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, citedCOUNSEL:
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
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
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
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
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
The plaintiff had initial treatment from a chiropractor, then a general…
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- AGLC
- Bell v Mastermyne Pty Ltd [2008] QSC 331
- Case
- [2008] QSC 331
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the appropriate measure of damages for loss of future earning capacity and the remoteness of the damages. Specifically, the court had to determine the extent to which Bell's pre-existing condition affected his earning capacity and whether the injury was an aggravation of that condition. The court also needed to assess whether Bell would have continued working in the mining industry if not for the accident and to what extent the employer was liable for the loss of earning capacity.
The court assessed Bell's earning capacity by considering his limited work history and the nature of his injuries. It held that Bell's pre-existing condition did not preclude him from having a future in the mining industry, and the injury was a significant aggravation of that condition. The court found that it was reasonable to expect Bell to continue working in the industry had he not been injured. Consequently, the damages were assessed based on the loss of future earning capacity in the mining industry. The court awarded Bell $551,233.27 in damages, reflecting the quantifiable loss of future earnings and the impact of the injury on his earning capacity.
The court's judgment concluded with an order for Mastermyne Pty Ltd to pay the plaintiff the sum of $551,233.27 in damages for the injuries sustained.
Orders
Orders of the court
1. There will be judgment for the plaintiff in the sum of $551,233.27.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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