Duck v Woolworths Ltd

[2011] QDC 312

DISTRICT COURT OF QUEENSLAND

CITATION:

Duck v Woolworths Ltd [2011] QDC 312

PARTIES:

DARRYL DUCK
(plaintiff)

V

WOOLWORTHS LIMITED (ABN 88 000 014 675)
(defendant)

FILE NO/S:

BD 1663 of 2010

DIVISION:

Civil trial

PROCEEDING:

Claim

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

15 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 and 2 December 2011

JUDGE:

Andrews SC, DCJ

ORDER:

JUDGMENT FOR THE PLAINTIFF AGAINST THE DEFENDANT IN THE SUM OF $136,732.21

CATCHWORDS:

DAMAGES – personal injury – measure of damages

COUNSEL:

McClymont for the plaintiff
Morton for the defendant

SOLICITORS:

Sciacca’s Lawyers & Consultants for the plaintiff
DLA Phillips Fox for the defendant

1. The plaintiff was employed by Woolworths as a night manager at Woolworths store at Stanthorpe.  The plaintiff was performing the duties of his employment at about 2 am on 10 November 2005.  He was walking to the back dock of the store to lock rubbish bins.  He was accessing the dock area by ladder.  The rungs of the ladders were cylindrical. I find that he slipped when his feet were on the top rung and fell.

Issues

1. The issues apparent from the pleadings were not all pursued. Those which remained live by the time of counsel’s addresses were liability, and relevant to quantum were:

(a)       whether the plaintiff had a pre-existing history of injuries to his feet and   ankles from training and participating in endurance events;

(b)       whether shin splints from causes unrelated to the alleged fall are a cause  of his loss;

(c)       the extent of the plaintiff’s recovery from any lisfranc injury;

(d)      whether the plaintiff ceased employment with Woolworths because of injury or to move to the Gold Coast;

(e)       whether the plaintiff earned less after moving to the Gold Coast;

(f)       the plaintiff has suffered a disruption of his L5/S1 inter vertebral disc   from causes unrelated to the events of 10 November 2005 and it is an issue whether that will significantly restrict his earning capacity in the future with the consequence that his lost earning capacity is caused by his back condition and not by an injury the subject of the claim in this proceeding.

1. Woolworths accepts that the plaintiff sustained a lisfranc fracture to the right foot as a result of his slip and fall. There is evidence that the plaintiff had a pre-existing history of injuries to his feet and ankles but there was no argument that they have been disabling, save for a Morton’s neuroma. There is no evidence or argument that the plaintiff suffered subsequent lisfranc fractures to his right foot from causes unrelated to the alleged fall. There is no evidence or argument that the plaintiff made a full recovery from any lisfranc fracture sustained on 10 November 2005. Woolworths argues instead, that the plaintiff’s injury stabilised two or three years ago and will remain in its current state. Whether the plaintiff will have surgery for the injury is an issue.

Liability

1. Counsel for Woolworths advised that if the court accepted the plaintiff’s evidence as…