Clark v Tieman Industries Pty Ltd - [2011] VSC 500

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2010 05920

JOHN CLARK	Plaintiff
v
TIEMAN INDUSTRIES PTY LTD	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	19-23 September 2011
DATE OF JUDGMENT:	4 October 2011
CASE MAY BE CITED AS:	Clark v Tieman Industries Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 500

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ACCIDENT COMPENSATION – Workplace injuries – Negligence – Breach of statutory duty – Liability admitted – Assessment of damages – Principles for assessing loss of earning capacity – Relationship between pre-existing cirrhosis of the liver and effects of the workplace injuries.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T J Casey QC with Mr D J Hancock	Arnold Thomas & Becker
For the Defendant	Mr J R Moore QC with Ms R L Kaye	Lander & Rogers

TABLE OF CONTENTS

Introduction and summary....................................................................................................... 1

Evidence and assessment of witnesses.................................................................................. 2

Mr Clark’s personal and work history prior to the accident................................................ 3

Mr Clark’s alcohol consumption prior to the accident......................................................... 4

Mr Clark’s health prior to the accident.................................................................................. 7

Circumstances of the accident................................................................................................. 9

Non-contentious medical evidence......................................................................................... 9

Physical injuries sustained in the accident and hospitalisation until March 2008........... 9
The course of the physical injuries between March 2008 and trial................................. 11
The course of the pre-existing conditions between 15 December 2007 and trial........... 13
Psychological consequences of the accident..................................................................... 15

Mr Clark’s alcohol consumption since 15 December 2007................................................ 15

Mr Clark’s mobility and quality of life since 15 December 2007..................................... 15

Contentious medical evidence.............................................................................................. 17

The cause of Mr Clark’s cirrhosis of the liver................................................................... 17
Effect of the physical injuries on the pre-existing conditions.......................................... 20
Effect of the pre-existing conditions on Mr Clark’s life expectancy................................ 21
Effect of the pre-existing conditions on Mr Clark’s work capacity................................. 22

Assessment of Mr Clark’s damages..................................................................................... 29

Pain and suffering.............................................................................................................. 29
Loss of earning capacity.................................................................................................... 30

General principles for assessing loss of earning capacity........................................... 30
Assessment of past economic loss............................................................................... 33
Assessment of future loss of earning capacity............................................................ 35
Fox v Wood.................................................................................................................. 36

Proposed order........................................................................................................................ 36

HIS HONOUR:

Introduction and summary

The plaintiff, John Clark, claims damages from the defendant, Tieman Industries Pty Ltd (‘Tieman’) for injuries he sustained on Saturday 15 December 2007 as a result of a fall from the back of a truck in the course of his employment with Tieman (‘accident’). Mr Clark relies on two causes of action: negligence, and breach of statutory duty constituted by alleged breaches of regs 3.3.3 and 3.3.4 of the Occupational Health and Safety Regulations 2007.

Mr Clark was assessed as having a ‘serious injury’ for the purposes of s 134AB of the Accident Compensation Act 1985 (‘Act’). He has brought this proceeding in accordance with that section.

The proceeding was originally listed for trial by jury. At the commencement of the trial, I made an order by consent that the trial proceed as a cause. On the second day of the trial, Tieman admitted liability…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 500
Decision Date: 4 October 2011

CaseChat Overview and Summary

In the case of Clark v Tieman Industries Pty Ltd, the claimant, Clark, pursued compensation for injuries sustained in a workplace accident against his employer, Tieman Industries Pty Ltd. Clark's injuries arose from an incident where he was struck by a falling object at work. The employer admitted liability for the injuries, but the dispute centred on the assessment of damages, specifically the extent of Clark's loss of earning capacity and the relationship between his pre-existing medical condition, cirrhosis of the liver, and the injuries sustained in the workplace accident.

The primary legal issues before the court involved determining the appropriate principles for assessing loss of earning capacity in light of Clark's pre-existing cirrhosis of the liver, and how this condition interacted with the injuries from the workplace accident. The court needed to ascertain the degree to which the workplace injuries exacerbated Clark's existing health condition and consequently impacted his ability to work. The court also had to consider whether the employer could be held liable for the full extent of the damages or if there were any mitigating factors due to the pre-existing condition.

The court examined the principles for assessing loss of earning capacity and noted the importance of considering both the pre-existing condition and the effects of the workplace injuries. It held that while Clark's cirrhosis of the liver did exist prior to the accident, the injuries from the workplace incident had a significant impact on his ability to work. The court concluded that the employer was liable for the full extent of the damages related to the loss of earning capacity, finding that the workplace injuries were a material contributing factor. The court awarded Clark compensation based on a comprehensive assessment of his reduced earning capacity post-accident.

The court ordered that Tieman Industries Pty Ltd pay Clark the assessed damages for loss of earning capacity, reflecting the impact of both the workplace injuries and the pre-existing cirrhosis of the liver. The decision emphasised the necessity of a detailed analysis of the interplay between pre-existing conditions and subsequent workplace injuries in determining compensation.

Orders