Rossi v Westbrook

[2011] QSC 311

SUPREME COURT OF QUEENSLAND

CITATION:

Rossi v Westbrook and Anor [2011] QSC 311

PARTIES:

TENILLE BIANCA ROSSI
(Plaintiff)

v

MARGARET WESTBROOK
(First Defendant)

and

RACQ INSURANCE LIMITED
(Second Defendant)

FILE NO/S:

BS 551 of 2008

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

25 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10-12 October 2011

JUDGE:

McMurdo J

ORDER:

Judgment for the plaintiff against the second defendant in the sum of $22,144.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where the plaintiff was in a car accident – where liability was admitted – where the plaintiff suffered an injury to her cervical spine and developed a traffic phobia – whether the plaintiff was exaggerating her symptoms – whether the plaintiff required gratuitous services – what was the appropriate award of damages

Civil Liability Act2003 (Qld), s 59, s 61

Civil Liability Regulation2003 (Qld), Schedule 3

HML v The Queen (2008) 235 CLR 334, cited
Jones v Dunkel (1959) 101 CLR 298, applied

R v Burdett (1820) 4 B & Ald 95; 106 ER 873, considered

COUNSEL:

R Morton for the plaintiff

GC O’Driscoll for the defendants

SOLICITORS:

Morton & Morton Solicitors for the plaintiff

Quinlan Miller & Treston for the defendants

1. The plaintiff, Mrs Rossi, seeks damages for personal injuries suffered in a car accident on 4 September 2003.  Liability is admitted.

1. It is also admitted that she suffered an injury to her cervical spine and that she developed a traffic phobia which persists.  It is common ground that this phobia can be successfully treated by a program of ten consultations at a cost of $210 each.  The dispute is as to the severity of the injury to her cervical spine.  Mrs Rossi says that from shortly after the accident, she has suffered symptoms of stiffness in the shoulders, a burning sensation from her shoulders up through her neck and a feeling that the neck is tightening up which then leads to headaches.  She says that this gives rise to a need for domestic assistance and affects her earning capacity.  The defendants say that she has no significant impairment in either of those respects, and that she is misrepresenting the existence or extent of her symptoms.  As I will discuss, the proof of her case is effectively dependent upon her own evidence. 

1. Mrs Rossi was aged 18 at the time of this accident.  She had left high school in year 11 and had worked in two shops in Gympie.  She was not employed in the month or so prior to the accident, but she had accepted an offer of employment at a jewellery store.  She was living with her then boyfriend, Mr Westlake, in a house occupied also by Mr Westlake’s mother and her husband. 

1. Mr Westlake was driving the car in which she was a passenger when it was hit by the first defendant’s car which…