Roberts v Ace Ceramics Pty Ltd
[1997] QDC 352
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Roberts v Ace Ceramics Pty Ltd[1997] QDC 352
- Add to List
Roberts v Ace Ceramics Pty Ltd[1997] QDC 352
Roberts v Ace Ceramics Pty Ltd[1997] QDC 352
DISTRICT COURT | Plaint No 11 of 1997 |
CIVIL JURISDICTION
JUDGE DODDS
SHARON LESLEY ROBERTS | Plaintiff |
and
ACE CERAMICS PTY LTD ACN 001247632 | Defendant |
MAROOCHYDORE
DATE 10\10\97
JUDGMENT
The plaintiff brought an action for the loss of consortium of her husband due to injury to him in his employment on the 15th of April 1994. Judgment was entered in default of pleading. Damages are assessed below.
The plaintiff was born on the 14th of December 1965. She is now 31 approaching 32 years of age. Her husband was born on 24th of February 1963. He is now 34 years of age. They were married on the 8th of August 1987. The husband injured his back at work on the 15th of April 1994. He sued his employer for damages. Judgement in that action was given earlier this year. Liability was concluded against the employer. His Honour the trial Judge accepted medical evidence to the effect the plaintiff suffered injury to his lumbar spine which caused him to be permanently disabled to the extent of 5% to 10% loss of function of his spine. He also accepted that pre existing degeneration the plaintiff's back would have lead to similar symptoms at a point approximately ten years into the future from the date of injury.
Evidence was given by the plaintiff and by her husband. Their evidence was credible and not improbable. There is no reason not to accept their evidence.
According to the plaintiff and supported to an extent by her husband his injury and the ongoing consequences have caused a detrimental alteration in their life together. Whereas pre injury they would take part in and enjoy physical activities together they can, no longer do so. Her husband is either no longer able to or is apprehensive about taking part in activities. Household tasks which they used to share such as taking it in turns to bath their children are no longer shared. The plaintiff now does it all including the heavier household work. Work her husband used to do in the yard of their dwelling of a heavier nature such as digging and shifting of gardening materials he no longer does. The plaintiff must do them if they are to be done. Her husband has recently begun doing the mowing again but must take it carefully. The sexual side of their life only altered the extent that some positions now cannot be utilised.
As a consequence her husbands mood is generally more despondent than it used to be. His self esteem is evidently down. All this has an adverse affect on her. The quality of their society together is spoiled.
An award of damages for loss of consortium to a marriage partner is to compensate for “...an actual temporal loss, deprivation of some material temporal advantage capable of estimation in money.” Toohey -V- Hillier 1955 92 CLR 618 at 625. It is to compensate for “....the material consequences of the loss and impairment of the marriage partner, society, companionship and service in the home and the expense of (that persons) can and treatment incurred as a result of the injury.” page 627.
I am conscious of the fact that care must be taken to avoid double compensation; Thorne -V- Strohfeld 1997 1 QR 540. In the husbands action the trial Judge said “There is a Griffith -V- Kirkemeyer claim in modest terms. The plaintiff's (husband's) disability has created a need for domestic services which are agreed as to past care at $4005 and as to future care is assessed...but without further discounting for contingencies at $4160.” In accordance with the decision of the High Court in Van Girvan -V- Fenton (1992) 175 CLR 327 the award must have been to compensate for the creation of a need in her husband for these services. They would usually have been provided by the plaintiff. Her claim in part is for loss of her husbands services.
A number of cases wen put before me; Livingstone -V- Sharp judgment by Kneipp J 6\11\92; Morgan -V- Metcalfe & Suncorp Insurance and Finance judgment by Shanahan DCJ 29\9\93; Foot -V- Emery judgment by Dodds DCJ 20\12\98; King -V- CSR Limited & Work Cover Queensland judgment by Dodds DCJ 24\3\97; Martin -V- Nursing Staff Pty Ltd judgment by Boulton DCJ January 1993.
In this case the plaintiff is a relatively young woman. If the marriage were to continue and both the plaintiff and her husband lived a normal life span then the loss has commenced at an early stage. Pre existing degeneration would probably have caused similar symptoms by about ten years post injury. Unless some other traumatic event occurred within that ten year period the onset of symptoms would probably have been gradual and at an older age and thus adjusted to.
It seems to me that an appropriate award of damages for the plaintiff is an amount of $12000 inclusive of interest.
I give judgment for the plaintiff against the defendant for $12000 with costs to be taxed.