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  • {solid} Appeal Determined (QCA)

Hunold v Twinn

 

[2018] QCA 308

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Hunold v Twinn & Anor [2018] QCA 308

PARTIES:

KRIS DONALD HUNOLD
(applicant)
v
PAUL TWINN
(first respondent)
STATE OF QUEENSLAND
(second respondent)

FILE NOS:

Appeal No 4228 of 2018

DC No 4952 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2018] QDC 43 (Muir DCJ)

DELIVERED ON:

9 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2018

JUDGES:

Gotterson and McMurdo JJA and Jackson J

ORDERS:

  1. Leave to appeal granted.
  2. Appeal dismissed.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – LEGAL PRINCIPLES – where claims for future economic loss rejected on basis that injury fully resolved – where whole person impairment of five per cent – whether whole person impairment should be taken into account in assessing economic loss including under Civil Liability Act 2003 (Qld) s 55

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where evidence given by applicant and multiple medical professionals – whether trial judge failed to consider evidence

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where one ground of appeal of possible importance beyond present case – whether leave to appeal should be granted

Civil Liability Act 2003 (Qld), s 55, s 61, s 62

Civil Liability Regulation 2003 (Qld)

Civil Liability Regulation 2014 (Qld)

District Court of Queensland Act 1967 (Qld), s 118

COUNSEL:

A D Stobie for the applicant

J Sorbello for the respondents

SOLICITORS:

McNamara & Associates for the applicant

Crown Law for the respondents

  1. [1]
    GOTTERSON JA:  I agree with the orders proposed by Jackson J and with the reasons given by his Honour.
  2. [2]
    McMURDO JA:  I agree with Jackson J.
  3. [3]
    JACKSON J:  This is an application for leave to appeal from a judgment of the District Court.
  4. [4]
    On 23 March 2018, the District Court gave judgment for the applicant, as plaintiff, in the sum of $27,500 with no order as to costs.  Leave to appeal is required because the judgment was given for an amount not equal to or more than the Magistrates Court jurisdictional limit.[1]  If granted leave, the applicant would challenge the assessment of damages on the basis that, if the appeal is successful, this court should order a retrial limited to the issue of the quantum of damages.
  5. [5]
    The trial judge found that at about 4.00 am on Saturday 22 August 2009 the applicant suffered an injury or injuries when he was arrested by the first respondent on Orchid Avenue at Surfers Paradise at the Gold Coast.[2]  The significant injury was an undisplaced or minimally displaced fracture of the L3 right transverse process of the applicant’s lumbar spine caused by the significant force applied by the first respondent’s knee to the applicant’s lower back.[3]  Her Honour held that the injury comprised the tort of battery because it was an intentional application of force that was not reasonably necessary,[4] and therefore not justified,[5] in making the arrest of the applicant.[6]
  6. [6]
    It followed that the first respondent as tortfeasor and the second respondent by statute[7] were liable to the applicant for loss or damage suffered as a result of the injury.  In reaching those conclusions, the trial judge preferred the applicant’s version of events at the time of the arrest to that of the first respondent.  On the issue of damages, there was conflicting evidence that the trial judge was required to resolve.  Her Honour did so, giving detailed reasons for her findings of fact.
  7. [7]
    Those reasons were informed by the trial judge’s analysis of the credibility of the applicant’s evidence, particularly having regard to its reliability when assessed against other objectively ascertained and known facts.[8]  Her Honour set out nine matters that she found reflected poorly on his credibility.[9]  In the result, her Honour found that his evidence at times was less than forthright and was conveniently selective.[10]  Nevertheless, her Honour did not reject his uncorroborated evidence in all respects.  In her view, the applicant was telling the truth as he saw it, although his recollection was often distorted, having been altered by unconscious bias or wishful thinking or by overmuch discussion of it with others.[11]
  8. [8]
    Accordingly, the trial judge approached the applicant’s evidence carefully, on the footing that it should be objectively assessed, having regard to the whole of the evidence.[12]  That process led her Honour to reject some but not all of his evidence.  In assessing the impact of the injury, she considered the applicant’s circumstances before the date of the injury,[13] then in its immediate aftermath,[14] followed by its impact on his employment in the Australian Army.[15]  For example, her Honour rejected the plaintiff’s evidence as to the extent of his immediate disabilities from the injury and found that within three days of suffering the injury and on various nights thereafter the applicant was out and about attending night clubs and dancing.[16]  Her Honour instanced this as an example of his tendency to distort his recollections as a result of his unconscious bias.[17]
  9. [9]
    As to the applicant’s service in the army, his evidence and submission were that the injury prevented him from obtaining the necessary fitness levels required for active duty.[18]  The trial judge found that was not supported by the evidence,[19] in particular, the medical evidence.
  10. [10]
    The trial judge considered evidence relating to posterior disc bulges shown at the L4/L5 and L5/S1 levels of the applicant’s spine on a CT scan taken in August 2009.[20]  The medical evidence was that the disc bulges had nothing to do with the arrest.[21]  The applicant’s evidence was that they were related.[22]  However, his case was conducted on the footing that they were not.[23]  Her Honour observed that the ongoing problems with the applicant’s lumbar spine infected a number of aspects of the case.[24]  Likewise, her Honour held that the applicant’s bilateral compartment syndrome could not be ignored.[25]
  11. [11]
    The trial judge considered the circumstances under which the applicant was discharged from the army,[26] followed by the evidence relating to his life after the army.[27]  On the latter aspect, her Honour made specific findings that the applicant was not as physically restricted as he had maintained in his evidence, having regard to photographic evidence obtained from his Facebook page.[28]  Again, there were nine instances of activity shown by the photographs not consistent with the applicant’s evidence as to the extent of his disabilities.
  12. [12]
    Having summarised and dealt with some of the evidence that was led at the trial by those analyses, the trial judge proceeded to consider the medical evidence addressing the L3 right transverse process fracture against that background.[29]  The relevant experts comprised two consultant orthopaedic surgeons and a consultant occupational physician.[30]  Her Honour also considered the applicant’s attendances on other medical practitioners who were not consultant orthopaedic surgeons or physicians.[31]
  13. [13]
    Having considered that evidence, the trial judge found on the balance of probabilities that the applicant’s injury from the L3 right transverse process fracture was fully resolved in just under 16 months from that injury having been sustained, that is by 9 December 2010.[32]  Her Honour set out seven particular aspects of the evidence which she accepted that in her view supported that conclusion.
  14. [14]
    The trial judge then considered whether the applicant suffered a psychiatric injury and, if he did, whether it was caused by the L3 right transverse process fracture.  As to that, her Honour found that she did not accept on the balance of probabilities that the applicant was suffering from a psychiatric injury, but she did find that he was suffering transient episodes of depressed mood in 2013.[33]  Given the finding that the physical injury suffered by the applicant was fully resolved by 9 December 2010, her Honour held that the transient episodes of depressed mood suffered by the applicant in 2013 were not causally linked to the earlier injury.
  15. [15]
    In the result, the trial judge awarded general damages for pain, suffering and loss of amenities of life for an assessed ISV of 10 in the sum of $11,000 and past economic loss in the sum of $15,000, together with special damages and out of pocket expenses of $1,500, totalling $27,500, but otherwise rejected the applicant’s claims for future economic loss, loss of benefit of employer superannuation and future expenses.[34]
  16. [16]
    Although this court has unfettered discretion to grant leave to appeal from a judgment of the District Court under s 118 of the District Court of Queensland Act 1967 (Qld), usually an applicant for leave must show that the appeal will involve a question of some importance or some other reason why, in the particular case, it is in the interests of justice to grant leave.[35]
  17. [17]
    In the present case, the applicant would advance four grounds of appeal if leave were granted, only one of which is possibly a question of importance beyond the confines of the particular outcome in this case.
  18. [18]
    As to any possible point of general importance, the first ground of the proposed appeal is that the trial judge erred in failing to find that the applicant suffered a permanent impairment as a result of the injury to his spine, given that the expert medical evidence was that under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA 5”), the applicant has a five per cent permanent impairment of whole body assessment.
  19. [19]
    Because the applicant’s cause of action was for damages for the tort of battery, Chapter 2 of the Civil Liability Act 2003 (Qld) did not apply to it.[36]  However, because the damages were an award of personal injury damages, Chapter 3 of that Act did apply.[37]  Accordingly, under s 61 of that Act, the court was required to assess an injury scale value (“ISV”) if general damages were to be awarded and, in assessing the ISV, the court was required to do so under any rules provided under a regulation.[38]
  20. [20]
    Further, the general damages were required to be calculated by reference to the general damages calculation provisions applying, meaning the provisions prescribed for the relevant period under a regulation.[39]
  21. [21]
    Accordingly, for the applicant’s injury, the court was required to assess the ISV under the Civil Liability Regulation 2003 (Qld), s 6,[40] and to make the general damages calculation in accordance with the Civil Liability Regulation 2014 (Qld), s 8.[41]
  22. [22]
    There are provisions of Schedule 3 Part 2 Division 2 of the Civil Liability Regulation 2003 (Qld) as to the methodology for assessing a whole person impairment percentage or as to the weight to be given to assessments made in assessing an ISV as provided under AMA 5.[42]  However, the starting point is that the statutory provisions for an award of general damages just described do not apply expressly to an award of damages for economic loss or other heads of damage.  Those heads of loss or damage are to be determined at common law, including the usual common law conception of causation,[43] subject to any other applicable legislative provision.
  23. [23]
    Reduced to its essence, the applicant’s argument is that the Civil Liability Act 2003 (Qld) necessarily requires, for reasons of consistency, that the court give weight to an AMA 5 assessment of a five percentage whole person impairment, in relation to other heads of damage.
  24. [24]
    The applicant relies in particular on s 12 of Schedule 3 to the Civil Liability Regulation 2003 (Qld) as doing so.  However, by its terms, s 12(2) only provides that “[i]n assessing an ISV” a court must give greater weight to a medical assessment of a whole person impairment percentage based on the criteria for the assessment of a whole person impairment provided under AMA 5 than to a medical assessment of a whole person impairment percentage not based on the criteria.  That is, it says nothing about the assessment of damages in all respects, per se, but is confined to a direction as to the assessment of an ISV that must be made for an assessment of general damages under s 61 of the Civil Liability Act 2003 (Qld) for the purposes of a general damages calculation under s 62.
  25. [25]
    As well, the applicant submits that the argument is supported by the definition of “whole person impairment” in Schedule 7 to the Civil Liability Regulation 2003 (Qld), to mean an estimate of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform activities of daily living.  In turn, “permanent impairment” is defined in Schedule 7 to mean the impairment an injured person has or is likely to have, even after maximum medical improvement.
  26. [26]
    The relevant provisions of the Civil Liability Regulation 2003 (Qld) include, by s 6, that Schedule 4 provides the ranges of ISVs for particular injuries that the court is to consider in assessing the ISV for those injuries (under s 61 of the Civil Liability Act 2003 (Qld)) and that Schedule 3 provides matters to which a court is to have regard in the application of Schedule 4.
  27. [27]
    The relevant item of Schedule 4 in the present case is item 92, that provides for an ISV of between 5 and 15 and, by the last dot point comment under that item, states that an ISV near the bottom of the range will be appropriate for an uncomplicated fracture of, inter alia, lumbar spinal transverse processes.[44]  It is s 10 of Schedule 3 that provides that the extent of whole person impairment is an important consideration, but not the only consideration, affecting the assessment of an ISV and s 11 that provides for the requirements of a medical report that states a whole person impairment.  There is no reference to a whole person impairment in the text of the Civil Liability Act 2003 (Qld) itself.
  28. [28]
    The assessment of economic loss under the Act is not assessed under ss 61 or 62.  On the contrary, it is s 55 that provides for an award of damages for “loss of earnings” that are unable to be precisely calculated, an expression defined in Schedule 2 to mean both past economic loss and future economic loss, whether of earnings or impairment of earning capacity.  In particular, s 55(2) provides that:

“The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment[45] and any other relevant matters.”

  1. [29]
    Relevantly to the present case, Table 15-3 of AMA 5 sets out the criteria for rating impairment due to lumbar spine injury relevant to assessment of a whole person impairment.  That table divides lumbar spine injury into five categories, which are further explained by examples in the following pages.  Category I is “0% Impairment of the Whole Person” but the words of description that there are “no fractures” excludes the present case from that category.  Category II is “5%-8% Impairment of Whole Person”.  That category includes “fractures: … posterior element fracture without dislocation … that has healed without alteration of motion segment integrity [and] a… transverse process fracture with displacement without a vertebral body fracture, which does not disrupt the spinal canal”.
  2. [30]
    The trial judge found that each of Associate Professor Williams and Drs Douglas and Wallace assessed the applicant as having a whole person impairment of five per cent.[46]  Notwithstanding that, each of them expressed the opinion that the usual anticipated recovery period for such an injury is from three to 12 months.[47]  The suggested inconsistency between the two propositions was the subject of evidence and the findings of the trial judge.  Her Honour did not find it necessary to resolve the suggested “anomaly”, although she referred to Dr Douglas’s evidence that the AMA Guidelines do not necessarily imply there would be ongoing symptoms.[48]  In a similar vein, Associate Professor Williams said of AMA 5 that the “reasoning for a five per cent impairment being assigned to a transverse process fracture is not immediately apparent.  However, this is the system which we are bound by.  It has no specific relationship to disability… which is a separate condition…”[49]
  3. [31]
    That occurred in the context where, as the trial judge recorded, the parties agreed to an ISV in the middle of the relevant range under item 92, namely an ISV of 10, although her Honour would have assessed the ISV to be at the lower end of the range.[50]
  4. [32]
    In my view, as a matter of law, the applicant’s contention on the proposed first ground of appeal should not be accepted.
  5. [33]
    The applicant’s second ground of appeal, if leave were granted, is that the learned trial judge failed to consider all of the evidence in finding that the applicant’s injury had fully resolved by 9 December 2010.  Logically, such a ground of appeal involves two steps.  First, the relevant evidence must be identified and second, any suggested omission must be measured against the standard of reasons that are required.  As to the standard of reasons the applicant relies on the statement of principle that where evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it.[51]
  6. [34]
    There are three categories of evidence that the applicant submits were not so considered.  First, the applicant submits that nowhere in the reasons is the applicant’s evidence that he had suffered from back pain continuously since the accident to the time of trial rejected, but the key findings are contrary to it.
  7. [35]
    In my view, any reading of the reasons in full belies this contention, as illustrated by the way in which the trial judge considered in detail the applicant’s credibility, including her express findings as to his unconscious bias or wishful thinking, her rejection of the applicant’s evidence that the injury sustained to his lower back on 22 August 2009 prevented him from obtaining the necessary fitness levels required for active duty in the army, and the finding that the applicant erroneously considered that the fracture and his bulged discs were related.
  8. [36]
    Second, the applicant submits that the evidence of the treatment the applicant received for his injury, after 9 December 2010 and up to his discharge from the army, effective on 15 August 2012, was not considered.  However, in my view, that evidence was referred to by the trial judge in the reasons where her Honour said of that period:

“During this time, the plaintiff continued to receive physiotherapy treatment which he said did not improve his condition. He also saw the military psychologist as he was getting pretty down about losing his career and not knowing what he was going to do for a job. He lamented that ‘with all this pain and stuff like that and whether someone’s going to actually accept me for a job first’.”[52]

  1. [37]
    Third, the applicant submits that the reasons attach no weight to the process and outcome of the applicant’s medical retirement from the army.  This is a submission that insufficient weight was given by her Honour to Dr d’Arville’s opinions, rather than a failure to consider evidence.  However, Dr d’Arville’s opinions were those of a general practitioner, not a specialist orthopaedic or other consultant with specialist expertise in relation to the applicant’s injury, and they also dealt with other conditions contributing to the applicant’s medical retirement.  Although those opinions were not discussed by her Honour in the section of the reasons dealing with the medical evidence addressing the L3 transverse process fracture,[53] her Honour did not overlook that evidence.  It was referred to in some detail.[54]  No obvious question emerges about her Honour’s failure to consider Dr d’Arville’s evidence, in my view.
  2. [38]
    A subsidiary complaint or challenge made as to her Honour’s findings about Dr d’Arville’s evidence is that she found that Dr d’Arville observed no significant injury in the plaintiff’s lumbar spine that should prevent him from doing any particular activity.[55]  That statement was in fact an observation made by another medical practitioner, Dr McCombe, an orthopaedic surgeon, in relation to an MRI scan of the plaintiff’s spine, repeated by Dr d’Arville in his report.  This and another similar comment were wrongly attributed to Dr d’Arville by her Honour, but the errors are of no clear significance, in my view.
  3. [39]
    On the hearing of the application, the applicant sought to add to the points dealt with so far on this ground of appeal by generally submitting that the trial judge did not, but was required to, expressly consider the evidence of another witness, Mr Page.[56]  No references were given to the passages in his evidence that required express consideration.  In my view, the applicant should not be permitted to add to the grounds of the application by raising the subject of Mr Page’s evidence in that way, without seeking any contrary direction of the court or offering explanation for not having done so in the written outline of argument.[57]  Those considerations are not lessened because this is an application for leave to appeal.
  4. [40]
    The third ground of the proposed appeal is that the learned trial judge erroneously found that the plaintiff had recovered from his injury by 9 December 2010.  As previously outlined, her Honour set out her reasons for making that finding, specifically identifying the evidence which in her view supported that conclusion.[58]
  5. [41]
    It is unnecessary to canvas the evidence referred to by her Honour.  The first factor relied upon, namely the evidence of Dr Gillett, Dr Williams, Dr Douglas, Dr McCombe and Dr Wallace that the usual anticipated recovery period for an injury of this kind suffered by the applicant is three to 12 months, is a powerful factor, and was supported specifically by the evidence of Dr Douglas and Dr Williams, accepted by her Honour, that the applicant’s symptoms were not consistent with the nature of his physical injuries.
  6. [42]
    In my view, the applicant does not demonstrate any error made by the trial judge by way of inference as to the time by when the applicant’s injury fully resolved.
  7. [43]
    The last proposed ground of appeal, if leave is granted, is that the learned trial judge attached significance to the L4/L5 and L5/S1 spinal disc bulges observed on the radiological examinations of the applicant’s spine in August 2009.
  8. [44]
    Having made a finding that the existence of the posterior disc bulges permeated the applicant’s evidence,[59] the trial judge accepted the submission that any impairment arising from the L4/L5 and L5/S1 disc bulges would have to be borne in mind when assessing the applicant’s employability absent his injuries.[60]  However, in the event, her Honour’s resolution of the case did not include a finding that the applicant’s employability was affected by his compensable injury, as a matter of causation, so it was unnecessary to consider his employability absent his injury, having regard to any impairment from the L4/L5 or L5/S1 disc bulges.
  9. [45]
    The further finding made by the trial judge that the ongoing problems with his lumbar spine infected a number of aspects of the applicant’s case is justifiable as a reference to the applicant’s own view that the disc bulges were the same injury and other findings about the applicant’s evidence by reason of his unconscious bias or wishful thinking.  In any event, as the L4/L5 and L5/S1 disc bulges did not necessarily affect any of the other fundamental findings that informed her Honour’s assessment of damages, the applicant does not demonstrate any error made by the trial judge on this ground.

Conclusion

  1. [46]
    In the result, because the points sought to be raised on appeal were dealt with in some detail at the hearing of the application for leave to appeal and I have dealt with them in substance in these reasons, I would grant leave to appeal but dismiss the appeal.

Footnotes

[1] District Court of Queensland Act 1967 (Qld), s 118(2)(a) and (3).

[2] Hunold v Twinn & Anor [2018] QDC 43, [29]-[43].

[3] Hunold v Twinn & Anor [2018] QDC 43, [43] and [54(e)].

[4] Hunold v Twinn & Anor [2018] QDC 43, [92].

[5] Police Powers and Responsibilities Act 2000 (Qld), s 615(1).

[6] Hunold v Twinn & Anor [2018] QDC 43, [102].

[7] Police Service Administration Act 1990 (Qld), s 10.5.

[8] Hunold v Twinn & Anor [2018] QDC 43, [16]-[22].

[9] Hunold v Twinn & Anor [2018] QDC 43, [19].

[10] Hunold v Twinn & Anor [2018] QDC 43, [20].

[11] Hunold v Twinn & Anor [2018] QDC 43, [21].

[12] Hunold v Twinn & Anor [2018] QDC 43, [22].

[13] Hunold v Twinn & Anor [2018] QDC 43, [105]-[113].

[14] Hunold v Twinn & Anor [2018] QDC 43, [114]-[119].

[15] Hunold v Twinn & Anor [2018] QDC 43, [120]-[128].

[16] Hunold v Twinn & Anor [2018] QDC 43, [116].

[17] Hunold v Twinn & Anor [2018] QDC 43, [117].

[18] Hunold v Twinn & Anor [2018] QDC 43, [127].

[19] Hunold v Twinn & Anor [2018] QDC 43, [128].

[20] Hunold v Twinn & Anor [2018] QDC 43, [142]-[148].

[21] Hunold v Twinn & Anor [2018] QDC 43, [145].

[22] Hunold v Twinn & Anor [2018] QDC 43, [144].

[23] Hunold v Twinn & Anor [2018] QDC 43, [145].

[24] Hunold v Twinn & Anor [2018] QDC 43, [148].

[25] Hunold v Twinn & Anor [2018] QDC 43, [148].

[26] Hunold v Twinn & Anor [2018] QDC 43, [152]-[159].

[27] Hunold v Twinn & Anor [2018] QDC 43, [160]-[171].

[28] Hunold v Twinn & Anor [2018] QDC 43, [168]-[169].

[29] Hunold v Twinn & Anor [2018] QDC 43, [174]-[190].

[30]  A third orthopaedic surgeon, Dr Gillett, gave a written report and was cross examined, but his evidence did not figure significantly in the reasoning process.

[31] Hunold v Twinn & Anor [2018] QDC 43, [181].

[32] Hunold v Twinn & Anor [2018] QDC 43, [190].

[33] Hunold v Twinn & Anor [2018] QDC 43, [203].  I note that an adverse psychological reaction not amounting to a mental disorder is not compensable: Civil Liability Regulation 2014 (Qld), Schedule 3, ss 5 and 6.

[34] Hunold v Twinn & Anor [2018] QDC 43, [221].

[35] McDonald v Queensland Police Service [2017] QCA 255, [23]-[28]; Pickering v McArthur [2005] QCA 294, [3].

[36] Corliss v Gibbings-Johns [2010] QCA 233.

[37] Civil Liability Act 2003 (Qld), s 50.

[38] Civil Liability Act 2003 (Qld), s 61(1)(c)(i).

[39] Civil Liability Act 2003 (Qld), s 62.

[40]  Section 11 of the Civil Liability Regulation 2014 (Qld) has the effect that the Civil Liability Regulation 2003 (Qld) continues to apply in respect of the assessment of an ISV for an injury arising at the date of the applicant’s injuries.  Accordingly, the relevant provisions are those applied by the Civil Liability Regulation 2003 (Qld), s 6.  They include the provisions of Schedule 3 and Schedule 4 of that regulation.

[41]  Section 62 of the Civil Liability Act 2003 (Qld) in its current form was introduced after the date of the plaintiff’s injury. On introduction of the current s 62, the Civil Liability Regulation 2003 (Qld), s 6A, was introduced to provide for the general damages calculation in accordance with Schedule 6A that in s 1(b) applied to injuries sustained on the date of the plaintiff’s injuries.  On the repeal of the Civil Liability Regulation 2003 (Qld), s 8 of the Civil Liability Regulation 2014 (Qld) applied to the general damages calculation for injuries sustained on the date of the plaintiff’s injuries, as provided in Table 1 of Schedule 7.  Accordingly, s 8 of the Civil Liability Regulation 2014 (Qld) is the applicable regulation under s 62 of the Civil Liability Act 2003 (Qld).

[42] Civil Liability Regulation 2003 (Qld), Schedule 3, Part 2, Division 2, ss 8-14.

[43] Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, 569; Strong v Woolworths Ltd (2012) 246 CLR 182, 190-195; Amaca Pty Ltd v Ellis (2010) 240 CLR 111; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 440; Roads and Traffic Authority v Royal (2008) 245 ALR 653, 687 [135], 689 [143]-[144]; Travel Compensation Fund v Tambree (2005) 224 CLR 627, 642-644; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

[44] Hunold v Twinn & Anor [2018] QDC 43, [210].

[45]  “Permanent impairment” is not defined in the Civil Liability Act 2003 (Qld) itself.

[46] Hunold v Twinn & Anor [2018] QDC 43, [175(c)], [178(e)] and [179(f)].

[47] Hunold v Twinn & Anor [2018] QDC 43, [190(a)].

[48] Hunold v Twinn & Anor [2018] QDC 43, [191].

[49]  Appeal Record Book, p 1244.

[50] Hunold v Twinn & Anor [2018] QDC 43, [211].

[51] Littlejohn v Julia Creek Town and Country Club Inc [2010] QCA 361, [32]; Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, 238 [63]-[64]; and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443-444.

[52] Hunold v Twinn & Anor [2018] QDC 43, [158].

[53] Hunold v Twinn & Anor [2018] QDC 43, [174]-[190].

[54] Hunold v Twinn & Anor [2018] QDC 43, [152]-[157].

[55] Hunold v Twinn & Anor [2018] QDC 43, [155].

[56]  Appeal Record Book, pp 1360-1369.

[57]  Supreme Court of Queensland Practice Direction 3 of 2013, [20].

[58] Hunold v Twinn & Anor [2018] QDC 43, [190].

[59] Hunold v Twinn & Anor [2018] QDC 43, [142].

[60] Hunold v Twinn & Anor [2018] QDC 43, [148].

Close

Editorial Notes

  • Published Case Name:

    Hunold v Twinn & Anor

  • Shortened Case Name:

    Hunold v Twinn

  • MNC:

    [2018] QCA 308

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, McMurdo JA, Jackson J

  • Date:

    09 Nov 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QDC 43 23 Mar 2018 Judgment for the plaintiff in the sum of $27,500: Muir DCJ.
Notice of Appeal Filed File Number: Appeal 4228/18 19 Apr 2018 -
Appeal Determined (QCA) [2018] QCA 308 09 Nov 2018 Application for leave to appeal granted; appeal dismissed: Gotterson and McMurdo JJA and Jackson J.

Appeal Status

{solid} Appeal Determined (QCA)