Tate v Johnson - [2018] QDC 274

DISTRICT COURT OF QUEENSLAND

CITATION:

Tate v Johnson & Anor [2018] QDC 274

PARTIES:

GEOFFREY DOUGLAS TATE
(Appellant)

v

SHANE ANTHONY JOHNSON
(First Respondent)

and

RACQ INSURANCE ABN 50 009 704 152
(Second Respondent)

FILE NO/S:

11/18

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Rockhampton

DELIVERED ON:

21 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2018

JUDGE:

Devereaux SC DCJ

ORDER:

1. Appeal dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – Where appellant injured in motor vehicle collision – Where liability admitted – Where appellant suffered exacerbation of pre-existing neck pathology – Where, after collision, appellant underwent surgery, followed by rehabilitation – Whether learned magistrate erred in finding that neck symptoms were related to pre-existing pathology and not the collision.

COUNSEL:

R D Green for the appellant

G C O’Driscoll for the second respondent

SOLICITORS:

Grant & Simpson Lawyers for the appellant

Cooper Grace Ward for the second respondent

The appellant was injured in a car crash at Emerald on 22 December 2014. He was not at fault. Liability was admitted. The appeal is against findings by the learned magistrate at Rockhampton in reasons delivered on 8 February 2018.

The appeal is by way of re-hearing.[1]
[1]UCPR rr 785, 765.

The grounds of appeal are long.[2] As counsel for the appellant put it in the written outline, the essential argument in the appeal is that the learned magistrate was wrong to find that the neck symptoms complained of by the appellant were related to a pre-existing pathology rather than the effects of the collision. That finding informed the conclusions regarding general damages, loss of earning capacity and future expenses.
[2]Some of the 12 grounds are better understood as particulars of grounds 1 and 2.
The primary grounds of appeal reduce to the following: (italics added)
1.The learned magistrate was wrong in the assessment of general damages; using an assessment at ISV 7; that was wrong because it did not include damages for the neck injury; because her Honour wrongly found the continuing neck symptoms were not caused by the accident; because her Honour wrongly concluded that the symptoms were caused by exercise undertaken during rehabilitation after heart surgery; because her Honour wrongly concluded that that was the opinion of Dr Gillett and Dr Halliday; and because her Honour wrongly concluded that the evidence supported that finding; because her Honour wrongly disregarded the difference between disability and impairment and because her Honour wrongly failed to have proper regard to the appellant’s evidence about how the symptoms developed.
2.Her Honour wrongly assessed loss of earning capacity because her Honour wrongly found the appellant was unable to take up a certain job because of pre-existing neck and shoulder problems and not because of the collision; because her Honour misapprehended the duties involved in the role based on the evidence of the appellant and others and misapprehended the medical evidence; and because the finding…

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 Tate v Johnson

Details

AGLC: Tate v Johnson [2018] QDC 274
Case: [2018] QDC 274
Decision Date: 21 December 2018

CaseChat Overview and Summary

The appellant, Tate, appealed against a decision by a learned magistrate in Queensland who determined that the exacerbation of the appellant’s neck pathology was due to a pre-existing condition rather than the motor vehicle collision with the respondent, Johnson. The respondent admitted liability for the collision, but the appellant sought compensation for the exacerbation of their neck condition, which required surgery and rehabilitation. The court was tasked with deciding whether the magistrate correctly attributed the neck symptoms to the pre-existing pathology rather than the collision.

The court examined the evidence presented, including medical reports and expert testimony, to assess the cause of the appellant’s neck symptoms. The evidence showed that the appellant had a history of neck problems prior to the collision. The court considered the opinion of medical experts who opined that the exacerbation of the neck condition was likely due to the pre-existing pathology rather than the collision. The court found that the magistrate’s decision was supported by the evidence and that there was no error in attributing the neck symptoms to the pre-existing condition.

Consequently, the appeal was dismissed. The appellant was also ordered to pay the respondent’s costs of the appeal. The court held that the magistrate’s findings were reasonable and based on credible evidence, affirming that the neck symptoms were not caused by the collision but rather by the pre-existing pathology.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

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:	Tate v Johnson & Anor [2018] QDC 274
PARTIES:	GEOFFREY DOUGLAS TATE (Appellant) v SHANE ANTHONY JOHNSON (First Respondent) and RACQ INSURANCE ABN 50 009 704 152 (Second Respondent)
FILE NO/S:	11/18
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court Rockhampton
DELIVERED ON:	21 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2018
JUDGE:	Devereaux SC DCJ
ORDER:	1. Appeal dismissed. 2. The appellant is to pay the respondent’s costs of the appeal.
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – Where appellant injured in motor vehicle collision – Where liability admitted – Where appellant suffered exacerbation of pre-existing neck pathology – Where, after collision, appellant underwent surgery, followed by rehabilitation – Whether learned magistrate erred in finding that neck symptoms were related to pre-existing pathology and not the collision.
COUNSEL:	R D Green for the appellant G C O’Driscoll for the second respondent
SOLICITORS:	Grant & Simpson Lawyers for the appellant Cooper Grace Ward for the second respondent