Cho v Hui and Anor

[2023] QDC 155 · Rosengren DCJ

In plain language

In this case, the plaintiff was a 52-year-old rideshare driver and part-time real estate agent who was injured when the defendant reversed a Toyota Hilux out of an angled parking bay into the side of his Toyota Camry in November 2020. Liability was admitted, but the parties were far apart on quantum, with the plaintiff claiming over $263,000 and the defendants contending for just over $5,000. A central issue was whether the plaintiff's ongoing lower back symptoms were genuinely caused by the accident. The Court accepted the plaintiff as an honest witness, found that he had suffered a soft tissue musculo-ligamentous injury to his lower back together with a temporary aggravation of a pre-existing neck condition, and rejected the defendants' argument that any back injury had resolved. The Court accepted that the plaintiff continued to experience intermittent back pain, particularly with prolonged driving, but found that the injury was relatively modest and did not significantly restrict his ability to continue working.

Although the plaintiff continued to work long hours and in fact earned more after the accident than before it, the Court accepted that he had suffered a small but real loss of earning capacity because his back symptoms made driving and some real estate duties more difficult.

Incident & injury

Motor vehicle accident — plaintiff's Toyota Camry was struck by first defendant's Toyota Hilux which was reversing out of an angle parking bay

Diagnoses
Soft tissue musculo-ligamentous injury to lumbo-thoracic spine with continuing intermittent symptoms, Temporary aggravation of pre-existing cervical spine condition, Headaches
Incident date
20 November 2020
Location
Baroona Road, Milton, Queensland

Quick facts

Date of judgment
13 September 2023
Claim type
MAIA
Plaintiff outcome
Successful
Plaintiff age at injury
52
Occupation
Rideshare driver and real estate agent Machinery Operator / Driver
Liability
Admitted
ISV assessed
4 · Item 94 (minor thoracic or lumbar spine injury)
Whole Person Impairment
6%
Total damages
$55,505

Outcome

Judgment for the plaintiff in the sum of $55,505. The court found the plaintiff had suffered a soft tissue musculo-ligamentous injury to his lower back with ongoing intermittent symptoms and a temporary aggravation of pre-existing neck symptoms; ISV assessed at 4 under Item 94.

Defendants (2)

Joint and several liability. The plaintiff received a single recovery of $55,505 — not the sum of the amounts shown below. The figures listed against each defendant are the judgment amounts recorded in the order; the defendants are jointly and severally liable, so the plaintiff is paid once.

Under the Motor Accident Insurance Act 1994 (Qld), the CTP insurer (Allianz Australia Insurance Limited) is the actual payer of the judgment. The insured driver is named on the judgment but is not personally liable to satisfy it — the CTP policy responds.

1 David Singee Hui

Driver (tortfeasor)

Judgment against this defendant
$55,505
Heads of damage
General damages $6,480
Past economic loss $8,500
Interest on past EL $395
Future loss of economic capacity $35,000
Past special damages (plaintiff) $2,600
Interest on past special damages $30
Future special damages $2,500
Subtotal before refunds $55,505

2 Allianz Australia Insurance Limited

CTP Insurer

Judgment against this defendant
$55,505
Heads of damage
General damages $6,480
Past economic loss $8,500
Interest on past EL $395
Future loss of economic capacity $35,000
Past special damages (plaintiff) $2,600
Interest on past special damages $30
Future special damages $2,500
Subtotal before refunds $55,505

Key issues

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Cho v Hui and Anor [2023] QDC 155

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