Vowles v Osgood - [2012] QSC 82

SUPREME COURT OF QUEENSLAND

CITATION:

Vowles v Osgood & Anor [2012] QSC 82

PARTIES:

BENJAMIN MICHAEL VOWLES
(plaintiff)
v
ROBERT GEORGE OSGOOD
(first defendant)
And
SUNCORP METWAY INSURANCE LTD
(second defendant)

FILE NO/S:

S111 of 2011

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

3 April 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

26-28 March 2012

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff in the sum of $450,750

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where personal injuries suffered in a motor vehicle accident – where liability admitted – where the effect on employment in issue – where damages in issue

Civil Liability Act 2003 (Qld)

Civil Liability Regulation 2003 (Qld)

Allwood v Wilson & Anor [2011] QSC 180

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Mallett v McMonagle [1970] AC 166

Perfect v MacDonald & Anor [2012] QSC 11

COUNSEL:

GF Crow SC for the plaintiff

RD Green for the second defendant

SOLICITORS:

Chris Trevor & Associates for the plaintiff

Grant & Simpson for the second defendant

McMEEKIN J: The plaintiff, Benjamin Vowles, claims damages for personal injuries suffered on the 27^th April 2009 in a motor vehicle accident. Liability is admitted. I am required to assess damages.

Mr Vowles was born on the 30^th August 1977. He was 31 years old when injured and is now aged 34 years.

The Civil Liability Act

The assessment is governed by the provisions of the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2003 (“the Regulations”).

The Accident and Consequent Injuries

The accident did not apparently involve substantial forces. Mr Vowles’ vehicle was stationary at traffic lights as was the first defendant’s vehicle, a short distance behind. A right turn arrow turned green and the first defendant drove forward into the rear of Mr Vowles’ vehicle, the first defendant wrongly assuming that Mr Vowles also wished to turn right. Mr Vowles’ vehicle was forced forward about two to three meters. There was no significant damage to Mr Vowles’ vehicle.

Mr Vowles felt a little shaken by the accident and a little “stiff and sore” but noticed nothing further until the following Monday, two days later. When at work he ducked under scaffold when he noticed that his back felt “a bit funny”. He was placed on light duties that afternoon after seeing a general practitioner, with a weight restriction limit of 5kgs.

Mr Vowles has been diagnosed as having suffered soft tissue injuries to the lumbar and cervical spine of a musculo-ligamentous nature. That he suffered injury of this type is not in issue.

Mr Vowles described his symptoms at the early stages whilst on light duties in the following passage of evidence:
“And in that period for the rest of the job, how was your neck and how was your back?‑‑ My neck stiffened up, locks up in place, and…

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 Vowles v Osgood

Details

AGLC: Vowles v Osgood [2012] QSC 82
Case: [2012] QSC 82
Decision Date: 3 April 2012

CaseChat Overview and Summary

The plaintiff, Vowles, sued the defendant, Osgood, for damages following a motor vehicle accident in which the plaintiff was injured. The case was heard in the Supreme Court of New South Wales. Osgood admitted liability, leaving the measure of damages as the only issue. The primary consideration was the extent to which the plaintiff's injuries affected his employment prospects and capacity to earn income. The plaintiff had been employed as a labourer before the accident and claimed that his ability to work in this capacity had been significantly impaired. The court needed to determine the appropriate measure of damages, taking into account the plaintiff's pre-accident employment, the extent of his injuries, and the impact on his future earning capacity.

The court examined the evidence regarding the plaintiff's pre-accident employment, the nature and extent of his injuries, and expert opinions on the impact of those injuries on his ability to work. It considered the plaintiff's age, the likelihood of future employment in his previous occupation, and the potential for retraining. The court held that the plaintiff's injuries had a substantial impact on his capacity to earn income, both in his previous occupation and in any alternative employment he might seek. The court awarded damages that reflected the plaintiff's loss of earning capacity and the impact of his injuries on his overall life.

In conclusion, the court awarded the plaintiff $450,750 in damages, reflecting the impact of his injuries on his future earning capacity and other aspects of his life. The court found that this amount appropriately compensated the plaintiff for his losses.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $450,750

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.

CITATION:	Vowles v Osgood & Anor [2012] QSC 82
PARTIES:	BENJAMIN MICHAEL VOWLES (plaintiff) v ROBERT GEORGE OSGOOD (first defendant) And SUNCORP METWAY INSURANCE LTD (second defendant)
FILE NO/S:	S111 of 2011
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	3 April 2012
DELIVERED AT:	Rockhampton
HEARING DATE:	26-28 March 2012
JUDGE:	McMeekin J
ORDER:	Judgment for the plaintiff in the sum of $450,750
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where personal injuries suffered in a motor vehicle accident – where liability admitted – where the effect on employment in issue – where damages in issue Civil Liability Act 2003 (Qld) Civil Liability Regulation 2003 (Qld) Allwood v Wilson & Anor [2011] QSC 180 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 Perfect v MacDonald & Anor [2012] QSC 11
COUNSEL:	GF Crow SC for the plaintiff RD Green for the second defendant
SOLICITORS:	Chris Trevor & Associates for the plaintiff Grant & Simpson for the second defendant