Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined (QCA)

Allianz Australia Insurance Limited v Girone

 

[2011] QCA 245

 

 

SUPREME COURT OF QUEENSLAND

PARTIES:

ALLIANZ AUSTRALIA INSURANCE LIMITED
ABN 15 000 122 850
(appellant)
v
ROBERT DAVID GIRONE
(respondent)

FILE NO/S:

Appeal No 13235 of 2010

SC No 718 of 2004

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

20 September 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

20 May 2011

JUDGES:

Muir JA and Margaret Wilson AJA and Fryberg J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Appeal allowed with costs.

2.Judgment varied by reducing the amount for which judgment was given from $660,637.30 to $521,148.30.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – where respondent was struck by a sedan and injured – where he fractured his right distal tibia and sustained injuries to his cervical, thoracic and lumbar spines – where the trial judge accepted that the respondent walked with a limp and that it was variable and not always present – where the respondent claimed damages for personal injuries sustained – where liability was not in issue – where the trial judge assessed quantum at $660,637.30 – where the trial judge allowed past economic loss over six years from the time the respondent’s employment was terminated until November 2010 – where the appellant appealed against the assessment of damages on the ground that it was excessive – whether the trial judge’s allowance of economic loss over that period was excessive

Motor Accident Insurance Act 1994 (Qld), s 55D

Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, considered

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

COUNSEL:

S C Williams QC, with G Crow SC, for the appellant

D F Jackson QC, with B K Koch, for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellant

Roati & Firth Lawyers for the respondent

[1] MUIR JA:  I agree with the reasons of Margaret Wilson AJA and with the orders she proposes.

[2]  MARGARET WILSON AJA:  The respondent claimed damages for personal injuries sustained in a motor vehicle accident on 20 October 2001.  Liability was not in issue, and the trial judge assessed quantum at $660,637.30.  This is an appeal against that assessment on the ground that it was excessive.

Findings based on credibility

[3] The respondent was born on 15 October 1979.  The trial judge described him as an accomplished sportsman, on the evidence a very fit and athletic man.  But, his Honour found, he was not a robust character or of high intelligence, and in some respects he presented as overconfident.  Overall, his Honour accepted his evidence and that of his doctors, although he did not do so indiscriminately.

[4] An appellate court will interfere with findings based on credibility only where incontrovertible facts or uncontested testimony demonstrate that the primary judge’s conclusions were erroneous or where it is concludes that the decision was glaringly improbable or contrary to compelling inferences.[1]

[5] Senior counsel for the appellant laid bare the structure of his argument when he said 

“Your Honours, dealing with the substance of the appeal, may we encapsulate the outcome for the appellant before his Honour, [with] a reference to a boxing analogy. The knock-out punch with which the appellant entered the ring before his Honour, that of the surveillance evidence, wasn’t successful before his Honour. The appellant thereafter lost the contest on a points decision and in our respectful submission, his Honour’s decision on both counts was wrong and ….. his Honour has misused his advantage to come to an untenable conclusion and an untenable assessment with which this Court would interfere [sic].”

The respondent’s injuries

[6] The respondent was on foot at the accident site when he was struck by a sedan and injured.  It was common ground that he sustained a compound fracture of the right distal tibia.  The trial judge was satisfied that he also sustained injuries to his cervical, thoracic and lumbar spines, and that the ongoing symptoms of which he complained were the consequence of those injuries – findings challenged by the appellant. 

[7] The trial judge found that the respondent had a substantial disability of the leg and of the spine.  He suffered and had suffered a good deal of pain and discomfort, and the restrictions imposed by his disability weighed heavily on him.  His Honour found that he walked with a limp.  The limp was variable and it was more or less pronounced according to what he was doing; it was not always present.

[8] The accident occurred about a week after the respondent had completed a period of seasonal work as a pointsman at a sugar mill in Ingham.  He did not return to work until the middle of 2002.  Shortly after doing so he slipped on a locomotive step and was off work for a week.  Then in August 2002 he suffered what was described as a blackout or fainting fit, which resulted in his being off work until the end of the crushing season.

[9] He returned to work in May 2003, performing the work of a pointsman until he slipped on a billet of cane in late October 2003.  He was put on lighter duties until the end of the season which followed shortly thereafter.  He returned to work again in late May or early June 2004 performing his normal duties, and was then involved in a motor vehicle accident on 23 August 2004 in which he sustained soft tissue injury to his cervical spine and which necessitated further time off work.  His employment was terminated in November 2004, at the end of the crushing season, because of his absenteeism.  Apart from some brief casual work for a local welding business, he did not work after that.  He was in receipt of a disability pension from 5 January 2009.

The respondent’s limp and the surveillance evidence

[10]  The respondent claimed to walk with a limp, although he said he had good days and bad days, and that as he got more tired it became more evident.  He said it was something he lived with every day.  The trial judge interpreted this as: the limp was not always present and on a good day he might not limp.  He accepted evidence that the limp was variable and that it was more or less pronounced according to what he had been doing.  His Honour also accepted that it was not always present.

[11]  His Honour’s ultimate conclusion about the limp accorded particularly with the evidence of Dr Maguire.

[12]  On 2 June 2008 the respondent went from Ingham to Townsville where he was examined by Dr L Toft, an orthopaedic surgeon, called by the appellant.  The appellant relied on surveillance footage of his movements in entering and leaving the premises where Dr Toft examined him and later in the day at a shopping centre.  His Honour accurately summarised what the footage showed when he said[2]

“The DVD is quite brief and not of particularly good quality. Very little can be seen of the plaintiff’s movements in entering and leaving the premises where Dr Toft examined him. However later in the day he is shown at a shopping centre walking normally without any detectable limp.”

[13]  The respondent put the pronounced limping shown in the early part of the footage down to his suffering the effects of being confined in the car during the long trip from Ingham to Townsville to see Dr Toft.

[14]  His Honour rejected the appellant’s contention that the limp was feigned.  His finding that it was variable and not always present was one open on the evidence.

[15]  His Honour accepted the evidence of Dr John Maguire in relation to the orthopaedic aspects of the respondent’s condition and that of Dr Scott Campbell in relation to the neurological aspects.

[16]  Four reports written by Dr Maguire (dated 7 April 2003, 2 January 2007, 17 September 2007 and 30 April 2009) were admitted into evidence.  He was cross-examined by counsel for the appellant.

[17]  According to Dr Maguire, on each occasion he examined the respondent he walked with a considerable limp.  He had seen him limping in a number of different ways.  The significance of the limp varied, but he always had a limp.  In his last report he described the respondent as walking with a significant limp.

[18]  Dr Maguire first examined the respondent on 3 April 2003 – before the second motor vehicle accident.  In his first report he diagnosed the following –

(a)soft tissue injury to the lumbosacral spine with possible L5 nerve root irritation with ongoing  muscle spasm and asymmetrical range of motion;

(b)soft tissue injury to the cervical spine with muscle spasm and mild asymmetry of range of motion  with associated intermittent paraesthesia in the right upper limb;

(c)soft tissue injury to the thoracic spine with symmetrical range of motion but left-sided paraspinal muscle spasm;

(d)compound fracture of the right tibia with common peroneal nerve functional deficit, weakness of ankle eversion and big toe dorsiflexion; also abnormal sensation and irritability of the saphenous nerve medially; and

(e)injury to the right knee: subluxation of the patella plus anterior cruciate ligament injury and meniscal injury with ongoing effusion, pain and weakness of knee extension.

He considered that the injuries to the thoracic, cervical and lumbar spine and the compound fracture of the tibia were 100 per cent attributable to the accident, and the knee injury with ongoing symptoms 80 per cent attributable to it.

[19]  In his first examination of the respondent Dr Maguire noted tenderness in the area of the cervical spine, but no muscle spasm in the cervical spine.[3]  In his second examination, which was on 1 December 2006 (after the second accident) he detected a muscle spasm of the cervical spine, and he detected a marked spasm of the cervical spine on 18 April 2009.  Spasms cannot be voluntarily replicated.  Dr Maguire explained that it was common for a patient’s condition to vary from day to day, and that the respondent had good and bad days before the second accident.  His condition continued to worsen, and he presumed the spasms were attributable to the subject accident, which was a very significant one.  Dr Maguire considered that the majority of the ongoing cervical spine symptoms related to the subject accident in 2001, and that the second motor vehicle accident merely caused further irritation of the cervical spine.

[20]  There was other evidence that the respondent sustained spinal injury in the subject accident in 2001.

[21]  After the accident the respondent was taken to the Ingham Hospital, and he was transferred from there to the Townsville Hospital where he underwent surgery to his right lower leg.  On his discharge he returned to Ingham where he attended the local hospital as an outpatient.  The Townsville Hospital records do not mention any complaint of spinal problems, perhaps understandably so given that the focus was on the compound fracture of the tibia and painkilling medication was administered.  On 12 December 2001, after he returned to Ingham, an orthopaedic registrar referred him to the physiotherapy department of the hospital.  The referral form contained sketches of a human body on which the registrar marked the areas of abnormality.  On one of those sketches he wrote “back problems” against a line pointing to the lumbar spine.  In January and February 2002 the respondent received physiotherapy to his knee, ankle and calf.

[22]  He also attended a massage therapist between February and November 2002, and again from late 2006 to February 2007.  The massage therapist’s records show that in 2002 she treated his legs, neck and shoulders, and lower back.  There is reference to the sciatic nerve in a note dated 26 March 2002.  The records of the consultations in late 2006 and 2007 refer to severe limping and “limping throwing it all out”.

[23]  As the trial judge noted,[4] the respondent’s general practitioner’s records showed that he complained of symptoms in his spine before the accident in August 2004.  Sometimes the respondent referred to their presence since the subject accident in 2001.

[24]  Dr Toft examined the respondent on 4 April 2005 and again on 2 June 2008, apparently unaware of this other evidence of spinal injury.

[25]  In his first report Dr Toft did not accept that the respondent had suffered any permanent bodily impairment as a result of any neck or lumbar or spinal injury sustained in the accident in 2001.  He said there was a voluntary element to any apparent lack of movement in the lumbar spine, and there was no evidence of any muscle spasm or asymmetry of movement in either the cervical or lumbar spines.  Imaging studies showed no abnormality in either the cervical or lumbar spine.

[26]  In his second report Dr Toft described the respondent as limping ostentatiously on the right leg and said he swung the leg to the side in a circular fashion as he walked.  He shifted constantly in his seat and sighed and vocalised throughout the consultation.  Dr Toft’s physical findings did not support the respondent’s reported symptoms in his lumbar and cervical spine.

[27]  Dr Toft viewed the surveillance footage.  It showed the respondent at a shopping centre about two hours after his examination by Dr Toft, walking without a limp or any other physical restriction.  He clearly thought that the respondent had feigned his limp at the time of the examination, saying that there could be no medical or pathological explanation for the change in such a short space of time.

[28]  Dr Campbell, the neurosurgeon called by the respondent, attributed the respondent’s neck and back problems to the accident in 2001 rather than the accident in 2004.  He did not observe a limp, although he was primarily concerned with the respondent’s spinal complaints.

[29]  Dr Cameron, the neurologist called by the appellant, considered that neck and lumbar problems were attributable to the accident in 2004 – but when his attention was drawn to some of the general practitioner’s records, the Ingham Hospital records and the massage therapist’s records in cross-examination, he conceded that the respondent had some back problems attributable to the subject accident.

[30]  The appellant relied, too, on reports of various assessments of his fitness for work undertaken on behalf of his employer.  The trial judge said he did not overlook these, but questions of what injuries the plaintiff sustained in the accident in 2001, his disabilities and their effect on him were within the province of the orthopaedic surgeons and neurologists.  That was, with respect, an entirely proper approach to adopt.

[31]  I do not accept the appellant’s submission that his Honour’s reasons were inadequate.  On the contrary, they reveal consideration and analysis of the relevant evidence.  His Honour did not accept all that the respondent said, finding his recollection of his movements between his visit to Dr Toft and his attending the shopping centre on 2 June 2008 to be faulty, and in that regard preferring the evidence of the investigator who pursued him.  His Honour’s acceptance of the respondent’s claim to have a genuine limp was supported by the Ingham Hospital records, the massage therapist’s records and some of the general practitioner’s records, as well as by Dr Maguire.

[32]  The trial judge’s findings in relation to the injuries the respondent sustained in the accident in 2001 were open on the evidence, and should not be disturbed.

Assessment of damages

[33]  The appellant’s contention is that the trial judge’s assessment of damages was excessive.  In Elford v FAI General Insurance Company Limited[5] this Court described the proper approach to an appeal against quantum in a personal injuries case in these terms –

“...if a particular component of such an award is plainly an under-estimate or over-estimate and if substituting a proper figure for that component will substantially alter the total, then the substitution should be made; but if there is nothing more than a wrong estimate of one component which has no substantial effect on the total, the award stands.  The pointing out of a relatively small error in one estimated component of a judgment which is in substance a sum of estimates does not necessarily make the judgment as a whole wrong.  It may be that some types of mistakes, for example arithmetical errors, will require correction irrespective of their effect on the total award, but the general rule should be as we have stated.”

[34] His Honour’s assessment of damages and the assessment for which the appellant contends are as follows –

    Trial judge   Appellant
General damages $ 75,000.00 $ 45,000.00
Interest[6] $ 4,500.00 $ 2,700.00
Past economic loss $ 140,400.00 $  31,200.00
Interest[7] $ 18,810.00    
Future economic loss $ 297,750.00 $ 64,090.00
Past loss of superannuation $ 12,636.00 $ 2,808.00
Future loss of superannuation $ 26,798.00 $ 5,768.00
Rehabilitation expenses $ 6,300.00)    
Past medical expenses $ 293.30)    
Past pharmaceutical expenses $ 5,000.00) $ 400.00
Past travelling expenses $ 3,000.00)    
Interest on out of pocket expenses[8] $ 7,650.00 $ 180.00
Future medical expenses $ 5,000.00    
Future pharmaceutical expenses $ 15,000.00 $ 918.00
Future rehabilitation expenses $ 10,000.00    
Future travelling expenses $ 5,000.00    
Past care $ 10,000.00    
Future care $      22,500.00    
         
  $ 665,637.309     $  153,064.00

General damages

[35]  The appellant’s complaint about the award of general damages was solely reliant on its attack on the trial judge’s assessment of the expert evidence.  That attack having failed, there is no basis for interference with his Honour’s assessment.

Economic loss

[36]  The appellant contended that the trial judge erred in his findings as to both the respondent’s pre-accident earning capacity and the diminution in his earning capacity as a result of his injuries.

[37]  For past economic loss the trial judge allowed $450 per week for six years, which produced a figure of $140,400.  The respondent had received Centrelink benefits totalling $77,700.  His Honour allowed interest on the difference between $140,400 and the Centrelink benefits at 5 per cent per annum for six years ($18,810).

[38]  His Honour said his assessment of future loss of earning capacity ($297,750) was based on a loss of $400 per week over 25 years.

[39]  In assessing past economic loss, the respondent’s employment history before the accident, the availability of employment in the period between the accident and trial and the vicissitudes of life all needed to be considered.

[40]  The respondent lived in Ingham all his life.  He was educated to grade 12 level, and after leaving school worked for a shed construction company and also planting sugar cane.  Then, in 2000, he obtained work at CSR Limited’s Victoria Mill in the crushing season, and in the off season he did casual work for Ingham Welding Services.  His Honour found that at the time of the accident he was employed there as a pointsman.  He hoped to obtain full time work at the mill so that he would be there permanently all year round, and not just during the crushing season.  He had no trade or other occupational qualifications.

[41]  His Honour observed that it was a matter of notoriety that the Ingham community drew its economic lifeblood from the sugar cane industry with some support from the timber and tourist industries.[10]  He was satisfied that the respondent might have obtained year round employment with CSR Limited as he hoped.  He might have lost his employment in any case, but there was no reason why he could not have obtained employment in the sugar industry, perhaps with another mill or even at Victoria Mill in the future.[11]  His Honour was satisfied that the earnings of a pointsman would have increased significantly over the nine years since the accident.[12]

[42]  The respondent was a seasonal worker.  His evidence was that “the season”, i.e. the crushing season, normally ran for 24 – 26 weeks from June to November.  The 2001 season finished early, one week before his accident.[13]  The respondent over-estimated the duration of the crushing season.  From the evidence of the actual shutdown seasons,[14] the crushing season extended over the following numbers of weeks in relevant financial years –

Year endedCrushing season

30 June 2001approximately 15 weeks

30 June 2002approximately 18 weeks

30 June 2003approximately 20 weeks

30 June 2004approximately 16 weeks

[43]  His job as a pointsman required him to be agile: it involved roping bins, jacking bins, riding in locomotives, changing points, chocking bins and accessing the locomotive.

[44]  The respondent’s income tax records showed that in the year ended 30 June 2001, his total net income from Stockholm Constructions and CSR Limited was $2,568.[15]

[45]  In the following financial year he worked for CSR Limited at the mill from 1 July 2001 until the season finished and then from 19 to 30 June 2002 (18 weeks in all), his net earnings for the year being $13,594.[16]  The precise amount attributable to the period up to the accident is unclear, but on the assumption his earnings when he returned to work were at the same rate as before the accident, his pre accident earnings were $755 net per week over 16 weeks.  He received Centrelink unemployment benefits on 12 September 2001 and from 20 November 2001 until 18 June 2002.

[46]  In the year ended 30 June 2003 the respondent injured his leg when he stepped off a locomotive in July 2002 and he had a seizure at work in August 2002.  The season ended on 17 November 2002.  In all he worked for eight weeks with net earnings of $5,626[17] – an average of approximately $700 per week when he worked.  In addition he received Centrelink sickness benefits between 16 August and 8 November 2002 and unemployment benefits between 3 January and 30 June 2003.

[47]  In the year ended 30 June 2004 the respondent worked from 24 July 2003 to 2 November 2003, but for several days off work while a heart condition (atrial fibrillation) was investigated and 17 days as a result of injury to his right knee when he stepped on a billet of cane.  Then he worked from 18 to 30 June 2004.  His net earnings for the year were $15,657[18] – an average of approximately $979 over the 16 weeks he worked.  He received Centrelink unemployment benefits between 2 December 2003 and 17 June 2004.

[48]  In the year ended 30 June 2005 the respondent was involved in the second motor vehicle accident on August 2004.  Over the 19 weeks from 1 July to 10 November 2004 his net earnings were $12,461[19] – an average of $656 per week.

[49]  The respondent’s employment was terminated in November 2004 because of his absenteeism.

[50]  The respondent did a small amount of work for Ingham Welding in the year ended 30 June 2000, earning under $3,000 net.  He did not work for that employer again until the year ended 30 June 2006 when he earned $3,303 net, and then shortly before the trial when he earned $300 net.

[51]  The trial judge said –

“[16]Although the two slipping incidents were arguably the result of the disability of the plaintiff’s leg, the primary causes for his absences from work were the seizure in 2002 and the motor vehicle accident in August 2004. It seems to me that the loss of the plaintiff’s employment with CSR cannot be ascribed to the injuries and their consequences.”

[52]  On the other hand, His Honour found that although the respondent returned to work at the mill for some seasons, on the medical evidence which he accepted, he should not have been doing this work.[20]  He was incapable of returning to work in any manual capacity.  His lack of experience in any of the types of work for which he might be physically capable would make it difficult for him to convert any residual earning capacity into income.[21]

[53]  While there is some tension between these two findings, they are not irreconcilable in light of Dr Maguire’s evidence, which his Honour accepted.  In his first report Dr Maguire opined –

“It is of note that your client’s recreational activities have been markedly reduced and his ability to engage in any form of manual labour has been significantly impaired and therefore his ability to engage in remunerative employment, particularly due to his low level of training.”

[54]  In his last report, written after examining the respondent on 18 April 2009, Dr Maguire noted that he had significantly worsened since the previous review in December 2006.  The respondent complained that the pain in his cervical spine had worsened and that the frequency of headaches and muscle spasms had increased.  He complained also that his lower spine pain was now associated with radicular pain down the right leg.  Dr Maguire said he would not return to the workforce in a manual capacity.

[55]  There is no basis for criticising the trial judge for allowing past economic loss over six years, presumably from the time the employment was terminated in November 2004 until judgment in November 2010.  But his Honour’s allowance of $450 per week over that period was excessive.  The number of weeks the respondent actually worked until his employment was terminated and his average weekly earnings over the periods he worked can be summarised thus –

Year endedWeeks workedAverage net earnings

30 June 200216$755

30 June 2003 8$700

30 June 200416$979

30 June 200519$656

[56]  His Honour’s finding that the respondent might have secured year round employment with the mill as he hoped was, with respect, unsupported by any evidence.  His Honour’s assessment that while the respondent might have lost his employment in any case, there was no reason why he could not have obtained other  employment in the sugar industry was, with respect, speculative and unlikely given his actual employment history, his other medical problems (seizures and atrial fibrillation) and the absenteeism for which he was dismissed.

[57]  Given the respondent’s actual work history and given the variable length of the crushing season, the assessment ought not to have been based on any more than his working 20 weeks per year and earning $900 net per week when he worked.  That would have been equivalent to about $350 net per week over a whole year.

[58]  A loss of $350 net per week over six years would have amounted to approximately $110,000.  That amount should have been discounted for contingencies, and it would have been appropriate to do so by 15 per cent, resulting in an assessment of $93,500.

[59]  On that basis, interest on past economic loss should have been allowed on $15,800 (being $93,500 minus the Centrelink benefits of $77,700) at 5 per cent per annum over six years – which would have amounted to $4,740.

[60]  The respondent was 31 years of age at judgment.  The trial judge assessed future loss of earning capacity over 25 years, i.e. until age 56.  Given that many people work until age 65, that involved a substantial discount.  He calculated the future loss on the basis of $400 per week, which was less than his assessment of the average weekly loss in the six years before trial.

[61]  The starting point for his Honour’s assessment of future economic loss was his assessment of the respondent’s present earning capacity had he not been injured.  In my view his assessment of present earning capacity was excessive.  The assessment ought not to have been based on any more than $300 per week.  The adoption of a multiplier of 25 years would adequately cater for contingencies.  Applying the 5 per cent tables, the present value of a loss of $300 per week over 25 years would have been approximately $225,000.

[62]  Loss of superannuation benefits should then have been assessed at $8,415 for the past and $20,250 for the future.

Past and future care and assistance

[63]  The respondent’s claim for the value of past care was based on an agreed rate of $22 per hour.  He claimed four hours per week since the accident.  His claim for future care was based on an agreed rate of $25 per hour.  He claimed four hours per week over 55 years.[22]

[64]  The trial judge allowed $10,000 in respect of past care and $22,500 in respect of future care, the latter being his Honour’s calculation of the present value (using the 5 per cent tables) of $25 per week over 40 years.

[65]  The trial judge found that before the accident the respondent did little if anything in the way of domestic tasks.[23]  In the period immediately following the accident and for sometime thereafter, he needed care and assistance.  He could not walk unaided for six months and then was on crutches for about another month.  He required the assistance of his mother and grandmother with personal care during those periods.[24]  After his convalescence finished, he had an ongoing need for assistance in mowing, trimming, rubbish removal and gardening, and household cleaning.[25]

[66]  His Honour’s findings about the plaintiff’s need for assistance were consistent with the medical evidence he accepted.

[67]  The trial judge recognised that the respondent was precluded by s 55D of the Motor Accident Insurance Act 1994 (Qld) from recovering damages for household assistance which he was receiving before the accident.[26]  His Honour accepted the evidence of Kathryn Purse, occupational therapist, that the remaining services claimed (mowing, trimming, rubbish removal and gardening) made up one and a half of the four hours she assessed to be his weekly requirement for assistance.  He directly addressed the dispute between the parties about whether the respondent required assistance with mowing, finding that he had occasionally mowed since the accident, but the task had taken a good deal longer than before.

[68]  In the circumstances, the amounts allowed were not excessive.

Special damages

[69]  The trial judge’s allowance of special damages was consistent with his assessment of the respondent’s injuries and their effects and the medical evidence he accepted.

[70]  His Honour appreciated that the respondent’s evidence about past pharmaceutical expenses was in the nature of estimates, and inferred that those expenses must have been substantial.  In the absence of precise proof, he discounted the amount claimed ($11,323)[27] to $10,000.

[71]  His Honour made no appellable error in his assessment of special damages.

Future expenses

[72]  The respondent’s claims for future expenses and the allowances made by his Honour can be summarised thus –

Item Claim[28] Allowance
Future medical expenses $ 9,960 $ 5,000[29]
Future pharmaceutical expenses $26,224.68 $15,000[30]
Future rehabilitation expenses $13,794.60 $10,000[31]
Future travelling expenses $17,240.76 $ 5,000[32]

[73]  These allowances were consistent with his Honour’s assessment of the respondent’s injuries and their effects and the medical evidence he accepted, and were not excessive.

Conclusion

[74]  The appellant has not demonstrated any error in the fact finding by the trial judge, or any misapplication of the principles relating to the assessment of damages for personal injuries.  The appellant has not succeeded in its attack on the trial judge’s assessment of damages, save in the area of economic loss.  In my view his Honour erred in allowing too much in that area.  The difference between his Honour’s assessment of economic loss and the assessment I consider ought to have been made is $144,489, made up as follows –

Past Economic Loss$140,400

$  93,500$ 46,900

Interest on past Economic Loss$  18,810

$    4,740$ 14,070

Future Economic Loss$297,750

$225,000$ 72,750

Past loss of Superannuation$  12,636

$    8,415$   4,221

Future loss of  Superannuation$  26,798

$  20,250$   6,548

$144,489.

________

That difference substantially affected the total assessment, and should be corrected by this Court.

[75]  Further, the amount for which judgment was entered was $5,000 short of his Honour’s total assessment, owing to an arithmetical error.  That is an error which should be corrected in the respondent’s favour.

[76]  Accordingly I would reduce the amount for which judgment was entered by $139,489 to $521,148.30.

[77]  I would make the following orders –

1.Appeal allowed with costs.

2.Judgment varied by reducing the amount for which judgment was given from $660,637.30 to $521,148.30.

[78]  FRYBERG J:  I agree with the orders proposed by Margaret Wilson AJA and with her Honour's reasons for those orders.

Footnotes

[1] Fox v Percy (2003) 214 CLR 118, 128; [2003] HCA 22.

[2] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [42].

[3] In his first report, Dr Maguire noted there was a marked muscle spasm in the thoracic spine.

[4] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [33].

[5] [1994] 1 Qd R 258, 265.

[6] The trial judge allowed interest on $25,000 of the general damages at 2 per cent per annum for 9years.

[7] The trial judge allowed interest on $62,700 of the past economic loss at 5 per cent per annum over 6years.

[8] The trial judge allowed interest on $7,650 at 5 per cent per annum for 9 years.

[9] As the appellant conceded, the amount for which judgment was entered was short by $5,000 due to an arithmetical error.

[10] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [58].

[11] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [59].

[12] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [65].

[13] AR 13 – 14.

[14] AR 1214.

[15] AR 391.

[16] AR 398.

[17] AR 405.

[18] AR 413.

[19] AR 434.

[20] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [63].

[21] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [39], [57].

[22] AR 1235 – 1236.

[23] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [97].

[24] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [94].

[25] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [95] – [96].

[26] AR [92], [93], [97].

[27] AR 1234 – 1235, 466.

[28] AR 1235, 469 – 470.

[29] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [84].

[30] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [85] – [87].

[31] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [88].

[32] Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420, [88].

Close

Editorial Notes

  • Published Case Name:

    Allianz Australia Insurance Limited v Girone

  • Shortened Case Name:

    Allianz Australia Insurance Limited v Girone

  • MNC:

    [2011] QCA 245

  • Court:

    QCA

  • Judge(s):

    Muir JA, M Wilson AJA, Fryberg J

  • Date:

    20 Sep 2011

Litigation History

Event Citation or File Date Notes
Primary Judgment [2010] QSC 420 10 Nov 2010 -
Appeal Determined (QCA) [2011] QCA 245 20 Sep 2011 -

Appeal Status

{solid} Appeal Determined (QCA)