Yamaguchi v Phipps

Case [2016] QSC 151

SUPREME COURT OF QUEENSLAND

CITATION:

Yamaguchi v Phipps & Anor [2016] QSC 151

PARTIES:

MINA YAMAGUCHI

(plaintiff)

v
ROBERT WILLIAM FRANCES PHIPPS

(first defendant)
and
QBE INSURANCE (AUSTRALIA) LIMITED
ABN 78003191035
(second defendant)

FILE NO:

SC No 10061 of 2013

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8, 9, 10 and 11 March and 22 June 2016

JUDGE:

Applegarth J

ORDER:

The parties to confer in relation to the calculation of administration and management fees, and to submit within 21 days draft orders based on these reasons.

CATCHWORDS:

DAMAGES – PARTICULAR AWARDS OF GENERAL DAMAGES – QUEENSLAND – where plaintiff suffered multiple injuries as a result of a motor vehicle accident – where these injuries included a brain injury, a major depressive disorder and a number of orthopaedic injuries – whether the brain injury or the major depressive disorder is the dominant injury for the purposes of assessing an injury scale value (“ISV”) for the multiple injuries under the Civil Liability Regulation 2003 (Qld)

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GRATUITOUS AND COMMERCIAL CARE – where the plaintiff’s cognitive impairments and severe depression create need for daily care – where plaintiff presently unemployable and unable to live independently of her parents – whether there is any significant prospect of her not continuing to need care in the future

Civil Liability Act 2002 (NSW), s 15C
Civil Liability Act 2003 (Qld), s 56, s 59, s 60, s 61, s 62
Civil Liability Regulation 2003 (Qld), Sch 3, Sch 4, Sch 5, Sch 6, Sch 7
Evidence Act 1977 (Qld), s 92

Motor Accident Insurance Act 1994 (Qld), s 51

Allwood v Wilson [2011] QSC 180 cited
Australian and New Zealand Banking Group Ltd v Cawood [1987] 1 Qd R 131; [1986] QSC 479 cited
Clement v Backo [2007] 2 Qd R 99; [2007] QCA 81 cited
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 cited
Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 cited
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 cited
Mazzoni v Boyne Smelters Ltd [1998] 1 Qd R 76; [1995] QSC 214 cited
McQuitty v Midgley[2016] QSC 36 cited
Najdovski v Crnojlovic (2008) 72 NSWLR 728 considered
The National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569; [1961] HCA 15 cited
Phillips v MCG Group Pty Ltd[2013] QCA 83 cited
Shaw v Menzies [2011] QCA 197 cited
Waller v McGrath & Suncorp Metway Insurance Limited [2009] QSC 158 cited
Waller v Suncorp Metway Insurance Ltd [2010] 2 Qd R 560; [2010] QCA 17 cited

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53 cited

COUNSEL:

S C Williams QC, with…

Continue reading Yamaguchi v Phipps

Sign in free to access the full text

Details
AGLC
Yamaguchi v Phipps [2016] QSC 151
Case
[2016] QSC 151
Decision Date

CaseChat Overview and Summary

In Yamaguchi v Phipps, the plaintiff, Yamaguchi, sought damages following a motor vehicle accident which resulted in multiple injuries, including a brain injury, a major depressive disorder, and a number of orthopaedic injuries. The case was heard in the District Court of Queensland, where the primary legal issue was determining which of the plaintiff's injuries was dominant for the purpose of assessing an injury scale value (ISV) for the multiple injuries under the Civil Liability Regulation 2003 (Qld). The court also had to consider the measure of damages for personal injury, including the plaintiff's loss of earnings and earning capacity, as well as expenses flowing from her inability to work. Yamaguchi's cognitive impairments and severe depression meant she required daily care, and she was presently unemployable and unable to live independently of her parents. The court needed to decide whether there was any significant prospect of Yamaguchi not continuing to need care in the future.

The court considered the nature of Yamaguchi's injuries and their inter-relationship, concluding that the brain injury and the major depressive disorder were inextricably linked, and thus it was not possible to identify a single dominant injury. The court further found that Yamaguchi's cognitive impairments and severe depression created a need for daily care, and there was no significant prospect of her not continuing to need care in the future. The court assessed the damages for loss of earnings and earning capacity, finding that Yamaguchi was unemployable and thus her damages were based on her potential earning capacity had she not been injured. The court also considered the expenses flowing from Yamaguchi's inability to work and her need for daily care, including both gratuitous and commercial care provided by her parents.

The court ordered the parties to confer in relation to the calculation of administration and management fees, and to submit within 21 days draft orders based on these reasons. The outcome of this case provides guidance on the assessment of injury scale values for multiple injuries, the measure of damages for personal injury, and the calculation of expenses flowing from a plaintiff's inability to work and need for daily care. It highlights the importance of considering the inter-relationship between different injuries and the need for ongoing care in determining the appropriate damages for a plaintiff who is unemployable and unable to live independently.

Orders

Orders of the court

The parties to confer in relation to the calculation of administration and management fees, and to submit within 21 days draft orders based on these reasons.

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.