Clement v Backo - [2006] QSC 129

SUPREME COURT OF QUEENSLAND

CITATION: Clement v Backo & Anor [2006] QSC 129

PARTIES: JOHN RADCLIFFE CLEMENT

(Plaintiff)
v
ELTON MERVYN ROSS BACKO
(Defendant)
SUNCORP METWAY INSURANCE LTD
(Second Defendant)

FILE NO: Mackay S92/2005

DIVISION: Trial Division

DELIVERED ON: 26 April 2006

DELIVERED AT: Brisbane

HEARING DATES: 4, 5 April 2006

JUDGE: Dutney J

ORDERS:1) Judgment for the plaintiff against the Second Defendant in the sum of FIVE HUNDRED AND THIRTY-NINE THOUSAND AND FORTY-FOUR DOLLARS AND EIGHT CENTS ($539,044.08)

CATCHWORDS: DAMAGES – QUANTUM - Whether Civil Liability Act 2003 applies – Whether sufficient to plead in Reply that employment was a significant contributing factor to injury – Where employer not sued – Whether a “journey” claim.

DAMAGES – CIVIL LIABILITY ACT – CALCULATION OF INJURY SCALE VALUE – Where plaintiff has multiple injuries but no single dominant injury – where assessed ISV exceeds the maximum dominant ISV by more than 25%.
DAMAGES – PAST AND FUTURE CARE – Where plaintiff establishing commercial plantation at time of injury – whether gratuitous services in that enterprise ‘necessary’ under s. 59 Civil Liability Act 2003.
DAMAGES – ECONOMIC LOSS – Whether additional travel cost of getting to work allowable as a component of future economic loss.
Cockshell & Anor v Australian National Railway Commission (1984) Aust. Torts Reports 80, cited.
Henderson v Dalrymple Bay Coal Terminal [2005] 124 applied.
Newberry v Suncorp Metway Insurance Ltd [2006], applied.
O’Keefe v Schluter [1979] Qd R 224, cited.
Randall v Dul (1994) 13 WAR 205, cited.
Thomas v Eyles (1998) 28 MVR 240, cited.
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR, applied.
Civil Liability Act 2003 (Qld) ss. 5(b), 59, 62
Civil Liability Regulations 2003 (Qld) Schedule 4
Workers Compensation and Rehabilitation Act 2003 (Qld) ss. 32, 35

COUNSEL:Mr D.V. McMeekin SC for the Plaintiff

Mr R.M. Stenson for the Second Defendant

SOLICITORS: Macrossan & Amiet for the Plaintiff

Grant & Simpson for the Second Defendant

John Clement was injured in a single vehicle accident after work on 4^th February 2004. At the time of the injury Mr Clement was 44 years old, having been born on 10 March 1959.

The vehicle in which Mr Clement was a passenger turned over after hitting a sheet of water across the road in a gully.

The only details of the accident led in evidence came from the driver, Mr Backo.

Mr Backo said[1] that he was driving four other employees of United Group Resources home after work. The group worked at Ensham Coal Mine. It is relevant to one of the issues before me that although the group in the vehicle was heading home after completing work the vehicle had not left the Ensham property at the time of the accident. Exhibit 1 is a document setting out some general admissions made mutually for the purposes of the trial. Among these was an admission that if the accident had not occurred the vehicle driven by Mr Backo would have proceded first to…

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 Clement v Backo

Details

AGLC: Clement v Backo [2006] QSC 129
Case: [2006] QSC 129
Decision Date: 26 April 2006

CaseChat Overview and Summary

John Radcliffe Clement was injured in a single vehicle accident after work on 4 February 2004. The vehicle in which he was a passenger turned over after hitting a sheet of water across the road in a gully. The driver, Elton Mervyn Ross Backo, was an employee of United Group Resources. Liability was not in issue. The only issue before the court was the quantum of damages. The court held that the plaintiff's damages were governed by the provisions of the Civil Liability Act 2003. The court assessed the injury scale value (ISV) for the plaintiff's multiple injuries and determined that the appropriate ISV was 20. The court awarded general damages of $26,000. The court also allowed the claimed $40,000 for gratuitous services in relation to the plaintiff's plantation. For future economic loss, the court awarded $227,375, discounted by 15%. The court also allowed $60,000 for additional travel expenses. The court gave judgment for the plaintiff against the Second Defendant in the sum of FIVE HUNDRED AND THIRTY-NINE THOUSAND AND FORTY-FOUR DOLLARS AND EIGHT CENTS ($539,044.08).

Orders