McGill v Shield Contractors Pty Ltd - [1997] QCA 359

IN THE COURT OF APPEAL	[1997] QCA 359
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No.4632 of 1996
[Shield Contractors P/L v. McGill]
BETWEEN:

SHIELD CONTRACTORS PTY LTD
ACN 010 128 293

(Defendant) Appellant

AND:

JOHN NICOL McGILL

(Plaintiff) Respondent
Davies JA Demack J

Mackenzie J

Judgment delivered 21 October 1997

Judgment of the Court

APPEAL ALLOWED. JUDGMENT OF TRIAL DIVISION SET ASIDE WITH COSTS TO BE TAXED. MATTER IS REMITTED TO TRIAL DIVISION FOR RETRIAL, LIMITED TO QUANTUM.

CATCHWORDS: DAMAGES - Quantum assessment - medical evidence concerning causation of personal injuries - positional vertigo - whether social security benefits should continue to be disregarded in assessment - whether pretrial economic loss should be reduced by amount of social security benefits paid for calculation of interest.

EVIDENCE - Trial Judge’s approach to and weight of uncontested medical evidence - failure to cross-examine on material issue - whether open to trial judge to accept evidence in doctor’s report tendered at trial over unequivocal opposed evidence of another doctor who was called but not cross-examined on the material causation issue - whether positional vertigo was injury related or a benign condition.

Counsel:	Mr SC Williams QC with him Mr LT Barnes for the appellant Mr FW Redmond for the respondent
Solicitors:	McCullough Robertson for the appellant Berck & Associates, formerly Berck McKenzie, for the respondent

Hearing date:27 June 1997
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 4632 of 1996
Before	Davies JA Demack J Mackenzie J

[Shield Contractors P/L v. McGill]

BETWEEN:

SHIELD CONTRACTORS PTY LTD

ACN 010 128 293

AND:

JOHN NICOL McGILL

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

This is an appeal against aspects of assessment of damages in an action for negligence, liability and contribution having been agreed upon during the trial. The three matters in issue are:

(a) the treatment of Workers’ Compensation Board payments and Department of Society Security receipts for the purposes of calculation of interest on past economic loss;
(b) the trial judge’s treatment of uncontested evidence of Dr Cameron with respect to the plaintiff’s complaint of positional vertigo, and;

(c) the assessment of the economic components of the damages.
It is convenient to deal with the second matter in issue first. The

respective stances of the parties are set out in the following passage
from the learned trial judge’s reasons for judgment:

“The case for the plaintiff is that he suffered an injury in the area of his cervical spine and shoulder which rendered him virtually unemployable and greatly reduced his physical capacity to enjoy life.
The defendant’s case is that the plaintiff suffered only a minor strain which activated a previously quiescent degenerative neck condition and the resulting symptoms which in any event would have developed shortly thereafter had been greatly exaggerated with the object of inflating damages.”

One disputed aspect of the respondent’s condition was whether the vertigo of which he complained for the first time within days…

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 McGill v Shield Contractors Pty Ltd

Details

AGLC: McGill v Shield Contractors Pty Ltd [1997] QCA 359
Case: [1997] QCA 359
Decision Date: 21/10/1997

CaseChat Overview and Summary

In this case, Shield Contractors Pty Ltd appealed against the assessment of damages in an action brought by John Nicol McGill, who claimed damages for injuries sustained in an accident while working for the appellant. The trial judge's assessment of damages was challenged on several grounds, including the treatment of social security benefits and workers' compensation payments in the calculation of interest on past economic loss, the trial judge's acceptance of medical evidence concerning the causation of the plaintiff's positional vertigo, and the assessment of the economic components of the damages. The appeal was allowed, and the matter was remitted to the Trial Division for retrial, limited to the issue of quantum.

The key issue was whether the trial judge was correct in accepting the evidence of Dr Cameron, a neurologist, over that of Dr Baillie, a general practitioner, on the issue of causation of the plaintiff's positional vertigo. Dr Cameron concluded that the vertigo was not related to the injury, while Dr Baillie suggested a possible causal relationship. The trial judge accepted Dr Baillie's evidence, despite Dr Cameron's unequivocal opinion, because the appellant had not cross-examined Dr Cameron on this point. The Court of Appeal held that it was the respondent's responsibility to challenge Dr Cameron's evidence, and since he failed to do so, the trial judge should not have accepted Dr Cameron's evidence without challenge. The Court of Appeal found that the trial miscarried due to the deficiencies in the presentation of the evidence, and the issue of quantum must be retried.

The Court of Appeal also addressed the issue of whether social security benefits should be disregarded in the assessment of damages for past economic loss. The Court held that such benefits should continue to be disregarded in the assessment of damages. However, in calculating interest on past economic loss, the amount of social security benefits paid should be deducted from the sum upon which interest is calculated. The Court concluded that there was no legislative intent or other reason why the tortfeasor should be relieved of the obligation to pay damages equivalent to the amount of social security payments.

The final order of the Court was that the appeal be allowed, the judgment of the Trial Division set aside with costs to be taxed, and the matter remitted to the Trial Division for retrial limited to the issue of quantum.

Orders