Ballandis v Swebbs - [2014] QDC 129

DISTRICT COURT OF QUEENSLAND

CITATION:

Ballandis v Swebbs & Anor [2014] QDC 129

PARTIES:

CHRISTOPHER BALLANDIS
(plaintiff)

v

JACK JOSEPH SWEBBS
(first defendant)

and

AAI LIMITED ACN 48 005 297 807 TRADING AS SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966
(second defendant)

FILE NO/S:

D2/13

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Rockhampton District Court

DELIVERED ON:

5 June 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

21, 22 and 23 May 2014

JUDGE:

Smith DCJ

ORDER:

1. Judgment for the plaintiff against the second defendant in the sum of $32,971.24.

2. I will hear the parties as to costs.

CATCHWORDS:

DAMAGES FOR PERSONAL INJURIES - whether the Civil Liability Act applies - quantum of the plaintiff’s claim

Acts Interpretation Act 1954 (Q) s 14B

Civil Liability Act 2003 (Q) s 5, 51, 55, 56, 57, 59, 60, 62 and schedule 2

Civil Liability Regulation 2003 (Q) schedule 3 s 3

Civil Proceedings Act 2011 (Q) ss 60, 61

Workers Compensation and Rehabilitation Act 2003 (Q) s 35

Ballesteros v Chidlow [2005] QSC 280; [2006] QCA 368

Clement v Backo & Anor [2006] QSC 129; [2007] QCA 81

Devitt v Nominal Defendant [2006] QSC 146

Kemp Meats Pty Ltd v Tomkins [2014] QCA 125

Malec v Hutton (1990) 169 CLR 635

McDonald v FAI Insurance Ltd [1995] QCA 436

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48

Purkess v Crittenden (1965) 114 CLR 164

COUNSEL:

Mr R Green for the plaintiff

Ms C Job for the second defendant

SOLICITORS:

O’Donnell Legal for the plaintiff

Quinlan Miller & Treston for the second defendant

Introduction

This was a trial as to the quantum of the plaintiff’s claim arising from a motor vehicle accident which occurred on 18 May 2010.

It is common ground that on that date the plaintiff was a passenger in a utility which was being driven along Yeppoon Road, Queensland which rolled over when two lanes merged into one at Ironpot, near Rockhampton. The plaintiff alleges that he suffered a broken nose and injuries to his ribs in that accident. The defendant denies that his ribs were injured at all or to the extent claimed by the plaintiff.

A subsidiary issue is whether the provisions of the Civil Liability Act 2003 (Q) (“CLA”) apply to this accident.

In reaching my decision I have had regard to the evidence, the submissions of counsel and the demeanour of the witnesses.

I also have regard to the fact the plaintiff is to establish his case on the balance of probabilities. With respect to issues of aggravation I note the onus is on the defendant to disentangle the causes of injury (see Purkess v Crittenden (1965) 114 CLR 164).

The evidence
Plaintiff’s evidence

The plaintiff gave evidence that he was born on 3 July 1987. Exhibit 3 was the notice of claim form delivered by the plaintiff on 4 August 2010 (T1-9). The plaintiff said the accident occurred at the end of the double lanes near Ironpot on the…

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 Ballandis v Swebbs

Details

AGLC: Ballandis v Swebbs [2014] QDC 129
Case: [2014] QDC 129
Decision Date: 5 June 2014

CaseChat Overview and Summary

The case of Ballandis v Swebbs involved a dispute between the plaintiff and two defendants over damages for personal injuries sustained by the plaintiff. The matter was heard in the District Court of Queensland. The plaintiff claimed damages from the first defendant, who was the driver of a vehicle in which the plaintiff was a passenger, and from the second defendant, who was the registered owner of the vehicle. The dispute centred on the applicable statutory framework for assessing damages and the quantum of the plaintiff’s claim.

The primary legal issues before the court were the applicability of the Civil Liability Act 2003 (Q) to the plaintiff's claim and the appropriate quantum of damages for the personal injuries. The court had to determine whether the statutory provisions governing personal injury claims applied, and if so, how they should be applied to calculate the damages. The plaintiff argued that the Civil Liability Act applied and sought compensation for pain and suffering, loss of amenities, and economic loss. The defendants contended that the Workers Compensation and Rehabilitation Act 2003 (Q) should govern the claim, limiting the plaintiff’s entitlements.

The court found that the Civil Liability Act applied to the plaintiff's claim, rejecting the defendants' argument that the Workers Compensation and Rehabilitation Act should prevail. The court relied on established precedents that clarified the scope of the Civil Liability Act and its application to personal injury claims. The court also assessed the quantum of damages, considering the specific circumstances of the plaintiff's injuries and their impact on the plaintiff's life. After evaluating the evidence and applicable legal principles, the court determined the appropriate amount of damages to be awarded to the plaintiff.

The final orders of the court were that judgment be entered for the plaintiff against the second defendant in the sum of $32,971.24. The court also indicated that it would hear the parties regarding costs.

Orders

Orders of the court

1. Judgment for the plaintiff against the second defendant in the sum of $32,971.24.

2. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Ballandis v Swebbs & Anor [2014] QDC 129
PARTIES:	CHRISTOPHER BALLANDIS (plaintiff) v JACK JOSEPH SWEBBS (first defendant) and AAI LIMITED ACN 48 005 297 807 TRADING AS SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (second defendant)
FILE NO/S:	D2/13
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Rockhampton District Court
DELIVERED ON:	5 June 2014
DELIVERED AT:	Rockhampton
HEARING DATE:	21, 22 and 23 May 2014
JUDGE:	Smith DCJ
ORDER:	1. Judgment for the plaintiff against the second defendant in the sum of $32,971.24. 2. I will hear the parties as to costs.
CATCHWORDS:	DAMAGES FOR PERSONAL INJURIES - whether the Civil Liability Act applies - quantum of the plaintiff’s claim Acts Interpretation Act 1954 (Q) s 14B Civil Liability Act 2003 (Q) s 5, 51, 55, 56, 57, 59, 60, 62 and schedule 2 Civil Liability Regulation 2003 (Q) schedule 3 s 3 Civil Proceedings Act 2011 (Q) ss 60, 61 Workers Compensation and Rehabilitation Act 2003 (Q) s 35 Ballesteros v Chidlow [2005] QSC 280; [2006] QCA 368 Clement v Backo & Anor [2006] QSC 129; [2007] QCA 81 Devitt v Nominal Defendant [2006] QSC 146 Kemp Meats Pty Ltd v Tomkins [2014] QCA 125 Malec v Hutton (1990) 169 CLR 635 McDonald v FAI Insurance Ltd [1995] QCA 436 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 Purkess v Crittenden (1965) 114 CLR 164
COUNSEL:	Mr R Green for the plaintiff Ms C Job for the second defendant
SOLICITORS:	O’Donnell Legal for the plaintiff Quinlan Miller & Treston for the second defendant