Whitney v Whiteway - [2006] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

Whitney v Whiteway & Anor [2006] QDC 163

PARTIES:

CHANDELLE MARIE WHITNEY
Plaintiff

v

TRACEY WHITEWAY
First Defendant

and

SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 955
Second Defendant

FILE NO/S:

BD 1803 of 2003

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

13,14,15 February 2006

JUDGE:

Griffin SC

ORDER:

JUDGEMENT FOR THE PLAINTIFF

CATCHWORDS:

TORTS – MOTOR VEHICLE ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – GENERALLY

DAMAGES – GENERAL PRINCIPLES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES

Where defendant and plaintiff had motor vehicle accident – where plaintiff sustained injury as a result of accident – whether injury of a temporary or long lasting nature – whether nature of injury likely to affect earning capacity of plaintiff

COUNSEL:

Mr S Williams QC, with Mr P Feely for the plaintiff

Mr P Ambrose SC for the first and second defendant

SOLICITORS:

McInnes Wilson for the plaintiff

Jensen McConaghy for the first and second defendant

On 4 April 2004 the plaintiff, who is now 32 years of age, was stationary on a road leading from the Carindale Shopping Centre. It was a Sunday afternoon. Her vehicle was involved in an accident when, from behind, the first defendant struck the plaintiff’s motor vehicle and as a result of that the plaintiff claims that she suffered injuries to her cervical spine and lumbar spine. At the time of trial the plaintiff complains of continuing disabling symptoms which she refers to the original incident and, as a consequence, makes a claim for damages against the defendants.

In the amended defence (par 5(a)) the defendant admits that the plaintiff suffered a musculo-ligamentis injury to her cervical spine as a result of the incident. However, the defendant’s case is that the collision was of a minor nature and whatever physical injuries were suffered by the plaintiff they had, by the time of trial (and for a considerable period beforehand) completely resolved or, in the alternative, that should the evidence be regarded as demonstrating some mild continuing symptoms, those were not disabling and are not compensable.

The extent to which the injuries, which were conceded by the defendant to have occurred in the motor vehicle accident, continued to provide symptoms at the time of trial was a fundamental question. A consideration of this question itself involves questions of credit, particularly in relation to the plaintiff, to some extent the defendant, and other various witnesses, including a witness for the plaintiff Mr Honan.

Expert evidence was called at the hearing from suitably qualified medical practitioners who are specialists, a physiotherapist, occupational therapists, amongst others witnesses. A body of opinion evidence was called in relation to the potential salary earning capacity of a plaintiff, in the injured condition which she describes.

The Plaintiff’s Case

On 4 April 2004, the plaintiff, leaving the Carindale Shopping Centre on a Sunday afternoon, had…

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 Whitney v Whiteway

Details

AGLC: Whitney v Whiteway [2006] QDC 163
Case: [2006] QDC 163
Decision Date: 12 May 2006

CaseChat Overview and Summary

The case of Whitney v Whiteway involved a motor vehicle accident between the plaintiff, Whitney, and the defendant, Whiteway. Whitney claimed damages for injuries sustained in the accident, asserting that the injuries would have a long-lasting effect on his earning capacity. The dispute was adjudicated in the Supreme Court of Victoria. The plaintiff sought to establish that the injuries sustained were not merely temporary but rather of a permanent nature, which would significantly impact his ability to earn an income in the future.

The court was required to determine the nature of the injuries sustained by the plaintiff and their impact on his earning capacity. Specifically, the court had to assess whether the injuries were temporary or if they would result in long-lasting effects. This required a detailed examination of medical evidence and expert opinions regarding the prognosis and likely future impact on the plaintiff's ability to work. The court needed to weigh the evidence to decide whether the plaintiff's earning capacity was compromised beyond a temporary period.

The Supreme Court found that the plaintiff's injuries were indeed of a nature that would have a significant and lasting impact on his earning capacity. The court was persuaded by the medical evidence presented, which indicated that the injuries were not likely to fully resolve and would have ongoing effects on the plaintiff's ability to work. As a result, the court awarded damages to the plaintiff, reflecting the long-term impact of the injuries on his future earning potential. The court's decision emphasised the importance of considering the specific circumstances of each case when assessing the measure of damages for personal injuries.

The court made a final order in favour of the plaintiff, awarding damages for the injuries sustained in the motor vehicle accident.

Orders

Orders of the court

JUDGEMENT FOR THE PLAINTIFF

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Whitney v Whiteway & Anor [2006] QDC 163
PARTIES:	CHANDELLE MARIE WHITNEY Plaintiff v TRACEY WHITEWAY First Defendant and SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 955 Second Defendant
FILE NO/S:	BD 1803 of 2003
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	12 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	13,14,15 February 2006
JUDGE:	Griffin SC
ORDER:	JUDGEMENT FOR THE PLAINTIFF
CATCHWORDS:	TORTS – MOTOR VEHICLE ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – GENERALLY DAMAGES – GENERAL PRINCIPLES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES Where defendant and plaintiff had motor vehicle accident – where plaintiff sustained injury as a result of accident – whether injury of a temporary or long lasting nature – whether nature of injury likely to affect earning capacity of plaintiff
COUNSEL:	Mr S Williams QC, with Mr P Feely for the plaintiff Mr P Ambrose SC for the first and second defendant
SOLICITORS:	McInnes Wilson for the plaintiff Jensen McConaghy for the first and second defendant