Mansi v O'Connor - [2012] QSC 336

SUPREME COURT OF QUEENSLAND

CITATION:

Mansi v O’Connor & Ors [2012] QSC 336

PARTIES:

GIOVANNO ASTRUO MANSI
(Plaintiff)
v
JAMES EDWARD O'CONNOR
(First Defendant)

QBE INSURANCE (AUSTRALIA) LIMITED
(ABN 78 003 191 035)
(Second Defendant)

THE NOMINAL DEFENDANT
(Third Defendant)

PETESAGI PTY LTD (ACN 077 602 790)
(Fourth Defendant)

SABDOKE PTY LTD (ACN 010 290 525)
(Fifth Defendant)

SUNCORP METWAY INSURANCE LIMITED
(ACN 075 695 966)
(Sixth Defendant)

SHANE ELLIS
(Seventh Defendant)

GRACHELLE TRANSPORT PTY LTD
(ACN 102 485 272)
(Eighth Defendant)

ASHMA PTY LTD (ACN 112 666 001)
(Ninth Defendant)

ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)
(Tenth Defendant)

FILE NO/S:

BS No. 7262 of 2009

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28, 29, 30 May 2012
Further written submissions 19 September 2012

JUDGE:

Ann Lyons J

ORDER:

1. There will be judgment for the Plaintiff in the sum of $93,757.51.

2. I will hear from the parties as to costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – MISCELLANEOUS CASES – Where the Plaintiff was injured after losing control of his motorcycle when it hit an amount of concrete slurry which had discharged from the back of a cement truck as it went around a corner – Where the Plaintiff suffered documented fracture to his right wrist and maintains that he also suffered an injury to his lumbar spine – Where the Plaintiff has had previous wrist and back injuries – Whether there is evidence to support Plaintiff’s claim of a back injury

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – MISCELLANEOUS CASES – Where the Plaintiff was injured after losing control of his motorcycle when it hit an amount of concrete slurry which had discharged from the back of a cement truck as it went around a corner – Where the Plaintiff is not able to identify the responsible concrete truck – Whether a particular defendant can be identified on the balance of probabilities

Civil Liability Act 2003 (Qld), s 59, s 60, s 60(3)
Civil Liability Regulation 2003 (Qld), Schedule 4

Jones v Dunkel (1959) 101 CLR 298
Kalgannon v Sharpe Bros Pty Ltd (1986) 4 NSWLR 600
Muller v Cherrie & Anor [2000] QSC 330
Walker v Allen & Anor [2011] QSC 131
Wheeler v French (1990) 11 MVR 354

Luntz, H Assessment of damages for personal injury and death 4th ed Reed International Books Australia Pty Limited, Australia, 2002

COUNSEL:

S J Given for the Plaintiff
T Mathews with S J Williams for the Defendants

SOLICITORS:

Sinnamon Lawyers for the Plaintiff
Jensen McConaghy for the Defendants

ANN LYONS J:

On 23 July 2007 the Plaintiff was injured when his motorcycle hit a quantity of concrete slurry, which had discharged from the back of a cement truck as it went around a corner, in the vicinity of the intersection of Hope Island Road and the…

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 Mansi v O'Connor

Details

AGLC: Mansi v O’Connor & Ors [2012] QSC 336
Case: [2012] QSC 336
Decision Date: 2 October 2012

CaseChat Overview and Summary

Mansi v O'Connor is a case involving a dispute between the plaintiff, Mansi, and the defendant, O'Connor, over a road accident in which Mansi was injured. Mansi was riding a motorcycle when it lost control after hitting a patch of concrete slurry that had spilled from the back of a cement truck as it turned a corner. The plaintiff suffered a documented fracture to his right wrist and claims to have also sustained a lumbar spine injury. The case focuses on whether there is sufficient evidence to support the plaintiff's claim of a back injury and whether a specific cement truck, and thus a particular defendant, can be identified on the balance of probabilities.

The court was required to determine two primary legal issues. Firstly, it needed to assess the evidence supporting the plaintiff's claim of a lumbar spine injury, particularly in light of his previous wrist and back injuries. Secondly, it had to decide if the plaintiff could identify the responsible cement truck, and thus the liable defendant, on the balance of probabilities.

In delivering the judgment, the court examined the evidence presented regarding the plaintiff's claimed lumbar spine injury. The court found that the plaintiff had not provided sufficient evidence to support his claim of a new back injury, considering his history of previous injuries. Regarding the identification of the responsible cement truck, the court concluded that there was no evidence that could reasonably establish which truck was involved in the incident. The court found that it could not be determined on the balance of probabilities which defendant was responsible for the discharge of the concrete slurry.

The court awarded judgment to the plaintiff in the sum of $93,757.51 for his documented wrist injury. The court also noted that it would hear from the parties regarding the costs of the proceeding.

Orders

Orders of the court

1. There will be judgment for the Plaintiff in the sum of $93,757.51.

2. I will hear from the parties 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Mansi v O’Connor & Ors [2012] QSC 336
PARTIES:	GIOVANNO ASTRUO MANSI (Plaintiff) v JAMES EDWARD O'CONNOR (First Defendant) QBE INSURANCE (AUSTRALIA) LIMITED (ABN 78 003 191 035) (Second Defendant) THE NOMINAL DEFENDANT (Third Defendant) PETESAGI PTY LTD (ACN 077 602 790) (Fourth Defendant) SABDOKE PTY LTD (ACN 010 290 525) (Fifth Defendant) SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (Sixth Defendant) SHANE ELLIS (Seventh Defendant) GRACHELLE TRANSPORT PTY LTD (ACN 102 485 272) (Eighth Defendant) ASHMA PTY LTD (ACN 112 666 001) (Ninth Defendant) ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850) (Tenth Defendant)
FILE NO/S:	BS No. 7262 of 2009
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28, 29, 30 May 2012 Further written submissions 19 September 2012
JUDGE:	Ann Lyons J
ORDER:	1. There will be judgment for the Plaintiff in the sum of $93,757.51. 2. I will hear from the parties as to costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – MISCELLANEOUS CASES – Where the Plaintiff was injured after losing control of his motorcycle when it hit an amount of concrete slurry which had discharged from the back of a cement truck as it went around a corner – Where the Plaintiff suffered documented fracture to his right wrist and maintains that he also suffered an injury to his lumbar spine – Where the Plaintiff has had previous wrist and back injuries – Whether there is evidence to support Plaintiff’s claim of a back injury TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – MISCELLANEOUS CASES – Where the Plaintiff was injured after losing control of his motorcycle when it hit an amount of concrete slurry which had discharged from the back of a cement truck as it went around a corner – Where the Plaintiff is not able to identify the responsible concrete truck – Whether a particular defendant can be identified on the balance of probabilities Civil Liability Act 2003 (Qld), s 59, s 60, s 60(3) Civil Liability Regulation 2003 (Qld), Schedule 4 Jones v Dunkel (1959) 101 CLR 298 Kalgannon v Sharpe Bros Pty Ltd (1986) 4 NSWLR 600 Muller v Cherrie & Anor [2000] QSC 330 Walker v Allen & Anor [2011] QSC 131 Wheeler v French (1990) 11 MVR 354 Luntz, H Assessment of damages for personal injury and death 4th ed Reed International Books Australia Pty Limited, Australia, 2002
COUNSEL:	S J Given for the Plaintiff T Mathews with S J Williams for the Defendants
SOLICITORS:	Sinnamon Lawyers for the Plaintiff Jensen McConaghy for the Defendants