Ferguson v McDonalds Australia Pty Ltd

The appellant, Ferguson, brought proceedings against the respondent, McDonalds Australia Pty Ltd, seeking damages for injuries sustained in the course of his employment. The primary judge, Hughes DCJ, had made findings regarding the appellant's injuries and awarded damages. The appeal was heard by Tobias JA and Gzell J.

The central legal issues before the appellate court concerned whether the medical evidence sufficiently demonstrated an aggravation of a pre-existing condition and a consequent diminution in the appellant's capacity to work. Furthermore, the court was required to consider the threshold for an award of damages for non-economic loss under the *Civil Liability Act 2002*, and the reliability of the primary judge's findings, particularly those based on video evidence, in the context of potential appellate intervention.

The appellate court allowed the appeal, setting aside the verdict, judgment, and orders of the primary judge. Their Honours found that the primary judge's findings were not adequately supported by the evidence, particularly concerning the extent of aggravation of the appellant's pre-existing condition and the resulting impact on his earning capacity. The court determined that a new trial limited to the assessment of damages was necessary to address these deficiencies. The costs of the first trial were ordered to abide the result of the second trial, and the respondent was ordered to pay the appellant's costs of the appeal, with a certificate under *The Suitors’ Fund Act 1951* granted if applicable.