Bertini v. Weller & Anor - [2008] QDC 139

DISTRICT COURT OF QUEENSLAND

CITATION:
Bertini v Weller & Anor [2008] QDC 139

PARTIES: MICHELE BERTINI
Plaintiff
v
ANNE MARIE WELLER
First Defendant
and
AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD (ACN 15 000 122 850)
Second Defendant

FILE NO/S:
D63/2007

PROCEEDING:
Personal Injury Claim

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

6 June 2008 (Judgment and Reasons for Judgment)
18 June 2008 (Decision on Costs)

DELIVERED AT:

Brisbane

HEARING DATE:
7 November 2007 and 8 November 2007

JUDGE:
Martin SC DCJ

ORDER:
Judgment for the plaintiff against the second defendant in the sum of $198,188.55.

The second defendant pay the plaintiff’s costs of and incidental to the action on the standard basis up to and including 18 December 2006 and that thereafter the second defendant pay the plaintiff’s costs of and incidental to the action on an indemnity basis.

CATCHWORDS:
CIVIL – PERSONAL INJURY CLAIM – COSTS – Mandatory final offer pursuant to s 51C Motor Accident Insurance Act 1994 – standard costs or indemnity costs

Civil Liability Act 2003
Civil Liability Regulation 2003
Motor Accident Insurance Act 1994

Kenny & Anor v Eyears & Anor [2004] QSC 59.
Monement v Faux & Anor [2005] QSC 342.
Nilon v Bezzina [1988] 2 Qd R 420.
Purkess v Crittenden (1965-1966) 114 CLR 164.
Quality Corp (Aust) P/L & Ors v Millford Builders (Vic) P/L & Ors [2003] QCA 550.

COUNSEL: Richard Lynch for the Plaintiff
Rick Green for the Second Defendant

SOLICITORS: Trilby Misso Lawyers for the Plaintiff
Jensen McConaghy Solicitors for the Defendants

The plaintiff’s claim is for damages for personal injuries, loss and damage suffered as a result of the first defendant’s negligence which caused a motor vehicle collision on 23 January 2004. Liability is not in issue.

Background

The plaintiff was born in Italy on 23 April 1946. He was educated in Italy. He obtained a qualification which enabled him to work in Italy and a number of countries around the world as an engineer. He was first married in his late twenties and has two grown-up daughters from that marriage. He emigrated from Italy to Australia in early 1988 and lived in Sydney for a time. He there worked in a factory. He moved to Brisbane in the early 1990s and was self-employed for a time doing home-maintenance work. He commenced employment with Qantas in about 1993. For some time after commencing work with Qantas he held down a number of additional jobs.

The plaintiff’s first marriage ended in about 1994. It seems Mr Bertini then went through a dark period of his life culminating in an attempt to kill himself in 1998. He was treated with Prozac for many months.

The plaintiff married his second wife, Dora, in July 2000.

The plaintiff’s evidence

The plaintiff spoke English with a heavy accent. The plaintiff’s evidence was to the effect that, prior to the collision, he had had some on-going back pain after eight to ten hour shifts at work. The plaintiff worked as an…

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 Bertini v. Weller & Anor

Details

AGLC: Bertini v Weller [2008] QDC 139
Case: [2008] QDC 139
Decision Date: 18 June 2008

CaseChat Overview and Summary

The case of Bertini v. Weller & Anor involved a personal injury claim brought by the plaintiff against the first and second defendants. The plaintiff, who was injured in a car accident, sought damages from the defendants who were the drivers of the two cars involved in the incident. The dispute reached the court, which was required to determine the liability of the defendants and the extent of the damages to be awarded to the plaintiff. Additionally, the court had to decide on the costs associated with the litigation, specifically whether the costs should be assessed on the standard basis or the indemnity basis, as provided for under section 51C of the Motor Accident Insurance Act 1994.

The court needed to address several legal issues, including establishing the fault of the defendants in causing the accident, determining the extent of the plaintiff’s injuries and the resulting damages, and deciding on the appropriate method for assessing costs. The court had to consider the mandatory final offer provisions under the Motor Accident Insurance Act 1994 and how these provisions impacted the costs assessment. It was necessary for the court to interpret the relevant sections of the Act and apply them to the facts of the case to arrive at a just and equitable outcome.

In its reasoning, the court found that the second defendant was primarily liable for the accident. The court assessed the plaintiff’s injuries and determined the appropriate amount of damages to be awarded. Regarding costs, the court found that the second defendant’s offer was made in accordance with the Act and was therefore a mandatory final offer. The court held that the plaintiff was entitled to standard costs up to the date of the offer and indemnity costs thereafter. The court's decision was based on the statutory provisions and the precedents set by previous cases concerning the interpretation of section 51C of the Motor Accident Insurance Act 1994.

The court ordered that judgment be entered in favour of the plaintiff against the second defendant for the sum of $198,188.55. The second defendant was also ordered to pay the plaintiff’s costs of and incidental to the action on the standard basis up to and including 18 December 2006, and on an indemnity basis thereafter. This outcome was a direct application of the statutory provisions and the court’s interpretation of those provisions in light of the facts of the case.

Orders

Orders of the court

Judgment for the plaintiff against the second defendant in the sum of $198,188.55.

The second defendant pay the plaintiff’s costs of and incidental to the action on the standard basis up to and including 18 December 2006 and that thereafter the second defendant pay the plaintiff’s costs of and incidental to the action on an indemnity 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:	Bertini v Weller & Anor [2008] QDC 139
PARTIES:	MICHELE BERTINI Plaintiff v ANNE MARIE WELLER First Defendant and AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD (ACN 15 000 122 850) Second Defendant
FILE NO/S:	D63/2007
PROCEEDING:	Personal Injury Claim
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	6 June 2008 (Judgment and Reasons for Judgment) 18 June 2008 (Decision on Costs)
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2007 and 8 November 2007
JUDGE:	Martin SC DCJ
ORDER:	Judgment for the plaintiff against the second defendant in the sum of $198,188.55. The second defendant pay the plaintiff’s costs of and incidental to the action on the standard basis up to and including 18 December 2006 and that thereafter the second defendant pay the plaintiff’s costs of and incidental to the action on an indemnity basis.
CATCHWORDS:	CIVIL – PERSONAL INJURY CLAIM – COSTS – Mandatory final offer pursuant to s 51C Motor Accident Insurance Act 1994 – standard costs or indemnity costs Civil Liability Act 2003 Civil Liability Regulation 2003 Motor Accident Insurance Act 1994 Kenny & Anor v Eyears & Anor [2004] QSC 59. Monement v Faux & Anor [2005] QSC 342. Nilon v Bezzina [1988] 2 Qd R 420. Purkess v Crittenden (1965-1966) 114 CLR 164. Quality Corp (Aust) P/L & Ors v Millford Builders (Vic) P/L & Ors [2003] QCA 550.
COUNSEL:	Richard Lynch for the Plaintiff Rick Green for the Second Defendant
SOLICITORS:	Trilby Misso Lawyers for the Plaintiff Jensen McConaghy Solicitors for the Defendants