Wallace v Nominal Defendant

[2005] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

Wallace v Nominal Defendant & Ors [2005] QCA 244

PARTIES:

DONNA MAREE WALLACE
(plaintiff/applicant/appellant)
v
NOMINAL DEFENDANT
(first defendant/first respondent)
MATTHEW JOHN HODGE
(second defendant/second respondent)
DEBRA ANNE ARNOTT
(third defendant/third respondent)

FILE NO/S:

Appeal No 1787 of 2005
DC No 79 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)
General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

15 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2005

JUDGES:

Williams and Jerrard JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.  Allow the application for extension of time in which to      seek leave to appeal
2.  Grant leave to appeal
3.   Allow the appeal
4.  Order the judgment amount of $39,850.35 be      increased by $7,033 to $46,883.35
5.  Order that the respondent pay the appellant’s costs to      be assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES –  CIRCUMSTANCES JUSTIFYING INTERFERENCE BY APPELLATE COURT – appellant claimed Griffiths v Kerkemeyer damages for past gratuitous child care services provided by neighbour – trial judge refused to grant Griffith v Kerkemeyer damages – appellant had given inconsistent details about provision of services – appellant’s evidence not challenged at trial – whether trial judge erred in not granting damages for the claimed child care services

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURY – MEDICAL AND HOSPITAL EXPENSES – appellant claimed damages for past physiotherapy expenses – trial judge found that the need for physiotherapy caused by the accident came to an end around the date of trial – trial judge awarded physiotherapy expenses for only the first 12 months after the accident – whether the trial judge erred in not allowing physiotherapy expenses until date of trial

Campbell v Jones & Anor [2002] QCA 332; [2003] 1 Qd R 630, cited
Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, cited
Griffiths v Kerkemeyer (1977) 139 CLR 161, cited
Van Gervan v Fenton (1992) 175 CLR 327, applied

COUNSEL:

J R Webb for the applicant/appellant
M T O’Sullivan for the respondents

SOLICITORS:

Gall Standfield & Smith for the applicant/appellant
Phillips Fox for the respondents

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Jerrard JA and there is little I can usefully add thereto.

1. The learned trial judge did not refer at all in his reasons for judgment to the claim under the Griffiths v Kerkemeyer head with respect to services provided by the appellant's neighbour, Natalie Shallett.  There were arguably grounds on which a trial judge could have rejected that claim, but this Court cannot assume that the learned trial judge directed his mind to the issue and rejected the claim.  Particularly given the fact that counsel for the defence did not cross-examine with respect to that…