Jones v. Hofenk - [2009] QDC 107

DISTRICT COURT OF QUEENSLAND

CITATION:

Jones v Hofenk [2009] QDC 107

PARTIES:

ELIZABETH KAYE FRANCES JONES

Planitiff

and

FREDERIK HOFENK

Defendant

FILE NO:

184 of 2008

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

6 May 2009

DELIVERED AT:

Maroochydore

HEARING DATE:

22 and 23 April 2009

JUDGE:

K S Dodds, DCJ

ORDER:

I give judgment for the plaintiff against the defendant for $64,441.51.

CATCHWORDS:

TORTS – TRESPASS – TRESPASS TO THE PERSON – ACTION FOR DAMAGES – where both liability and quantum in issue – whether defendant pushed the plaintiff causing her to fall and injure herself – where plaintiff claims general damages, special damages, loss of earnings, superannuation, future expenses and aggravated and exemplary damages

Civil Liability Act 2003 (Qld) s 52, s 57, s 60, s 62, Schedule 2

Civil Liability Regulation 2003 (Qld) Schedule 3, Schedule 4

Personal Injuries Proceedings Act 2002 (Qld)

Case cited:

Clement v Backo & Anor [2006] QSC 129

COUNSEL:

J Wiltshire for the plaintiff

The defendant appeared on his own behalf

SOLICITORS:

Shine Lawyers for the plaintiff

The defendant appeared on his own behalf

This is a proceeding for damages for trespass to the person. The claim was for damages for assault and battery. The requirement of the Personal Injuries Proceedings Act 2002 (Qld) were complied with and the proceeding was commenced by leave of the court.[1]
[1] Paragraphs 10 and 11 of the defence of the defendant.

Both liability and quantum were in issue.

The plaintiff and the defendant gave evidence. Each called other witnesses.

The plaintiff is presently 62 years of age having been born on 3 October 1946. The defendant is in his late seventies.

Liability

The plaintiff and the defendant had been in a defacto relationship for a lengthy period (the plaintiff said 22 years, the defendant, 15 or 16 years). According to the plaintiff they had come to Australia from New Zealand in July 1989.

In Australia they lived and worked together. For a period they were involved in managing blocks of units together, although at the time of the events with which this proceeding is concerned, neither had worked in an income earning capacity for some years.

The events with which this proceeding is concerned occurred on 6 March 2005. At that time the parties were living in their dwelling at Peregian Springs. They were going to separate. The plaintiff had moved to another bedroom (the second bedroom) in the dwelling. She had packed some belongings she intended taking with her into four boxes which she stored in the second bedroom.

On 6 March 2005, in the morning, the plaintiff had taken the jointly owned motor vehicle, picked up a friend, Ms Pasmans and they had gone to Montville. There they looked in shops and had lunch. She then dropped Ms Pasmans off at her home in Cooroy. On the way she purchased fuel at Nambour. The fuel receipt is part of exhibit 1. It has the time, 15:37:39, recorded on…

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 Jones v. Hofenk

Details

AGLC: Jones v Hofenk [2009] QDC 107
Case: [2009] QDC 107
Decision Date: 6 May 2009

CaseChat Overview and Summary

The matter of Jones v. Hofenk came before the court for determination of liability and quantum in an action for damages stemming from an alleged incident of trespass to the person. The plaintiff, Ms. Jones, sought compensation for injuries she sustained after the defendant, Mr. Hofenk, allegedly pushed her, resulting in her fall and subsequent injuries. The plaintiff's claims included general damages, special damages, loss of earnings, superannuation, future expenses, and both aggravated and exemplary damages. The court was tasked with determining whether Mr. Hofenk was liable for the plaintiff's injuries and, if so, the appropriate amount of damages to be awarded.

The primary legal issue before the court was whether the evidence supported a finding that Mr. Hofenk intentionally caused Ms. Jones to fall by pushing her. The court considered the credibility of the witnesses and the consistency of their testimonies with the physical evidence presented. Additionally, the court had to assess the extent of Ms. Jones's injuries and the impact they had on her life, including her ability to work, her future expenses, and the overall effect on her wellbeing. The court was also required to consider whether the plaintiff's claims for aggravated and exemplary damages were warranted.

In delivering judgment, the court found that the evidence established Mr. Hofenk's liability for the plaintiff's injuries. The court accepted Ms. Jones's account of the incident and found it credible. The court noted the significant impact the injuries had on Ms. Jones's ability to work and her overall quality of life. After carefully considering all the evidence, the court determined that the appropriate amount of damages to be awarded to Ms. Jones was $64,441.51. This sum included general damages, special damages, loss of earnings, superannuation, and future expenses, but did not include aggravated or exemplary damages. The court concluded that the award reflected the full extent of Ms. Jones's losses and the defendant's liability.

Orders

Orders of the court

I give judgment for the plaintiff against the defendant for $64,441.51.

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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CITATION:	Jones v Hofenk [2009] QDC 107
PARTIES:	ELIZABETH KAYE FRANCES JONES Planitiff and FREDERIK HOFENK Defendant
FILE NO:	184 of 2008
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	6 May 2009
DELIVERED AT:	Maroochydore
HEARING DATE:	22 and 23 April 2009
JUDGE:	K S Dodds, DCJ
ORDER:	I give judgment for the plaintiff against the defendant for $64,441.51.
CATCHWORDS:	TORTS – TRESPASS – TRESPASS TO THE PERSON – ACTION FOR DAMAGES – where both liability and quantum in issue – whether defendant pushed the plaintiff causing her to fall and injure herself – where plaintiff claims general damages, special damages, loss of earnings, superannuation, future expenses and aggravated and exemplary damages *Civil Liability Act 2003* (Qld) s 52, s 57, s 60, s 62, Schedule 2 *Civil Liability Regulation 2003* (Qld) Schedule 3, Schedule 4 *Personal Injuries Proceedings Act 2002* (Qld) Case cited: *Clement v Backo & Anor* [2006] QSC 129
COUNSEL:	J Wiltshire for the plaintiff The defendant appeared on his own behalf
SOLICITORS:	Shine Lawyers for the plaintiff The defendant appeared on his own behalf