Kars v Kars - [1995] QCA 410

IN THE COURT OF APPEAL	[1995] QCA 410
SUPREME COURT OF QUEENSLAND

Appeal No. 196 of 1994 Appeal No. 197 of 1994

Brisbane
[Kars. v. Kars]

BETWEEN:

MARK JOSEPH KARS

Appellant

AND:

REBECCA DAWN KARS

Respondent

Davies J.A.
McPherson J.A.
Shepherdson J.

Judgment delivered 08/09/1995
Separate reasons for judgment by each member of the Court; Shepherdson J. dissenting in part.

PLAINTIFF'S APPEAL IS ALLOWED: THE JUDGMENT BELOW IS SET ASIDE AND IN LIEU THEREOF, JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $679,850.00 IS ORDERED. THE DEFENDANT'S APPEAL IS DISMISSED. THE DEFENDANT MUST PAY THE PLAINTIFF'S COSTS OF THE DEFENDANT'S APPEAL AND OF THE PLAINTIFF'S APPEAL.

CATCHWORDS:	PERSONAL INJURIES - QUANTUM: whether future gratuitous care provided by defendant to plaintiff is included in damages award; whether administration charge is included in quantum for future gratuitous services. Motor Vehicles Insurance Act 1936.
Counsel:	Mr. J. Griffin Q.C., with him Mr. A. Stenson for the appellant Mr. S. Williams Q.C., with him Mr. Grant-Taylor for the respondent
Solicitors:	Neil O'Sullivan & Rowell for the appellant Petra Daley, Solicitor, for the respondent
Hearing Date:	22 May 1995

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 196 of 1994 Appeal No. 197 of 1994

Brisbane

Before

Davies J.A.
McPherson J.A.
Shepherdson J.

[Kars. v. Kars]

BETWEEN:

MARK JOSEPH KARS

Appellant

AND:

REBECCA DAWN KARS

Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 8th day of September 1995

These are appeals by the plaintiff and the defendant against a judgment of the Supreme Court for damages for personal injuries. The appeals are, in effect, against the award of damages certified by a District Court Judge on 16 September last in the action which was remitted to the District Court for the purpose of assessment of damages. It is convenient to refer to the parties to this appeal, who are married, as the plaintiff and the defendant.

The parties were married on 31 May 1991. The plaintiff wife was injured through the negligent driving of a motor vehicle by her defendant husband on 2 September 1991. She was then 22, was 25 at the time of trial and is now 26. Her main injury was to her back. It has left her with a 35% permanent disability of her back and inability to perform full time, and indeed most part time work.

The defendant's appeal is against the amount awarded for future economic loss, that awarded for lost superannuation benefits and that awarded for future gratuitous care. The plaintiff's appeal is against the refusal of the learned trial Judge to award damages in respect of future gratuitous care provided by the defendant and against the exclusion of an administration charge in the amount assessed for damages for future gratuitous.

The total amount awarded for damages was $618,350.00. This was made up as follows:

Pain and suffering and loss of amenities $ 75,000

Interest on that sum 1,500

Agreed past economic loss 29,000

Interest on that sum 5,200

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 Kars v Kars

Details

AGLC: Kars v Kars [1995] QCA 410
Case: [1995] QCA 410
Decision Date: 8/09/1995

CaseChat Overview and Summary

The case of Kars v Kars involved a dispute between the parties over the quantum of damages to be awarded in relation to personal injuries sustained by the plaintiff. The plaintiff sought compensation for the future gratuitous care provided by the defendant, as well as for an administration charge. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the future gratuitous care provided by the defendant to the plaintiff should be included in the damages award, and if so, whether an administration charge could also be included as part of the quantum for future gratuitous services.

The court examined the statutory provisions under the Motor Vehicles Insurance Act 1936, which provides for compensation for personal injuries arising out of motor vehicle accidents. The court found that the provision of future gratuitous care by the defendant to the plaintiff was a necessary consequence of the plaintiff's injuries and therefore should be included in the damages award. The court also found that an administration charge was an appropriate component of the quantum for future gratuitous services, as it was necessary to cover the costs of administering the care provided by the defendant.

The court held that the future gratuitous care provided by the defendant to the plaintiff should be included in the damages award, and that an administration charge was also an appropriate component of the quantum for future gratuitous services. The court ordered that the defendant pay the plaintiff a sum of money to cover the cost of the future gratuitous care and administration charge. The court's decision provides guidance for parties involved in similar disputes and highlights the importance of considering the necessary consequences of personal injuries when determining the appropriate quantum of damages.

Orders