Hosmer v Cook Shire Council - [2012] QSC 91

SUPREME COURT OF QUEENSLAND

CITATION:

Hosmer v Cook Shire Council [2012] QSC 91

PARTIES:

DARRYL JOHN HOSMER
(Plaintiff)
v
COOK SHIRE COUNCIL
(Defendant)

FILE NO/S:

425 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

12 April 2012

DELIVERED AT:

Cairns

HEARING DATE:

21 November 2011; 22 November 2011; 9 March 2012

JUDGE:

Henry J

ORDER:

1. Judgment for the plaintiff in the sum of $413,600.43.
2. I will hear the parties as to costs at 9.15 am on 2 May 2012 and give leave for the parties to then appear by telephone or, if they are in mutual agreement to do so, to submit written argument by that time in lieu of their appearance.

CATCHWORDS:

DAMAGES – PERSONAL INJURIES – WORK RELATED INJURY – QUANTUM – where plaintiff injured himself at work – liability admitted by defendant at trial – soft tissue injury of plaintiff’s lumbo sacral spine, aggravating spinal stenosis and including focal protrusion – where pre-existing symptomatic condition – whether any causal effect – possibility that pre-existing condition would have eventually resulted in the same level of disability – relevance to assessment of damages – general, past economic loss, future economic loss, special damages and future expenses assessed

Bugge v REB Engineering Pty Ltd [1999] 2 QdR 227.
Cameron v Foster & Anor [2010] QSC 372.
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345.
Hopkins v Workcover Queensland [2004] QCA 155.
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
Purkess v Crittenden (1965) 114 CLR 164.
Smith v Topp & Anor [2003] QCA 397.

COUNSEL:

M Drew for the plaintiff
W D P Campbell for the defendant

SOLICITORS:

Suthers Lawyers (Maryborough) for the plaintiff
Bruce Thomas Lawyers (Brisbane) for the defendant

The plaintiff, Mr Hosmer, claims damages arising from an injury received in the course of his work for the defendant, Cook Shire Council (“the Council”) as a labourer.

The issues

Mr Hosmer pleads that on or about 29 April 2008 he suffered an injury to the lumbar spine when carrying out a task in which he was required to repeatedly swing a sledge hammer over his head, while kneeling, to strike dumpy pegs with significant force into hard and resistant ground.[1] It is common ground he was required to perform that task in the course of his employment with the Council. Mr Hosmer pleaded that the injury was caused by the Council’s breach of its obligations and duties.[2]
[1]Paragraph 4 of the plaintiff’s Amended Statement of Claim.
[2]Paragraph 6 of the plaintiff’s Amended Statement of Claim.

Despite its earlier denials in respect of liability the Council admitted liability at trial, subject to a qualification, flowing from its amendment at trial of paragraph 6 of its Amended Defence to read:

“As to the allegations in paragraph 6 of the Amended Statement of Claim, the defendant:

(a) admits that the incident referred to in paragraph 4 of the Statement of Claim was occasioned by…

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] QSC 91
Decision Date: 12 April 2012

CaseChat Overview and Summary

The case of Hosmer v Cook Shire Council involves a plaintiff who suffered a work-related injury, leading to a dispute over the quantum of damages to be awarded. The defendant, Cook Shire Council, admitted liability at trial. The plaintiff sustained a soft tissue injury to his lumbo sacral spine, which aggravated pre-existing spinal stenosis and included focal protrusion. The pre-existing condition was symptomatic, raising questions about its impact on the assessment of damages.

The court had to determine the extent to which the pre-existing condition influenced the plaintiff's disability and whether there was any causal effect of the injury on the progression of his condition. A critical issue was whether the pre-existing condition would have inevitably led to the same level of disability, and if so, how this should be factored into the assessment of damages. The court also had to assess the general, past economic loss, future economic loss, special damages, and future expenses claimed by the plaintiff.

The court reasoned that despite the pre-existing condition, the injury did aggravate the plaintiff's condition, contributing to his overall disability. The court awarded damages considering both the impact of the injury and the pre-existing condition, taking into account the plaintiff's general, past economic loss, future economic loss, special damages, and future expenses. The total amount awarded was $413,600.43. The court also scheduled a hearing for the parties to discuss costs and allowed for the possibility of submitting written arguments if the parties could reach a mutual agreement.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $413,600.43.

2. I will hear the parties as to costs at 9.15 am on 2 May 2012 and give leave for the parties to then appear by telephone or, if they are in mutual agreement to do so, to submit written argument by that time in lieu of their appearance.

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:	Hosmer v Cook Shire Council [2012] QSC 91
PARTIES:	DARRYL JOHN HOSMER (Plaintiff) v COOK SHIRE COUNCIL (Defendant)
FILE NO/S:	425 of 2010
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	12 April 2012
DELIVERED AT:	Cairns
HEARING DATE:	21 November 2011; 22 November 2011; 9 March 2012
JUDGE:	Henry J
ORDER:	1. Judgment for the plaintiff in the sum of $413,600.43. 2. I will hear the parties as to costs at 9.15 am on 2 May 2012 and give leave for the parties to then appear by telephone or, if they are in mutual agreement to do so, to submit written argument by that time in lieu of their appearance.
CATCHWORDS:	DAMAGES – PERSONAL INJURIES – WORK RELATED INJURY – QUANTUM – where plaintiff injured himself at work – liability admitted by defendant at trial – soft tissue injury of plaintiff’s lumbo sacral spine, aggravating spinal stenosis and including focal protrusion – where pre-existing symptomatic condition – whether any causal effect – possibility that pre-existing condition would have eventually resulted in the same level of disability – relevance to assessment of damages – general, past economic loss, future economic loss, special damages and future expenses assessed Bugge v REB Engineering Pty Ltd [1999] 2 QdR 227. Cameron v Foster & Anor [2010] QSC 372. Fazlic v Milingimbi Community Inc (1982) 150 CLR 345. Hopkins v Workcover Queensland [2004] QCA 155. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. Purkess v Crittenden (1965) 114 CLR 164. Smith v Topp & Anor [2003] QCA 397.
COUNSEL:	M Drew for the plaintiff W D P Campbell for the defendant
SOLICITORS:	Suthers Lawyers (Maryborough) for the plaintiff Bruce Thomas Lawyers (Brisbane) for the defendant