Hay v Magnusson
[2006] QDC 191
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hay v Magnusson[2006] QDC 191
- Add to List
Hay v Magnusson[2006] QDC 191
Hay v Magnusson[2006] QDC 191
DISTRICT COURT OF QUEENSLAND
CITATION: | Hay v Magnusson & Anor [2006] QDC 191 |
PARTIES: | Gary Wayne Hay (Appellant) v Sven Magnusson (First Respondent) and Allianz Australia Insurance Ltd (Second Respondent) |
FILE NO/S: | 304/06 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates’ Court |
DELIVERED ON: | 20.06.06 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20.06.06 |
JUDGE: | Forde DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – assessment of damages for personal injury by Magistrate – Allesch v Manz (2000) 203 CLR 172 Calder v Boyne Smelters Ltd [1991] 1 QR 325 Elford v FAI General Insurance Company Ltd (1994) 1 QR 258 Miller v Jennings [1954] 92 CLR 190 Raby v Bristow [2005] NSWCA 199 Civil Liability Act 2003, s 61 Civil Liability Regulation 2003, schedule 4 |
COUNSEL: | Mr Given for Applicant Mr Holyoak for the Respondents |
SOLICITORS: | Sinnamon Lawyers for the Applicant McInnes Wilson Lawyers for the Respondents |
DISTRICT COURT
CIVIL JURISDICTION
JUDGE FORDE
No 304 of 2006
GARY WAYNE HAY | Appellant |
and | |
SVEN MAGNUSSON | First Respondent |
and | |
ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850) | Second Respondent |
BRISBANE
DATE 20/06/2006
ORDER
HIS HONOUR: The appellant, Gary Wayne Hay, appeals a decision of the learned Magistrate at Brisbane. Such decision was dated 18th of January 2006. The appellant was injured in a motor vehicle accident on the 16th of February 2003. He suffered a crush injury to his left toe when a trailer fell on his foot. The learned Magistrate assessed general damages in the amount of $7,400 in accordance with an ISV of seven under item 153 of schedule 4 to the Civil Liability Regulations. There was no allowance for future, special damages or economic loss.
Before determining whether any further allowance ought to be made, it is essential to determine whether the learned Magistrate erred in finding that an amputation was likely to occur or there was a chance of it occurring because both the special damages aspect and, in some ways, the general damages aspect, are tied into that fact. There is also a claim for future economic loss placed upon the loss of capacity with an injury of this nature.
Approval of Appellate Court
The approach by an appellant caught in a case of this nature can be found by applying the principle in the case of Allesch and Maunz, (2000), 203 Commonwealth Law Reports 172 at 180.
"For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error."
The present case, of course, is one by way of a rehearing on the record. As a gloss to that particular approach, also one has to have regard to the approach of the Courts in relation to quantum assessment. It is not suggested in the appeal before me, although covered in some ways by the Civil Liability Act and Regulations, that a different approach should be adopted other than that suggested in Elford and FAI General Insurance Company Limited, (1994), 1 Queensland Report 258 at 264.
The Court there said, "It has become clear that it is not necessary to show an order that an appeal for an award of damages for personal injury may be allowed and that the award is, as a whole, quite erroneous. An appellant may, in some cases, succeed by showing a specific error of law or fact.
Here there is no question of legal error. The issue raised by Mr Williams' submission is whether a wrong estimate of a particular component without more necessarily brings success to the appellant, even if the resulting correction is a small one relative to the total award.
The Court in Elford at page 265, after referring to Miller and Jennings [1954] 92 CLR 190, quoted the statement of Cooper J in Calder v. Boyne Smelters Limited [1991] 1 Queensland Report 325 at 341:
"An Appellate Court will not interfere unless there is shown error in the reasonings of the Court at first instance which has led to an award of damages which is beyond the limits of what a sound discretionary judgment could reasonably adopt."
Likelihood of Amputation
The learned Magistrate's decision in that respect was that she accepted the evidence of both Dr Pentis and Dr Saxby and found that amputation was not necessarily a direct result of the injury. And the plaintiff had not made up his mind to undergo that operation.
The question is, of course, whether there's a lost chance and whether there is a likelihood of this event occurring. One starts with the evidence of Dr Pentis in his report of the 29th of January 2004 where he said:
"The gentlemen has sustained a crushed fracture to his fifth toe in the state at incident. This has caused him pain and inconvenience. It has required operative debridgement. It has settled to a degree but has left him with a residual problem. It may continue to give hassles and if it does annoy him in his work and recreational activities, the only other alternative may be the excision of the toe itself."
He assessed a five per cent loss of function of the left lower limb. Dr Saxby, on the other hand, said in his report that:
"The only possible treatment for this gentlemen would be amputation of fifth toe. This would alleviate any symptoms he is having with regard to the crushing injury of his fifth toe."
Those reports were dated 29th of January 2004 and 24th of June 2004 respectively. In his evidence at trial, the appellant stated at page 14 of the transcript:
"All right. What's your thoughts about amputation? On medical evidence I really don't want to proceed because it may effect my balance quite bad. If that's the only option to get rid of the pain then I will proceed with it." Question, "Has it reached a stage yet where you've got no alternative in your own mind to having an amputation or not?" "No, not at this stage but on medical evidence again they're telling me that as I get older with arthritis and things." "All right. Okay. At some stage if your toe deteriorates, will you undertake the doctor's?" Answer, "Yes, I will."
The learned Magistrate proceeded on the basis that therefore there could be no finding that an amputation would occur. The plaintiff in his other evidence, which appears in the transcript at page 17, said:
"Are there any activities which cause you more or less problems with your toe?" Answer, "Yes, well I do a fair bit of martial arts and I do a lot of sailing and both those are - I've just got to be careful getting around a deck of a boat because when I do bump it, it goes into the burning sensation."
The only other evidence in relation to which it relates to his work was at page 15:
"Did you experience any discomfort with your toe when you were doing scaffolding at work?" Answer, "Yes, I did. Due to it being on the extremity of my foot and me working at heights of three of four storeys, it is sort of where you have a sixth sense, if you like, where the edge of the planks that you're walking on. And I had a couple of near-misses and I actually lost my nerve. That's why I ended up resigning from the scaffolding work."
Unfortunately for the appellant, the learned Magistrate rejected his evidence in that respect which primarily may have set up a claim for a lost capacity. At page 7 of her reasons, the following finding appears:
"His evidence was not reliable about his working history. I find there is no evidence that he worked between August 2001 and the date of the accident in 2003. The plaintiff gave evidence of 'losing his nerve' in a scaffolding job since the accident because of loss of balance. I accept the evidence of Dr Saxby (Exhibit 5) that the injury is not responsible for loss of balance. I do not accept the evidence of the plaintiff in that regard. The plaintiff has been a long-term recipient of social security benefits before and since the injury. At the time of the injury he was receiving benefits."
With that finding it makes it difficult for an Appellate Court to go behind the finding of credit by the learned Magistrate. Therefore, having regard to that finding it is not open to an Appellate Court in this case to overturn those findings. Therefore, in relation to the question of amputation the learned Magistrate was entitled to find that the amputation was not going to occur.
General Damages
The approach of the Appellate Court, as it would be in a trial Court, in assessing these types of damages if one were to look at it afresh is set out in the New South Wales decision of Raby v. Bristow [2005] New South Wales Court of Appeal 199 Permacult JA at paragraphs 62 to 67.
The question is whether these principles are so relevant to the present case as to justify interfering in relation to the general damages. Where the learned Magistrate applied the item 153 the principles have been distilled in the submissions of the respondent at page 3 "A, B, C, D" of those submissions:
- (a)The exercise of primary judge is required to undertake in determining severity or scaling for non-economic loss (general damages) is neither scientific nor normative;
- (b)While not wholly at large, the task does nevertheless involve an exercise of discretion with which the Appellate Court will rarely intervene;
- (c)The assessment of general damages is an evaluative process in respect of which minds may reasonably differ and the parameters of which cannot be defined with precision;
- (d)The selection of a particular percentage (and, it is submitted, in this case, category and numerical value) will not be readily susceptible of appellate review. Like other issues in the assessment of damages for personal injury its resolution will involve questions of fact and degree and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment.
When one looks at the actual facts of the case and the regulations pursuant to the assessment provided for in section 61 of the Civil Liability Act, it cannot be said that the learned Magistrate erred in any way.
Both doctors describe the injury as a crush injury. They do not describe it as a severe crush injury. It caused a fracture and so the learned Magistrate applied the ISV of seven which she was entitled to do.
It is submitted by the appellant that she ought to have applied 152 which would have allowed an assessment of between eight and twelve.
If that were correct and eight were applied, the quantum, under the provisions of the relevant section 62, would have been $8,600.
However, one does not have to determine whether, therefore, an error had occurred in terms of Elford's case, I am satisfied that the learned Magistrate was justified in applying the ISV of seven in this case particularly given the findings with the ongoing problems which are consistent with the comment under item 153 and consistent with the learned Magistrate's assessment.
In fact, it was submitted by the respondent's counsel that it was an ISV of four to five was open. However, there is no cross-appeal.
Applying the approach required of an appellant Court in assessing general damages, therefore, there is no basis been shown to justify interfering with the learned Magistrate's decision.
It follows, therefore, in relation to special damages that, there being no basis for an amputation being likely to occur in the future, that any allowance can be found to justify interfering with the learned Magistrate's decision.
That sum was $3,000 and no allowance was made by the learned Magistrate in that respect.
They are the main points that have been raised in relation to the appeal.
I am satisfied that the learned Magistrate did not err in not allowing for economic loss or for special damages or that she erred in applying item 152 of the Civil Liability Regulations.
Therefore, the appeal is dismissed.
...
HIS HONOUR: The orders are rather: appeal dismissed, order that the appellant pay the respondent's costs to be assessed on a scale for sums less than $50,000.