Monger v Camwade Pty Ltd - [2011] QSC 97

SUPREME COURT OF QUEENSLAND

CITATION:

Monger v Camwade Pty Ltd [2011] QSC 97

PARTIES:

JAI FENTON MONGER
(plaintiff)
v
CAMWADE PTY LTD
(defendant)

FILE NO/S:

1266 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2011

JUDGE:

Martin J

ORDER:

1.   There will be judgment for the plaintiff in the sum of $7,384.80.

2.   The plaintiff pay the defendant’s costs of the proceedings to be assessed on the standard basis from 19 January 2010.

3.   The assessed costs payable by the plaintiff to the defendant be set off against the amount of the judgment payable by the defendant to the plaintiff.

4.   Save for any statutory charges in favour of Medicare and Centrelink, enforcement of the judgment against the defendant is stayed pending assessment of the costs payable by the plaintiff to the defendant or until further order.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff was an employee of the defendant – where the plaintiff suffered an injury to his lower back whilst working for the defendant in lifting a container weighing about 30 kilograms – where defendant has admitted liability – where the plaintiff previously suffered a severe injury to his left leg – where, following the injury, the plaintiff regularly attended a gymnasium for the purposes of exercise – where plaintiff subsequently suffered neck and left shoulder injuries – where plaintiff did not disclose subsequent injuries in statement of loss and damage or to medical practitioners – where plaintiff was dishonest with medical practitioners in recounting his medical condition –where impairment suffered by plaintiff as a result of the injury is modest –where there is insufficient evidence of any loss suffered in a financial sense – whether the plaintiff is entitled to damages for loss of earning capacity

Bell v Mastermyne Pty Ltd [2008] QSC 331
Nichols v Curtis & Anor [2010] QCA 303

COUNSEL:

J P Kimmins for the plaintiff

A S Mellick for the defendant

SOLICITORS:

Carew Lawyers for the plaintiff

McInnis Wilson Lawyers Maroochydore the defendant

[1] On 24 October 2008 the plaintiff commenced working for the defendant. On 28 October he lifted a container of pecan nuts weighing about 30 kilograms. In doing so, he suffered an injury to his lower back.

[2] The defendant has admitted liability but there is no agreement as to the extent, if any, of any impairment caused by the injury.

Plaintiff’s history before the injury

[3] The plaintiff was born on 19 September 1980. He was 28 at the time of the injury and 30 years old at trial. He completed secondary school but failed every subject in year 12.

[4] When he was 3 years old he suffered a severe injury to his left leg and was required to have about a dozen operations over an 11 year…

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 Monger v Camwade Pty Ltd

Details

AGLC: Monger v Camwade Pty Ltd [2011] QSC 97
Case: [2011] QSC 97
Decision Date: 5 May 2011

CaseChat Overview and Summary

In the case of Monger v Camwade Pty Ltd, the plaintiff, who was an employee of the defendant, claimed damages for an injury to his lower back sustained during his employment. The injury occurred when the plaintiff lifted a container weighing about 30 kilograms. The defendant admitted liability for the injury, but the plaintiff's entitlement to damages for loss of earning capacity was contested. The plaintiff had a prior injury to his left leg and subsequently suffered neck and left shoulder injuries, which he did not disclose in his statement of loss and damage or to medical practitioners. Furthermore, the plaintiff was dishonest with medical practitioners regarding his medical condition. The plaintiff's impairment resulting from the injury was modest, and there was insufficient evidence of any financial loss. The court had to determine whether the plaintiff was entitled to damages for loss of earning capacity.

The court considered the factors relevant to assessing damages for loss of earning capacity, including the plaintiff's age, the nature and severity of the injury, the plaintiff's employment history, and the prospects for future employment. The court found that the plaintiff's injury was not severe enough to significantly impact his earning capacity, and there was insufficient evidence to establish any financial loss. The court also noted the plaintiff's dishonest conduct in providing medical information, which further undermined his claim for damages. The court held that the plaintiff was not entitled to damages for loss of earning capacity.

Following the court's decision, judgment was entered in favour of the plaintiff in the sum of $7,384.80. The plaintiff was ordered to pay the defendant's costs of the proceedings, which were to be assessed on the standard basis from a specified date. The assessed costs payable by the plaintiff to the defendant were to be set off against the amount of the judgment payable by the defendant to the plaintiff. Enforcement of the judgment against the defendant was stayed pending the assessment of the costs payable by the plaintiff to the defendant or until further order, save for any statutory charges in favour of Medicare and Centrelink.

Orders

Orders of the court

1. There will be judgment for the plaintiff in the sum of $7,384.80.

2. The plaintiff pay the defendant’s costs of the proceedings to be assessed on the standard basis from 19 January 2010.

3. The assessed costs payable by the plaintiff to the defendant be set off against the amount of the judgment payable by the defendant to the plaintiff.

4. Save for any statutory charges in favour of Medicare and Centrelink, enforcement of the judgment against the defendant is stayed pending assessment of the costs payable by the plaintiff to the defendant or until further order.

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:	Monger v Camwade Pty Ltd [2011] QSC 97
PARTIES:	JAI FENTON MONGER (plaintiff) v CAMWADE PTY LTD (defendant)
FILE NO/S:	1266 of 2010
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2011
JUDGE:	Martin J
ORDER:	1. There will be judgment for the plaintiff in the sum of $7,384.80. 2. The plaintiff pay the defendant’s costs of the proceedings to be assessed on the standard basis from 19 January 2010. 3. The assessed costs payable by the plaintiff to the defendant be set off against the amount of the judgment payable by the defendant to the plaintiff. 4. Save for any statutory charges in favour of Medicare and Centrelink, enforcement of the judgment against the defendant is stayed pending assessment of the costs payable by the plaintiff to the defendant or until further order.
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff was an employee of the defendant – where the plaintiff suffered an injury to his lower back whilst working for the defendant in lifting a container weighing about 30 kilograms – where defendant has admitted liability – where the plaintiff previously suffered a severe injury to his left leg – where, following the injury, the plaintiff regularly attended a gymnasium for the purposes of exercise – where plaintiff subsequently suffered neck and left shoulder injuries – where plaintiff did not disclose subsequent injuries in statement of loss and damage or to medical practitioners – where plaintiff was dishonest with medical practitioners in recounting his medical condition –where impairment suffered by plaintiff as a result of the injury is modest –where there is insufficient evidence of any loss suffered in a financial sense – whether the plaintiff is entitled to damages for loss of earning capacity Bell v Mastermyne Pty Ltd [2008] QSC 331 Nichols v Curtis & Anor [2010] QCA 303
COUNSEL:	J P Kimmins for the plaintiff A S Mellick for the defendant
SOLICITORS:	Carew Lawyers for the plaintiff McInnis Wilson Lawyers Maroochydore the defendant