Waller v Suncorp Metway Insurance Ltd

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…