Fleming v State of Queensland

DISTRICT COURT OF QUEENSLAND

CITATION:

Fleming v State of Queensland [2016] QDC 334

PARTIES:

SHANE DONALD FLEMING

(plaintiff)

v

STATE OF QUEENSLAND

(defendant)

FILE NO:

122 of 2015

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

16 December 2016

DELIVERED AT:

Cairns

HEARING DATES:

14 to 22 March 2016

JUDGE:

Morzone QC DCJ

ORDERS:

1.       Judgment for the plaintiff against the defendant for $465,167.50.

2.     Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – plaintiff suffered injury after falling through rotten timber stairs of police station – liability admitted.

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – causation – previous ongoing injury and sequelae – post accident injury and recovery – whether secondary to negligence – multiple injuries claimed – credit of plaintiff – veracity and genuineness of the plaintiff’s evidence and reported symptoms – causation – whether suffered loss of earning capacity – assessment of damages.

LEGISLATION:
Civil Liability Act 2003 (Qld), s 55, s 59
Civil Liability Regulation 2003 (Qld)
CASES:
State Government Insurance Commission v Oakley (1990) 10 MVR 570

Tabet v Gett (2010) 240 CLR 537Wallace v Kam (2013) 297 ALR 383

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

COUNSEL:

C. Newton for the plaintiff
J. Sorbello for the defendant

SOLICITORS:

Andrew Krumins Lawyers for the plaintiff
Crown Law for the defendant

1. Almost 10 years have passed since the plaintiff’s zest for life plummeted when, acting on his sense of duty to report a matter to police, he fell heavily through rotten timber steps that collapsed under him at the local police station. 

1. The defendant accepts liability but disputes the nature and extent of the injuries and damages claimed by the plaintiff.

Background

1. The plaintiff was born on 23 August 1972.  He was 34 years old on the date of his injury and is now 44 years old. 

1. The plaintiff’s medical records disclose his endurance with multiple conditions and injuries since leaving school.  The parties have helpfully chronicled the medical evidence in this regard, and I highlight:

·        1992 – twisted testicles;

·        1993 – abdominal hernia injury, appendectomy;

·        1993-1996 – groin and leg problems requiring surgery and associated surgical complications, low back pain, further surgery to remove staple, depressive symptoms, ongoing neurological pain in the left groin and leg pain and spasms, neuroma of left foot as consequence of removal of tendon and infection of groin, 10% assessed loss of left leg mobility; numbness underfoot when walking and difficulty moving foot in cold; muscle spasms in the leg; ongoing pain in the groin and knee; overweight; feeling depressed; memory problems and daily headaches;

·        1997 – past and ongoing pain, numbness and spasms in left leg; accidental ingestion…