Geary v REJV Services Pty Ltd - [2012] QCA 238

SUPREME COURT OF QUEENSLAND

CITATION:

Geary v REJV Services Pty Ltd & Ors [2012] QCA 238

PARTIES:

JAMES LEONARD GEARY
(appellant)
v
REJV SERVICES PTY LTD
ACN 081 482 457
(first respondent)
ZINIFEX CENTURY LIMITED
ACN 006 670 300
(second respondent)
BRADKEN RESOURCES PTY LIMITED
ACN 098 300 988
(third respondent)
UNITED GROUP RESOURCES (SERVICES) LIMITED
ACN 010 045 299
(fourth respondent)

FILE NO/S:

Appeal No 489 of 2012
SC No 212 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

4 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2012

JUDGES:

Chief Justice, Muir and White JJA
Separate reasons for judgment of each member of the Court, Chief Justice and Muir JA concurring as to the orders made, White JA dissenting

ORDERS:

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of and incidental to the appeal, to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – PARTICULAR CASES – where respondents admitted liability and question at trial was quantum – where appellant injured in workplace – where trial judge held pre-existing degenerative spinal injury of appellant was symptomatic at time of accident – whether trial judge’s finding that the pre-existing condition was symptomatic was open on the evidence

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

COUNSEL:

R Douglas SC, with A Moon, for the appellant
G Crowe SC , with S Deaves, for the respondents

SOLICITORS:

Connolly Suthers Lawyers for the appellant
DibbsBarker for the respondents

CHIEF JUSTICE: The appellant brought a claim for damages for personal injuries sustained on 17 August 2005 because of the negligence of the respondents in the course of the appellant’s employment. Employed by the first respondent, the appellant was the driver of a dump truck at a mining operation. When a co-employee dumped a rock of huge proportion into the appellant’s truck, the appellant, who had been in the operator’s compartment, was knocked about and suffered an injury to his lumber spine. There was no issue in the proceeding about that, and liability in negligence was admitted. The issue on appeal was whether by the time of the accident, the appellant’s degenerative spine had become symptomatic. The trial Judge’s conclusion that it had meant the damages were substantially less than would otherwise have been awarded.

The evidence relied on by the Judge for his critical conclusion was rather limited, and bears close analysis now on appeal.

The learned Judge accepted evidence from a general practitioner, Dr David Alan Wallace, of that doctor’s “clear recollection” of the appellant’s having told him that the appellant had suffered back injuries which he attributed to playing rugby league football (as if of…

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: [2012] QCA 238
Decision Date: 4 September 2012

CaseChat Overview and Summary

The appeal before the Court of Appeal of the Supreme Court of New South Wales involved Geary, the appellant, and REJV Services Pty Ltd, the respondent. The dispute centred around the quantum of damages payable to Geary following a workplace injury. Geary had suffered an injury at work, and while the respondent admitted liability, the issue at trial was the extent of Geary's damages. The trial judge determined that Geary's pre-existing degenerative spinal injury was symptomatic at the time of the accident, a finding that Geary contested on appeal.

The legal issues before the Court were whether the trial judge's finding that Geary's pre-existing condition was symptomatic at the time of the workplace accident was open on the evidence, and if the Court should interfere with the judge's findings of fact, particularly regarding the credibility of witnesses. The Court was required to consider the principles of appellate review, especially in cases where the trial judge's findings are based on the assessment of witness credibility.

The Court of Appeal held that the trial judge's findings on the symptomatic nature of Geary's pre-existing condition were open on the evidence. The trial judge had carefully considered the medical evidence and the testimonies of the witnesses, and the Court was reluctant to interfere with such findings unless they were plainly wrong or no reasonable tribunal could have arrived at them on the evidence. The Court found no basis to conclude that the trial judge had erred in his assessment. Consequently, the appeal was dismissed, and Geary was ordered to pay the respondents' costs of the appeal.

The orders of the Court were that the appeal be dismissed and that Geary pay the respondents' costs of the appeal, to be assessed on the standard basis.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of and incidental to the appeal, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Geary v REJV Services Pty Ltd & Ors [2012] QCA 238
PARTIES:	JAMES LEONARD GEARY (appellant) v REJV SERVICES PTY LTD ACN 081 482 457 (first respondent) ZINIFEX CENTURY LIMITED ACN 006 670 300 (second respondent) BRADKEN RESOURCES PTY LIMITED ACN 098 300 988 (third respondent) UNITED GROUP RESOURCES (SERVICES) LIMITED ACN 010 045 299 (fourth respondent)
FILE NO/S:	Appeal No 489 of 2012 SC No 212 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	4 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2012
JUDGES:	Chief Justice, Muir and White JJA Separate reasons for judgment of each member of the Court, Chief Justice and Muir JA concurring as to the orders made, White JA dissenting
ORDERS:	1. The appeal be dismissed. 2. The appellant pay the respondents’ costs of and incidental to the appeal, to be assessed on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – PARTICULAR CASES – where respondents admitted liability and question at trial was quantum – where appellant injured in workplace – where trial judge held pre-existing degenerative spinal injury of appellant was symptomatic at time of accident – whether trial judge’s finding that the pre-existing condition was symptomatic was open on the evidence Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
COUNSEL:	R Douglas SC, with A Moon, for the appellant G Crowe SC , with S Deaves, for the respondents
SOLICITORS:	Connolly Suthers Lawyers for the appellant DibbsBarker for the respondents