Marshall [2003] QCA 348, Appeal No. 9256 and 9262 of 2002, 15 August 2003, cited

COUNSEL:

KC Fleming QC with P B de Plater for the plaintiff
R C Morton for the defendant

SOLICITORS:

Ken Owens Solicitors (Caboolture) for the plaintiff
Quinlan Miller and Treston (Brisbane) for the defendant

ATKINSON J: In the early hours of the morning of 1 September 1994, an horrific motor vehicle accident occurred in West Street, Toowoomba. A car which had been travelling at very high speed hit a lamp post on a straight road. Inside the car were four young people. The driver died on impact. A young female passenger had her legs severed from her body and died shortly after impact. Two other young people survived the accident but suffered terrible…

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 Perham v Connolly

Details

AGLC: Perham v Connolly [2003] QSC 467
Case: [2003] QSC 467
Decision Date: 10 November 2003

CaseChat Overview and Summary

The case of Perham v Connolly involved the plaintiff, who engaged the defendant, a solicitor, to act on his behalf in a claim for damages for nervous shock suffered as a result of rescuing victims from a motor vehicle accident. The plaintiff alleged that the solicitor was negligent in failing to provide the required notice under the Motor Accident Insurance Act 1994 (Qld) to commence the action, resulting in the loss of a chance of recovery for the plaintiff's claim for damages for nervous shock. The central issue before the court was whether the plaintiff's claim for damages for nervous shock would have been successful, had the solicitor not been negligent.

The court had to consider the evidence presented by the plaintiff regarding his involvement in the rescue and the symptoms of post-traumatic stress disorder he claimed to have suffered. The plaintiff's version of events was not supported by other eyewitnesses, which raised questions about the veracity of his claims. The court was required to determine whether the plaintiff had indeed suffered from post-traumatic stress disorder and whether this was a result of the rescue operation, as claimed. Furthermore, the court had to consider the solicitor's duty of care and whether the failure to provide the required notice constituted a breach of that duty.

The court found that the plaintiff's claim for damages for nervous shock was unlikely to have been successful, given the lack of corroborative evidence for his version of events. As such, the court held that the plaintiff had not suffered any damages as a result of the solicitor's negligence. The court's reasoning was that the plaintiff's claim for damages for nervous shock was speculative, and the lack of support from other eyewitnesses undermined the credibility of the plaintiff's account. Consequently, the court entered judgment in favour of the defendant, dismissing the plaintiff's claim for damages.

Orders

Orders of the court

Judgment for the defendant

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Perham v Connolly [2003] QSC 467
PARTIES:	CRAIG PERHAM (plaintiff) v DAVID ANTHONY CONNOLLY (defendant)
FILE NO/S:	SC 4712 of 2001
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	10 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	14, 15, 16, 17 July 2003
JUDGE:	Atkinson J
ORDER:	Judgment for the defendant
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – SOLICITOR – where plaintiff engaged solicitor to act on his behalf in a claim for damages for nervous shock suffered as a result of rescuing victims of a motor vehicle accident – where solicitor negligently failed to give required notice under the Motor Accident Insurance Act 1994 (Qld) to commence the action – where plaintiff claimed damages for loss of chance caused by solicitor’s negligence – whether the plaintiff’s claim for damages for nervous shock would have been successful. TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – ONUS OF PROOF – PROOF OF DAMAGE – where plaintiff attended scene of fatal single vehicle accident caused by negligence of driver – where plaintiff claimed to have rescued injured passengers from the vehicle – where plaintiff claimed to have suffered symptoms of post-traumatic stress disorder, including flashbacks of the rescue, as a result of his involvement – where plaintiff’s version of events not supported by other eyewitnesses – whether plaintiff suffered post-traumatic stress disorder. Motor Accident Insurance Act 1994 (Qld), s 37 Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449, 76 ALRJ 1348, cited Chester v Waverly Corporation (1939) 62 CLR 1, discussed Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100, [2003] HCA 33, S111, 112 and 113 of 2002, 18 June 2003, cited Hancock v Nominal Defendant [2001] QCA 227, Appeal No. 2634 of 2000, 8 June 2001, cited Jaensch v Coffey (1984) 155 CLR 549, referred to Johhson v Perez (1988) 166 CLR 351, cited Kitchen v RAF Association [1958] 2 All ER 251, cited Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, cited Nikolaou v Papasavas Phillips & Co (No. 2) (1989) 166 CLR 394, cited Sweeney v Attwood Marshall [2003] QCA 348, Appeal No. 9256 and 9262 of 2002, 15 August 2003, cited
COUNSEL:	KC Fleming QC with P B de Plater for the plaintiff R C Morton for the defendant
SOLICITORS:	Ken Owens Solicitors (Caboolture) for the plaintiff Quinlan Miller and Treston (Brisbane) for the defendant