Raffaut v Gillard

[2006] QDC 403

DISTRICT COURT OF QUEENSLAND

CITATION:

Raffaut v Gillard & Anor [2006] QDC 403

PARTIES:

SYLVIN RAFFAUT  (Plaintiff)

And

LYNETTE JOY GILLARD  (First Defendant)

ALLIANZ AUSTRALIA INSURANCE LTD  
(ABN 15 000 122 850)  (Second Defendant)

FI LE NO/S:

30 of 2006

DIVISION:

Civil

PROCEEDING:

Hearing

ORIGINATING COURT:

District Court, Maryborough

DELIVERED ON:

27 November 2006

DELIVERED AT:

Maroochydore

HEARING DATE:

31 October – 1 November 2006

JUDGE:

Judge J.M. Robertson

ORDER:

Judgment for the Plaintiff for $82,050.00.

CATCHWORDS:

Assessment of damages pursuant to the Civil Liability Act 2003 and Regulation 2003 – multiple soft tissue injuries and psychiatric injury, consideration of psychiatric impairment rating scale (PIRS), where economic impairment cannot be precisely calculated.

Cases:
Ballesteros v Chidlow & Anor [2006] QCA 323

Legislation:
Civil Liability Act 2003, ss. 55 and 62(c)
Civil Liability Regulation 2003, Schedules 4 and 6

COUNSEL:

Mr C. Newton (for the Plaintiff)

Mr K.S. Howe (for the Defendants)

SOLICITORS:

McNamara Garrahy Litigation Lawyers (for the Plaintiff)
McInnes Wilson Lawyers (for the Defendants)

Introduction

1. Sylvan Raffaut was injured in a motor vehicle accident on 3 February 2003.  In the accident he suffered a number of soft tissue injuries to the lumbar and cervical spine.  There is also the possibility of a disc protrusion at C5-6 which is debated in the orthopaedic reports.  He also suffers from an adjustment disorder and depressed mood.

1. Liability was admitted at a very early stage so the only issue is the quantum of damages to be awarded by reference to the Civil Liability Act 2000 and the Civil Liability Regulation 2003.

1. The real issue in the case is the extent to which his present complaints of pain and distress are attributable to the injuries he suffered in the accident, and this in turn raises the issue of Mr Raffaut’s credibility which was strenuously attacked at the hearing.

The Plaintiff’s Credibility

1. At the time of the accident, the plaintiff was employed in the produce section of Woolworths.  His work involved a significant amount of hard physical work.  He and his wife were also working for PMP Distributions as distributors in the Noosaville area of pamphlets and advertising material.

1. He acknowledged in his evidence in chief that he had never declared this income (which now forms part of his claim for past and future economic loss), in his tax returns.  Not surprisingly, he was cross examined extensively about this by Mr Howe.  I agree with him that the plaintiff was to some extent evasive and that he offered a number of seemingly inconsistent explanations for his failure e.g. at one point he seemed to rely on conversations with PMP executives, and at another time he said (unconvincingly) that he gave all the information to his accountant whom he then could not name.

1. I had the opportunity to observe the plaintiff closely during the cross examination; indeed at one stage I decided to warn him.  He did seem uncomfortable at times but he most certainly did not give me the impression of someone who was…