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Terranova v Joseph

Terranova v Joseph

Case [2009] QCA 402 24 December 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

Terranova v Joseph & Anor [2009] QCA 402

PARTIES:

ALISON JENNIFER TERRANOVA
(plaintiff/appellant)
v
SCOTT JOSEPH
(first defendant/first respondent)
ALLIANZ AUSTRALIA INSURANCE
(second defendant/second respondent)

FILE NO/S:

Appeal No 6369 of 2009
Appeal No 6371 of 2009
DC No 608 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2009

JUDGES:

McMurdo P and Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
1.   The plaintiff’s appeals are dismissed.

2.   The defendants’ cross-appeal is dismissed.

3.   The parties are granted leave to file written submissions as to the costs of the proceedings in this Court in accordance with Paragraph 37A of Practice Direction No 1 of 2005 save that those submissions must be provided to the Court by 4 pm on 29 January 2010.

CATCHWORDS:
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where first respondent hit the appellant’s car and appellant sustained back injuries – where appellant had commenced work as a paralegal prior to the accident – where appellant was unable to work the same hours as a result of the injuries she sustained in the accident – where trial judge awarded the appellant damages for future economic loss but discounted the amount by 35 per cent – where second defendant cross-appealed against award of damages for future economic loss on basis that trial judge’s finding was against the weight of the evidence – whether and in what amount the appellant should have been awarded damages for future economic loss

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where appellant argued that she should have received costs on the indemnity basis, as the final judgment amount exceeded the amount of offers made by the appellant under the Motor Accident Insurance Act 1994 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld) – whether appellant should have been awarded costs on the indemnity basis

Civil Liability Act 2003 (Qld), s 55(2)
Motor Accident Insurance Act 1994 (Qld), s 51C

Ballesteros v Chidlow and Anor[2006] QCA 323
Castro v Hillery [2003] 1 Qd R 651; [2002] QCA 359
Drew v Makita (Australia) P/L[2009] QCA 66
Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hart v Consolidated Meat Group P/L[2005] QCA 421
Hiscox v Woods and GIO General Ltd [2002] QSC 064
McChesney v Singh & Ors[2004] QCA 217
State of New South Wales v Zerafa [2005] NSWCA 187
Terranova v Joseph & Anor, unreported, O’Sullivan DCJ, DC No 608 of 2008, 28 May 2009
Wynn v NSW Insurance Ministerial Corporation

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 Terranova v Joseph

Details

AGLC: Terranova v Joseph [2009] QCA 402
Case: [2009] QCA 402
Decision Date: 24 December 2009

CaseChat Overview and Summary

In the case of Terranova v Joseph, the plaintiff sought compensation for personal injuries sustained when her car was struck by a vehicle driven by the first defendant. The plaintiff, who had recently begun working as a paralegal, claimed damages for future economic loss, specifically loss of earnings and earning capacity. The trial judge awarded damages but reduced the amount by 35 percent, a decision the plaintiff contested on appeal. The defendants, in turn, cross-appealed, arguing that the trial judge’s award of damages for future economic loss was against the weight of the evidence. The central legal issues revolved around the appropriate measure of damages for future economic loss under the particular circumstances of the case and whether the plaintiff should be awarded costs on an indemnity basis.

The court examined the evidence and legal principles concerning the measure of damages for future economic loss. The plaintiff argued that her earning capacity had been significantly impaired, justifying a higher award of damages. The defendants contended that the trial judge’s discount was justified and that the plaintiff's future earning prospects were overstated. The court also addressed the plaintiff's claim for costs on an indemnity basis, considering whether the final judgment amount exceeded the offers made under the Motor Accident Insurance Act 1994 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld). The court found that the trial judge's assessment of the plaintiff's future economic loss was well within the range of reasonable outcomes and did not support an indemnity costs order.

Consequently, the appeals and cross-appeal were dismissed. The court upheld the trial judge's decision regarding the measure of damages for future economic loss and rejected the plaintiff's argument for indemnity costs. The parties were granted leave to file written submissions regarding the costs of the proceedings, with a specified deadline.

Orders

Orders of the court

1. The plaintiff’s appeals are dismissed.

2. The defendants’ cross-appeal is dismissed.

3. The parties are granted leave to file written submissions as to the costs of the proceedings in this Court in accordance with Paragraph 37A of Practice Direction No 1 of 2005 save that those submissions must be provided to the Court by 4 pm on 29 January 2010.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Terranova v Joseph [2009] QCA 402

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 12 of 12 shown

Drew v Makita (Australia) Pty Ltd
[2009] QCA 66 Para 1

…thodology in full would not justify the setting aside of an award which was supported by the evidence.[19] [18]Cf Drew v Makita (Australia) P/L [2009] QCA 66 at [58] – [65]. [19] Ballesteros v Chidlow and Anor [2006] QCA 323 at [40] – [41] per McMurdo P, citing State of New South Wales v Zerafa [2005] NSWCA 187…
Ballesteros v Chidlow
[2006] QCA 323 Para 1

…ich was supported by the evidence.[19] [18]Cf Drew v Makita (Australia) P/L [2009] QCA 66 at [58] – [65]. [19] Ballesteros v Chidlow and Anor [2006] QCA 323 at [40] – [41] per McMurdo P, citing State of New South Wales v Zerafa [2005] NSWCA 187 (see per Campbell JA at [139] – [143]).…
Hart v Consolidated Meat Group Pty Ltd
[2005] QCA 421 Para 1

…ise are such as to justify this Court in setting aside the award for future economic loss.[29] [29]See Hart v Consolidated Meat Group P/L [2005] QCA 421 at [38], citing Fox v Percy (2003) 214 CLR 118.…
State of New South Wales v Zerafa
[2005] NSWCA 187 Para 1

…6 at [58] – [65]. [19] Ballesteros v Chidlow and Anor [2006] QCA 323 at [40] – [41] per McMurdo P, citing State of New South Wales v Zerafa [2005] NSWCA 187 (see per Campbell JA at [139] – [143]).…
McChesney v Singh
[2004] QCA 217 Para 1

…rities cited for the plaintiff[33] but those examples do not confine the discretion. [33] Castro v Hillery [2003] 1 Qd R 651, McChesney v Singh & Ors [2004] QCA 217, and Hiscox v Woods and GIO General Ltd [2002] QSC 064.…
Fox v Percy
[2003] HCA 22

…ford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hart v Consolidated Meat Group P/L [2005] QCA 421 Hiscox v Woods and GIO General Ltd [2002] QSC 064 McChesney v Singh & Ors [2004] QCA 217 State of New South Wales v Zerafa [2005] NSWCA 187…
Castro v Hillery
[2002] QCA 359

…rance Act 1994 (Qld), s 51C Ballesteros v Chidlow and Anor [2006] QCA 323 Castro v Hillery [2003] 1 Qd R 651; [2002] QCA 359 Drew v Makita (Australia) P/L [2009] QCA 66 Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hart v Consolidated…
Oshlack v Richmond River Council
[1998] HCA 11

…his is to be assessed in the light of the circumstances as they existed at the time of the offer. The appellant placed reliance on Morgan v Johnson (1998) 44 NSWLR 578, where the Court of Appeal of New South Wales had regard to the principles applicable to the exercise of the discretion under the analogous costs provi…
Wynn v NSW Insurance Ministerial Corporation
[1995] HCA 53

…llivan DCJ, DC No 608 of 2008, 28 May 2009 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53 COUNSEL: R Douglas SC, with J Kimmins, for the appellant S Williams QC, with R Morton, for the respondent SOLICITORS: Gouldson Legal for the appellant McInnes Wilson Lawyers for the responden…
Elford v FAI General Insurance Company Limited
[1992] QCA 41

…Drew v Makita (Australia) P/L [2009] QCA 66 Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hart v Consolidated Meat Group P/L [2005] QCA 421 Hiscox v Woods and GIO General Ltd [2002] QSC 064 McChesney v Singh & Ors [2004] QCA 217 Stat…
House v R
[1936] HCA 40 Para 1

…ly have been determined that the defendants had not shown that an order other than for indemnity costs in favour of the plaintiff was appropriate. [1](1936) 55 CLR 499, 507.…
QCA 217, and Hiscox v Woods and GIO General Ltd
[2002] QSC 064 Para 1

…o not confine the discretion. [33] Castro v Hillery [2003] 1 Qd R 651, McChesney v Singh & Ors [2004] QCA 217, and Hiscox v Woods and GIO General Ltd [2002] QSC 064.…

Legislation cited in this decision · 4

Civil Liability Act 2003 (Qld)
55(2) 2 mentions (from Para 1)
Motor Accident Insurance Act 1994 (Qld)
51C 2 mentions (from Para 1)
District Court Rules 1973 (NSW)
1 mention
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 1)

CITATION:	Terranova v Joseph & Anor [2009] QCA 402
PARTIES:	ALISON JENNIFER TERRANOVA (plaintiff/appellant) v SCOTT JOSEPH (first defendant/first respondent) ALLIANZ AUSTRALIA INSURANCE (second defendant/second respondent)
FILE NO/S:	Appeal No 6369 of 2009 Appeal No 6371 of 2009 DC No 608 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	8 October 2009
JUDGES:	McMurdo P and Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The plaintiff’s appeals are dismissed. 2. The defendants’ cross-appeal is dismissed. 3. The parties are granted leave to file written submissions as to the costs of the proceedings in this Court in accordance with Paragraph 37A of Practice Direction No 1 of 2005 save that those submissions must be provided to the Court by 4 pm on 29 January 2010.
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where first respondent hit the appellant’s car and appellant sustained back injuries – where appellant had commenced work as a paralegal prior to the accident – where appellant was unable to work the same hours as a result of the injuries she sustained in the accident – where trial judge awarded the appellant damages for future economic loss but discounted the amount by 35 per cent – where second defendant cross-appealed against award of damages for future economic loss on basis that trial judge’s finding was against the weight of the evidence – whether and in what amount the appellant should have been awarded damages for future economic loss PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where appellant argued that she should have received costs on the indemnity basis, as the final judgment amount exceeded the amount of offers made by the appellant under the Motor Accident Insurance Act 1994 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld) – whether appellant should have been awarded costs on the indemnity basis Civil Liability Act 2003 (Qld), s 55(2) Motor Accident Insurance Act 1994 (Qld), s 51C Ballesteros v Chidlow and Anor[2006] QCA 323 Castro v Hillery [2003] 1 Qd R 651; [2002] QCA 359 Drew v Makita (Australia) P/L[2009] QCA 66 Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hart v Consolidated Meat Group P/L[2005] QCA 421 Hiscox v Woods and GIO General Ltd [2002] QSC 064 McChesney v Singh & Ors[2004] QCA 217 State of New South Wales v Zerafa [2005] NSWCA 187 Terranova v Joseph & Anor, unreported, O’Sullivan DCJ, DC No 608 of 2008, 28 May 2009 Wynn v NSW Insurance Ministerial Corporation