Kate Ann Sutton v Lauren Nicole Hunter [2021] QSC 249
PARTIES:
KATE ANN SUTTON
(plaintiff)
v
LAUREN NICOLE HUNTER
(first defendant)
AND
ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850)
(second defendant)
FILE NO/S:
BD 10195/2020
DIVISION:
Trial Division
PROCEEDING:
Claim BD10195/20
ORIGINATING COURT:
District Court at Southport (transferred on 6 September 2021)
DELIVERED ON:
7 October 2021
DELIVERED AT:
Brisbane
HEARING DATES:
6, 7 & 8 September 2021
JUDGE:
Freeburn J
ORDER:
1. Judgment be entered for the plaintiff in the sum of $314,345;
2. The parties be heard on costs.
CATCHWORDS:
PERSONAL INJURY – PERSONAL INJURY LAW MANUAL QLD – CIVIL LIABILITY ACT – INTRODUCTION – ASSESSMENT OF DAMAGES FOR PERSONAL INJURY – ECONOMIC LOSS – GRUITOUS SERVICES – GENERAL DAMAGES – Where woman was involved in a car accident – Where woman suffered minimal physical injury – Where the woman’s dominant injury is Post-Traumatic Stress Disorder – Where second defendant insurer admits liability – Where only quantum is in issue – Whether Ms Sutton is entitled to general damages – If so, what should be awarded – Whether Ms Sutton is entitled to loss of earning capacity – If so, what should be awarded – Whether the Vincents Report is admissible – Whether the Hays Survey is admissible – Whether Ms Sutton’s claim should be dealt with as a global award – Whether Ms Sutton was entitled to past and future economic loss.
COUNSEL:
Mr C Newton (Plaintiff) Mr R Morton
(Second Defendant)
SOLICITORS:
Southside Legal (Plaintiff) McInnes Wilson (Second Defendant)
REASONS
Introduction
The plaintiff, Ms Kate Sutton, was injured in a motor vehicle accident on 15 February 2015 at Mudgeeraba. Another vehicle, driven by the first defendant, collided with the rear of Ms Sutton’s vehicle. The impact was significant. Both vehicles were written off.
The second defendant insurer, Allianz, admits liability.[1] Only quantum is in issue. The principal quantum issues are general damages, loss of earnings and earning capacity, and compensation for gratuitous service provided by Ms Sutton’s husband.
The Civil Liability Act 2003 (Qld) (the ‘Act’) and the Civil Liability Regulation 2014 (Qld) (the ‘Regulation’) circumscribe awards of general damages. The Act requires that an injured person’s total general damages must be based on an injury scale value (ISV) on a scale of 0 to 100.[2] That scale operates from, at one end of the scale, a case in which an injury is not severe enough to justify any award of general damages to, at the other end of the scale, a case in which the injury is of the gravest conceivable kind.[3] In assessing the ISV the court is required to assess the ISV under any regulations and to have regard to similar injuries in previous proceedings.[4]
Whilst Ms Sutton suffered some other injuries, mainly soft…
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 Sutton v Hunter
Sign in free to access the full text
Details
AGLC
Kate Ann Sutton v Lauren Nicole Hunter [2021] QSC 249
Case
[2021] QSC 249
Decision Date
CaseChat Overview and Summary
In the matter of Sutton v Hunter, the plaintiff, Ms Sutton, sought damages for injuries sustained in a motor vehicle accident. The defendant, Mr Hunter, was found liable for the accident. The primary issues before the court were the assessment of general damages for Ms Sutton’s Post-Traumatic Stress Disorder (PTSD), loss of earning capacity, and the admissibility of certain reports. The court also considered whether the claim should be treated as a global award under the Civil Liability Act 2003 (Qld).
The court examined the legislative framework provided by the Civil Liability Act, particularly s 55(3), which mandates explicit methodology and assumptions for the calculation of economic loss. The court acknowledged that the trial judge's global award did not fully comply with this legislative requirement. However, the court differed on the appropriate approach to compensating for loss of earning capacity. The recent Queensland Court of Appeal decision in Allianz Australia Insurance Limited v McCarthy suggested that global assessments of economic loss should be cautiously adopted, except in cases where the award is modest. The court also assessed the admissibility and relevance of the Vincents Report and the Hays Survey, both of which were critical in determining Ms Sutton’s entitlement to damages.
The court concluded that while the trial judge's global award did not fully adhere to the requirements of s 55(3) of the Civil Liability Act, it was appropriate to award damages for Ms Sutton's PTSD and loss of earning capacity. The court found that Ms Sutton was entitled to general damages and awarded her $314,345 in total. The court determined that the Vincents Report was admissible, while the Hays Survey was not. The decision was influenced by the principles set out in Malec v Jonic and subsequent cases, which emphasised the need for a clear methodology and assumptions in calculating economic loss.
ORDERS:
1. Judgment is entered for the plaintiff in the sum of $314,345.
2. The parties are to be heard on costs.
Orders
Orders of the court
1. Judgment be entered for the plaintiff in the sum of $314,345;
2. The parties be heard on costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Thus, the court was agreed that the trial judge’s global award did not comply with s 55(3) of the Act but was divided on how and whether the loss of earning capacity should be compensated. However, Allianz Australia Insurance Limited v McCarthy, the latest Queensland Court of Appeal decision on the topic, gives little encouragement to courts and practitioners to adopt global assessments of economic loss, except perhaps in cases where the award is modest.Some Single Judge Decisions on Global Awards A number of single judge decisions have considered the issue. In Perfect v MacDonald,[111] for example, McMeekin J said:While the precise point may not have arisen in the past Mr Crow SC has referred me to three decisions where the section has been considered, two of the Court of Appeal. In both of those latter decisions the Court plainly accepted that it was appropriate to adopt the principles explained in Malec when arriving at a global assessment. There was no suggestion that there had been any alteration of the common law brought about by the enactment of s 55. [111][2012] QSC 11 at [51]. This case was decided before Allianz Australia Insurance Limited v McCarthy. In Nucifora v AAI Limited[112] the same judge said that it may be doubted that s 55(3) of the Act has affected any change to the position at common law and that the usual principles continue to apply. [112][2013] QSC 338 at [29]. A similar view was adopted by McMeekin J in Brown v Holzberger.[113] That case involved more than modest global claims. The plaintiff sought $65,000 for past economic loss and $750,000 for future economic loss. The defendant was prepared to submit to awards of $45,000[114] and $450,000 respectively. After referring to the three Court of Appeal decisions and his own reasons in Nucifora, His Honour took the view that the methodology need not include an explicit statement of a formula, and that an ‘experienced guess’ was sufficient. For those two propositions, His Honour relied on Reardon-Smith v Allianz Australia Insurance Ltd[115] and Ballesteros v Chidlow.[116] His Honour proceeded to award $55,000 for past economic loss and $500,000 for future economic loss on a global basis.[117] [113][2017] QCA 295. There was an appeal against this decision, but on a different issue.[114]The actual amount was $44,917.[115][2007] QCA 211 at [37] (the passage quoted above).[116][2006] QCA 323 at [54].[117]His Honour did discuss his assumptions and he performed a mathematical calculation based on assumptions that resulted in an inadequate calculation of $200,000 for future economic loss. That decision appears to extend what is contemplated by s 55 of the Act and the three Court of Appeal decisions. The methodology and assumptions on which the award is based are required to be stated. The reasons of Keane JA were limited to cases of modest awards, where the lost chance of substantial financial benefit was so slight as to be almost negligible’ and where the award was modest. In those cases, it was a sufficient statement of methodology to merely refer to the principles in Malec’s case.