Zavodny v Couper & Anor
[2020] QSC 42 · Henry J
Mr Zavodny was a self-employed game fishing boat captain who was injured in September 2014 when he fell from his bicycle while swerving to avoid a car that reversed suddenly out of a parking bay in front of him in South Townsville. He was 59. He seriously injured his left ankle, which became infected and needed extensive treatment including skin grafting, and he also injured his left shoulder and developed depression and an adjustment disorder. The driver's insurer admitted the accident was the driver's fault but argued Mr Zavodny was partly to blame and disputed how much he had lost. The court found he was not at fault, since the car reversed abruptly with no warning. It accepted his injuries left him permanently unable to work at sea, his lifelong career. The judge awarded him about $634,000, mostly for past and future loss of earnings. His claim for gratuitous assistance (unpaid support from family and friends) failed the necessary legal threshold to be entitled to claim this head of damage.
Incident & injury
Plaintiff riding a bicycle fell when swerving to avoid a vehicle reversing negligently out of a parking bay in front of him
- Body regions
- Ankle / foot, Shoulder, Psychiatric, Skin / scarring (Left)
- Diagnoses
- Left medial malleolus fracture with osteomyelitis, Left ankle soft tissue injury with permanent sensory loss and scarring, Grade 2 left AC joint (shoulder) injury, Adjustment disorder with depressed mood
- Incident date
- 10 September 2014
- Location
- McIlwraith St, South Townsville, Queensland
Quick facts
- Date of judgment
- 13 March 2020
- Claim type
- MAIA
- Proceeding
- Trial
- Plaintiff outcome
- Successful
- Plaintiff age at injury
- 59
- Occupation
- Self-employed game fishing vessel master / ship's captain Technician / Trade Worker
- Liability
- Admitted
- ISV assessed
- 25 uplift applied · Item 142 (Serious ankle injury)
- Total damages
- $633,988 84th percentile · MAIA matters (n=32)
Outcome
The court found no contributory negligence and, liability being admitted, awarded the plaintiff $633,987.57 against the CTP insurer QBE. The claim for past gratuitous care failed for not meeting the six-hour/six-month threshold in s 59 Civil Liability Act.
Defendants (2)
1 Kevin Raymond Couper
Insured driver / tortfeasor
2 QBE Insurance (Australia) Limited
CTP Insurer
- Judgment against this defendant
- $633,988
- Medicare refund
- $4,770
Heads of damage
| General damages | $48,950 |
|---|---|
| Past economic loss | $266,054 |
| Interest on past EL | $11,019 |
| Past superannuation | $26,399 |
| Future loss of economic capacity | $206,094 |
| Future superannuation | $9,218 |
| Past care (Griffiths v Kerkemeyer) | $0 |
| Past care (paid) | $3,876 |
| Past special damages (plaintiff) | $15,283 |
| Interest on past special damages | $281 |
| Future special damages | $46,813 |
| Subtotal before refunds | $633,988 |
Key issues
Zavodny v Couper & Anor [2020] QSC 42
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