Bell v Mastermyne Pty Ltd

[2008] QSC 331

SUPREME COURT OF QUEENSLAND

CITATION:

Bell v Mastermyne Pty Ltd [2008] QSC 331

PARTIES:

SIMON ANTHONY BELL
(plaintiff)
v
MASTERMYNE PTY LTD
ACN 069 346 247
(defendant)

FILE NO/S:

Rockhampton 463 of 2001

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

18 December 2008

DELIVERED AT:

Rockhampton

HEARING DATE:

9 and 10 December 2008

JUDGE:

McMeekin J

ORDERS:

1.    There will be judgment for the plaintiff in the sum of $551,233.27.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – damages for loss of future earning capacity assessed on the basis that plaintiff had limited work in the mining industry before the accident – where the plaintiff’s injury was an aggravation of pre-existing condition - whether the plaintiff would have otherwise continued working in the mining industry

WorkCover Queensland Act 1996 (Qld), s 315

Calvert v Mayne Nickless Ltd [2005] QCA 263, followed
Hopkins v WorkCover Queensland [2004] QCA 155, followed
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, followed
Najdovski v Crnojlovic [2008] NSWCA 175, distinguished
Purkess v Crittenden (1965) 114 CLR 164 at 168, followed
Smith v Topp & Anor [2003] QCA 397, followed
Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86, cited

COUNSEL:

M Grant-Taylor SC for the plaintiff

B Harrison for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Swanwick Murray Roche Lawyers for the defendant

1. McMEEKIN J: Mr Bell seeks damages for a back injury suffered in the course of his employment with the defendant on 27 September 1998.  Mr Bell was then aged 26 years.[1]  Liability is not in issue.

   [1]Born 29 December 1971

Issues

1. The significant issues agitated were:

(a)        The credibility and reliability of the plaintiff’s evidence;

(b)        The significance of pre-accident symptoms of back pain;

(c)        The likely impact of pre-existing degeneration in the spine;

(d)        The extent of the plaintiff’s pre-accident earnings;

(e)        The likelihood of the plaintiff obtaining and maintaining employment in the mining industry; and

(f)        The extent of the plaintiff’s residual earning capacity.

Circumstances of the injury

1. Mr Bell was manhandling heavy cables when he experienced a sharp pain in his left buttock and the back of his upper left leg.[2]  Dr Boys adds further detail.  He recorded a history given to him in May 2001 of Mr Bell ‘kneeling and lying on [a]  conveyor’ when Mr Bell attempted to lift a cable and its connecting plug, a weight of approximately 40 to 50 kilograms. [3]

   [2]Exhibit 1 para 49.

   [3]Exhibit 53. See also Exhibit 63 at “Notes to Question 49”

Nature of injury

1. The orthopaedic surgeons are agreed that Mr Bell has suffered an internal derangement of the L5/S1 intervertebral disc.  This has occurred in the presence of pre-existing degenerative change in the lumbar spine.

Treatment

1. The plaintiff had initial treatment from a chiropractor, then a general…