Stayte v Thompson

[2000] QCA 467

SUPREME COURT OF QUEENSLAND

CITATION:

Stayte & Ors v Thompson & Anor [2000] QCA 467

PARTIES:

JOHN MERVYN STAYTE
(first plaintiff/respondent)
SAMUEL SVEN STAYTE
(suing by his next friend JOHN MERVYN STAYTE)
(second plaintiff/not party to the appeal)
BENGT ROBERT STAYTE
(suing by his next friend JOHN MERVYN STAYTE)
(third plaintiff/not party to the appeal)
v
JOCELYN MARGARET THOMPSON
(first defendant/not party to the appeal)
SUNCORP INSURANCE AND FINANCE
(second defendant/appellant)

FILE NO:

Appeal No 4995 of 2000
SC No 12 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury – Quantum Only

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

17 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2000

JUDGES:

Davies and Pincus JJA, Byrne J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed with costs to be assessed.  Judgment made on 11 May 2000 varied by substituting for $556,968.80 the sum of $308,768.80.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES EXCESSIVE - where plaintiff had decided to cease regular employment prior to injury

Husher v Husher [1999] HCA 49; (1999) 197 CLR 138 applied

COUNSEL:

R F King-Scott for the appellant
The respondent appeared on his own behalf

SOLICITORS:

Barry Beaverson & Stenson (Mackay) for the appellant
The respondent appeared on his own behalf

1. DAVIES JA:  I agree with the reasons for judgment of Byrne J and with the orders he proposes.  I also agree with the additional reasons of Pincus JA.

1. PINCUS JA:   I have read the reasons of Byrne J.  There was, as his Honour points out, a lack of evidence in support of the view that had his wife not been injured in June 1994, the respondent could have been expected thereafter to earn substantial sums of money by his labours.  The onus was on the respondent to prove this and it was not proved.  In particular there was no evidence on which a rational assessment could be made of the likely profits (if any) from the respondent's boat building activities.  It was not, in my respectful opinion, right to fill in this serious gap in his evidence by a mere assumption that those activities would have been quite profitable.

1. I agree, substantially for the reasons given by Byrne J, that the appeal should be allowed and the judgment given by the learned primary judge varied in accordance with the proposal of Byrne J.

1. BYRNE J: This appeal concerns the economic loss components of an award of damages to the respondent, who suffered “nervous shock” in connection with severe injuries his wife sustained on 25 June 1994 that reduced her to a persistent vegetative state. Compensation for the consequential diminution in the respondent’s earning capacity was assessed at $100,000 to trial and $180,000 for the future. For the appellant, it is said that those allowances are manifestly excessive. They were arrived at in this way.

1. Had the respondent worked a…