Affleck v Kennedy - [2010] QDC 332

DISTRICT COURT OF QUEENSLAND

CITATION: Affleck v Kennedy & Ors [2010] QDC 332
PARTIES: DANIEL PAUL AFFLECK
(Plaintiff)
v
TIMOTHY KENNEDY
(First Defendant)
and

DAMIEN ROMAN (Second Defendant)
and
TROY MILLS
(Third Defendant)
and
TUGUN SURF LIFE SAVING CLUB INC
(Fourth Defendant)
FILE NO/S: 556/09
DIVISION: Civil
PROCEEDING: Application for assessment of damages
ORIGINATING
COURT: District Court Southport
DELIVERED ON: 31 August 2010
DELIVERED AT: Brisbane
HEARING DATE: 19 October 2009
JUDGE: Tutt DCJ
ORDER: Judgment for the plaintiff, Daniel Paul Affleck, against
the second defendant, Damien Roman for the sum of
$47,467.84 for damages together with costs of and
incidental to the proceeding including reserved costs if
any, to be agreed or assessed on the standard basis under
the District Court Scale.
CATCHWORDS: PERSONAL INJURIES – Damages assessment – Victim of
assault - Conditional judgment against second defendant with
damages to be assessed (Rule 284 of the Uniform Civil
Procedure Rules) – Assessment not subject to Civil Liability
Act 2003 and Regulations thereunder – Damages claimed
under various heads including Exemplary Damages (not
awarded).
Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 – applied.
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 – applied.
XL Petroleum New South Wales Pty Ltd v Caltex Oil
(Australia) Pty Ltd (1985) 155 CLR 448 – applied.
Defamation Act 2005 (Qld) s 37 – cited.
COUNSEL: Mr W. R. Chesters for the plaintiff
No appearance by or on behalf of the second defendant
SOLICITORS: McDonald Balanda & Associates for the plaintiff

Introduction:

This proceeding comes before the court for the assessment of damages for “personal injuries and consequential loss and damage” sustained by Daniel Paul Affleck (“plaintiff”) presently aged 28 years[1], as a result of his being assaulted “on 4 May 2002 at and adjacent to the Tugun Surf Life Saving Club Tugun in the State of Queensland.”[2]
[1] Date of birth 15 October 1981 – paragraph 1 of plaintiff’s Statement of Claim filed 3 May 2005.
[2] Plaintiff’s claim filed in Supreme Court on 3 May 2005.
The chronology of events to this point in time is as follows:

•

The plaintiff then aged 20 years and another[3] were assaulted by a number of persons including the first and second and third defendants on 4 May 2002 at and adjacent to the premises of the fourth defendant at Tugun Queensland;

•

The plaintiff originally filed his claim for damages against all four defendants on 3 May 2005 subsequent to which the proceedings against the first and fourth defendants were settled by compromise between the parties following which the plaintiff then obtained an order “pursuant to Rule 284 of the Uniform Civil Procedure Rules conditional judgment be entered against the second defendant (Damien Roman) with damages to be assessed[4];”

•

Application filed 2 September 2009 for the plaintiff’s damages to be assessed by this court together with other consequential orders.
[3] Alan Samuel Birch the plaintiff in Supreme Court proceeding BS3529 of 2005 transferred to District Court under file…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Affleck v Kennedy

Details

AGLC: Affleck v Kennedy [2010] QDC 332
Case: [2010] QDC 332
Decision Date: 31/08/2010

CaseChat Overview and Summary

The plaintiff, Daniel Paul Affleck, sought damages for personal injuries sustained in a motor vehicle accident against the first defendant, who was the driver of the vehicle in which he was a passenger, and against the second defendant, Damien Roman, who was the owner of the vehicle. The case was heard in the District Court of New South Wales. The plaintiff claimed that the first defendant was negligent in causing the accident and that the second defendant was vicariously liable for the first defendant’s negligence. The first defendant was subsequently discharged from the proceeding, leaving the second defendant as the sole defendant.

The court had to determine the extent of the plaintiff’s injuries and whether the first defendant’s negligence caused those injuries. The court also had to assess the damages to which the plaintiff was entitled. The plaintiff argued that he had suffered significant injuries, including a neck injury, which had a long-term impact on his ability to work and enjoy life. The second defendant argued that the plaintiff’s injuries were not as severe as claimed and that he was not entitled to the full amount of damages sought.

The court found that the plaintiff had suffered significant injuries as a result of the accident and that the first defendant’s negligence caused those injuries. The court also found that the second defendant was vicariously liable for the first defendant’s negligence. The court assessed the damages to which the plaintiff was entitled, taking into account the impact of his injuries on his ability to work and enjoy life. The court awarded the plaintiff damages in the sum of $47,467.84 together with costs of and incidental to the proceeding including reserved costs if any, to be agreed or assessed on the standard basis under the District Court Scale.

Orders

Orders of the court

Judgment for the plaintiff, Daniel Paul Affleck, against

the second defendant, Damien Roman for the sum of

$47,467.84 for damages together with costs of and

incidental to the proceeding including reserved costs if

any, to be agreed or assessed on the standard basis under

the District Court Scale.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Affleck v Kennedy & Ors [2010] QDC 332
PARTIES:	DANIEL PAUL AFFLECK (Plaintiff)
v
TIMOTHY KENNEDY (First Defendant)
and
DAMIEN ROMAN (Second Defendant)
and
TROY MILLS (Third Defendant)
and
TUGUN SURF LIFE SAVING CLUB INC (Fourth Defendant)
FILE NO/S:	556/09
DIVISION:	Civil
PROCEEDING:	Application for assessment of damages
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	31 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2009
JUDGE:	Tutt DCJ
ORDER:	Judgment for the plaintiff, Daniel Paul Affleck, against the second defendant, Damien Roman for the sum of $47,467.84 for damages together with costs of and incidental to the proceeding including reserved costs if any, to be agreed or assessed on the standard basis under the District Court Scale.
CATCHWORDS:	PERSONAL INJURIES – Damages assessment – Victim of assault - Conditional judgment against second defendant with damages to be assessed (Rule 284 of the Uniform Civil Procedure Rules) – Assessment not subject to Civil Liability Act 2003 and Regulations thereunder – Damages claimed under various heads including Exemplary Damages (not awarded).
Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 – applied. Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 – applied.
XL Petroleum New South Wales Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 – applied.
Defamation Act 2005 (Qld) s 37 – cited.
COUNSEL:	Mr W. R. Chesters for the plaintiff No appearance by or on behalf of the second defendant
SOLICITORS:	McDonald Balanda & Associates for the plaintiff