Hoppe v Burns

SUPREME COURT OF QUEENSLAND

CITATION:

Hoppe v Burns [2010] QSC 490

PARTIES:

CRAIG HOPPE

Plaintiff

And

GARY ANTHONY BURNS

Defendant

FILE NO/S:

S525 of 2007

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

30 March 2010

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

22-23 March 2010

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff in the sum of $306,860.84

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where plaintiff suffered injury to right upper arm – where liability admitted – where assessment of earning capacity affected by plaintiff’s work history and character

Uniform Civil Procedure Rules 1999, rr 547(3)(b)(i) and 548(1)(d)

Bathis v Startrack Express & Ors [2009] QCS 331

COUNSEL:

R. Morton for the plaintiff

G. Crow for the defendant

SOLICITORS:

Morton and Morton for the plaintiff

Gadens Lawyers for the defendant

1. McMeekin J: The plaintiff, Mr Craig Hoppe, claims damages for personal injuries suffered in the course of his employment with the defendant, Gary Anthony Burns, on 5 December 2005.  Liability was admitted in the course of the trial.  I am required to assess damages.

1. Mr Hoppe was born on 25 May 1972 and so is presently 37 years of age.  He was 33 years of age when injured. 

Injuries Suffered

1. The parties seem content to rely upon Dr Nave’s assessment of the injury.  He described it in the following terms:

“Mr Hoppe has suffered a compound injury to the right upper arm involving deeper structures.  The documentation indicated that the biceps muscle belly was completely divided and there was 20 percent division of the median nerve and five percent division of the musculocutaneous nerve.  It would appear that there has also been total division of the medial antebrachial nerve, a cutaneous nerve supplying the medial forearm.”

1. The consequence of the injury is that Mr Hoppe has suffered both a sensory deficit and a motor deficit in the right arm together with slight restriction in the movement of the right elbow and right thumb.  Mr Hoppe indicated that he has a loss of sensation in his thumb, index and middle finger of his right hand and altered sensation on the medial side of his right forearm.

1. Dr Nave assessed the impairment at 32 percent loss of efficient use of the right arm and equated that to 19 percent whole person impairment.  So much is uncontroversial. 

The Issues

1. The critical issue debated was the impact that this injury had on Mr Hoppe’s earning capacity. In relation to that assessment the defendant submitted:

(a)    Mr Hoppe had been guilty of defrauding both Centrelink and the Commissioner of Taxation and it followed that his evidence could not be relied upon when he spoke of his disabilities and his efforts to obtain employment;

(b)   Mr Hoppe had suffered injuries prior to the accident that were of significance;

(c)    Mr Hoppe’s drink driving history was such that it would significantly and adversely affect his chances of…