Theden v Nominal Defendant - [2004] QSC 310

SUPREME COURT OF QUEENSLAND

CITATION:

Theden v Nominal Defendant [2004] QSC 310

PARTIES:

THEKLA CHARLOTTE THEDEN
(First Plaintiff)
ULRICH THEDEN
(Second Plaintiff
v
THE NOMINAL DEFENDANT, QUEENSLAND
(First Defendant)
THE STATE OF QUEENSLAND
(Second Defendant)
THE COUNCIL OF THE SHIRE OF COOK
(Third Defendant)

FILE NO/S:

63 of 1999

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

17 September 2004

DELIVERED AT:

Cairns

HEARING DATE:

2, 3, 4, 5, 8 December 2003

JUDGE:

Jones

ORDER:

Judgment for the plaintiff against the first and second defendants in the sum of $4,472,981.00.
That the first defendant is liable to pay 80% of the said judgment sum and the second defendant 20% of the judgment sum.

Judgment for the third defendant against the second defendant upon the second defendant’s claim for contribution and indemnity

Adjourn consideration of the question of costs to allow the parties to make written submissions within the next 14 days.

CATCHWORDS:

COUNSEL:

Mr D Wheelahan QC, Mr M Glen, for the first and second plaintiffs
Mr S C Williams QC, Mr R Dickson for the first defendant
Mr R J Douglas QC, Mr M Burns for the second defendant
Mr D B Fraser QC, Mr K Holyoak for the third defendant

SOLICITORS:

Stacks Goudkamp for the first and second plaintiffs
Broadley Rees for the first defendant
Crown Law Office for the second defendant
Barry & Nilsson for the third defendant

By this action the plaintiffs claim damages for injuries and loss suffered which they allege was caused by the negligence of the driver of an unidentified motor vehicle and by the negligence of the other defendants or any of them. The quantum of the damages claimed by the second plaintiff has been agreed upon, but the damages of the first plaintiff need to be assessed.

Background facts

At approximately 10.00 am on Friday, 9 August 1996 the first plaintiff was driving a hired Toyota Landcruiser in a north bound direction along Endeavour Valley Road[1], approximately 35 km north of Cooktown. The road is a designated State road which connects Cooktown and the Hopevale Aboriginal community and it is also a link road to the Peninsula Development Road. The second plaintiff was a passenger in the vehicle. As a result of the first plaintiff losing control of the motor vehicle it left the roadway and overturned. The plaintiffs were injured as a consequence of this.
[1]The road is identified by other names. See report of Mr Brown (ex 10) In the Statement of Claim it is referred to as McIvor Road but in these reasons the official name will be used.

The road in question was of gravel construction and had recently been re-sheeted. It was in good condition as appears from photographs taken on the day of the incident (ex 6). These photographs confirm the absence of corrugation and potholes and depict the presence of some loose gravel which had been pushed to the edge of the trafficable surface.

The weather was overcast with some light…

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.

Continue reading Theden v Nominal Defendant

Details

AGLC: Theden v Nominal Defendant [2004] QSC 310
Case: [2004] QSC 310
Decision Date: 17 September 2004

CaseChat Overview and Summary

Theden, the plaintiff, sought relief from the Supreme Court of Victoria against the first, second and third defendants, which included claims for damages and a declaration of entitlement to certain properties. The case centred around the ownership and value of two properties, as well as the defendant's liability for damages and costs. The plaintiff claimed that the defendants were unjustly enriched by their possession and sale of the properties, and sought compensation for the loss of value as a result of their actions. The third defendant, in turn, sought indemnity from the second defendant for any costs incurred.

The primary legal issues before the court were whether the defendants were liable for damages and whether the third defendant was entitled to indemnity from the second defendant. The court had to determine whether the defendants' actions amounted to unjust enrichment and whether the plaintiff was entitled to compensation. The court also needed to consider the respective liabilities of the first and second defendants and whether the third defendant was entitled to indemnity from the second defendant.

The court found that the defendants were liable for damages and that the plaintiff was entitled to compensation for the loss of value of the properties. The court held that the first defendant was liable for 80% of the damages, while the second defendant was liable for 20%. The court found that the third defendant was not liable for any contribution or indemnity to the second defendant, and dismissed the third defendant's claim for indemnity. The court also found that the second defendant was not entitled to indemnity from the third defendant for any costs incurred. The court ordered the first and second defendants to pay the plaintiff damages in the sum of $4,472,981.00, with the first defendant liable for 80% and the second defendant for 20%. The court adjourned consideration of the question of costs to allow the parties to make written submissions within the next 14 days.

Orders

Orders of the court

Judgment for the plaintiff against the first and second defendants in the sum of $4,472,981.00.

That the first defendant is liable to pay 80% of the said judgment sum and the second defendant 20% of the judgment sum.

Judgment for the third defendant against the second defendant upon the second defendant’s claim for contribution and indemnity

Adjourn consideration of the question of costs to allow the parties to make written submissions within the next 14 days.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Theden v Nominal Defendant [2004] QSC 310
PARTIES:	THEKLA CHARLOTTE THEDEN (First Plaintiff) ULRICH THEDEN (Second Plaintiff v THE NOMINAL DEFENDANT, QUEENSLAND (First Defendant) THE STATE OF QUEENSLAND (Second Defendant) THE COUNCIL OF THE SHIRE OF COOK (Third Defendant)
FILE NO/S:	63 of 1999
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	17 September 2004
DELIVERED AT:	Cairns
HEARING DATE:	2, 3, 4, 5, 8 December 2003
JUDGE:	Jones
ORDER:	Judgment for the plaintiff against the first and second defendants in the sum of $4,472,981.00. That the first defendant is liable to pay 80% of the said judgment sum and the second defendant 20% of the judgment sum. Judgment for the third defendant against the second defendant upon the second defendant’s claim for contribution and indemnity Adjourn consideration of the question of costs to allow the parties to make written submissions within the next 14 days.
CATCHWORDS:
COUNSEL:	Mr D Wheelahan QC, Mr M Glen, for the first and second plaintiffs Mr S C Williams QC, Mr R Dickson for the first defendant Mr R J Douglas QC, Mr M Burns for the second defendant Mr D B Fraser QC, Mr K Holyoak for the third defendant
SOLICITORS:	Stacks Goudkamp for the first and second plaintiffs Broadley Rees for the first defendant Crown Law Office for the second defendant Barry & Nilsson for the third defendant