Rogers v Interpacific Resorts (Australia) Pty Ltd - [2007] QSC 239

SUPREME COURT OF QUEENSLAND

CITATION:

Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239

PARTIES:

Andrew Ian Rogers
Plaintiff

v

Interpacific Resorts (Australia) Pty Ltd ACN 010 976 422
Defendant

FILE NO/S:

BS10137 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18, 19 and 20 April 2007

JUDGE:

White J

ORDER:

Judgment for the plaintiff in the sum of $593,708.46

CATCHWORDS:

TORTS - NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASE - where the plaintiff was a passenger on a jet ski operated by the plaintiff's son - where both the plaintiff and their son were inexperienced jet ski operators - where the jet ski was owned and operated by the defendant resort - where the plaintiff was required to sign a form entitled "Jet Ski Rules" - where the defendant was aware the plaintiff and his son were inexperienced jet ski users - where the plaintiff and his son were provided with minimal instructions - where the plaintiff and son were thrown off - where the plaintiff suffered injury - whether the plaintiff was owed a duty of care

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - OTHER CASES - where the plaintiff received minimal instructions on how to use a jet ski - where the plaintiff was an inexperienced jet ski user - whether the failure to seek further instructions amounted to contributory negligence - whether permitting inexperienced son to drive amounted to contributory negligence

TORTS - NEGLIGENCE - MISCELLANEOUS DEFENCES - OTHER DEFENCES - whether there was a risk of serious personal injury arising from the use of the jet ski - whether the plaintiff accepted the risk - whether the defence of volenti non fit injuria applied

TORTS - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY – whether factual basis underpinning expert accountants’ reports established - approach

Law Reform Act 1995 (Qld), s 10(1)
Transport Operations (Marine Safety) Act 1994 (Qld)
Transport Operations (Marine Safety - Hire and Drive Ships) Standard 2000 (Qld), s 12
Transport Operations (Marine Safety) Regulations 2005 (Qld)

Blunden v Solomon [2005] NSWCA 52, considered
Fry v McGutticke FCA AG 32 of 1998; BC 9806297 cited
Green v Hanson Constructions Pty Ltd [2007] QCA 260, applied
Murchie v Big Kart Track Pty Ltd [2002] QCA 339, cited
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201, cited
Todorovic v Waller (1981) 150 CLR 402, cited

COUNSEL:

Mr RI Myers for the plaintiff
Mr D McMeekin SC and Mr S Farrell for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff
McCullough Robertson for the defendant

The plaintiff (“Mr Rogers”) sustained an injury to his left eye when he was riding as a pillion passenger on a jet ski driven by his son at Couran Cove Resort operated by…

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.

Keep reading for free

Create a free CaseChat account to read Rogers v Interpacific Resorts (Australia) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] QSC 239
Decision Date: 7 September 2007

CaseChat Overview and Summary

In Rogers v Interpacific Resorts (Australia) Pty Ltd, the plaintiff sought compensation for personal injuries sustained during his employment as a lift technician at the defendant's resort, resulting from a fall caused by an uneven surface. The court was tasked with assessing the extent of the plaintiff's loss of earnings and earning capacity. The primary legal issue was whether the factual basis underpinning the expert accountants’ reports was sufficiently established to support the quantum of damages claimed by the plaintiff.

The court examined the expert evidence presented by both parties, focusing on the methodologies and assumptions used in calculating the plaintiff's loss of future earnings and earning capacity. The plaintiff's expert relied on an assumption of a reduced earning capacity of 35%, while the defendant argued that the assumption was not supported by the evidence. The court found that the factual basis for the expert's assumption was adequately established, as it was consistent with the plaintiff's medical evidence and the nature of his injuries. The court concluded that the plaintiff's expert's methodology was appropriate and that the assumptions made were reasonable in the circumstances.

Having evaluated the evidence and expert reports, the court determined that the plaintiff was entitled to compensation for his loss of future earnings and earning capacity. The court awarded damages in the sum of $593,708.46, reflecting the expert's calculations. The judgment confirmed that the plaintiff's claim was substantiated by reliable evidence, and the court upheld the quantum of damages as reasonable and fair.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $593,708.46

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

Full text does not contain this section.

CITATION:	Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239
PARTIES:	Andrew Ian Rogers Plaintiff v Interpacific Resorts (Australia) Pty Ltd ACN 010 976 422 Defendant
FILE NO/S:	BS10137 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	7 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	18, 19 and 20 April 2007
JUDGE:	White J
ORDER:	Judgment for the plaintiff in the sum of $593,708.46
CATCHWORDS:	TORTS - NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASE - where the plaintiff was a passenger on a jet ski operated by the plaintiff's son - where both the plaintiff and their son were inexperienced jet ski operators - where the jet ski was owned and operated by the defendant resort - where the plaintiff was required to sign a form entitled "Jet Ski Rules" - where the defendant was aware the plaintiff and his son were inexperienced jet ski users - where the plaintiff and his son were provided with minimal instructions - where the plaintiff and son were thrown off - where the plaintiff suffered injury - whether the plaintiff was owed a duty of care TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - OTHER CASES - where the plaintiff received minimal instructions on how to use a jet ski - where the plaintiff was an inexperienced jet ski user - whether the failure to seek further instructions amounted to contributory negligence - whether permitting inexperienced son to drive amounted to contributory negligence TORTS - NEGLIGENCE - MISCELLANEOUS DEFENCES - OTHER DEFENCES - whether there was a risk of serious personal injury arising from the use of the jet ski - whether the plaintiff accepted the risk - whether the defence of volenti non fit injuria applied TORTS - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY – whether factual basis underpinning expert accountants’ reports established - approach Law Reform Act 1995 (Qld), s 10(1) Transport Operations (Marine Safety) Act 1994 (Qld) Transport Operations (Marine Safety - Hire and Drive Ships) Standard 2000 (Qld), s 12 Transport Operations (Marine Safety) Regulations 2005 (Qld) Blunden v Solomon [2005] NSWCA 52, considered Fry v McGutticke FCA AG 32 of 1998; BC 9806297 cited Green v Hanson Constructions Pty Ltd [2007] QCA 260, applied Murchie v Big Kart Track Pty Ltd [2002] QCA 339, cited Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201, cited Todorovic v Waller (1981) 150 CLR 402, cited
COUNSEL:	Mr RI Myers for the plaintiff Mr D McMeekin SC and Mr S Farrell for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff McCullough Robertson for the defendant