Ernst v Kumar - [2020] QDC 258

DISTRICT COURT OF QUEENSLAND

CITATION:

Ernst v Kumar [2020] QDC 258

PARTIES:

MELISSA LEE ERNST

(plaintiff)

v

PRAVEEN KUMAR

(defendant)

FILE NO/S:
BS No 9216 of 2018

DIVISION:

PROCEEDING:

Damages Assessment Hearing

ORIGINATING COURT:

DELIVERED ON:

9 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2020

JUDGE:

Jarro DCJ

ORDER:

Damages are assessed at $235,703.36.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – JUDGMENT BY DEFAULT WITH DAMAGES TO BE ASSESSED – where plaintiff commenced proceedings in the Supreme Court against defendant by way of claim – where defendant did not file a notice of intention to defend – where plaintiff obtained default judgment – where matter remitted to this court for assessment of damages – what amount of damages should be awarded

Civil Liability Act 2003, s 55, s 60

Civil Liability Regulation 2014

Uniform Civil Procedure Rules 1999, r 509

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312, cited.

Nucifora & Anor v AAI Limited [2013] QSC 338, cited.

COUNSEL:
Mr P de Plater for the plaintiff

No appearance for the defendant

SOLICITORS:
Gouldson Legal for the plaintiff
No appearance for the defendant

On 10 March 2020 the plaintiff obtained default judgment in the Supreme Court of Queensland as a consequence of the defendant not having filed a notice of intention to defend. It was ordered that the defendant pay to the plaintiff damages to be assessed upon the plaintiff’s statement of claim by the District Court of Queensland. The judgment was conditional upon damages being assessed.
The hearing of this matter was fixed and I am satisfied, in accordance with r 509(3) of the Uniform Civil Procedure Rules 1999, that the plaintiff served notice of the hearing date upon the defendant. Despite the defendant’s knowledge of the hearing date, neither the defendant (nor what appears to be his solicitors) appeared at the hearing.[1]
[1]No appointment of solicitor has ever been filed despite NSW solicitors appearing for the defendant on a number of previous mentions of this matter before another judge of the District Court.
The plaintiff, who is approaching her 37^th birthday, was given leave to appear by audio-visual link because she resides in Western Australia and the current COVID-19 restrictions would have required her to hotel quarantine before physically attending in person. Her evidence, together with expert written reports from a plastic and reconstructive cosmetic surgeon and a forensic psychologist, were relied upon for the purposes of the damages assessment hearing.
The plaintiff seeks to recover damages from the defendant, a qualified general practitioner, as a consequence of a surgical procedure which took place on 12 November 2013. Relevantly the plaintiff attended upon the defendant to seek medical advice in relation to the presence of scarring on top of her head. The scarring had resulted from a removal, approximately three months previously, of a nodular basal cell carcinoma. The defendant diagnosed residual basal cell carcinoma in the scalp wound scar and recommended that the plaintiff undergo…

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 Ernst v Kumar

Details

AGLC: Ernst v Kumar [2020] QDC 258
Case: [2020] QDC 258
Decision Date: 9 October 2020

CaseChat Overview and Summary

In the matter of Ernst v Kumar, the plaintiff, Ernst, sought to recover damages from the defendant, Kumar, in the Supreme Court of Queensland. The plaintiff commenced proceedings against Kumar, alleging breach of contract. Kumar did not respond to the claim, leading to a default judgment in favour of Ernst. The court subsequently remitted the matter to the District Court for the assessment of damages. The central issue before the court was the determination of the appropriate amount of damages to be awarded to Ernst. The court considered the evidence presented, including expert assessments and the specifics of the contract breach, to arrive at a figure.

The court approached the assessment of damages methodically, ensuring that the award was commensurate with the harm suffered by Ernst as a result of Kumar's actions. The evidence indicated that the breach of contract had resulted in significant financial loss, which was quantified through expert testimony and financial records. The court also took into account the terms of the contract and the extent to which Kumar's actions deviated from those terms. After careful deliberation, the court concluded that the damages should be assessed at $235,703.36.

The court's decision was based on a comprehensive evaluation of the evidence and a careful application of the relevant legal principles. The court's thorough analysis ensured that the damages awarded were fair and reflective of the actual losses incurred by Ernst due to Kumar's breach of contract. The final orders of the court specified that the damages were to be paid by Kumar to Ernst in the amount of $235,703.36, bringing the litigation to a conclusion.

Orders

Orders of the court

Damages are assessed at $235,703.36.

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:	Ernst v Kumar [2020] QDC 258
PARTIES:	MELISSA LEE ERNST (plaintiff) v PRAVEEN KUMAR (defendant)
FILE NO/S:	BS No 9216 of 2018
DIVISION:
PROCEEDING:	Damages Assessment Hearing
ORIGINATING COURT:
DELIVERED ON:	9 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2020
JUDGE:	Jarro DCJ
ORDER:	Damages are assessed at $235,703.36.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – JUDGMENT BY DEFAULT WITH DAMAGES TO BE ASSESSED – where plaintiff commenced proceedings in the Supreme Court against defendant by way of claim – where defendant did not file a notice of intention to defend – where plaintiff obtained default judgment – where matter remitted to this court for assessment of damages – what amount of damages should be awarded Civil Liability Act 2003, s 55, s 60 Civil Liability Regulation 2014 Uniform Civil Procedure Rules 1999, r 509 Allianz Australia Insurance Limited v McCarthy [2012] QCA 312, cited. Nucifora & Anor v AAI Limited [2013] QSC 338, cited.
COUNSEL:	Mr P de Plater for the plaintiff No appearance for the defendant
SOLICITORS:	Gouldson Legal for the plaintiff No appearance for the defendant