SUPREME COURT OF QUEENSLAND
CITATION:
Du Pradal & Anor v Petchell [2014] QSC 261
PARTIES:
JACQUES DU PRADAL
(first plaintiff)
PIA DU PRADAL PTY LTD (ACN 067 906 450)
(second plaintiff)
v
DAVID PETCHELL
(defendant)
v
ANDREW WILLSFORD
(third party)FILE NO:
BS5581 of 2011
DIVISION:
Trial Division
PROCEEDING:
Trial
DELIVERED ON:
24 October 2014
DELIVERED AT:
Brisbane
HEARING DATE:
16-20 and 24 June 2014
JUDGE:
Mullins J
ORDER:
1. Judgment for the first plaintiff against the defendant in the sum of $675,203.
2. The second plaintiff’s claim against the defendant is dismissed.
3. The defendant’s claim against the third party is dismissed.4. 4. Adjourn the issue of the costs of the proceeding and the third party proceeding to a date to be fixed.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where the plaintiff was snorkelling in the vicinity of other boats in a popular diving and fishing spot when he was struck by a boat driven by the defendant – where the defendant failed to comply with the speed limit of 6 knots where his boat was within 30m of anchored boats – where the defendant noticed the first plaintiff’s orange dive float, but failed to slow down and navigate a path clear of the dive float and diver – where the defendant claimed the plaintiff’s negligence caused or contributed to the accident – where the defendant claimed contribution or indemnity from the third party who was on the plaintiff’s boat – whether the defendant is liable for the damage suffered by the plaintiff – whether the third party owed a duty of care to the plaintiff and, if so, whether the third party breached the duty of care
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where the plaintiff suffered significant multiple injuries caused by the accident - where damages assessed pursuant to the Civil Liability Act 2003 (Qld) – where assessment of general damages, damages for the diminution of earning capacity and damages for care and services in issue
EMPLOYMENT LAW – RIGHTS AND LIABILITES AS BETWEEN EMPLOYERS AND THIRD PARTIES – RIGHTS OF EMPLOYER AGAINST THIRD PERSONS – INJURY TO EMPLOYEE – GENERALLY – where the plaintiff’s employer brought a claim for damages against the defendant for the action per quod servitium amisit – where the pleaded claim for loss of profits was not the correct measure of damages for the cause of action – where the employer did not seek to amend its statement of claim to reflect its ultimate submission for damages calculated on a notional cost of replacement labour – where the employer did not incur any costs for replacement labour – whether the employer’s claim can succeed
Navigation Act 1912 (Cth), s 2, s 258, s 425
Civil Liability Act 2003 (Qld), s 9, s 11, s 12, s 23, s 59
Civil Liability Regulation 2003…
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- AGLC
- Du Pradal v Petchell [2014] QSC 261
- Case
- [2014] QSC 261
- Decision Date
CaseChat Overview and Summary
The court held that the defendant breached their duty of care owed to the plaintiff by failing to comply with the speed limit and not navigating a path clear of the plaintiff's dive float and diver. The court found that the defendant's actions were the sole cause of the accident and awarded damages to the plaintiff. The court rejected the defendant's claim against the third party and also dismissed the employer's claim for loss of profits, as it was not the correct measure of damages for the cause of action. The court ordered that judgment be entered in favour of the first plaintiff against the defendant in the sum of $675,203, dismissed the second plaintiff's claim against the defendant, and dismissed the defendant's claim against the third party. The issue of costs was adjourned to a later date.
In summary, the court found the defendant liable for the plaintiff's injuries and awarded damages, but dismissed the employer's claim for loss of profits. The court also rejected the defendant's claim against the third party. The case highlights the importance of complying with speed limits and navigating safely around other vessels and divers, as well as the need to properly plead claims for damages in employment law cases.
Orders
Orders of the court
1. Judgment for the first plaintiff against the defendant in the sum of $675,203.
2. The second plaintiff’s claim against the defendant is dismissed.
3. The defendant’s claim against the third party is dismissed.
4. 4. Adjourn the issue of the costs of the proceeding and the third party proceeding to a date to be fixed.
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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