Daly v D a Manufacturing Co P/L - [2003] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

Daly v D A Manufacturing Co P/L & Anor [2003] QCA 274

PARTIES:

STEPHEN DENNIS DALY
(plaintiff/respondent)
v
D A MANUFACTURING CO PTY LTD
ACN 010 219 717
(first defendant/appellant)
LETZBUILD PTY LTD ACN 070 914 395
(second defendant)

FILE NO/S:

Appeal No 10104 of 2002
SC No 7502 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2003

JUDGES:

Williams and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Jerrard JA and Fryberg J concurring as to the orders made, Williams JA dissenting in part

ORDER:

1. Appeal allowed
2. Substitute the amount of $240,957.00 for the amount of $370,392.84 originally ordered to be paid
3. Give the parties leave to make written submissions as to costs within 14 days of publication of this judgment

CATCHWORDS:

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – where respondent fell from ladder not fitted with rubber feet – where learned trial judge found that appellant breached duty of care owed to the respondent – where appellant contends respondent did not exercise reasonable care in inspecting the ladder – where learned trial judge did not find that the defect was obvious even upon a casual inspection – whether conduct of respondent can be excused on grounds of inattention born of familiarity with a task – whether respondent contributorily negligent in failing to check safety of ladder

DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – LOSS OF EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where respondent continued to work in occupation as a builder after suffering personal injury – where respondent now has decreased capacity for manual labour and employs a labourer to assist with his work – where this expense would not exist had the respondent not suffered personal injury – where evidence before learned trial judge established need for services – whether amount awarded to compensate respondent for this need excessive

DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – where appellant complains that amount of Griffiths v Kerkemeyer damages awarded to respondent excessive – where amounts allowed at relatively standard rate – whether sums awarded by learned trial judge reasonable on the evidence

Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, referred to
Griffiths v Kerkemeyer (1977) 139 CLR 161, applied
Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; CA No 40895 of 2001, 14 August 2002, distinguished
O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, referred to
Perre v Apand Pty Ltd (1999) 198 CLR 180, followed
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, referred to
Smith v The Broken Hill Proprietary Co Ltd (1957) 97 CLR 337, referred to
Sullivan v…

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: [2003] QCA 274
Decision Date: 4 July 2003

CaseChat Overview and Summary

The case of Daly v D a Manufacturing Co P/L involved a dispute between the respondent, who fell from a ladder that was not fitted with rubber feet, and the appellant, the manufacturer of the ladder. The respondent sought damages for personal injuries sustained, including loss of earning capacity and medical expenses. The trial judge found that the appellant had breached their duty of care but did not find that the defect in the ladder was obvious. The appellant argued that the respondent's conduct was contributory because he did not exercise reasonable care in inspecting the ladder and that he was inattentive due to familiarity with the task. The respondent continued to work as a builder but with decreased capacity for manual labour, necessitating the employment of a labourer, which the appellant argued was an excessive expense. The appellant also contended that the amount awarded for medical and hospital expenses was excessive.

The court was required to determine whether the respondent's conduct could be excused on the grounds of inattention born of familiarity with a task and whether the respondent was contributorily negligent. The court also needed to assess the reasonableness of the damages awarded for the loss of earning capacity and the medical and hospital expenses. The trial judge had found that the defect in the ladder was not obvious and that the respondent's inattention did not amount to contributory negligence. The court examined the evidence to determine if the amount awarded for the loss of earning capacity was reasonable, considering the respondent's need for a labourer, and if the medical and hospital expenses were within standard rates.

The court found that the respondent was not contributorily negligent in failing to check the safety of the ladder as the defect was not obvious upon a casual inspection. The court held that the amount awarded for the loss of earning capacity was excessive, as the need for a labourer was not established on the evidence. The court also determined that the medical and hospital expenses were reasonable, given that they were awarded at relatively standard rates. Consequently, the appeal was allowed, and the amount originally ordered to be paid was substituted with a reduced amount of $240,957.00. The parties were given leave to make written submissions as to costs within 14 days of the publication of the judgment.

Orders

Orders of the court

1. Appeal allowed

2. Substitute the amount of $240,957.00 for the amount of $370,392.84 originally ordered to be paid

3. Give the parties leave to make written submissions as to costs within 14 days of publication of this judgment

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:	Daly v D A Manufacturing Co P/L & Anor [2003] QCA 274
PARTIES:	STEPHEN DENNIS DALY (plaintiff/respondent) v D A MANUFACTURING CO PTY LTD ACN 010 219 717 (first defendant/appellant) LETZBUILD PTY LTD ACN 070 914 395 (second defendant)
FILE NO/S:	Appeal No 10104 of 2002 SC No 7502 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2003
JUDGES:	Williams and Jerrard JJA and Fryberg J Separate reasons for judgment of each member of the Court, Jerrard JA and Fryberg J concurring as to the orders made, Williams JA dissenting in part
ORDER:	1. Appeal allowed 2. Substitute the amount of $240,957.00 for the amount of $370,392.84 originally ordered to be paid 3. Give the parties leave to make written submissions as to costs within 14 days of publication of this judgment
CATCHWORDS:	TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – where respondent fell from ladder not fitted with rubber feet – where learned trial judge found that appellant breached duty of care owed to the respondent – where appellant contends respondent did not exercise reasonable care in inspecting the ladder – where learned trial judge did not find that the defect was obvious even upon a casual inspection – whether conduct of respondent can be excused on grounds of inattention born of familiarity with a task – whether respondent contributorily negligent in failing to check safety of ladder DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – LOSS OF EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where respondent continued to work in occupation as a builder after suffering personal injury – where respondent now has decreased capacity for manual labour and employs a labourer to assist with his work – where this expense would not exist had the respondent not suffered personal injury – where evidence before learned trial judge established need for services – whether amount awarded to compensate respondent for this need excessive DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – where appellant complains that amount of Griffiths v Kerkemeyer damages awarded to respondent excessive – where amounts allowed at relatively standard rate – whether sums awarded by learned trial judge reasonable on the evidence Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, referred to Griffiths v Kerkemeyer (1977) 139 CLR 161, applied Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; CA No 40895 of 2001, 14 August 2002, distinguished O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, referred to Perre v Apand Pty Ltd (1999) 198 CLR 180, followed Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, referred to Smith v The Broken Hill Proprietary Co Ltd (1957) 97 CLR 337, referred to Sullivan v…