Reitano v Shearer - [2014] QCA 336

SUPREME COURT OF QUEENSLAND

CITATION:

Reitano v Shearer & Anor [2014] QCA 336

PARTIES:

MONICA-LEIGH REITANO
(appellant)
v
BENJAMIN JOHN SHEARER
(first respondent)
RACQ INSURANCE LIMITED
ABN 50 009 704 152
(second respondent)

FILE NO/S:

Appeal No 3518 of 2014
SC No 52 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

16 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2014

JUDGES:

Holmes and Fraser JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal is allowed.

2.    The judgment given below in the amount of $139,026 is set aside, with judgment in the amount of $149,376 substituted.

3.    The parties have leave to deliver written submissions within 14 days of this judgment as to whether any variation is required to costs orders made at first instance and as to the costs orders which should be made in this court.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES – PERSONAL INJURY OR DEATH CASES – where the appellant was 17 years old when she was injured in a motor vehicle collision – where quantum was the only issue at trial – where the trial judge found that the collision had caused the appellant to suffer a spinal injury in a context of advanced pre-existing spinal degeneration – where the appellant appealed against the judgment on the grounds that the trial judge wrongly failed to make awards for past and future gratuitous care and future special damages – where the appellant contends the awards the trial judge made for general damages and future economic loss involved error and were manifestly inadequate – whether the appeal should be allowed

Civil Liability Act 2003 (Qld), s 55(3), s 59(1)
Civil Liability Regulation 2014 (Qld), s 3(2) Schedule 3, s 8 Schedule 7

Ballesteros v Chidlow & Anor[2006] QCA 323, applied
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, cited
Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, cited
Kriz v King [2007] 1 Qd R 327; [2006] QCA 351, cited
Reitano v Shearer & Anor [2014] QSC 44, related

COUNSEL:

A R Philp QC, with P W Moore, for the appellant
K S Howe for the respondents

SOLICITORS:

Eureka Legal for the appellant
Cooper Grace Ward for the respondents

HOLMES JA: The appellant was 17 years old when she was injured on 16 January 2008. A four-wheel drive vehicle hit her stationary sedan from behind, propelling it forward some five metres. In her action for damages for personal injuries, liability was admitted and the trial proceeded on the issue of quantum only. The appellant gave evidence of lasting and significant symptoms of thoracic spine pain, back spasms and leg and foot numbness. She said that her injuries had made her…

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 Reitano v Shearer

Details

AGLC: Reitano v Shearer [2014] QCA 336
Case: [2014] QCA 336
Decision Date: 16 December 2014

CaseChat Overview and Summary

In the matter of Reitano v Shearer, the appeal concerned the quantum of damages awarded to a 17-year-old girl who sustained a spinal injury during a motor vehicle accident. The trial judge found that the collision exacerbated her pre-existing spinal degeneration, resulting in the award of damages. The appellant challenged the judgment, arguing that the trial judge had failed to make awards for past and future gratuitous care and future special damages, and that the general damages and future economic loss awards were inadequate. The High Court of Australia heard the appeal.

The court was required to determine whether the trial judge's findings regarding the awards for past and future gratuitous care and future special damages were correct, and if the awards for general damages and future economic loss were appropriate. This required an analysis of the evidence presented at trial and an assessment of the reasonableness of the trial judge's decisions. The court also needed to consider whether the appellant's arguments regarding the inadequacy of the awards had merit.

The court found that the trial judge's failure to make awards for past and future gratuitous care and future special damages was an error, and that the awards for general damages and future economic loss were indeed inadequate. The court held that the appellant was entitled to compensation for these omissions and that the overall quantum of damages should be increased. As a result, the appeal was allowed, the original judgment was set aside, and a new judgment in the amount of $149,376 was substituted. The court also granted leave for the parties to submit written arguments regarding the variation of costs orders and the imposition of costs in the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The judgment given below in the amount of $139,026 is set aside, with judgment in the amount of $149,376 substituted.

3. The parties have leave to deliver written submissions within 14 days of this judgment as to whether any variation is required to costs orders made at first instance and as to the costs orders which should be made in this court.

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:	Reitano v Shearer & Anor [2014] QCA 336
PARTIES:	MONICA-LEIGH REITANO (appellant) v BENJAMIN JOHN SHEARER (first respondent) RACQ INSURANCE LIMITED ABN 50 009 704 152 (second respondent)
FILE NO/S:	Appeal No 3518 of 2014 SC No 52 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	16 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2014
JUDGES:	Holmes and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed. 2. The judgment given below in the amount of $139,026 is set aside, with judgment in the amount of $149,376 substituted. 3. The parties have leave to deliver written submissions within 14 days of this judgment as to whether any variation is required to costs orders made at first instance and as to the costs orders which should be made in this court.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES – PERSONAL INJURY OR DEATH CASES – where the appellant was 17 years old when she was injured in a motor vehicle collision – where quantum was the only issue at trial – where the trial judge found that the collision had caused the appellant to suffer a spinal injury in a context of advanced pre-existing spinal degeneration – where the appellant appealed against the judgment on the grounds that the trial judge wrongly failed to make awards for past and future gratuitous care and future special damages – where the appellant contends the awards the trial judge made for general damages and future economic loss involved error and were manifestly inadequate – whether the appeal should be allowed Civil Liability Act 2003 (Qld), s 55(3), s 59(1) Civil Liability Regulation 2014 (Qld), s 3(2) Schedule 3, s 8 Schedule 7 Ballesteros v Chidlow & Anor[2006] QCA 323, applied CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, cited Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, cited Kriz v King [2007] 1 Qd R 327; [2006] QCA 351, cited Reitano v Shearer & Anor [2014] QSC 44, related
COUNSEL:	A R Philp QC, with P W Moore, for the appellant K S Howe for the respondents
SOLICITORS:	Eureka Legal for the appellant Cooper Grace Ward for the respondents