Waller v Suncorp Metway Insurance Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Waller v Suncorp Metway Insurance Limited [2010] QCA 17

PARTIES:

LUKE STEVEN WALLER a person under a legal incapacity, by his litigation guardian VICKI CATHERINE WALLER
(plaintiff/appellant)
v
ADRIAN GLEN MCGRATH
(first defendant/not a party to the appeal)
SUNCORP METWAY INSURANCE LIMITED
ABN 83 075 695 966
(second defendant/respondent)

FILE NO/S:

Appeal No 7513 of 2009
SC No 5562 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2009

JUDGES:

Chief Justice and Chesterman JA and A Lyons J
Separate reasons for judgment of each member of the Court, Chief Justice and Chesterman JA concurring as to the orders made, A Lyons J dissenting in part

ORDERS:

1.   Appeal allowed;

2.   Vary the judgment by increasing the amount of the judgment in favour of the appellant by $110,000 from $5,785,612 to $5,895,612;

3.   Respondent to pay half the appellant’s costs of the appeal

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – the appellant suffered severe injuries in a car accident – the primary judge awarded judgment for the plaintiff in the sum of $5,785,612 – whether the primary judge erred in the assessment of damages for past care and assistance – whether the primary judge erred in the amount allowed for future care – whether the primary judge erred in rejecting a claim to cover the cost of the appellant taking holidays – whether the primary judge erred in the allowance made for case management – whether the primary judge erred in rejecting a claim for the cost of modifying a motor vehicle – whether the primary judge erred in calculating the amount allowed for administration and management fees by reference to “straight line amortisation”

Motor Accident Insurance Act 1994 (Qld), s 55B(b), s 55D(4)(b)

Goode v Thompson [2002] 2 Qd R 572; [2002] QCA 138, distinguished
Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54, applied

COUNSEL:

M H Grant-Taylor SC, with P B de Plater, for the appellant
S C Williams QC, with S J Williams, for the respondent

SOLICITORS:

Neilson Stanton & Parkinson for the appellant
Jensen McConaghy Solicitors for the respondent

[1]      CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Chesterman JA.  I agree with the orders proposed by his Honour, and with his reasons.

[2]      CHESTERMAN JA:  On 19 June 2009 Martin J gave judgment for the appellant against the respondent in the sum of $5,785,612.  The appellant complains that the award is inadequate compensation for his injuries.

[3]      The appellant who is now 21 years of age was a 12 year old boy when he suffered appalling injuries in a motor car accident.  He has very severe brain damage and is left unemployable and in need of constant care.  He has some insight into his plight…

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Details
Case
[2010] QCA 17
Decision Date

CaseChat Overview and Summary

The appeal before the court involved the appellant, Waller, and the respondent, Suncorp Metway Insurance Ltd, in a case concerning damages for personal injuries sustained by Waller in a car accident. The primary judge had awarded Waller $5,785,612 in damages. The appellant challenged several aspects of the award, including the assessment of damages for past care and assistance, the amount allowed for future care, the rejection of a claim to cover the cost of holidays, the allowance made for case management, the rejection of a claim for the cost of modifying a motor vehicle, and the calculation of administration and management fees.

The court considered whether the primary judge erred in several respects. Regarding past care and assistance, the court found no error. The assessment for future care was reviewed, and the court determined that the primary judge's approach was flawed. The rejection of the holiday cost claim was also scrutinised, and the court found that the primary judge's reasoning was not sound. Regarding case management, the court identified an error in the allowance. The rejection of the motor vehicle modification cost was deemed incorrect. Finally, the calculation of administration and management fees was criticised for the method of amortisation used.

The appeal was allowed, and the judgment was varied by increasing the amount awarded to Waller by $110,000, from $5,785,612 to $5,895,612. The respondent was ordered to pay half of the appellant’s costs of the appeal. This decision underscores the importance of careful consideration in the assessment of damages for personal injuries, particularly in relation to future care and associated costs.

Orders

Orders of the court

1. Appeal allowed;

2. Vary the judgment by increasing the amount of the judgment in favour of the appellant by $110,000 from $5,785,612 to $5,895,612;

3. Respondent to pay half the appellant’s costs of the appeal

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.