DISTRICT COURT OF QUEENSLAND
CITATION:
Keong v Queensland Rail Ltd [2018] QDC 31
PARTIES:
GLEN JOSEPH KEONG
(Plaintiff)
v
QUEENSLAND RAIL LTD
(Defendant)
FILE NO/S:
4502/13
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
15 March 2018
DELIVERED AT:
Brisbane
HEARING DATE:
30, 31 October and 1, 2 November and written submissions of 13, 22 and 28 November 2017
JUDGE:
Reid DCJ
ORDER:
Judgment for the plaintiff in the sum of $153,150.19
No order as to costs.
CATCHWORDS:
Damages – master/servant action – psychological injury - need for profiling – consideration of circumstances relevant to need for special enquiry of applicant’s suitability – determination profiling necessary – likely result of such profiling – consequence that plaintiff would not have been employed in same capacity – consideration of likelihood of plaintiff being employed in another capacity – measure of damages – consideration of plaintiffs psychiatric vulnerability – predisposing him to psychiatric injury
Onassis and Calogeropoulos v Vergottis (1968) 2 Lloyd’s Rep 403 - considered
Withyman v NSW [2013] NSWCA 10 – referred to
Finn v The Roman Catholic Trust Corporation for the Dioceses of Townsville [1997] 1 QdR 29 – followed
Clarricoats v JJ Richard and Sons Pty Ltd [2017] QSC 214 – referred to
Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168 – applied
Koehlerv Cerebos (Australia) Ltd [2005] 222 CLR 44 – referred to
Tabet v Scott (2010) 240 CLR 538 – considered
Rossi v Westbrook & Anor [2011] QSC 311 – referred to
Rossi v Westbrook & Anor [2013] QCA 102 0 – referred to
Jones v Dunkel (1959) 101 CLR 298 – applied
Workers Compensation and Rehabilitation Act 2003 (Qld) s 305B - 305E
COUNSEL:
J Kimmins of counsel for the plaintiff
R Morton of counsel for the defendant
SOLICITORS:
Morris Blackburn Lawyers for the plaintiff
Hall and Wilcox for the defendant
Introduction
The plaintiff claims damages from the defendant (referred to as QR), his employer at the time, for the consequences of what is primarily a psychological injury said to have occurred as a result of three separate incidents which occurred at work on 2 October and 12 and 17 November 2011. Each incident occurred during the performance of the plaintiff’s duties as an After Dark Customer Service Officer (“AD employee”). The first incident occurred at the Burpengary Railway station, the next at Zillmere station and the last at the Morayfield station. The defendant denies liability for the consequences of any of the incidents. The quantum of the plaintiff’s claim is, in any case, also disputed.
Background
The plaintiff was born on 20 December 1984, so was 26 at the time of all three incidents. The defendant determined to employ AD employees in about 2002. Prior to doing so it commissioned a report from Risk Assessment International Pty Ltd entitled “Report on Risk Assessment for Proposed ‘After Dark’ Security Initiative’” (RMI Report). The plaintiff was engaged as an AD employee from 2 August 2010. He’d previously been employed by…
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- Case
- [2018] QDC 31
- Decision Date
CaseChat Overview and Summary
The court concluded that profiling was necessary to assess the plaintiff's suitability for the position of train driver. It was determined that the likely result of such profiling would be that the plaintiff would not have been employed in that capacity. However, the court found that there was a significant likelihood of the plaintiff being employed in another capacity within the company, albeit not in the same role. The court also considered the plaintiff's psychiatric vulnerability, which predisposed him to psychiatric injury, in assessing the measure of damages. The court awarded damages in the sum of $153,150.19 to the plaintiff.
The court's reasoning was based on the need for profiling to assess the plaintiff's suitability for the position, the likely consequence of such profiling, and the likelihood of alternative employment within the company. The court also took into account the plaintiff's psychiatric vulnerability in determining the measure of damages. The court made no order as to costs.
Orders
Orders of the court
Judgment for the plaintiff in the sum of $153,150.19
No order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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