Du Pradal v Petchell - [2014] QSC 261

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…

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 Du Pradal v Petchell

Details

AGLC: Du Pradal v Petchell [2014] QSC 261
Case: [2014] QSC 261
Decision Date: 24 October 2014

CaseChat Overview and Summary

The case of Du Pradal v Petchell involved the first plaintiff, a recreational diver, who was injured while snorkelling near several anchored boats when he was struck by a boat driven by the defendant. The plaintiff suffered significant injuries as a result of the collision. The second plaintiff, the plaintiff's employer, brought a claim for damages against the defendant for loss of profits due to the plaintiff's inability to work. The defendant claimed that the plaintiff's negligence caused or contributed to the accident and sought contribution or indemnity from the third party who was on the plaintiff's boat at the time of the accident. The legal issues in the case included whether the defendant was liable for the plaintiff's injuries, whether the third party owed a duty of care to the plaintiff, and if so, whether the third party breached that duty. Additionally, the court had to determine the measure of damages for the plaintiff's injuries and the employer's claim for loss of profits.

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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…