Xu v Thurgood

[2008] QSC 288

SUPREME COURT OF QUEENSLAND

CITATION:

Xu v Thurgood & Anor [2008] QSC 288

PARTIES:

WEI (WENDY) XU
(plaintiff)
v
TORY THURGOOD
(first defendant)
and
SUNCORP METWAY INSURANCE LTD
(second defendant)

FILE NO:

10356/07

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 and 13 November 2008

JUDGE:

Martin J

ORDER:

JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $74,556.39.
APPLICATION FOR LEAVE TO ADDUCE FURTHER EVIDENCE IS REFUSED. PLAINTIFF TO PAY THE DEFENDANTS’ COSTS OF AND INCIDENTAL TO THE APPLICATION ON THE STANDARD BASIS.

CATCHWORDS:

TORTS - NEGLIGENCE – ESSENTIALS OF AN ACTION FOR NEGLIGENCE - DAMAGE – where plaintiff claimed an inability to work due to headaches suffered as a result of a motor vehicle accident - extent to which the headaches impaired her ability to work as a real estate agent – how to quantify her economic loss – whether loss could be quantified by comparing plaintiff’s sales to sales of other agents.

PRACTICE AND PROCEDURE — Application for leave to adduce further evidence — Relevant test.

Civil Liability Act 2003, s55, s59
Civil Liability Regulation 2003, s3

Australasian Meat Industry Employees Union; Ex parte Ferguson (1986) 67 ALR 491
Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12
Reid v Brett [2005] VSC 18
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88

COUNSEL:

Mr M Grant-Taylor S.C. for the plaintiff
Mr S C Williams Q.C. with Ms J McClymont for the second defendant

SOLICITORS:

Shine Lawyers for the plaintiff
Jensen McConaghy Solicitors the second defendant

1. In the early afternoon of 13 December 2005 the plaintiff (Ms Xu) was driving her motor vehicle in a southerly direction along Main Street at Kangaroo Point.  She brought her vehicle to a complete halt at a red light at the intersection of Main Street and Cairns Street.  The defendant was in a vehicle travelling behind her.  He failed to stop and his vehicle collided with the rear of Ms Xu’s vehicle.

1. It is agreed that, as a result of the collision, Ms Xu suffered:

(a)     A soft tissue injury to her cervical spine, and

(b)     A soft tissue injury to her lumbar spine.

The injury to her cervical spine has left her with a permanent disability.  Liability is admitted.  Only quantum is in issue.

The plaintiff

1. Ms Xu was born in China.  At the time of the accident she was 35 years old, she is now 38.  In 1990 she came to Australia to study English – an endeavour in which she was very successful.  Further studies resulted in her obtaining a degree of Bachelor of Commerce from Griffith University.  She has two sons – one is eight years old, the other is five.  She is divorced.

1. In 2002 she commenced employment as a trainee with Metro First National (then Metro First Reality), a real estate firm with…