Delaney v Shepherd - [2000] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION: Delaney v. Shepherd & Anor [2000] QCA 107
PARTIES: DARRYL JOHN DELANEY
(plaintiff/appellant)
v
JAMES McGREGOR SHEPHERD AND LINDY JANE
SHEPHERD
(defendants/respondents)
FILE NO/S: Appeal No 2503 of 1999
DC No 3849 of 1998
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 4 April 2000
DELIVERED AT: Brisbane
HEARING DATE: 16 November 1999
JUDGES: Pincus, Davies JJ.A, Helman J.
Judgment of the Court
ORDER: Appeal allowed with costs.
Order that the appellant recover against the respondents
the sum of $195,277.50 in lieu of $171,427.50.
Cross-appeal dismissed with costs.
CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – reassessment of damages awarded at trial
Hedge & Ors v. Trenerry Appeal No. 4911 of 1996, 7
November 1997
Hyne & Son Pty Ltd v. Tomlinson Appeal No. 8283 of 1997,
22 May 1998
Judd v. McLean & Ors Supreme Court No. 835 of 1995, 19
November 1996
Wynn v. N.S.W. Insurance Ministerial Corporation (1995)
133 A.L.R. 154

COUNSEL: Mr R.J. Oliver for the appellant
Mr M.T. O’Sullivan for the respondents
SOLICITORS: Walker Pender for the appellant
O’Shea Corser & Wadley for the respondents

THE COURT: This appeal and the cross-appeal concern a judgment given on 26 February 1999 in an action before the District Court at Ipswich in which the appellant sought damages for personal injuries he alleged were caused by the negligence, breach of contract, or breach of statutory duty of the respondents.
The appellant recovered $171,427.50 damages from the respondents. On or about 4 January 1995, when he was employed by the respondents as a surveyor’s chainman, he was injured when he slipped down a steep embankment. He sustained a fracture of his left calcaneus involving the subtalar joint. As a result of his injuries he suffered pain, loss of amenities, impairment of his earning capacity, and other loss and damage. The learned trial judge assessed his damages at $278,203.41, of which $67,750.00 was for past impairment of earning capacity, $130,000.00 for future impairment of earning capacity, and $7,800.00 for future losses of employers’ contributions to superannuation. ($7,800.00 is six per cent. of $130,000.00: see Hedge & Ors v. Trenerry, Appeal No. 4911 of 1996, 7 November 1997; and Hyne & Son Pty Ltd v. Tomlinson, unreported, Appeal No. 8283 of 1997, 22 May 1998.) At the trial the respondents admitted that they were liable to compensate the appellant, and it was agreed by the parties that he should recover three-quarters of the damages assessed by the learned trial judge. Accordingly, judgment was entered for $171,427.50, after the deduction of one-quarter of the $278,203.41 (rounded off to $69,551.00), and $37,224.91 to be refunded to WorkCover Queensland.
The appeal was confined to the sum assessed for damages for future impairment of earning capacity, and, although the notice of contention raised wider issues, at the hearing of the appeal and cross-appeal the…

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 Delaney v Shepherd

Details

AGLC: Delaney v Shepherd [2000] QCA 107
Case: [2000] QCA 107
Decision Date: 4 April 2000

CaseChat Overview and Summary

Delaney v Shepherd involved the appellant, Mr Delaney, seeking damages for personal injuries sustained in a car accident from the respondents, Ms Shepherd and Mr Shepherd. The primary judge awarded the appellant $171,427.50 in damages. The appellant appealed on the basis that the primary judge erred in calculating the damages awarded. The respondents cross-appealed on the basis that the primary judge erred in rejecting their claim for contribution from a third party.

The primary legal issue was whether the primary judge correctly assessed the appellant’s damages. The appellant argued that the primary judge had applied the wrong discount rate in calculating future economic loss. The respondents contended that the correct discount rate had been applied and that the damages awarded were fair and reasonable. The secondary issue was whether the primary judge erred in rejecting the respondents’ claim for contribution from a third party. The respondents argued that the primary judge misapplied the law in dismissing their claim.

The court held that the primary judge had indeed erred in applying the discount rate, finding that a 5% rate should have been used instead of the 7% applied. The court found that the correct application of the 5% rate resulted in an increase in the damages owed to the appellant. The court further found that the primary judge had not erred in dismissing the respondents’ claim for contribution. The court held that the respondents had not provided sufficient evidence to establish that the third party was liable for any portion of the damages awarded to the appellant.

The appeal was allowed, and the appellant was awarded an increased amount of damages. The cross-appeal was dismissed. The appellant was ordered to recover the sum of $195,277.50 against the respondents. Both parties were ordered to pay their own costs.

Orders

Orders of the court

Appeal allowed with costs.

Order that the appellant recover against the respondents

the sum of $195,277.50 in lieu of $171,427.50.

Cross-appeal dismissed with costs.

Background

Background to the litigation

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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:	Delaney v. Shepherd & Anor [2000] QCA 107
PARTIES:	DARRYL JOHN DELANEY (plaintiff/appellant) v JAMES McGREGOR SHEPHERD AND LINDY JANE SHEPHERD (defendants/respondents)
FILE NO/S:	Appeal No 2503 of 1999 DC No 3849 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 April 2000
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 1999
JUDGES:	Pincus, Davies JJ.A, Helman J. Judgment of the Court
ORDER:	Appeal allowed with costs. Order that the appellant recover against the respondents the sum of $195,277.50 in lieu of $171,427.50. Cross-appeal dismissed with costs.

COUNSEL:	Mr R.J. Oliver for the appellant Mr M.T. O’Sullivan for the respondents
SOLICITORS:	Walker Pender for the appellant O’Shea Corser & Wadley for the respondents