Mandrek v Marstella - [2018] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

Mandrek v Marstella & Anor [2018] QSC 8

PARTIES:

SHANE JOHN MANDREK

(first plaintiff)
KERRY FAY MANDREK
(second plaintiff)

v
THOMAS JAMES MARSTELLA
(first defendant)
AAI LIMITED

(second defendant)

FILE NO:

BS No 1297 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 January 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 – 26 May 2017; further written submissions 30 May 2017 and 1 June 2017

JUDGE:

Douglas J

ORDER:

1.    Judgment for the first plaintiff for $377,739.95;

2.    Judgment for the second plaintiff for $306,431.32;

3.    Parties will be heard further in respect of costs.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – GENERAL PRINCIPLES – where plaintiffs injured in motor vehicle accident – where damages assessed pursuant to the Civil Liability Act 2003

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where first plaintiff was unemployed and second plaintiff was self-employed at the time of the accident – where plaintiffs sought damages for past and future economic loss for decreased capacity to work and lost opportunities

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – where plaintiffs sought damages for gratuitous services – where first plaintiff provided limited care to second plaintiff – where provision of gratuitous services was insufficient to meet legislative threshold

Civil Liability Act 2003, ss 55, 59
Civil Liability Regulation 2003, s 87

Hopkins v WorkCover Queensland [2004] QCA 155, cited
Kriz v King [2007] 1 Qd R 327; [2006] QCA 351, followed
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, cited
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, cited
Rossi v Westbrook [2011] QSC 311, cited
Rossi v Westbrook [2013] QCA 102, cited
Shaw v Menzies [2011] QCA 197, cited
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, cited
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, cited

COUNSEL:

J M Sorbello for the plaintiffs
W D P Campbell for the second defendant
No appearance for the first defendant

SOLICITORS:

Morton & Morton for the plaintiffs

Bray Lawyers for the second defendant
No appearance for the first defendant

The plaintiffs, Shane Mandrek and Kerry Mandrek, a married couple, were injured in a motor vehicle accident on 29 November 2012. Kerry Mandrek was then 36 weeks’ pregnant with their third child. Liability for the incident is not in issue but the damages claimed by each plaintiff are contentious.
The first plaintiff
General damages
Shane Mandrek was born in England on 6 June 1977 and so was 35 at the time of the accident and is now 40. He trained and worked as…

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 Mandrek v Marstella

Details

AGLC: Mandrek v Marstella [2018] QSC 8
Case: [2018] QSC 8
Decision Date: 31 January 2018

CaseChat Overview and Summary

Mandrek v Marstella was a case heard in the Queensland District Court, where the plaintiffs, a married couple, sought damages for personal injuries sustained in a motor vehicle accident. The first plaintiff suffered a significant shoulder injury, while the second plaintiff sustained injuries to the neck, shoulder, and arm. The defendants were found to be liable for the accident. The primary legal issues before the court were the measure and remoteness of damages for personal injuries, including non-pecuniary damage, loss of earnings and earning capacity, and damages for gratuitous services. The court had to assess the appropriate compensation for the plaintiffs' injuries in accordance with the Civil Liability Act 2003.

The court began by assessing the non-pecuniary damages for the first plaintiff, taking into account the severity and impact of the injuries on her quality of life. For the second plaintiff, the court considered the impact of the injuries on his earning capacity, given that he was self-employed at the time of the accident. The court then examined the claim for lost opportunities, determining that the plaintiffs were entitled to compensation for the lost earning capacity and the potential income they would have earned had the injuries not occurred. Regarding the claim for gratuitous services, the court found that the first plaintiff's limited care for the second plaintiff did not meet the legislative threshold for compensation. Ultimately, the court awarded the first plaintiff $377,739.95 and the second plaintiff $306,431.32 in damages.

In its judgment, the court made several orders. Firstly, it granted judgment in favour of the first plaintiff for $377,739.95. Secondly, it granted judgment in favour of the second plaintiff for $306,431.32. Lastly, the court scheduled a further hearing to determine the costs of the proceedings. The decision provides guidance on the assessment of damages for personal injuries under the Civil Liability Act 2003, particularly in cases where the injured parties have unique circumstances, such as being unemployed or self-employed at the time of the accident.

Orders

Orders of the court

1. Judgment for the first plaintiff for $377,739.95;

2. Judgment for the second plaintiff for $306,431.32;

3. Parties will be heard further in respect of 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

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CITATION:	Mandrek v Marstella & Anor [2018] QSC 8
PARTIES:	SHANE JOHN MANDREK (first plaintiff) KERRY FAY MANDREK (second plaintiff) v THOMAS JAMES MARSTELLA (first defendant) AAI LIMITED (second defendant)
FILE NO:	BS No 1297 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 January 2018
DELIVERED AT:	Brisbane
HEARING DATE:	25 – 26 May 2017; further written submissions 30 May 2017 and 1 June 2017
JUDGE:	Douglas J
ORDER:	1. Judgment for the first plaintiff for $377,739.95; 2. Judgment for the second plaintiff for $306,431.32; 3. Parties will be heard further in respect of costs.
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – GENERAL PRINCIPLES – where plaintiffs injured in motor vehicle accident – where damages assessed pursuant to the Civil Liability Act 2003 DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where first plaintiff was unemployed and second plaintiff was self-employed at the time of the accident – where plaintiffs sought damages for past and future economic loss for decreased capacity to work and lost opportunities DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – where plaintiffs sought damages for gratuitous services – where first plaintiff provided limited care to second plaintiff – where provision of gratuitous services was insufficient to meet legislative threshold Civil Liability Act 2003, ss 55, 59 Civil Liability Regulation 2003, s 87 Hopkins v WorkCover Queensland [2004] QCA 155, cited Kriz v King [2007] 1 Qd R 327; [2006] QCA 351, followed Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, cited Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, cited Rossi v Westbrook [2011] QSC 311, cited Rossi v Westbrook [2013] QCA 102, cited Shaw v Menzies [2011] QCA 197, cited Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, cited Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, cited
COUNSEL:	J M Sorbello for the plaintiffs W D P Campbell for the second defendant No appearance for the first defendant
SOLICITORS:	Morton & Morton for the plaintiffs Bray Lawyers for the second defendant No appearance for the first defendant