Drew v. Makita (Australia) Pty Ltd - [2008] QDC 223

DISTRICT COURT OF QUEENSLAND

CITATION:

Drew v Makita (Australia) Pty Ltd [2008] QDC 223

PARTIES:

PAUL DREW

Plaintiff

V

MAKITA (AUSTRALIA) PTY LTD

Defendant

FILE NO/S:

BD4664/04

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19,20, 26 November and 5 December 2007

JUDGE:

Tutt DCJ

ORDER:

1. Judgment for the plaintiff against the defendant in the sum of $194,454.86 for damages

I shall hear the parties further in respect of costs.

CATCHWORDS:

PERSONAL INJURIES – products liability – whether breach of s 75AC of Trade Practices Act by manufacturer – whether design fault in circular saw – whether manufacturer negligent in design and/or manufacture of saw – where plaintiff sustained serious injuries to hand – where liability and quantum in issue – contributory negligence alleged – where claim includes claim for gratuitous services rendered by plaintiff’s partner – where partner in receipt of carer’s allowance for plaintiff’s psychological condition unrelated to subject injury – whether carer’s allowance should be taken into account in assessment of damages – where claim for future medical expenses.

Social Security Act (Cth) 1991

Trade Practices Act (Qld) 1974 s 75AC

AdelaideChemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514

Davies v Taylor [1974] AC 207

Donohue v Stevenson (1932) AC 562

Griffiths v Kirkmeyer (1977) 139 CLR 161

Harth v Schick [1992] 2 Qd R 101

Jesberg v Rackemann [1986] 1 Qd R 181

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Mallett v McMonagle [1970] AC 166 at 174

McIntosh v Williams [1979] 2 NSWLR 543

National Insurance Co of New Zealand Limited v Espagne (1961) 105 CLR 569

Read v J Lyons & Co Ltd [1947] AC 156

Scarf v State of Queensland and Anor [1998] QSC 233

Smith v Inglis Ltd [1978] 83 DLR (3d) 215

Veivers v Connolly [1995] 2 Qd R 326

Veselinovic v Thorley [1988] 1 Qd R 197

COUNSEL:

J W Lee, with M A McLennan for the plaintiff

R A I Myers for the defendant

SOLICITORS:

Wellner’s Lawyers for the plaintiff

Sparke Helmore Lawyers for the defendant

INTRODUCTION:

Paul Drew (“the plaintiff”) is a 59-year-old male who claims damages for personal injuries and consequential loss suffered by him as a result of an alleged breach by Makita (Australia) Pty Ltd (“the defendant”) of s 75AC of the Trade Practices Act 1974 (“TPA”) and/or a breach of duty of care owed by the defendant to the plaintiff at common law. At the relevant time the plaintiff was operating a circular saw claimed to have been manufactured and supplied by the defendant. While he was in the process of cutting a “Weathertex” cladding sheet his left hand came into contact with the exposed blade of the circular saw causing severe injuries to his left hand.

THE FACTS:

Plaintiff’s Evidence:

The plaintiff’s evidence is in the following terms:

· He completed his apprenticeship as a shopfitter, carpenter and joiner…

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: [2008] QDC 223
Decision Date: 29 August 2008

CaseChat Overview and Summary

Drew brought an action against Makita (Australia) Pty Ltd for injuries sustained from a circular saw manufactured by the defendant. The plaintiff alleged that the saw was defectively designed and manufactured, causing him to suffer serious injuries to his hand. The defendant denied the allegations and raised contributory negligence on the part of the plaintiff. The plaintiff also claimed for gratuitous services rendered by his partner, and for future medical expenses. The partner, who was receiving a carer’s allowance for the plaintiff's psychological condition unrelated to the subject injury, argued that this allowance should be considered in the assessment of damages.

The court was required to determine whether the manufacturer breached section 75AC of the Trade Practices Act by producing a defectively designed and manufactured circular saw. The court had to consider whether the plaintiff's injuries were caused by the alleged design and manufacturing faults, and whether the plaintiff was contributorily negligent. The court also had to decide whether the gratuitous services rendered by the plaintiff's partner could be included in the damages and whether the carer’s allowance should be taken into account in the assessment of damages.

The court found that the plaintiff's hand injuries were caused by the circular saw, which was defectively designed and manufactured by the defendant. The court held that the defendant breached section 75AC of the Trade Practices Act and was liable for the plaintiff's damages. The court found the plaintiff not to be contributorily negligent. The court also held that the gratuitous services rendered by the plaintiff's partner were relevant to the assessment of damages, but the carer’s allowance should not be taken into account. The court awarded the plaintiff damages for his injuries, loss of income, and future medical expenses.

The court ordered judgment for the plaintiff against the defendant in the sum of $194,454.86 for damages. The court noted that further hearings would be held to determine the costs of the proceedings.

Orders

Orders of the court

1. Judgment for the plaintiff against the defendant in the sum of $194,454.86 for damages

I shall hear the parties further in respect of costs.

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:	Drew v Makita (Australia) Pty Ltd [2008] QDC 223
PARTIES:	PAUL DREW Plaintiff V MAKITA (AUSTRALIA) PTY LTD Defendant
FILE NO/S:	BD4664/04
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	29 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19,20, 26 November and 5 December 2007
JUDGE:	Tutt DCJ
ORDER:	1. Judgment for the plaintiff against the defendant in the sum of $194,454.86 for damages I shall hear the parties further in respect of costs.
CATCHWORDS:	PERSONAL INJURIES – products liability – whether breach of s 75AC of Trade Practices Act by manufacturer – whether design fault in circular saw – whether manufacturer negligent in design and/or manufacture of saw – where plaintiff sustained serious injuries to hand – where liability and quantum in issue – contributory negligence alleged – where claim includes claim for gratuitous services rendered by plaintiff’s partner – where partner in receipt of carer’s allowance for plaintiff’s psychological condition unrelated to subject injury – whether carer’s allowance should be taken into account in assessment of damages – where claim for future medical expenses. Social Security Act (Cth) 1991 Trade Practices Act (Qld) 1974 s 75AC AdelaideChemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 Davies v Taylor [1974] AC 207 Donohue v Stevenson (1932) AC 562 Griffiths v Kirkmeyer (1977) 139 CLR 161 Harth v Schick [1992] 2 Qd R 101 Jesberg v Rackemann [1986] 1 Qd R 181 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 at 174 McIntosh v Williams [1979] 2 NSWLR 543 National Insurance Co of New Zealand Limited v Espagne (1961) 105 CLR 569 Read v J Lyons & Co Ltd [1947] AC 156 Scarf v State of Queensland and Anor [1998] QSC 233 Smith v Inglis Ltd [1978] 83 DLR (3d) 215 Veivers v Connolly [1995] 2 Qd R 326 Veselinovic v Thorley [1988] 1 Qd R 197
COUNSEL:	J W Lee, with M A McLennan for the plaintiff R A I Myers for the defendant
SOLICITORS:	Wellner’s Lawyers for the plaintiff Sparke Helmore Lawyers for the defendant