Hopkins v WorkCover Queensland

SUPREME COURT OF QUEENSLAND

CITATION:	Hopkins v WorkCover Qld [2004] QCA 155
PARTIES:	SHANE WILLIAM HARRY HOPKINS (plaintiff/respondent) v WORKCOVER QUEENSLAND (defendant/appellant)
FILE NO/S:	Appeal No 8105 of 2003 SC No 2 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING  COURT:	Supreme Court at Maryborough
DELIVERED ON:	14 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2004
JUDGES:	McMurdo P, McPherson JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed
2.  Appellant to pay the respondent's costs of and

incidental to the appeal to be assessed

CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR MATTERS – OTHER CASES – Conduct of Trial – whether conduct of trial departed from pleadings – where aspects of evidence at trial not addressed upon – whether they may be relied on in appeal
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – whether trial judge erred in failing to discount sum for past economic loss - whether adequate allowance for vicissitudes of life and probability that degenerative spine would have affected respondent’s capacity to work – whether award for future economic loss within range of a proper exercise of discretion
WorkCover Queensland Act 1996 (Qld), s 285 Coulton v Holcombe (1986) 162 CLR 1, cited Franklin v Rabmusk Pty Ltd [1993] 1 QdR 258, cited
Gould v Mt Oxide Mines Ltd (in liq) (1916) 22 CLR 490, cited Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, followed Purkess v Crittenden (1965) 114 CLR 164, cited University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, cited Water Board v Moustakas (1988) 62 ALJR 209, cited Watts v Rake (1960) 108 CLR 158, cited Wilson v Peisley (1975) 7 ALR 571, followed
COUNSEL:	D V McMeekin SC for the appellant M Grant-Taylor SC for the respondent
SOLICITORS:	Bell Dixon Butler for the appellant Arnell and Cooper as Town Agents for McDuff and Daniel for the respondent

1. McMURDO P: I have read the reasons for judgment of Mackenzie J in which the facts and issues are set out. I will repeat only those necessary to explain my own reasons for agreeing that the appeal should be dismissed.

2. I agree with Mackenzie J that because the issues raised on appeal were litigated at trial, the appellant is not precluded from arguing those issues on appeal by the admissions in its pleading.

3. The appellant contends, first, that the learned primary judge erred in adopting the figure of $642 per week as the hypothetical earning capacity of the respondent had he not been injured. I agree with Mackenzie J's reasons for concluding that the finding was open on the evidence.

4. The appellant next contends that the learned primary judge did not sufficiently…