Kerr v Qld Rail - [2007] QSC 402

SUPREME COURT OF QUEENSLAND

CITATION: Kerr v Qld Rail [2007] QSC 402
PARTIES: SHAUN IRVINE KERR
(plaintiff)
v
QR
(defendant)
FILE NO: 7487 of 2006
DIVISION: Trial Division
PROCEEDING: Trial
ORIGINATING
COURT: Supreme Court, Brisbane
DELIVERED ON: 14 December 2007
DELIVERED AT: Supreme Court, Brisbane
HEARING DATE: 1, 2 August 2007
JUDGE: Douglas J
ORDER: Judgment for the plaintiff for $1,278,502.75. Further
submissions sought as to costs.
CATCHWORDS: DAMAGES — MEASURE AND REMOTENESS OF
DAMAGES IN ACTIONS FOR TORT — MEASURE OF
DAMAGES — PERSONAL INJURIES — LOSS OF
EARNINGS AND EARNING CAPACITY — ONUS OF
PROOF — where the plaintiff suffered injuries at work —
where only the quantum of damages was in issue — where
the plaintiff was found to have a very low residual income
earning capacity — whether the plaintiff’s damages were
caused by acceleration of pre-existing degenerative condition
— whether the evidence established that loss of income
earning capacity arose in part from such condition — onus of
proof — appropriate method of allowing for such condition
in assessment of damages
WorkCover Queensland Act 1996 s318(2), s318(3), s318(5)
Calvert Mayne Nickless Ltd [2004] QSC 449, considered
McGill v Shield Contractors Pty Ltd [1998] 2 Qd R 398,
considered
Smith v Topp [2002] QSC 341, considered
Smith v Topp [2003] QCA 397, considered
COUNSEL: Mr M Grant-Taylor SC with him Mr L J Barnes for the
plaintiff
Mr R J Lynch for the defendant
SOLICITORS: Schultz Toomey O’Brien Solicitors for the plaintiff
DLA Phillips Fox for the defendant

Douglas J: On 10 November 2000 Mr Kerr, who was then aged 26, having been born on 24 June 1974, was injured at work when attempting to compact earth using a machine called a “whacker packer”. It is a machine that compacts earth by pounding a rectangular hard rubber pad onto the dirt by a petrol driven motor with a handle that is held down by the operator. It is a heavy tool and was being operated by Mr Kerr in a crouched position under a temporary bridge. Normally he would stand upright when using it. While he was crouched over the machine it began to “kangaroo hop”, struck him in the stomach, lifted him off the ground and threw him on to his left side. He felt a twinge as if he had broken some ribs and found it hard to breathe. He stopped work on the machine and sought treatment from his general practitioner on the same day. Liability for his damages is not in issue but the amount of them is.
Plaintiff’s work history
Mr Kerr was working for the defendant, QR, as a track worker at the time of the accident. The work he performed at QR before his accident was heavy labouring work which he loved. It required some heavy lifting, the use of jack hammers, drills, grinders and compactors, another name for the “whacker packer” which caused his injury.
He began working for QR in March 1993 and…

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.

Continue reading Kerr v Qld Rail

Details

AGLC: Kerr v Qld Rail [2007] QSC 402
Case: [2007] QSC 402
Decision Date: 14 December 2007

CaseChat Overview and Summary

In Kerr v Queensland Rail, the plaintiff brought an action for personal injury damages against the defendant, his former employer, after sustaining injuries at work. The only issue before the court was the quantum of damages. The plaintiff argued for a significant award reflecting his lost earning capacity and future medical expenses. The defendant countered that the plaintiff's pre-existing degenerative spinal condition, rather than the workplace injury, was the primary cause of his symptoms and that any award should be reduced accordingly.

The court examined the evidence from various medical experts to determine the cause of the plaintiff's injuries. It found that the temporal association between the workplace incident and the onset of the plaintiff's symptoms, along with the nature of the trauma, made it more likely that the injury was caused by the workplace incident rather than pre-existing degenerative changes. The court rejected the defendant's argument that the rib cage provided sufficient protection against such injuries and accepted that the trauma could cause the injury. The court also considered the nature of the plaintiff's work, which involved heavy manual labour, and determined that a 30% discount on the award for future impairment of earning capacity was appropriate to account for the likelihood that the plaintiff's pre-existing condition would have eventually affected his working capacity.

The court concluded that the plaintiff was entitled to an award reflecting his lost earning capacity and future medical expenses, adjusted for the appropriate discount. The final judgment awarded the plaintiff $1,278,502.75. Further submissions on costs were sought.

Orders

Orders of the court

Judgment for the plaintiff for $1,278,502.75. Further

submissions sought 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

One curious, unexplained feature of his evidence was that, even though he had been the plaintiff’s treating doctor, he refused to confer with the plaintiff’s lawyers when they were preparing the matter for trial, although he did confer with the defendant’s solicitors and barrister by telephone. Conclusion as to the cause of the disc protrusion It seems to me that the explanations offered by Drs Campbell, Day and Todman are inherently more likely than those proffered by Drs Weidmann and Redmond. The temporal association between the trauma and the “very localised symptoms to his mid back”[1] provide a logical and plausible explanation for the disc protrusion shown by the scan. It also seems likely to me that Dr Campbell’s evidence about the link between the trauma and the large disc protrusion in Mr Kerr’s mid-back being more likely because it was uncommon to have such a protrusion in the mid- back makes sense. The defendant’s argument that the trauma was unlikely to be connected with the protrusion because of the protection afforded by the rib cage fails to convince me that any pre-existing degenerative change actually was the main cause of the problem. It seems clear on the evidence that such a trauma can cause such injuries to the disc, even if they are unusual, and the coincidence in time between the trauma and this injury persuades me that the injury was caused by the trauma rather than any degenerative changes. The evidence does not satisfy me to the necessary standard that degenerative changes already existing in Mr Kerr caused his injury because of the possibility that some such changes may occur over a longer period of time than between the injury and the taking of the first scan. It seems much more likely that the trauma caused the injury. [1] T62 ll. 1-2 Both Dr Weidmann and Dr Redmond also proceeded on a misunderstanding as to the force and the nature of the blow suffered by Mr Kerr. Dr Redmond had not mentioned the theory of pre-existing degenerative changes in his earlier reports and admitted that he had never seen degeneration in the thoracic spine of a man of the plaintiff’s age in the absence of trauma. He also conceded that age related degeneration should have worsened over time and that Mr Kerr’s had not. Dr Weidmann’s concession that one could not say with any reasonable measure of precision when Mr Kerr would have developed similar problems in the absence of this trauma also makes it extremely difficult for the defendant to argue that it has discharged its evidentiary burden of showing what the future effects of any pre- existing condition were; see Purkess v Crittenden (1965) 114 CLR 164, 168 and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. Mr Grant-Taylor SC conceded, however, that it was appropriate to apply a discount to the award for future impairment of earning capacity to reflect the prospect that, absent the accident, the degenerative state of the plaintiff’s spine would probably have interfered at some point with his working capacity. One also needs to consider the fact that his was heavy manual work that may well have affected him physically in any event. He submitted that a contingencies discount of 25 per cent adequately addressed the exercise required by what was decided by the Court of Appeal in Smith v Topp [2003] QCA 397 at [38]. In my view, taking into account the nature of the work he did, a more appropriate discount percentage would be 30 per cent. The plaintiff’s residual earning capacity

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kerr v Qld Rail [2007] QSC 402
PARTIES:	SHAUN IRVINE KERR (plaintiff) v QR (defendant)
FILE NO:	7487 of 2006
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	14 December 2007
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	1, 2 August 2007
JUDGE:	Douglas J
ORDER:	Judgment for the plaintiff for $1,278,502.75. Further submissions sought as to costs.
CATCHWORDS:	DAMAGES — MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT — MEASURE OF DAMAGES — PERSONAL INJURIES — LOSS OF EARNINGS AND EARNING CAPACITY — ONUS OF PROOF — where the plaintiff suffered injuries at work — where only the quantum of damages was in issue — where the plaintiff was found to have a very low residual income earning capacity — whether the plaintiff’s damages were caused by acceleration of pre-existing degenerative condition — whether the evidence established that loss of income earning capacity arose in part from such condition — onus of proof — appropriate method of allowing for such condition in assessment of damages
WorkCover Queensland Act 1996 s318(2), s318(3), s318(5)
Calvert Mayne Nickless Ltd [2004] QSC 449, considered McGill v Shield Contractors Pty Ltd [1998] 2 Qd R 398, considered Smith v Topp [2002] QSC 341, considered Smith v Topp [2003] QCA 397, considered
COUNSEL:	Mr M Grant-Taylor SC with him Mr L J Barnes for the plaintiff Mr R J Lynch for the defendant
SOLICITORS:	Schultz Toomey O’Brien Solicitors for the plaintiff DLA Phillips Fox for the defendant