Marshall v Girard - [2010] QSC 454

SUPREME COURT OF QUEENSLAND

CITATION:

Marshall v Girard and Ors [2010] QSC 454

PARTIES:

NEIL EDWARD MARSHALL
(plaintiff)
v
BARRY NORMAN GIRARD
(first defendant)
and
SITA AUSTRALIA PTY LTD
(second defendant)
and
SUNCORP METWAY INSURANCE LIMITED

(third defendant)

FILE NO/S:

7883 of 2009

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

30 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24, 25 August 2010

JUDGE:

Ann Lyons J

ORDER:

I GIVE JUDGMENT FOR THE PLAINTIFF AGAINST THE THIRD DEFENDANT IN THE SUM OF $921,667.07

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff, a painter, was involved in a collision with the defendant, the driver of a rear loading garbage truck at an intersection – where both parties claim their light was green – where plaintiff suffered psychiatric and physical injuries from the collision – where plaintiff had a number of pre-existing injuries – whether collision occurred due to the negligence of the defendant – whether the plaintiff should be awarded a sum for damages, loss of earnings and related expenses.

Civil Liability Act 2003 (Qld), s 59 (2)
Civil Liability Regulation 2003 (Qld), sch 3, sch 4.

Eva (Joseph) Ltd v Reeves [1938] 2 KB 393

Purkess v Crittenden (1965) 114 CLR 164

COUNSEL:

M Grant-Taylor SC with R I Cameron for the plaintiff
W Campbell for the third defendant

SOLICITORS:

Gleeson Klein Solicitors for the plaintiff
Eardley Motteram Lawyers for the third defendant

ANN LYONS J.

The plaintiff, Neil Marshall, is a painter who was injured in a motor vehicle accident as he was driving to work on 17 November 2006. His Ford Festiva sedan collided with a garbage truck driven by the first defendant, Barry Girard, at about five thirty in the morning at the intersection of Cornwall Street and Annerley Road at Dutton Park.

Marshall alleges that the accident occurred as a result of Girard’s negligence when he drove through a red light. There is no doubt that as a result of the accident the plaintiff, who is currently 50 years of age, suffered a number of physical and psychological injuries.

The plaintiff claims damages for his injuries. Girard disputes both his liability for the accident and the quantum of the damages claimed by Marshall. Because of the date of the accident, the damages must be assessed in accordance with the Civil Liability Act 2003 (Qld) (the Act) and the Civil Liability Regulation 2003 (Qld).

Plaintiff’s pre-accident injuries

Marshall was born in England on 12 July 1960 and migrated to Australia in 1983. He is a qualified painter and has worked in the occupation since he qualified. In 1985 he was involved in two motor vehicle accidents in January and October. In respect of the January accident he suffered a minor whiplash injury but was reported as being symptom free within a couple of months. In the October 1985 accident Marshall was…

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 Marshall v Girard

Details

AGLC: Marshall v Girard [2010] QSC 454
Case: [2010] QSC 454
Decision Date: 30 November 2010

CaseChat Overview and Summary

The case of Marshall v Girard involved a collision between the plaintiff, a painter, and the defendant, the driver of a rear loading garbage truck, at an intersection. Both parties claimed that their lights were green at the time of the collision, resulting in the plaintiff suffering both psychiatric and physical injuries. The plaintiff had a number of pre-existing injuries prior to the collision, which were exacerbated by the incident. The plaintiff sought compensation for damages, loss of earnings, and related expenses. The legal issues that the court had to determine included whether the collision was due to the negligence of the defendant and, if so, whether the plaintiff was entitled to a sum for damages, loss of earnings, and related expenses.

The court examined the evidence and found that the defendant was indeed negligent in causing the collision. It was established that the plaintiff's injuries were a direct result of the defendant's negligence. The court then assessed the extent of the plaintiff's damages, including the loss of earnings and earning capacity, as well as the related expenses. The court took into account the plaintiff's pre-existing injuries and the impact of the collision on his ability to work, as well as the psychiatric injuries suffered. The court found that the plaintiff was entitled to compensation for his injuries, loss of earnings, and related expenses.

In its judgment, the court awarded the plaintiff a sum of $921,667.07 against the defendant. The court considered the severity and impact of the plaintiff's injuries, as well as the loss of earnings and earning capacity resulting from the collision. The court also considered the related expenses incurred by the plaintiff as a result of the collision. The court found that this amount was a fair and just compensation for the plaintiff's injuries and losses. The court gave judgment for the plaintiff against the defendant in the sum of $921,667.07.

Orders

Orders of the court

I GIVE JUDGMENT FOR THE PLAINTIFF AGAINST THE THIRD DEFENDANT IN THE SUM OF $921,667.07

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:	Marshall v Girard and Ors [2010] QSC 454
PARTIES:	NEIL EDWARD MARSHALL (plaintiff) v BARRY NORMAN GIRARD (first defendant) and SITA AUSTRALIA PTY LTD (second defendant) and SUNCORP METWAY INSURANCE LIMITED (third defendant)
FILE NO/S:	7883 of 2009
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	30 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	23, 24, 25 August 2010
JUDGE:	Ann Lyons J
ORDER:	I GIVE JUDGMENT FOR THE PLAINTIFF AGAINST THE THIRD DEFENDANT IN THE SUM OF $921,667.07
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff, a painter, was involved in a collision with the defendant, the driver of a rear loading garbage truck at an intersection – where both parties claim their light was green – where plaintiff suffered psychiatric and physical injuries from the collision – where plaintiff had a number of pre-existing injuries – whether collision occurred due to the negligence of the defendant – whether the plaintiff should be awarded a sum for damages, loss of earnings and related expenses. Civil Liability Act 2003 (Qld), s 59 (2) Civil Liability Regulation 2003 (Qld), sch 3, sch 4. Eva (Joseph) Ltd v Reeves [1938] 2 KB 393 Purkess v Crittenden (1965) 114 CLR 164
COUNSEL:	M Grant-Taylor SC with R I Cameron for the plaintiff W Campbell for the third defendant
SOLICITORS:	Gleeson Klein Solicitors for the plaintiff Eardley Motteram Lawyers for the third defendant