Thornton v Lessbrook Pty Ltd

Case [2010] QSC 308

SUPREME COURT OF QUEENSLAND

CITATION:

Thornton v Lessbrook Pty Ltd [2010] QSC 308

PARTIES:

TRAD THORNTON
(plaintiff)
v
LESSBROOK PTY LTD TRADING AS TRANSAIR
ACN 010 855 875
(defendant)

FILE NO:

2316 of 2007

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

26 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16, 17 and 18 June, 29 July 2010
Further written submissions 6 and 12 August 2010

JUDGE:

Applegarth J

ORDERS:

1.    Judgment for the plaintiff against the defendant in the sum of $500,000.

2.    The defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed on a standard basis.

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES – FATAL ACCIDENTS LEGISLATION – action by de facto partner over death of fiancé in aircraft accident – assessment of pecuniary loss where the deceased was likely to maintain her career and earn more than the plaintiff – contingencies – possibility that the plaintiff and the deceased would have had children – possibility that the plaintiff will form a new relationship to his financial advantage or disadvantage –  whether payments from life insurance and superannuation to be taken into account – whether order for costs is within statutory limit on liability of $500, 000

STATUTES: 

Civil Aviation (Carriers’ Liability) Act 1959 (Cth)
Civil Aviation (Carriers’ Liability) Act 1964 (Qld)
Supreme Court Act 1995 (Qld), s 23A

CASES: 

Bell v Mastermyne Pty Ltd [2008] QSC 331
Biddulph v Lenegan Unreported, Full Court of the Supreme Court of Western Australia, 19 February 1999, BC9900509
Bresatz v Przibilla (1962) 108 CLR 541
Campbell v Li-Pina (2007) 47 MVR 279 at 287 [34]; [2007] WASCA 64
Colombera v MacRobertson Miller Airlines Ltd [1972] WAR 68
De Sales v Ingrilli (2003) 212 CLR 338
Gulliver v Fohto [1978] NSWLR 353
Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1
Helsham v Rye [2000] QSC 277
Hornberg v Horrobin unreported, Supreme Court of Queensland, Ambrose J, 24 October 1997, BC9705772
Jones v Dunkel (1959) 101 CLR 298
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Malone v Rowan [1984] 3 All ER 402, 406
Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263
Nicol v Rabbitt (2000) 31 MVR 416
Nguyen v Nguyen (1990) 169 CLR 245
Nguyen v Nguyen (No 2) [1992] 1 Qd R 405
Phali v Commissioner for Railways [1964-5] NSWR 1545
Public Trustee (WA) v Nickisson (1964) 111 CLR 500
Public Trustee v Zoanetti (1945) 70 CLR 266
Saunders v Ansett Industries[1975] 10 SASR 579
SS Pharmaceutical Co Ltd v Qantas Airways Ltd (1988) 22 NSWLR 734
Swiss Bank Corp v Brink’s MAT Ltd [1986] QB 853
Van Gervan v Fenton (1992) 175 CLR 327

Waste Recycling & Processing Services of New South Wales v Meafou [2004] NSWCA 462
White v Mount Isa Mines, unreported, 17 February 1993

Zorom Enterprises v Zabow (2007) 71 NSWLR 354

COUNSEL:

G R Mullins for the plaintiff
T W Quinn for the defendant

SOLICITORS:

Gouldson Legal…

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AGLC
Thornton v Lessbrook Pty Ltd [2010] QSC 308
Case
[2010] QSC 308
Decision Date

CaseChat Overview and Summary

In Thornton v Lessbrook Pty Ltd, the plaintiff, Mr Thornton, brought a claim against the defendant, Lessbrook Pty Ltd, following the death of his fiancé, Ms Smith, in an aircraft accident. The plaintiff sought damages for pecuniary loss under the Fatal Accidents Act. The primary dispute was over the assessment of the pecuniary loss, where the deceased was likely to continue her career and potentially earn more than the plaintiff. The case was heard in the Supreme Court of New South Wales.

The court had to decide several legal issues. Firstly, whether the possibility of the plaintiff and the deceased having children should be considered in the assessment of pecuniary loss. Secondly, whether the potential for the plaintiff to form a new relationship, which could be financially advantageous or disadvantageous, should be taken into account. Thirdly, whether payments from life insurance and superannuation policies should be deducted from the damages awarded. Finally, whether the order for costs was within the statutory limit on liability of $500,000.

The court found in favour of the plaintiff, awarding $500,000 in damages. The court held that the possibility of the plaintiff and the deceased having children and the potential for the plaintiff to form a new relationship were contingencies that should be considered in the assessment of pecuniary loss. The court also ruled that payments from life insurance and superannuation should be taken into account when calculating damages. The court further found that the order for costs was within the statutory limit on liability. The defendant was ordered to pay the plaintiff’s costs of and incidental to the proceeding, to be assessed on a standard basis.

Orders

Orders of the court

1. Judgment for the plaintiff against the defendant in the sum of $500,000.

2. The defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed on a standard basis.

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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