Strachan v McPhee

[2010] QSC 439

SUPREME COURT OF QUEENSLAND

CITATION:

Strachan v McPhee & Ors [2010] QSC 439

PARTIES:

GRAHAM EDWARD STRACHAN

(plaintiff)

v

IAN ROSS MCPHEE AND ELIZABETH MARGARET MCPHEE

(first defendant)

DAYGOLD PTY LTD

ACN 010 621 404

(second defendant)

FILE NO/S:

BS8920/07

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

22 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 – 17 November 2010

JUDGE:

Douglas J

ORDER:

Action dismissed with costs, including reserved costs, if any. 

CATCHWORDS:

TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – where the plaintiff suffered a head injury on the defendants’ property – where the head injury eventually caused him to suffer a retinal detachment, leaving him almost completely blind in his right eye – where the plaintiff’s case was that he fell and hit his head against the wall of a house because of a dangerous hole in the driveway leading to the entrance to the house – where it was not disputed that the defendants, as occupiers of the premises, owed a duty of care to the plaintiff – whether the evidence established on the balance of probabilities that the accident occurred in the circumstances alleged by the plaintiff

DAMAGES – MEASURE AND REMOTENESS OF
DAMAGES IN ACTIONS FOR TORT – MEASURE OF
DAMAGES – PERSONAL INJURIES – METHOD OF
ASSESSMENT – GENERALLY – where the plaintiff’s evidence was that he was a bricklayer and had been one for approximately 28 years – where there was no reliable evidence of the plaintiff’s history of earnings – where there was no independent evidence of the plaintiff working regularly – what damages should be allowed for past economic loss

Civil Liability Act 2003 (Qld)
Civil Liability Regulations 2003 (Qld), Sch 3 s 2, Sch 4

Personal Injuries Proceedings Act 2002 (Qld)

Fine v Geier [2003] QSC 73, cited
Jones v Bartlett (2000) 205 CLR 166, followed
Munzer v Johnston [2008] QSC, cited
R v Neal [1947] ALR (CN) 616, applied
Waller v McGrath [2009] QSC 158, cited

COUNSEL:

P Lott for the plaintiff

J Rolls for the defendants

SOLICITORS:

Winchester Young & Maddern Solicitors for the plaintiff

Barry & Nilsson Lawyers for the defendants

[1]      Douglas J:  Mr Strachan’s claim is for damages for an injury he says he suffered on 30 October 2004.  His case is that he fell and hit his head against the wall of a house on the defendants’ property because of a dangerous hole in the driveway leading to the entrance to the house.  The blow eventually caused him to suffer from a detached retina making him almost completely blind in his right eye. 

1. One of the most significant issues in the case is whether the accident in which he claims he suffered his injuries occurred in the circumstances alleged by him in the pleadings.  Another major issue is what the effects of the injuries he suffered were on his ability to work.  He says his previous occupation was as a bricklayer. 

1. The defendants were…