Balnaves v Neil Clifford Smith - [2012] QSC 192

SUPREME COURT OF QUEENSLAND

CITATION:
Balnaves v Neil Clifford Smith & Anor [2012] QSC 192

PARTIES:
NEIL RICHARD BALNAVES
Plaintiff

v

NEIL CLIFFORD SMITH
Defendant

AND

ACN 060 759 382 PTY LTD
Second Defendant

FILE NO/S:
1391/05

DIVISION:
Trial Division

PROCEEDING:
Claim

ORIGINATING COURT:
Supreme Court, Brisbane

DELIVERED ON:
17 July 2012

DELIVERED AT:
Brisbane

HEARING DATES:
7, 9, 10, 11, 15 November 2011 and 8 May 2012

JUDGE:
Byrne SJA

ORDER:
The economic loss is assessed at $250,000.00

CATCHWORDS:
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – LEGAL PRINCIPLES – where plaintiff seriously injured in accident – where plaintiff was executive chairman and major shareholder of company – where company was the subject of takeover – whether plaintiff would not have facilitated takeover had the accident not occurred – whether plaintiff would have continued as executive chairman of company and earned income through salary and other payments – whether plaintiff entitled to damages for capital loss in connection with value of shareholding – whether plaintiff entitled to damages for loss of earnings – whether plaintiff entitled to damages for income loss

Civil Liability Act 2003, ss11(3)(b), 54, 55(4)

Attard v James Legal Pty Ltd [2010] NSWCA 311, cited
Baiyai Pty Ltd v Guy [2009] NSWCA 65, cited
Balnaves v Smith & Anor; Malone v Smith & Ors [2010] QSC 39, cited
McCracken v Melbourne Storm Rugby League Football Club Limited & 2 Ors [2007] NSWCA 353, cited
McCrohon v Harith [2010] NSWCA 67, considered
Matar v Jones [2011] NSWCA 304, cited
Montemaggiori v Wilson [2011] WASCA 177, considered
Neal v Ambulance Service of New South Wales [2008] NSWCA 346, cited
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, cited
Thomas v D’Arcy [2005] 1 Qd R 666, cited
Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354, cited

COUNSEL:
M Stewart SC and S Given for the Plaintiff
G Diehm SC and C Harding for the Defendants

SOLICITORS:
MacGillivrays Solicitors for the Plaintiff
Cantwell Lawyers for the Defendants

Issue

On 23 February 2002, the plaintiff was seriously injured in a collision between boats, one of which was under his control. At a separate trial, liability was apportioned against him to the extent of 65%.[1]

[1]Balnaves v Smith & Anor; Malone v Smith & Ors [2010] QSC 39.

In the accident, the plaintiff sustained a comminuted fracture of the right pelvis, including the acetabulum. The other boat “smashed”, he said, his right leg into his abdomen and “imploded” his pelvis. More than 40 bones were broken.

The parties are agreed on special damages and the quantification of the components of general damages other than economic loss.

Background

The plaintiff, who was born in May 1944, is a resolute, energetic individual, aptly described by the occupational therapist, Mr Hoey, as “driven and very successful”[2].

[2]Mr Hoey’s report of 20…

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.

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Details

Case: [2012] QSC 192
Decision Date: 17 July 2012

CaseChat Overview and Summary

Balnaves v Neil Clifford Smith involves a claim for damages arising from personal injuries sustained by the plaintiff in an accident. The plaintiff, who was the executive chairman and a major shareholder of a company, contended that his injuries prevented him from facilitating a takeover of his company. The court was tasked with determining whether the plaintiff was entitled to damages for the loss of his earnings, the loss of his earning capacity, and the capital loss associated with the value of his shareholding. The case was heard and determined by the court, which had to decide on the measure and remoteness of the damages claimed.

The legal issues central to this case revolved around the quantification of damages for personal injuries, particularly in the context of loss of earnings and earning capacity. The court needed to determine if the plaintiff would have continued in his role as executive chairman had he not been injured, and if so, whether he would have earned income through salary and other payments. Additionally, the court had to assess whether the plaintiff was entitled to damages for the capital loss in connection with the value of his shareholding, and if the loss of income was a direct consequence of the injuries sustained.

In its reasoning, the court considered the plaintiff's role and responsibilities, the nature of his injuries, and the impact these had on his ability to facilitate the takeover and continue as executive chairman. The court concluded that the plaintiff was entitled to damages for the loss of his earnings and earning capacity, and for the capital loss associated with the value of his shareholding. The court quantified the economic loss at $250,000.00, reflecting the plaintiff's lost earning capacity and the value of his shareholding.

The final orders of the court reflect the assessment of economic loss at $250,000.00, which includes damages for the plaintiff's loss of earnings, earning capacity, and capital loss associated with the value of his shareholding. This decision provides clarity on the measure and remoteness of damages in the context of personal injuries and business-related losses.

Orders

Orders of the court

The economic loss is assessed at $250,000.00

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:	Balnaves v Neil Clifford Smith & Anor [2012] QSC 192
PARTIES:	NEIL RICHARD BALNAVES Plaintiff v NEIL CLIFFORD SMITH Defendant AND ACN 060 759 382 PTY LTD Second Defendant
FILE NO/S:	1391/05
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	17 July 2012
DELIVERED AT:	Brisbane
HEARING DATES:	7, 9, 10, 11, 15 November 2011 and 8 May 2012
JUDGE:	Byrne SJA
ORDER:	The economic loss is assessed at $250,000.00
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – LEGAL PRINCIPLES – where plaintiff seriously injured in accident – where plaintiff was executive chairman and major shareholder of company – where company was the subject of takeover – whether plaintiff would not have facilitated takeover had the accident not occurred – whether plaintiff would have continued as executive chairman of company and earned income through salary and other payments – whether plaintiff entitled to damages for capital loss in connection with value of shareholding – whether plaintiff entitled to damages for loss of earnings – whether plaintiff entitled to damages for income loss Civil Liability Act 2003, ss11(3)(b), 54, 55(4) Attard v James Legal Pty Ltd [2010] NSWCA 311, cited Baiyai Pty Ltd v Guy [2009] NSWCA 65, cited Balnaves v Smith & Anor; Malone v Smith & Ors [2010] QSC 39, cited McCracken v Melbourne Storm Rugby League Football Club Limited & 2 Ors [2007] NSWCA 353, cited McCrohon v Harith [2010] NSWCA 67, considered Matar v Jones [2011] NSWCA 304, cited Montemaggiori v Wilson [2011] WASCA 177, considered Neal v Ambulance Service of New South Wales [2008] NSWCA 346, cited Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, cited Thomas v D’Arcy [2005] 1 Qd R 666, cited Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354, cited
COUNSEL:	M Stewart SC and S Given for the Plaintiff G Diehm SC and C Harding for the Defendants
SOLICITORS:	MacGillivrays Solicitors for the Plaintiff Cantwell Lawyers for the Defendants