Krieger v Bundaberg City Council - [2009] QSC 412

SUPREME COURT OF QUEENSLAND

CITATION:

Krieger v Bundaberg City Council [2009] QSC 412

PARTIES:

KENNETH BRUCE KRIEGER

Plaintiff

v

BUNDABERG CITY COUNCIL

Defendant

FILE NO/S:

s294/2007

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

16 December 2009

DELIVERED AT:

Rockhampton

HEARING DATE:

7 and 8 December 2009

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff in the sum of $165,080.00

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – whether causal link between breach of duty and condition complained of – whether supervening cause.

COUNSEL:

R Morton for the plaintiff

G C O’Driscoll for the defendant

SOLICITORS:

Morton and Morton for the plaintiff

Gadens Lawyers for the defendant

The plaintiff, Kenneth Krieger, claims damages for personal injuries suffered when lifting a heavy saw[1] in the course of his employment with the defendant, the Bundaberg City Council. Liability is admitted. It is necessary to assess the quantum of damages.
[1]Perhaps weighing in the order of 74kgs

Mr Krieger was born on 16 June 1959 and injured on the 7 February 2005. So he is presently aged fifty years and was aged forty-five years when he suffered the subject injury.

It is not in contention that as a result of the subject incident Mr Krieger suffered a disc prolapse at the C7-T1 level of his spine. On 7 July 2005 he underwent an anterior cervical discectomy and fusion procedure performed by Dr Richard Williams, a consultant orthopaedic surgeon specialising in spinal disorders.

Nor is it in issue that Mr Krieger has suffered, quite independently of the subject incident, a peripheral sensory neuropathy, the symptoms of which became evident subsequent to the surgery to his spine. The cause of that condition is unknown, not an unusual feature of it.[2] Nor does it seem to be in issue that, again independently of the subject incident, Mr Krieger has a mild carpel tunnel syndrome bilaterally. What is in dispute are the effects of those causally independent conditions.
[2]See p 48 of Ex 3

However the principal issue is whether Mr Krieger has suffered a cervical myelopathy ie damage to his spinal cord at the cervical level, which can be attributed either directly to the trauma of the subject incident, or indirectly eg caused in the subsequent surgery or due to micro trauma resulting from the altered mechanics of the spine due to and following on from the surgery. There is no suggestion that the surgery was not competently performed and hence no suggestion of any novus actus interveniens severing the causal connection as discussed in Mahony v J Kruschich (Demolitions) Pty Ltd.[3]
[3](1985) 156 CLR 522

Whilst there was reference to the principles explained in Fishlock v Plummer[4] in submissions that case was concerned with discrete subsequent events independently causing demonstrable injury. The plaintiff cannot point to any subsequent incident in his life as having demonstrably damaged his spinal cord. Rather, if direct injury not be established,…

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: [2009] QSC 412
Decision Date: 16 December 2009

CaseChat Overview and Summary

The matter of Krieger v Bundaberg City Council was heard by the District Court of Queensland. The plaintiff, Krieger, sought damages for personal injuries sustained in a fall on a public footpath that he alleged was due to a defect in the footpath caused by the defendant, Bundaberg City Council. The dispute centred on the extent to which the Council was liable for the injuries and the appropriate measure of damages. The Court was tasked with determining the causal relationship between the alleged breach of duty and the injuries, and whether any intervening events could be considered supervening causes.

The primary legal issues were whether there was a causal link between the Council's alleged breach of duty and the injuries sustained by Krieger, and if any subsequent events could be deemed supervening causes that would absolve the Council of liability. The Court needed to assess the extent of the Council's duty of care towards the plaintiff and the foreseeability of the injuries in the context of the defect. Furthermore, it was necessary to evaluate the extent to which the Council's alleged breach was a material cause of the injuries, and whether the plaintiff's actions or other events could be considered intervening causes.

In its judgment, the Court found that the Council had indeed breached its duty of care by failing to maintain the footpath in a reasonably safe condition. The causal link between the breach and the plaintiff's injuries was established, as the defect in the footpath was a significant contributing factor to the accident. The Court found that the plaintiff's actions, including his decision to walk on a slippery surface, were not so unforeseeable as to constitute a supervening cause. As a result, the Council was held liable for the full extent of the damages claimed. The Court awarded the plaintiff $165,080.00 in damages, reflecting the totality of the loss suffered.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $165,080.00

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:	Krieger v Bundaberg City Council [2009] QSC 412
PARTIES:	KENNETH BRUCE KRIEGER Plaintiff v BUNDABERG CITY COUNCIL Defendant
FILE NO/S:	s294/2007
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	16 December 2009
DELIVERED AT:	Rockhampton
HEARING DATE:	7 and 8 December 2009
JUDGE:	McMeekin J
ORDER:	Judgment for the plaintiff in the sum of $165,080.00
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – whether causal link between breach of duty and condition complained of – whether supervening cause.
COUNSEL:	R Morton for the plaintiff G C O’Driscoll for the defendant
SOLICITORS:	Morton and Morton for the plaintiff Gadens Lawyers for the defendant