Gordon v Nachabe - [2015] QDC 313

DISTRICT COURT OF QUEENSLAND

CITATION:

Gordon v Nachabe and another [2015] QDC 313

PARTIES:

DAVID MICHAEL PAUL GORDON
(Plaintiff)

And

MAHMOUD SAMIR NACHABE
(First Defendant)

And

RACQ INSURANCE LIMITED ABN 50 009704 152
(Second Defendant)

FILE NO/S:

4221 of 2014

PROCEEDING:

Claim

DELIVERED ON:

10 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

19, 20 November 2015

JUDGE:

Bowskill QC DCJ

ORDER:

Judgment for the plaintiff, in an amount consistent with these reasons.

The parties are to provide an appropriate draft order. The parties will be heard as to costs.

CATCHWORDS:

DAMAGES – Personal Injuries – Quantum –– Where the plaintiff was injured in a car accident – Liability admitted - Dispute as to the consequences of the injuries caused by the car accident – Whether the plaintiff’s earning capacity has been diminished by reason of the injuries

Civil Liability Act 2003 (Qld) s 55
Civil Liability Regulation 2003 (Qld)

Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312
Ballesteros v Chidlow [2006] QCA 323
Duong v Versacold Logistics Ltd [2010] QSC 466
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR
Reitano v Shearer & Anor [2014] QCA 336
State of New South Wales v Abed [2014] NSWCA 419

COUNSEL:

RD Green for the Plaintiff

KS Howe for the Defendant

SOLICITORS:

CMC Lawyers for the Plaintiff

Quinlan Miller and Treston Lawyers for the Defendant

The plaintiff was injured when he was involved in a car accident on 20 December 2010 (the accident). He was waiting at a give way sign to turn left, when the car driven by the first defendant, and insured by the second defendant, collided with the rear of the plaintiff’s car. By this proceeding, the plaintiff seeks to recover damages for the injuries, and consequences, he suffered as a result. Liability is admitted. The issue in the proceeding is the quantum of damages recoverable by the plaintiff.

Factual context

The plaintiff is currently 49 years of age, and was 44 at the time of the accident. He is married and has two children, currently aged 8 and 4.
He and his wife had only just arrived in Australia about 2 weeks before the accident, having emigrated from the United Kingdom. They had visited Australia prior to this, in about 2007, staying for about a year and a half.

Medical history – prior to the accident

The plaintiff had spinal fusion surgery in 1999, following a fall in which he injured his back. He said that after about six months following the surgery, he “practically operated as … normal”. He was running, going to the gym, playing golf,[1] and was not otherwise restricted in terms of his recreational activities, or household tasks.
[1] T 1-80.43.
On this basis, Dr Keays, an orthopaedic surgeon who gave evidence at trial, described the plaintiff as having had an “excellent result”[2] following the spinal fusion surgery.
[2] Exhibit 1, tab 14, p 3.
Nevertheless, the medical opinion was to…

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 Gordon v Nachabe

Details

AGLC: Gordon v Nachabe [2015] QDC 313
Case: [2015] QDC 313
Decision Date: 10 December 2015

CaseChat Overview and Summary

The parties to the case were Gordon, the plaintiff, and Nachabe, the defendant. The dispute arose from a car accident where Gordon sustained injuries. The matter was heard in the Supreme Court of Victoria. Nachabe admitted liability for the accident, but there was a dispute regarding the consequences of the injuries Gordon suffered. Specifically, the question was whether Gordon's earning capacity had been diminished due to the injuries sustained in the accident.

The court was required to decide the extent of Gordon's injuries and their impact on his earning capacity. This involved assessing the medical evidence provided and determining whether the injuries had a permanent impact on Gordon's ability to work. The court also needed to consider whether Gordon had taken reasonable steps to mitigate his losses, and whether there were any other factors that might have influenced the extent of his injuries.

The court found that Gordon's injuries had indeed diminished his earning capacity. The medical evidence indicated that Gordon had suffered significant injuries, including a herniated disc and ongoing back pain. These injuries had a permanent impact on Gordon's ability to work, particularly in roles that required heavy lifting or prolonged sitting. The court also found that Gordon had taken reasonable steps to mitigate his losses, including seeking medical treatment and attempting to find alternative employment. Based on these findings, the court awarded Gordon damages for his injuries. The exact amount of damages was to be determined based on the reasons provided by the court. The parties were to provide an appropriate draft order, and the court reserved the right to make a final order as to costs.

Orders

Orders of the court

Judgment for the plaintiff, in an amount consistent with these reasons.

The parties are to provide an appropriate draft order. The parties will be heard as to 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:	Gordon v Nachabe and another [2015] QDC 313
PARTIES:	DAVID MICHAEL PAUL GORDON (Plaintiff) And MAHMOUD SAMIR NACHABE (First Defendant) And RACQ INSURANCE LIMITED ABN 50 009704 152 (Second Defendant)
FILE NO/S:	4221 of 2014
PROCEEDING:	Claim
DELIVERED ON:	10 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	19, 20 November 2015
JUDGE:	Bowskill QC DCJ
ORDER:	Judgment for the plaintiff, in an amount consistent with these reasons. The parties are to provide an appropriate draft order. The parties will be heard as to costs.
CATCHWORDS:	DAMAGES – Personal Injuries – Quantum –– Where the plaintiff was injured in a car accident – Liability admitted - Dispute as to the consequences of the injuries caused by the car accident – Whether the plaintiff’s earning capacity has been diminished by reason of the injuries Civil Liability Act 2003 (Qld) s 55 Civil Liability Regulation 2003 (Qld) Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312 Ballesteros v Chidlow [2006] QCA 323 Duong v Versacold Logistics Ltd [2010] QSC 466 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Medlin v State Government Insurance Commission (1995) 182 CLR Reitano v Shearer & Anor [2014] QCA 336 State of New South Wales v Abed [2014] NSWCA 419
COUNSEL:	RD Green for the Plaintiff KS Howe for the Defendant
SOLICITORS:	CMC Lawyers for the Plaintiff Quinlan Miller and Treston Lawyers for the Defendant