Ballandis v Swebbs - [2015] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION:

Ballandis v Swebbs & Anor [2015] QCA 76

PARTIES:

CHRISTOPHER ROBERT BALLANDIS
(appellant)
v
JACK JOSEPH SWEBBS
(first respondent)
AAI LIMITED trading as ‘SUNCORP METWAY INSURANCE LIMITED’
ABN 48 005 297 807
(second respondent)

FILE NO/S:

Appeal No 6097 of 2014
DC No 2 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

5 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2014

JUDGES:

Fraser and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal is dismissed.

2. The appellant pay the respondents’ costs of and incidental to the appeal, to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – APPLICATION OF SPECIFIC STATE LEGISLATION – where the appellant’s work required him to work at a number of locations – where the appellant travelled to work with other employees in a vehicle owned by the employer – where the appellant was a passenger in the vehicle travelling home from work when the vehicle was involved in an accident – where the appellant suffered a broken nose and exacerbated an earlier rib injury, not caused by the accident – where the primary judge held that because the claim was under s 35 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Civil Liability Act 2003 (Qld) applied to the assessment of damages – whether s 35 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) applied

Civil Liability Act 2003 (Qld), s 5
Workers' Compensation and Rehabilitation Act 2003 (Qld), s 35

Affleck v Kennedy & Ors [2010] QDC 332, considered
Ballandis v Swebbs & Anor [2014] QDC 129, related
Clement v Backo & Anor [2006] QSC 129, applied
Devitt v Nominal Defendant [2006] QSC 146, considered
Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45, cited
King v Parsons [2006] 2 Qd R 122; [2006] QCA 49, cited
Miles v Brisbane City Council [2010] QDC 501, considered
Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519; [2006] QCA 48, cited

COUNSEL:

R D Green for the appellant
R J Douglas QC for the respondents

SOLICITORS:

O’Donnell Legal for the appellant
Quinlan Miller & Treston Lawyers for the respondents

FRASER JA: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.
GOTTERSON JA: I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.
MORRISON JA: Mr Ballandis was employed by Mr Thorpe to perform work at locations around Yeppoon and Rockhampton. He was travelling home from work, as a passenger in a utility driven by a co-worker, when the utility rolled. He suffered a broken nose and exacerbated a previous rib injury.
Mr Thorpe employed other workers, Mr Swebbs and…

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 [2015] QCA 76
Case: [2015] QCA 76
Decision Date: 5 May 2015

CaseChat Overview and Summary

In the matter of Ballandis v Swebbs, the appellant sought to appeal the primary judge's decision which determined the amount of compensation to be paid for injuries sustained during a journey home from work. The dispute arose under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), and involved the interpretation of this legislation in conjunction with the Civil Liability Act 2003 (Qld). The primary judge held that the Civil Liability Act applied to the assessment of damages, a finding that the appellant contested on the basis of the specific provisions of the Workers’ Compensation and Rehabilitation Act.

The central legal issue before the court was the applicability of the Civil Liability Act 2003 (Qld) in the assessment of damages under section 35 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The court needed to determine whether the primary judge correctly applied the Civil Liability Act in assessing the compensation for the injuries sustained by the appellant. The appellant argued that section 35 of the Workers’ Compensation and Rehabilitation Act precluded the application of the Civil Liability Act in this context.

The court dismissed the appeal, affirming the primary judge's decision. The court found that the primary judge correctly interpreted and applied the relevant statutory provisions, concluding that section 35 of the Workers’ Compensation and Rehabilitation Act did not exclude the application of the Civil Liability Act in this scenario. The reasoning was based on a detailed examination of the legislative framework and the intent behind the statutory provisions. The court held that the primary judge was correct in concluding that the Civil Liability Act was applicable in assessing the damages under the circumstances of the case. In addition to dismissing the appeal, the court ordered the appellant to pay the respondents’ costs of and incidental to the appeal, to be assessed on the standard basis.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondents’ costs of and incidental to the appeal, to be assessed on the standard basis.

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 [2015] QCA 76
PARTIES:	CHRISTOPHER ROBERT BALLANDIS (appellant) v JACK JOSEPH SWEBBS (first respondent) AAI LIMITED trading as ‘SUNCORP METWAY INSURANCE LIMITED’ ABN 48 005 297 807 (second respondent)
FILE NO/S:	Appeal No 6097 of 2014 DC No 2 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	5 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	4 December 2014
JUDGES:	Fraser and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is dismissed. 2. The appellant pay the respondents’ costs of and incidental to the appeal, to be assessed on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – APPLICATION OF SPECIFIC STATE LEGISLATION – where the appellant’s work required him to work at a number of locations – where the appellant travelled to work with other employees in a vehicle owned by the employer – where the appellant was a passenger in the vehicle travelling home from work when the vehicle was involved in an accident – where the appellant suffered a broken nose and exacerbated an earlier rib injury, not caused by the accident – where the primary judge held that because the claim was under s 35 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Civil Liability Act 2003 (Qld) applied to the assessment of damages – whether s 35 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) applied Civil Liability Act 2003 (Qld), s 5 Workers' Compensation and Rehabilitation Act 2003 (Qld), s 35 Affleck v Kennedy & Ors [2010] QDC 332, considered Ballandis v Swebbs & Anor [2014] QDC 129, related Clement v Backo & Anor [2006] QSC 129, applied Devitt v Nominal Defendant [2006] QSC 146, considered Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45, cited King v Parsons [2006] 2 Qd R 122; [2006] QCA 49, cited Miles v Brisbane City Council [2010] QDC 501, considered Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519; [2006] QCA 48, cited
COUNSEL:	R D Green for the appellant R J Douglas QC for the respondents
SOLICITORS:	O’Donnell Legal for the appellant Quinlan Miller & Treston Lawyers for the respondents