Smith v Topp

[2003] QCA 397

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Topp & Anor [2003] QCA 397

PARTIES:

WENDY KAY SMITH
(plaintiff/appellant)
v
JENNY TOPP
(first defendant/respondent)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second defendant/respondent)

FILE NO S:

Appeal No 10527 of 2002
SC No 2622 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury - Quantum only

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2003

JUDGES:

Williams JA and Muir and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal

2.   Set aside the judgment of first instance

3.   Judgment for the appellant in the sum of $180,873.28

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – ONUS OF PROOF – where the appellant suffered injuries in a motor vehicle collision – where only the quantum of damages was in issue – where the appellant was found to have a residual income earning capacity – whether the respondents had the onus of proving the appellant’s ability to obtain income producing work within the limits of her incapacity – acceleration of pre-existing degenerative condition – whether the evidence established that loss of income earning capacity arose in part from such condition – onus of proof – appropriate method of allowing for such condition in assessment of damages

Baird v Roberts [1977] 2 NSWLR 389, applied
Coleman v Anodising & Aluminium Finishersof Qld Pty Ltd [2002] 1 Qd R 141; Appeal No 9809 of 1998, 12 November 1999, referred to
Fink v Fink (1946) 74 CLR 127, cited
Graham v Baker (1961) 106 CLR 340, referred to
Husher v Husher (1999) 197 CLR 138, referred to
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, applied
Naylor v Yorkshire Electricity Board [1968] AC 529, cited
Purkess v Crittenden (1965) 114 CLR 164, applied
State of New South Wales v Moss (2000) 54 NSWLR 536, applied

Thomas v O’Shea (1989) Aust Torts Report 80-251, cited

COUNSEL:

K N Wilson SC for the appellant 
S C Williams QC, with P A Hastie, for the respondents

SOLICITORS:

McInnes Wilson for the appellant
Walsh Halligan Douglas for the respondents

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Muir J and there is nothing I wish to add thereto. I agree with those reasons and with the orders he proposes.

1. MUIR J:  This is an appeal against a primary judge’s determination of quantum in a case in which damages were claimed by the plaintiff/appellant for injuries sustained in a motor vehicle accident on 11 September 1998.

1. At the time of the accident the appellant, who was born in 1965 and educated to year 10 level, was employed by a franchisee in the Red Rooster retail chain as…