Winterton v Mercantile Mutual Insurance

SUPREME COURT OF QUEENSLAND

CITATION:

Winterton v Mercantile Mutual Insurance [2000] QCA 249

PARTIES:

REBECCA ANN WINTERTON (an infant suing by her next friend SUSANNA KATHERINA ROBINSON)
(plaintiff/respondent)
v

MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED ACN 000 456 799
(defendant/appellant)

FILE NO/S:

Appeal No 8921 of 1999
SC No 8 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2000

JUDGES:

Pincus JA, Muir and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1.        Appeal allowed.

2.        Order 1 of the judgment below set aside.

3.        Judgment given for the plaintiff/respondent against the appellant/defendant in the sum of $2,574,301.07 representing damages of $2,355,429.07 and Public Trustee charges of $218,872.

4.        Plaintiff/respondent to pay the appellant/ defendant’s costs of and incidental to the appeal.

CATCHWORDS:

DAMAGES - MEASURE OF DAMAGES IN ACTION FOR TORT – PERSONAL INJURIES – METHOD OF ASSESSMENT – FUTURE LOSS – PAIN AND SUFFERING – LOSS OF AMENITIES OR CAPACITY FOR ENJOYMENT - Plaintiff suffered brain injury in a motor vehicle accident at 14 years of age – impairment of gross and fine motor skills – severe cognitive defects – 10 to 15 percent permanent impairment of leg – plaintiff rendered unemployable –whether damages for future care and pain suffering and loss of amenities assessed on the correct basis.

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, applied
Mallett v McMonagle [1970] AC 166, applied
Hedge v Suncorp Insurance and Trennery [1977] QCA 406, Appeal No 4911 of 1996, 7 November 1997, considered
Elford v FAI General Insurance Company Ltd [1994] 1 Qd R 258, followed
Mortimer v Burgess (1997) 25 MVR 463, considered
Wright v Shire of Albany (1993) A Torts R ¶81-239, considered

COUNSEL:

JA Griffin QC, with A Simpson for the appellant
RJ Douglas SC, with AB Crowe for the respondent

SOLICITORS:

Barry & Nilsson for the appellant

VAJ Byrne & Co for the respondent

1. PINCUS JA:  I have had the advantage of reading the reasons of Holmes J in which the nature of the respondent plaintiff's disabilities is explained.  The learned primary judge adopted the view of witness H L Coles as to the amount of assistance the respondent requires, but I do not here repeat all that is in that full report.  His Honour also appears to have been willing to act upon the evidence of Mrs Robinson, the respondent's grandmother.  The case has to be approached on the basis that the respondent's need for help and supervision is considerable.  I am, like Holmes J, of the respectful opinion that the amount of damages awarded must suffer a reduction.

1. Mrs Robinson has health problems and was at the date of trial "just managing" to look after the respondent.  Mrs Robinson told the judge in effect that the respondent's forgetfulness creates a problem when she attempts domestic tasks,…