Zavodny v Couper - [2020] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION:

Zavodny v Couper & Anor [2020] QSC 42

PARTIES:

ALAN FRANK ZAVODNY

(Plaintiff)

v

KEVIN RAYMOND COUPER

(First Defendant)

and
QBE INSURANCE (AUSTRALIA) LIMITED

(Second Defendant)

FILE NO/S:

SC No 523 of 2016

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON:

13 March 2020

DELIVERED AT:

Cairns

HEARING DATE:

13, 14, 18, 19 November 2019

JUDGE:

Henry J

ORDERS:

1. Judgment for the plaintiff against the second defendant in the amount of $633,987.57.

2. I will hear the parties at 9.15 am 1 April 2020 as to costs, if the parties have not by then informed the Registry that costs are agreed.

CATCHWORDS:

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where plaintiff travelling by bike along road – where parked car reversed quickly from parking spot on side of street – whether plaintiff was keeping adequate lookout – whether plaintiff travelling at excessive speed – whether plaintiff ought to have been aware he was not readily visible to drivers of parked vehicles

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff had history of work as master of fishing vessels – where plaintiff injured ankle and shoulder when falling off bike caused by negligence of first defendant – where plaintiff developed adjustment disorder with depressed mood – where liability admitted – where quantum of past and future earnings in issue – whether injuries and psychiatric condition prevent plaintiff returning to chosen occupation – whether court can rely upon plaintiff’s assertions of what employment opportunities he would have perused

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – DAMAGES FOR GRATUITOUS SERVICES – where plaintiff received past care and assistance – whether past care and assistance meets threshold in s 59 Civil Liability Act 2003 (Qld)

Civil Liability Act 2003 (Qld), s 55, s 59

Civil Liability Regulation 2003 (Qld)
Transport Operations (Road Use Management—Road Rules)
Regulation 2009 (Qld), s 129(1)

Brown v Holzberger [2017] QCA 295, cited
Boon v Summs of Qld Pty Ltd [2015] QSC 162, cited
Minchin v Public Curator of Queensland [1965] ALR 91, cited
Nunan v Gerblich (1974) 10 SASR 39, cited
Calverly v Green (1984) 155 CLR 242, distinguished
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, considered
Guidera v Government Insurance Office (NSW) (1990) Aust Torts Reports 81-040; (1990) 11 MVR 423, considered
Rossi v Westbrook and Anor [2011] QSC 311, cited

COUNSEL:
A R Philp QC with R Armstrong for the plaintiff

M A Jonsson QC with R Morton for the defendants

SOLICITORS:
Roati Legal for the plaintiff

Barry.Nilsson for the defendants

Introduction

The plaintiff Mr Zavodny was injured when he fell from his bicycle when trying to avoid a vehicle being reversed negligently by the first defendant Mr Couper. He alleges his injuries, particularly…

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 Zavodny v Couper

Details

AGLC: Zavodny v Couper [2020] QSC 42
Case: [2020] QSC 42
Decision Date: 13 March 2020

CaseChat Overview and Summary

Zavodny v Couper is a case involving a dispute over negligence between the plaintiff, Zavodny, who was travelling by bike along a road, and the first defendant, Couper, who reversed a parked car quickly from a parking spot on the side of the street. The plaintiff was injured in the collision, and the case raised questions about whether the plaintiff was keeping an adequate lookout, whether he was travelling at an excessive speed, and whether he ought to have been aware that he was not readily visible to drivers of parked vehicles. The case also involved an examination of damages, particularly the loss of earnings and earning capacity of the plaintiff, who had a history of work as a master of fishing vessels. The plaintiff had injured his ankle and shoulder in the fall and subsequently developed an adjustment disorder with depressed mood. The court was required to determine whether the injuries and the plaintiff's psychiatric condition prevented him from returning to his chosen occupation, and whether the court could rely upon the plaintiff's assertions of what employment opportunities he would have pursued. The court also had to consider whether the past care and assistance received by the plaintiff met the threshold in section 59 of the Civil Liability Act 2003 (Qld). The court found in favour of the plaintiff and awarded damages of $633,987.57 against the second defendant. The court will hear the parties regarding costs on 1 April 2020, unless the parties inform the Registry that costs are agreed beforehand.

Orders

Orders of the court

1. Judgment for the plaintiff against the second defendant in the amount of $633,987.57.

2. I will hear the parties at 9.15 am 1 April 2020 as to costs, if the parties have not by then informed the Registry that costs are agreed.

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:	Zavodny v Couper & Anor [2020] QSC 42
PARTIES:	ALAN FRANK ZAVODNY (Plaintiff) v KEVIN RAYMOND COUPER (First Defendant) and QBE INSURANCE (AUSTRALIA) LIMITED (Second Defendant)
FILE NO/S:	SC No 523 of 2016
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	13 March 2020
DELIVERED AT:	Cairns
HEARING DATE:	13, 14, 18, 19 November 2019
JUDGE:	Henry J
ORDERS:	1. Judgment for the plaintiff against the second defendant in the amount of $633,987.57. 2. I will hear the parties at 9.15 am 1 April 2020 as to costs, if the parties have not by then informed the Registry that costs are agreed.
CATCHWORDS:	TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where plaintiff travelling by bike along road – where parked car reversed quickly from parking spot on side of street – whether plaintiff was keeping adequate lookout – whether plaintiff travelling at excessive speed – whether plaintiff ought to have been aware he was not readily visible to drivers of parked vehicles DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff had history of work as master of fishing vessels – where plaintiff injured ankle and shoulder when falling off bike caused by negligence of first defendant – where plaintiff developed adjustment disorder with depressed mood – where liability admitted – where quantum of past and future earnings in issue – whether injuries and psychiatric condition prevent plaintiff returning to chosen occupation – whether court can rely upon plaintiff’s assertions of what employment opportunities he would have perused DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – DAMAGES FOR GRATUITOUS SERVICES – where plaintiff received past care and assistance – whether past care and assistance meets threshold in s 59 Civil Liability Act 2003 (Qld) Civil Liability Act 2003 (Qld), s 55, s 59 Civil Liability Regulation 2003 (Qld) Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld), s 129(1) Brown v Holzberger [2017] QCA 295, cited Boon v Summs of Qld Pty Ltd [2015] QSC 162, cited Minchin v Public Curator of Queensland [1965] ALR 91, cited Nunan v Gerblich (1974) 10 SASR 39, cited Calverly v Green (1984) 155 CLR 242, distinguished Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, considered Guidera v Government Insurance Office (NSW) (1990) Aust Torts Reports 81-040; (1990) 11 MVR 423, considered Rossi v Westbrook and Anor [2011] QSC 311, cited
COUNSEL:	A R Philp QC with R Armstrong for the plaintiff M A Jonsson QC with R Morton for the defendants
SOLICITORS:	Roati Legal for the plaintiff Barry.Nilsson for the defendants