Andrews v Westpac Banking Corporation

SUPREME COURT OF QUEENSLAND

CITATION:

Andrews v Westpac Banking Corporation [2012] QSC 22

PARTIES:

TARA KIM ANDREWS

(Plaintiff)

AND

WESTPAC BANKING CORPORATION

(Defendant)

FILE NO/S:

S316/10

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

16 February 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

1-3 February 2012

JUDGE:

McMeekin J

ORDERS:

Judgment for the plaintiff in the sum of $271,240

CATCHWORDS

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES –  where liability admitted - where the plaintiff suffered injury to her lower back at work – whether that injury has permanent consequences – whether the plaintiff is prevented from pursuing sedentary employment – whether the plaintiff had a future at her previous place of work – where loss of earning capacity in issue – where damages in issue

Civil Liability Act 2003 (Qld)

Colmark (Australia) Pty Ltd v Hall [1998] QCA 105

COUNSEL:

G.C.Crow SC, S.Deaves for the Plaintiff
W Campbell for the Defendant

SOLICITORS:

VAJ Byrne & Co Lawyers for the Plaintiff
HWL Ebsworth Lawyers for the Defendant

1. McMEEKIN J: The plaintiff, Tara Andrews, claims damages for personal injury suffered on 12 December 2006 in an accident at her workplace – a chair on which she was sitting collapsed and she fell to the floor. She was then employed by the defendant, the Westpac Banking Corporation (“Westpac”) as a customer service representative.

1. Liability is admitted. I am required to assess damages.

1. Ms Andrews was born on 5 July 1965. She was 41 when injured and is now 46 years of age.

The Issues

1. Whilst it is clear that Ms Andrews fell heavily the incident seems to have been relatively innocuous. However the plaintiff contends for damages in excess of $1M. The defendant, on the other hand, submits the damages are properly described as de minimis. The different analyses reflect the differing assumptions adopted by the parties as to the assessment of the plaintiff’s credit.

1. The plaintiff submitted that the fall resulted in a significant back injury that has effectively totally destroyed her earning capacity. The defendant contended:

(a)        The plaintiff suffered a soft tissue injury in the incident which recovered within weeks. All contemporaneous records were consistent with the recovery expected following a soft tissue injury;

(b)        If there were any ongoing symptoms they were greatly exaggerated and were caused by an entirely separate mechanism, namely a car trip to the gemfields undertaken in March 2007;

(c)        The plaintiff’s credit suffered severely for two reasons:

(i)         because of her attempts to “keep secret” the fact of the car trip just mentioned which, even on her own account, aggravated her symptoms;

(ii)        because she failed to reveal to her employer, or her rehabilitation coordinator, that she was actively pursuing a damages claim, at least as early as 27 September 2007, and at a time when her workers’ compensation claim was yet to be finalised and her employer was still actively seeking to return her…