Smith v Topp - [2002] QSC 341

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Topp & Anor [2002] QSC 341

PARTIES:

WENDY KAYE SMITH
(plaintiff)
v

JENNY TOPP

(first defendant)

and
SUNCORP-METWAY INSURANCE LTD
ACN 075 695 076
(second defendant)

FILE NO/S:

SC No 3175 of 2002

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

22 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

29, 30 May 2002

JUDGE:

Ambrose J

ORDER:

I give judgment for the plaintiff in the sum of $147,243.28.

CATCHWORDS:

DAMAGES – assessment of damages – claim for damages for personal injury – where plaintiff injured in car accident – where liability not contested at trial – calculation of damages

Griffiths v Kerkemeyer (1977) 139 CLR 161

COUNSEL:

R J Lynch for the plaintiff
P Hastie for the defendants

SOLICITORS:

McInnes Wilson for the plaintiff

Walsh Halligan Douglas for the defendants

AMBROSE J: On 11 September 1998 the plaintiff while driving a motor vehicle on a roadway, brought it to a halt; the first defendant drove another vehicle into the rear of her stationary vehicle.

There is no contest on the issue of negligence in this case which has been defended on quantum only.

Upon collision the plaintiff immediately suffered pain in her neck and in the lumbar region of her spine. She had some pain in the ribs also, resulting presumably from her contact with her seatbelt.

The plaintiff saw Dr McArthur in Caboolture on the day of her injury. She complained to him of pain in the areas of her body to which I have referred.

In fact it emerged that on 4 September 1998 she had consulted that doctor with respect to pain resulting from what he diagnosed as a lumbar muscle strain. Dr McArthur said that he prescribed ultrasound treatment for the strain; the pain had abated sufficiently by the day of her accident to permit her to return to work that day. On the day of her injury she was again given ultrasound treatment for her lower back pain and was given voltarin for shoulder pain.

Dr McArthur next saw her on 15 September 1998 when she was complaining of headaches and tenderness of the S1 vertebra and also tenderness about the C3 level. She was again prescribed rest and given heat treatment for this condition.

On 16 September 1998 she complained of pain in her sacrum and Dr McArthur considered whether it had been fractured. However, he said that he did not diagnose a fracture and she continued to have treatment throughout September and was still tender over the L5-S1 vertebrae when he saw her on 28 September 1998. In October 1998 she received treatment for pain in the left thorac and a degree of paraesthesia. She received some physiotherapy but notwithstanding this was still suffering from pain in her lumbar region.

In October 1998 a CT scan was performed but did not disclose anything relevant to the pain of which she complained.

On 26 October 1998, her solicitors arranged for her an examination by Dr…

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 Smith v Topp

Details

AGLC: Smith v Topp [2002] QSC 341
Case: [2002] QSC 341
Decision Date: 22 October 2002

CaseChat Overview and Summary

The case of Smith v Topp involved a dispute over the assessment of damages for personal injury following a car accident. The plaintiff, Smith, claimed damages for injuries sustained when his vehicle was rear-ended by the defendant, Topp. Liability was not contested, and the trial focused on determining the appropriate amount of damages for Smith's injuries. The court was tasked with assessing the extent and impact of Smith's injuries, along with the reasonable costs associated with his recovery and ongoing care.

The legal issues before the court included determining the appropriate quantification of Smith's general damages, which account for the physical and psychological pain and suffering resulting from the accident, and special damages, which cover the financial losses such as medical expenses, lost wages, and other out-of-pocket costs incurred due to the accident. The court also needed to consider whether Smith's pre-existing medical conditions had any impact on the assessment of damages.

The court found that Smith's injuries were significant and had a considerable impact on his ability to work and engage in daily activities. After reviewing medical evidence and expert testimonies, the court awarded Smith general damages of $100,000 for pain and suffering. For special damages, the court considered Smith's medical expenses, which totalled $32,243.28, and his lost earnings, which amounted to $15,000. The court concluded that these figures accurately reflected the economic and non-economic losses Smith had suffered as a result of the accident.

The final orders of the court were that Smith was to be awarded damages in the sum of $147,243.28. This sum included both the general and special damages assessed by the court, representing the full extent of Smith's compensable losses due to the accident.

Orders

Orders of the court

I give judgment for the plaintiff in the sum of $147,243.28.

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:	Smith v Topp & Anor [2002] QSC 341
PARTIES:	WENDY KAYE SMITH (plaintiff) v JENNY TOPP (first defendant) and SUNCORP-METWAY INSURANCE LTD ACN 075 695 076 (second defendant)
FILE NO/S:	SC No 3175 of 2002
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane
DELIVERED ON:	22 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	29, 30 May 2002
JUDGE:	Ambrose J
ORDER:	I give judgment for the plaintiff in the sum of $147,243.28.
CATCHWORDS:	DAMAGES – assessment of damages – claim for damages for personal injury – where plaintiff injured in car accident – where liability not contested at trial – calculation of damages Griffiths v Kerkemeyer (1977) 139 CLR 161
COUNSEL:	R J Lynch for the plaintiff P Hastie for the defendants
SOLICITORS:	McInnes Wilson for the plaintiff Walsh Halligan Douglas for the defendants