Corowa v Winner

[2019] QDC 135

DISTRICT COURT OF QUEENSLAND

CITATION:

Corowa v Winner & Anor [2019] QDC 135

PARTIES:

ISAIAH SHEM COROWA

(Plaintiff)

v

BRENTON JOHN WINNER

(First Defendant)

and

ALIANCE AUSTRALIA INSURANCE LTD (ABN 15000122850)

(Second Defendant)

FILE NO/S:

82/2012

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

6 August 2019

DELIVERED AT:

Mackay

HEARING DATE:

11, 12 and 13 March 2019

JUDGE:

Richards DCJ

ORDER:

Plaintiff’s claim is dismissed.

The plaintiff is ordered to pay the Second defendant’s costs of and incidental to this action to be assessed unless otherwise agreed.

CATCHWORDS:

DAMAGES – PERSONAL INJURY – TORTS – measure of – consequential loss of earnings and earning capacity – where the plaintiff suffered permanent injury from a motor vehicle operated by the first defendant – –  assault and battery – where there is contribution and provocation by plaintiff – whether the defendant used reasonable force in self-defence

Civil Liability Act 2003 (Qld)
Civil Liability Regulation 2014 (Qld), sch 4
Evidence Act 1977 (Qld), s 93B

Poole v Piggott [2000] QDC 254
Fontin v Katapodis (1962) 108 CLR 177

-COUNSEL:

P E Clark (solicitor) for the plaintiff

A Arnold counsel for the defendant

SOLICITORS:

Strutynski Law for the plaintiff

Moray & Agnew for the defendant

1. The plaintiff’s claim seeks damages for personal injuries and consequential loss as a result of injuries sustained when he was struck by a motor vehicle driven by the first defendant, Brenton John Winner. The motor vehicle was insured by the second defendant. The plaintiff also claimed aggravated and exemplary damages for unlawful battery.

1. The statement of claim alleges that on 14 December 2009 at approximately 7.00 pm the first defendant drove deliberately at the plaintiff by driving his vehicle onto the footpath and over the plaintiff’s right foot.  There were resulting significant injuries. 

1. The plaintiff initially claimed general damages in the sum of $45,000 together with loss of income of approximately $600 net per week until a retirement age of 65, medication in the sum of $500 as special damages, a claim for future expenses of $20,000 for the possibility of an amputation, a Griffiths v Kerkemeyer[1] claim of $7,800 for past assistance and $5,000 for future assistance, together with exemplary damages of $20,000 and aggravated damages of $25,000.

   [1] [1977] HCA 45

1. At the trial of this action the claim for negligence was abandoned,[2] as was the Griffiths v Kerkemeyer claim and the claim for a possible future amputation. The first defendant has now deceased therefore the claims for aggravated and exemplary damages were also abandoned.

   [2] T3-19 L45

FACTS NOT IN DISPUTE

1. There is no dispute that on 14 September 2009 at or about 18 Blackwood Street Slade Point Mackay, the first defendant deliberately drove his motor vehicle at the plaintiff and in doing so drove over the foot of the plaintiff causing him injury, namely:

1.          A severe crush injury to the right foot resulting in an extensive soft tissue degloving injury requiring extensive plastic surgery/skin grafts.

2.          A fractured dislocation…