Shaw v Menzies

[2011] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

Shaw v Menzies & Anor [2011] QCA 197

PARTIES:

JOHN SHAW
(appellant)
v
DAVID ANDREW MENZIES
(first respondent)
SUNCORP METWAY INSURANCE
(second respondent)

FILE NO/S:

Appeal No 12516 of 2010
SC No 9569 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2011

JUDGES:

White JA, Margaret Wilson AJA and Peter Lyons J
Judgment of the Court

ORDERS:

1.    Allow the appeal.

2.    In lieu of order 1 made below, order that judgment be entered for the appellant (plaintiff) against the respondent (second defendant) in the sum of $704,418.04.

3.    Affirm the order for costs made below.

4.    The second respondent pay the appellant’s costs of and incidental to the appeal.

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – where the plaintiff’s motorcycle collided with a semi-trailer driven by the first respondent – where at trial liability was apportioned as to 70 per cent against the plaintiff and 30 per cent against the first respondent – whether the primary judge erred in the apportionment of liability

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where the plaintiff appeals on the ground that the primary judge failed to make any award under s 59 Civil Liability Act 2003 (Qld) for gratuitous services and to award interest on the plaintiff’s assessed loss of past earning capacity – where the defendant concedes that interest of past economic loss ought to have been awarded – whether the primary judged erred in failing to award damages for gratuitous services

Civil Liability Act 2003 (Qld), s 59, s 59A, s 59B, s 59C, s 59D, s 60(1)(b)
Motor Accident Insurance Act 1994 (Qld), s 51
Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 28

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited
CSR Ltd v Eddy 92005) 226 CLR 1; [2005] HCA 64, considered
Elford v FAI General Insurance Company Ltd [1994] 1 Qd R 258; [1992] QCA 41, cited
Kriz v King [2007] 1 Qd R 327; [2006] QCA 351, cited
Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54, cited

COUNSEL:

R A I Myers for the appellant
S C Williams QC, with J Rolls, for the respondent

SOLICITORS:

Jon Kent Lawyers for the appellant
Jensen McConaghy for the respondent

1. THE COURT:  The appellant (the plaintiff) was injured in a collision between the motorcycle which he was riding, and a semi-trailer driven by the first respondent (the defendant)[1].  At trial, liability was apportioned as to 70 per cent against the plaintiff, and 30 per cent against the defendant.  The plaintiff has appealed against the decision of the learned trial Judge, both in relation to liability and quantum.