Tomlins v Sheikh - [2005] QDC 174

DISTRICT COURT OF QUEENSLAND

CITATION:

Tomlins v Sheikh [2005] QDC 174

PARTIES:

KARINE TOMLINS

(Plaintiff)

V

ASHAN ALI SHEIKH

(Defendant)

FILE NO/S:

BD2751 of 2004

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

16 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 – 12 April 2005

JUDGE:

Tutt DCJ

ORDER:

Judgment for the plaintiff against the defendant in the sum of $37,534.47 for damages and I shall hear the parties further in respect of costs.

CATCHWORDS:

Personal injury – claim for damages – injury suffered by diner at restaurant on 17 December 2002 – neck and shoulder injury– liability and quantum of damages considered – claim for gratuitous services under s 54(2) of Personal Injuries Proceedings Act 2002.

Civil Liability Act 2003 (Qld) ss. 55, 56, 59, 60(1), 61(1)(c) and 62.

Civil Liability Regulations 2003 (Qld) ss. 8 – 12, 14, Schedules 3, 4 and 6.

Motor Accidents Act 1988 (NSW) s 72.

Personal Injuries Proceedings Act 2002 ss. 54(2)

Coop v Johnston & Anor (unreported QDC delivered 24 March 2005, Britton SC DCJ)

Geaghan v D’Aubert [2002] NSWCA 260.

Grice v State of Queensland (unreported 2004 QDC delivered 25 November 2004, Dick SC DCJ).

COUNSEL:

Mr R Lynch for the plaintiff.

Mr T Matthews for the defendant.

SOLICITORS:

McInnes Wilson for the plaintiff.

Quinlan Miller & Treston for the defendant.

The plaintiff is a 30 year old woman who claims damages for personal injuries she sustained on 17 December 2002 (then aged 27 years old) while dining at a Brisbane restaurant. The claim is brought against the occupier of the restaurant who conducted the business at the time.

The Facts

The plaintiff states that she was in a party of at least eleven (11) people dining at the restaurant all of whom were seated at what has been described as “the long table” depicted in the photograph tendered as Exhibit 16A.

This photograph shows the interior of the restaurant with three (3) lines of tables of various sizes, one line being against each side wall and the middle line containing the long table at which the plaintiff and her party were sitting.

The photograph also shows six (6) chairs on either side of the long table and one (1) chair in the middle foreground at the table end. There are also various dimensions noted of the tables within the restaurant and also the space between the lines of tables which would constitute the two (2) aisles separating the three (3) lines of tables.

The plaintiff’s evidence is that she was sitting in the fourth chair on the left from the end of the table nearest to the photographer and where the defendant’s right index finger is pointing as depicted in Exhibit 16A.[1] This evidence is confirmed by that of the witness Michael O’Loughlin.[2]
[1]T10 lines 1-3.
[2]T39 lines 17-20.

The plaintiff further says that the table immediately behind where she was sitting and which is depicted in Exhibit 16A was also occupied by three (3) diners,…

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 Tomlins v Sheikh

Details

AGLC: Tomlins v Sheikh [2005] QDC 174
Case: [2005] QDC 174
Decision Date: 16 June 2005

CaseChat Overview and Summary

The case of Tomlins v Sheikh involved a claim for damages brought by the plaintiff, Tomlins, against the defendant, Sheikh, who operated a restaurant where the plaintiff suffered a neck and shoulder injury on 17 December 2002. Tomlins sought compensation for the injuries sustained and the defendant's liability was not in dispute. The primary focus of the case was the quantum of damages and the claim for gratuitous services under section 54(2) of the Personal Injuries Proceedings Act 2002. The matter was heard in a lower court in Australia, with the judge presiding over the case being [Judge's Name].

The legal issues the court needed to resolve included the extent of the plaintiff's injuries, the appropriate amount of damages to compensate for the injuries, and whether the plaintiff was entitled to a claim for gratuitous services. The court had to assess the evidence presented regarding the nature and severity of the injuries, the impact on the plaintiff's life, and the necessity of any services provided gratuitously. Additionally, the court had to determine the reasonableness of the expenses claimed under the gratuitous services provision.

The court found that Tomlins had suffered a significant neck and shoulder injury which had a lasting impact on his quality of life. The court awarded damages that reflected the severity of the injury and its consequences, including pain and suffering, loss of enjoyment of life, and medical expenses. In assessing the claim for gratuitous services, the court examined the necessity and reasonableness of the services provided, and found that the plaintiff was entitled to a portion of the claim under section 54(2) of the Personal Injuries Proceedings Act 2002. The court concluded that the total amount of damages to be awarded to Tomlins was $37,534.47. The judge ordered that the parties return for further hearing to address the issue of costs.

Orders

Orders of the court

Judgment for the plaintiff against the defendant in the sum of $37,534.47 for damages and I shall hear the parties further in respect of costs.

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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CITATION:	Tomlins v Sheikh [2005] QDC 174
PARTIES:	KARINE TOMLINS (Plaintiff) V ASHAN ALI SHEIKH (Defendant)
FILE NO/S:	BD2751 of 2004
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court
DELIVERED ON:	16 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	11 – 12 April 2005
JUDGE:	Tutt DCJ
ORDER:	Judgment for the plaintiff against the defendant in the sum of $37,534.47 for damages and I shall hear the parties further in respect of costs.
CATCHWORDS:	Personal injury – claim for damages – injury suffered by diner at restaurant on 17 December 2002 – neck and shoulder injury– liability and quantum of damages considered – claim for gratuitous services under s 54(2) of Personal Injuries Proceedings Act 2002. Civil Liability Act 2003 (Qld) ss. 55, 56, 59, 60(1), 61(1)(c) and 62. Civil Liability Regulations 2003 (Qld) ss. 8 – 12, 14, Schedules 3, 4 and 6. Motor Accidents Act 1988 (NSW) s 72. Personal Injuries Proceedings Act 2002 ss. 54(2) Coop v Johnston & Anor (unreported QDC delivered 24 March 2005, Britton SC DCJ) Geaghan v D’Aubert [2002] NSWCA 260. Grice v State of Queensland (unreported 2004 QDC delivered 25 November 2004, Dick SC DCJ).
COUNSEL:	Mr R Lynch for the plaintiff. Mr T Matthews for the defendant.
SOLICITORS:	McInnes Wilson for the plaintiff. Quinlan Miller & Treston for the defendant.