McGrory v Medina Property Services Pty Limited - [2017] QCA 234

SUPREME COURT OF QUEENSLAND

CITATION:

McGrory v Medina Property Services Pty Limited [2017] QCA 234

PARTIES:

VICKI MARIE McGRORY
(applicant)
v
MEDINA PROPERTY SERVICES PTY LIMITED
ACN 062 326 176
(respondent)

FILE NO/S:

Appeal No 12567 of 2016
DC No 55 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Rockhampton – [2016] QDC 280 (Burnett DCJ)

DELIVERED ON:

13 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2017

JUDGES:

Sofronoff P and Fraser JA and Brown J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   If the parties are unable to agree upon the orders, including orders as to costs, that should be made to give effect to these reasons, the parties are to lodge and serve written submissions about the appropriate orders within 14 days of these orders.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GENERALLY – where the applicant was employed by the respondent as a room attendant – where she was required to lift an ice bucket as part of her duties – where she experienced pain while lifting the ice bucket – where she eventually had to cease working for the respondent due to ongoing pain and her inability to perform her duties – where the trial judge found the respondent liable in negligence – where three witnesses, including the applicant, gave evidence at the trial that supported the conclusion that the applicant had suffered a significant disability – where the first doctor gave evidence that was inconsistent with the evidence of the three witnesses – where the second doctor gave evidence that was consistent with the evidence of the three witnesses – where the trial judge accepted these witnesses as credible but preferred the evidence of the first doctor over the evidence of the second doctor – where the trial judge relied on the evidence of the first doctor when determining quantum – whether the trial judge erred in evaluating quantum by relying on the evidence of the first doctor over the evidence of the second doctor

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES INADEQUATE – where the first doctor at trial gave a modest assessment of the applicant’s impairment – where the trial judge relied on the first doctor’s evidence in evaluating quantum – whether the applicant’s damages were inadequate because the first doctor underestimated the extent of the applicant’s impairment and her loss of working capacity

District Court of Queensland Act 1967 (Qld), s 118(3)

McGrory v Medina Property Inc Services Pty Limited [2016] QDC 280, overruled
Pickering v McArthur[2005] QCA 294, applied

COUNSEL:

G R Mullins, with S B Whitten, for the applicant
S Gray for the respondent

SOLICITORS:

Bressington & Partners for the applicant
BT Lawyers…

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: [2017] QCA 234
Decision Date: 13 October 2017

CaseChat Overview and Summary

McGrory v Medina Property Services Pty Limited was an appeal against a decision that awarded damages for personal injury following a workplace accident. The plaintiff, McGrory, was employed by Medina Property Services as a room attendant. During the course of her employment, McGrory was required to lift an ice bucket as part of her duties, which resulted in her experiencing pain. Over time, the pain became debilitating, and she was ultimately unable to continue working. The trial judge found Medina Property Services liable for negligence, and McGrory was awarded damages. The case came before the court on the issue of whether the trial judge erred in assessing the quantum of damages, specifically by relying on the evidence of the first doctor over that of the second doctor.

The primary legal issue was whether the trial judge made an error in evaluating the quantum of damages by relying on the first doctor's evidence, which provided a modest assessment of McGrory's impairment, rather than the evidence of the second doctor, which was consistent with the other witnesses. The court had to consider whether this reliance resulted in an inadequate assessment of McGrory's damages, given that the first doctor's evidence suggested a lesser degree of impairment and loss of earning capacity. The court was also tasked with determining if the damages awarded were commensurate with the extent of McGrory's disability and her loss of working capacity.

The court found that the trial judge did indeed err in evaluating quantum by placing greater weight on the first doctor's evidence, which underestimated the extent of McGrory's impairment and her loss of working capacity. The court observed that the trial judge accepted the evidence of McGrory and the other two witnesses as credible but incorrectly preferred the first doctor's evidence over the second doctor's evidence. Given this error, the court concluded that McGrory's damages were inadequate and that the trial judge's assessment of quantum should not have been based on the first doctor's evidence. The appeal was allowed, and the matter was remitted to the trial court for a re-assessment of damages.

The orders made by the court were to grant leave to appeal, allow the appeal, and direct the parties to submit written arguments regarding the appropriate orders, including costs, if they could not reach an agreement. The court's decision highlighted the importance of accurately assessing damages in personal injury cases and the need for a trial judge to carefully weigh the evidence when determining quantum.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. If the parties are unable to agree upon the orders, including orders as to costs, that should be made to give effect to these reasons, the parties are to lodge and serve written submissions about the appropriate orders within 14 days of these orders.

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:	McGrory v Medina Property Services Pty Limited [2017] QCA 234
PARTIES:	VICKI MARIE McGRORY (applicant) v MEDINA PROPERTY SERVICES PTY LIMITED ACN 062 326 176 (respondent)
FILE NO/S:	Appeal No 12567 of 2016 DC No 55 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Rockhampton – [2016] QDC 280 (Burnett DCJ)
DELIVERED ON:	13 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2017
JUDGES:	Sofronoff P and Fraser JA and Brown J
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. If the parties are unable to agree upon the orders, including orders as to costs, that should be made to give effect to these reasons, the parties are to lodge and serve written submissions about the appropriate orders within 14 days of these orders.
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GENERALLY – where the applicant was employed by the respondent as a room attendant – where she was required to lift an ice bucket as part of her duties – where she experienced pain while lifting the ice bucket – where she eventually had to cease working for the respondent due to ongoing pain and her inability to perform her duties – where the trial judge found the respondent liable in negligence – where three witnesses, including the applicant, gave evidence at the trial that supported the conclusion that the applicant had suffered a significant disability – where the first doctor gave evidence that was inconsistent with the evidence of the three witnesses – where the second doctor gave evidence that was consistent with the evidence of the three witnesses – where the trial judge accepted these witnesses as credible but preferred the evidence of the first doctor over the evidence of the second doctor – where the trial judge relied on the evidence of the first doctor when determining quantum – whether the trial judge erred in evaluating quantum by relying on the evidence of the first doctor over the evidence of the second doctor APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES INADEQUATE – where the first doctor at trial gave a modest assessment of the applicant’s impairment – where the trial judge relied on the first doctor’s evidence in evaluating quantum – whether the applicant’s damages were inadequate because the first doctor underestimated the extent of the applicant’s impairment and her loss of working capacity District Court of Queensland Act 1967 (Qld), s 118(3) McGrory v Medina Property Inc Services Pty Limited [2016] QDC 280, overruled Pickering v McArthur[2005] QCA 294, applied
COUNSEL:	G R Mullins, with S B Whitten, for the applicant S Gray for the respondent
SOLICITORS:	Bressington & Partners for the applicant BT Lawyers…