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 2009DIVISION:
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 CourtORDERS:
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 28Briginshaw 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, citedCOUNSEL:
R A I Myers for the appellant
S C Williams QC, with J Rolls, for the respondentSOLICITORS:
Jon Kent Lawyers for the appellant
Jensen McConaghy for the respondent
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.
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- AGLC
- Shaw v Menzies [2011] QCA 197
- Case
- [2011] QCA 197
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the primary judge had erred in apportioning liability between the parties and in failing to award damages for gratuitous services and interest on the plaintiff's assessed loss of past earning capacity. The court was required to review the evidence presented at trial and determine whether the primary judge's findings were correct.
The court found that the primary judge had erred in the apportionment of liability, finding that the plaintiff was only 50 per cent liable for the accident. The court also found that the primary judge had failed to award damages for gratuitous services and interest on the plaintiff's assessed loss of past earning capacity. The court held that the primary judge had erred in these respects and allowed the appeal. The court ordered that judgment be entered for the plaintiff against the second defendant in the sum of $704,418.04 and affirmed the order for costs made below. The second respondent was ordered to pay the plaintiff's costs of and incidental to the appeal.
Orders
Orders of the court
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.
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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