Court of Appeal (Qld)|2002-09-20|Before: McMurdo P, Williams JA and Wilson JSeparate reasons, for judgment of each member of the Court, Williams JA and Wilson J concurring as, to the orders made, McMurdo P dissenting, in part
McMurdo P, Williams JA and Wilson JSeparate reasons, for judgment of each member of the Court, Williams JA and Wilson J concurring as, to the orders made
Catchwords
Rules of the Supreme Court 1900 (Qld), O 26, O 39 r
29CUniform Civil Procedure Rules 1999 (Qld), r 360
Campbell v Jones & Anor [2002] QCA 332
Appeal No 11496 of 2001,
Source
Original judgment source is linked above.
Catchwords
Rules of the Supreme Court 1900 (Qld), O 26, O 39 r29CUniform Civil Procedure Rules 1999 (Qld), r 360Campbell v Jones & Anor [2002] QCA 332Appeal No 11496 of 2001,3 September 2002, followedElford v FAI General Insurance CompanyLimited [1994] 1 Qd R 258, followedGaskins v British Aluminium Co Ltd(1976) QB 524, consideredHiscox v Woods & GIO General Limited[2002] QSC 64, consideredProetta v Times Newspapers Ltd (1991) 1WLR 337, consideredRolls Royce Industrial Power (Pacific) Ltd v JamesHardie & COI Pty Ltd [2001] NSWCA 461(2001) 53 NSWLR 626, followedTORTS – NEGLIGENCE – CONTRIBUTORY NEGILIGENCE –PARTICULAR CASES – ROAD ACCIDENT CASES – where respondentstruck bytaxi whilst using a pedestrian crossing and severely brain damaged –whether respondent was contributorily negligentby walking into the taxiAPPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES –INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS
OF APPELLATE
COURT – FINDINGS ON ISSUE OF NEGLIGENCE – CONTRIBUTORY NEGLIGENCE
– appeal against finding by learned
trial judge that immediately before
being struck the respondent jumped back from the taxi – where
evidence-in-chief of witness
stated the respondent had jumped backwards –
where cross-examination of witness showed the witness did not have the
respondent
constantly in vision – whether any inconsistency in
evidence-in-chief and cross-examination – whether there was anything
unreasonable or unjustifiable in the findings of the learned trial judge –
whether learned trial judge misinterpreted or misapplied
the evidence of the
witness – whether any last moment movement by the respondent is
determinative of the issue of contributory
negligence
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT
– MEASURE OF DAMAGES – PERSONAL INJURIES –
LOSS OF EARNINGS
AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where respondent
suffered severe brain damage as a
result of her injuries thereby destroying any
capacity for work – appeal against quantum assessed for future earning
loss and
the consequential assessment of loss of superannuation – whether
learned trial judge erred in finding that the respondent who
was a kitchen hand
at the time of the accident would have built upon her existing foreign
qualifications to become a nutritionist,
dietician or restaurant manager
– whether the learned trial judge erred in assessing the amount to be
discounted for contingencies
– whether the court should interfere with the
assessment made by the learned trial judge on the basis that the error has
substantially
altered the total award which was in excess of $4 million
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT
– COSTS OF THE WHOLE ACTION – WHERE MONEY
PAID INTO COURT OR OFFER
OF COMPROMISE MADE – OTHER CASES – where respondent had refused
appellants’ offer to settle
which was significantly lower than that
finally awarded – whether the learned trial judge erred in awarding costs
on an indemnity
basis pursuant to Order 26 of the Rules of the Supreme
Court in circumstances where the operative statement of loss and damage at
the time the Offer to Settle was made did not include any claim
for past and
future care and failed to disclose certain material – where an Offer to
Settle must be evaluated in the light
of circumstances disclosed in the
proceedings
Judgment (8 paragraphs)
[1]
Rules of the Supreme Court 1900 (Qld), O 26, O 39 r 29C
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & COI Pty Ltd[2001] NSWCA 461; (2001) 53 NSWLR 626, followed TORTS - NEGLIGENCE - CONTRIBUTORY NEGILIGENCE - PARTICULAR CASES - ROAD ACCIDENT CASES - where respondent struck by taxi whilst using a pedestrian crossing and severely brain damaged - whether respondent was contributorily negligent by walking into the taxi APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - appeal against finding by learned trial judge that immediately before being struck the respondent jumped back from the taxi - where evidence-in-chief of witness stated the respondent had jumped backwards - where cross-examination of witness showed the witness did not have the respondent constantly in vision - whether any inconsistency in evidence-in-chief and cross-examination - whether there was anything unreasonable or unjustifiable in the findings of the learned trial judge - whether learned trial judge misinterpreted or misapplied the evidence of the witness - whether any last moment movement by the respondent is determinative of the issue of contributory negligence DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - PARTICULAR CIRCUMSTANCES - where respondent suffered severe brain damage as a result of her injuries thereby destroying any capacity for work - appeal against quantum assessed for future earning loss and the consequential assessment of loss of superannuation - whether learned trial judge erred in finding that the respondent who was a kitchen hand at the time of the accident would have built upon her existing foreign qualifications to become a nutritionist, dietician or restaurant manager - whether the learned trial judge erred in assessing the amount to be discounted for contingencies - whether the court should interfere with the assessment made by the learned trial judge on the basis that the error has substantially altered the total award which was in excess of $4 million PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF THE WHOLE ACTION - WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE - OTHER CASES - where respondent had refused appellants' offer to settle which was significantly lower than that finally awarded - whether the learned trial judge erred in awarding costs on an indemnity basis pursuant to Order 26 of the in circumstances where the operative statement of loss and damage at the time the Offer to Settle was made did not include any claim for past and future care and failed to disclose certain material - where an Offer to Settle must be evaluated in the light of circumstances disclosed in the proceedings
[8]
J D Griffin QC, with A J Williams, for the respondent