Winter v Bourboulas

[2005] QSC 164

SUPREME COURT OF QUEENSLAND

CITATION:

Winter v Bourboulas & Ors [2005] QSC 164

PARTIES:

ANTHONY GERARD WINTER
(plaintiff)

v

MATHEOUS BOURBOULAS and JOHN MATTHEW BOURBOULAS
(first defendant)

and

ALLIANZ AUSTRALIA INSURANCE LIMITED
(second defendant)

FILE NO:

BS3647 of 2004

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

17 June 2005

DELIVERED AT:

Brisbane

HEARING DATES:

30, 31 May 2005

JUDGE:

Douglas J

ORDER:

Judgment for the plaintiff for $828,314.65. 

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – RE‑EMPLOYMENT OF WORKER – where plaintiff was a flexographic printer – where plaintiff’s job required heavy lifting and squatting – where injuries sustained prevent plaintiff from being able to perform these tasks in the fashion required for work – where work trials for other possible employment had failed – whether 50% was an appropriate measure of loss of future earning capacity.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR ACTIONS IN TORT – MEASURE OF DAMAGES – LOSS OF EARNINGS AND EARNING CAPACITY – LEGAL PRINCIPLES – where evidence was led of the earnings of comparable employees of plaintiff’s former employer – whether the earnings of comparable employees were a more accurate indication of economic loss than an estimated amount based on the plaintiff’s “net notional income against his actual income from personal exertion”.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR ACTIONS IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – where plaintiff’s wife an assistant in nursing – where extensive initial care required – where some ongoing care continues to be required – where defendant submitted that the appropriate amount was $15.00 per hour – whether $15.00 per hour was an appropriate measure.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR ACTIONS IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGES – whether interest on a claim for past care is a “past monetary loss” within the meaning of s 55E of the Motor Accident Insurance Act 1994.

Delaney v Shepherd [2000] QCA 107, considered
Gitsham v Suncorp Metway Insurance Limited [2003] 2 Qd R 251, applied
Goode v Thompson [2002] QCA 138, compared
McChesney v Singh [2002] QSC 311, distinguished
Weightman v Noosa Shire Council& Ors [2001] QSC 300, considered

Motor Accident Insurance Act 1994 (Qld), s 55E

COUNSEL:

S C Williams QC with him R B Dickson for the plaintiff
M Grant-Taylor SC with him M P Kent for the defendants

SOLICITORS:

Campbell Standish Partners for the plaintiff
Sciacca Lawyers for the defendants

1. Douglas J:  The plaintiff, Mr Anthony Winter, was seriously injured in an accident on 15 October 2001 while driving his car to work.  The driver of another car on the opposite side of the road lost control of that vehicle, which crossed the median strip and collided head-on with Mr Winter’s vehicle.  His injuries consisted of a fractured right…