Rossi v Westbrook

Case [2013] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

Rossi v Westbrook & Anor [2013] QCA 102

PARTIES:

TENILLE BIANCA ROSSI
(appellant)
v
MARGARET SOMERVILLE WESTBROOK
(first respondent)
RACQ INSURANCE LIMITED
(second respondent)

FILE NO/S:

Appeal No 10601 of 2011
SC No 551 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2012

JUDGE:

Fraser and Gotterson JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where the appellant suffered injury to her cervical spine as the result of a motor vehicle accident – where the appellant claimed damages for past and future care and assistance and for past and future loss of earning capacity arising from ongoing symptoms of injury – where the trial judge took account of evidence of two physiotherapists who each reported inconsistencies between the appellant’s alleged symptoms and their observations upon examination of the appellant – where the trial judge took account of evidence of the appellant’s former fiancé and his mother who did not support the appellant’s evidence that she had required care and assistance – whether the trial judge erred in finding that the appellant’s symptoms were not serious enough to require care and assistance or to affect her earning capacity – whether the trial judge erred in not awarding damages as claimed by the appellant

EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – PARTY’S FAILURE TO GIVE OR CALL EVIDENCE – where the appellant did not call her husband to give evidence regarding her need for care and assistance and earning capacity – where the appellant was the party expected to call her husband – where the appellant’s omission to call her husband was unexplained – whether the trial judge erred in applying the principles in Jones v Dunkel (1959) 101 CLR 298

Australian Securities and Investments Commission v Hellicar (2012) 286 ALR 501; [2012] HCA 17, considered
Blatch v Archer (1774) 1 Cowp 63; [1774] EngR 2, considered
Browne v Dunn (1893) 6 R 67, cited
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, applied
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, considered
Rossi v Westbrook and Anor[2011] QSC 311, affirmed

COUNSEL:

R Morton for the appellant
GC O’Driscoll for the respondents

SOLICITORS:

Morton & Morton for the appellant
Quinlan Miller & Treston for the respondents

  1. FRASER JA: I agree with the reasons for judgment of Fryberg J and the order proposed by his Honour.

  1. GOTTERSON JA: I agree with the order proposed by Fryberg J and with the reasons…

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Details
AGLC
Rossi v Westbrook & Anor [2013] QCA 102
Case
[2013] QCA 102
Decision Date

CaseChat Overview and Summary

The appellant, Rossi, sought damages for injuries to her cervical spine sustained in a motor vehicle accident. The respondent, Westbrook, was found liable for the accident. Rossi claimed damages for past and future care and assistance and loss of earning capacity. The trial judge found that Rossi's symptoms were not serious enough to require care and assistance or to affect her earning capacity. Rossi appealed the decision. The legal issues in the case were whether the trial judge erred in finding that Rossi's symptoms were not serious enough to require care and assistance or to affect her earning capacity and whether the trial judge erred in not awarding damages as claimed by Rossi.

The court found that the trial judge did not err in finding that Rossi's symptoms were not serious enough to require care and assistance or to affect her earning capacity. The court found that the trial judge was entitled to take into account the inconsistencies between Rossi's alleged symptoms and the observations of the physiotherapists and the lack of support from Rossi's former fiancé and his mother. The court also found that the trial judge did not err in applying the principles in Jones v Dunkel (1959) 101 CLR 298 in relation to Rossi's failure to call her husband to give evidence regarding her need for care and assistance and earning capacity. The court found that the trial judge was entitled to draw an adverse inference from Rossi's failure to call her husband, who was the party expected to call him, and whose omission was unexplained.

The appeal was dismissed with costs to be assessed. The court found that the trial judge's findings were open and that there was no error of law in the trial judge's decision. The court found that the trial judge had properly considered the evidence and had applied the correct legal principles in reaching his decision. The court found that the trial judge's decision was supported by the evidence and that there was no basis for the court to interfere with the trial judge's assessment of the evidence.

Orders

Orders of the court

Appeal dismissed with costs to be assessed.

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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