Clement v Backo

[2007] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

Clement v Backo & Suncorp Metway Insurance Ltd [2007] QCA 81

PARTIES:

JOHN RADCLIFFE CLEMENT
(plaintiff/respondent)
v
ELTON MERVYN ROSS BACKO
(defendant)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(defendant/appellant)

FILE NO/S:

Appeal No 4282 of 2006
SC No 92 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

16 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2006

JUDGES:

McMurdo P, Mackenzie and Fryberg JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – PARTICULAR CASES – where respondent maintained timber plantation prior to injury – where the respondent could not maintain the plantation after accident - where the costs of the gratuitous services provided for maintaining the timber plantation were classed as damages for gratuitous services under s 59 Civil Liability Act 2003 (Qld) – whether the principle established in Griffiths v Kerkemeyer applied

Civil Liability Act 2003 (Qld), s 59(1), s 59(1)(a), s 59(1)(b)

Blundell v Musgrave (1956) 96 CLR 73, cited
Cockshell v Australian National Railway Commission (1986) Aust Torts Reports [80-024], considered
CSR Ltd v Eddy (2005) 80 ALJR 59, followed
Graham v Baker (1961) 106 CLR 340, considered
Griffiths v Kerkemeyer (1977) 139 CLR 161, applied
Kriz v King [2006] QCA 351, followed
Medlin v State Government Insurance Commission (1995) 182 CLR 1, followed
O'Keefe v Schluter [1979] Qd R 224, considered
Randall v Dul (1994) 13 WAR 205, considered
The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited
Thomas v Eyles (1998) 28 MVR 240, considered
Trigwell v Trigwell (1997) 18 WAR 83, cited
Van Gervan v Fenton (1992) 175 CLR 327, considered

COUNSEL:

R J Douglas SC, with S J Williams, for the appellant
D V C McMeekin SC for the respondent

SOLICITORS:

Grant & Simpson for the appellant
Macrossan & Amiet for the respondent

1. McMURDO P: The plaintiff respondent Mr Clement was injured on 4 February 2004 when a vehicle driven by the first defendant Mr Backo rolled over after hitting water in a gully across the roadway. Mr Clement was a passenger in the car. He brought an action in negligence for damages against Mr Backo and his insurer, the second defendant appellant, Suncorp Metway Insurance Ltd. The appellant admitted liability prior to trial. Mr Clement's damages were assessed by the learned primary judge in the sum of $549,944.08. The appellant contends that the primary judge erred in assessing $40,000 of those damages for the costs of gratuitous services provided and to be provided to Mr Clement by his wife, Ms Andrea Clement, in maintaining a commercial timber plantation. The…