Morrison v. Thomas Borthwick & Sons (Australia) Pty Ltd - [2008] QSC 93

SUPREME COURT OF QUEENSLAND

CITATION:
Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 93

PARTIES:
MORRISON
(plaintiff)

v

THOMAS BORTHWICK & SONS (AUSTRALIA) PTY
LTD
ACN 120 065 535 104

(defendant)

FILE NO/S: Mackay S127 of 2007

DIVISION: Trial Division

PROCEEDING: Trial

ORIGINATING COURT:
Supreme Court at Mackay

DELIVERED ON: 16 May 2008

DELIVERED AT: Rockhampton

HEARING DATE: 8 and 9 May 2008

JUDGE: McMeekin J

ORDERS:

1. There will be judgment for the plaintiff in the sum of $84,587.09.

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’s injury was an aggravation of a degenerative condition – damages for loss of future earning capacity assessed on the basis that plaintiff is unemployable in former capacity but has gained and retains better paying employment with the defendant

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – pre-existing health problems and intervening accident contributing to the incapacity – where the plaintiff would not have reached retirement age in former employment regardless of the accident.

Hopkins v WorkCover Queensland [2003] QSC 257 applied

Hopkins v WorkCover Queensland [2004] QCA 155 followed

Medlin v State Government Insurance Commission (1995) 182 CLR 1 followed

Nilon v Bezzina [1988] 2 Qd R 420 applied

Purkess v Crittenden (1965) 114 CLR 164 followed

Wilson v Peisley (1975) 7 ALR 571 followed

COUNSEL:

J Baulch SC for the plaintiff

J Miles for the defendant

SOLICITORS:

Macrossan and Amiet Solicitors for the plaintiff

Bruce Thomas Lawyers for the defendant

MCMEEKIN J: In this action the plaintiff, Mr Steven Morrison, seeks damages for negligence, breach of contract and breach of statutory duty against his employer, Thomas Borthwick & Sons (Australia) Pty Ltd. The action arises out of an incident on 10 August 2006 when Mr Morrison slipped on a mat at work and fell heavily onto his back. He suffered personal injury.

Liability is admitted. Damages must be assessed. Only three aspects of the damages are in issue – pain, suffering and loss of amenities, future economic loss and future recurring expenses

The Issues

There are three principal issues to be resolved:

(a) What is the impact of an incident that occurred on 6 October 2006?

(b) How vulnerable was Mr Morrison to developing the symptoms that he now has, assuming that the incident complained of had not occurred?

(c) How should damages for lost earning capacity be assessed given that Mr Morrison has obtained a better paying position as a leading hand supervisor and trainer with the defendant?

The Fall

The fall that is the subject of the action was witnessed by Mr Kenneth Painter. He said that Mr Morrison’s feet went out from under him. He motioned in a forward direction when giving his evidence. He landed “pretty much on his back”. He landed heavily. That…

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.

Keep reading for free

Create a free CaseChat account to read Morrison v. Thomas Borthwick & Sons (Australia) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QSC 93
Decision Date: 16 May 2008

CaseChat Overview and Summary

The case of Morrison v. Thomas Borthwick & Sons (Australia) Pty Ltd involves a plaintiff, Mr. Morrison, who brought an action against his employer for damages arising from personal injuries sustained during the course of employment. The dispute concerns the appropriate measure of damages, specifically focusing on the loss of future earning capacity due to an aggravation of a pre-existing degenerative condition. The case was heard and determined in the Federal Circuit Court of Australia. The central issue before the court was how to properly assess the damages for the loss of future earning capacity, given that the plaintiff was unemployable in his former capacity but had secured a new job with the defendant that paid better. The court had to consider whether the plaintiff’s pre-existing health condition and the intervening accident were factors that should be taken into account in determining the damages.

The legal issues that the court needed to address included the appropriate measure of damages for loss of future earning capacity, and whether the pre-existing health problems and the intervening accident were relevant in calculating the damages. Additionally, the court had to consider whether the plaintiff’s unemployability in his former capacity and the new employment opportunity affected the assessment of damages. The court determined that the plaintiff's pre-existing condition and the intervening accident were both relevant in assessing the loss of future earning capacity, but the plaintiff’s new employment and its higher remuneration needed to be factored into the calculation of damages.

In reaching its decision, the court held that while the plaintiff was unemployable in his former capacity, the fact that he had secured a new job with better pay meant that the loss of future earnings was mitigated. The court assessed the damages based on the plaintiff’s loss of earning capacity in his former employment, taking into account the pre-existing health problems and the new employment opportunity. The court awarded the plaintiff damages in the sum of $84,587.09, reflecting these considerations. The judgment clearly delineates the approach to damages in cases involving pre-existing conditions and intervening accidents, balancing the plaintiff’s loss of earning capacity against the mitigating factor of new employment.

Orders

Orders of the court

1. There will be judgment for the plaintiff in the sum of $84,587.09.

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:	Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 93
PARTIES:	MORRISON (plaintiff) v THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD ACN 120 065 535 104 (defendant)
FILE NO/S:	Mackay S127 of 2007
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	16 May 2008
DELIVERED AT:	Rockhampton
HEARING DATE:	8 and 9 May 2008
JUDGE:	McMeekin J
ORDERS:	1. There will be judgment for the plaintiff in the sum of $84,587.09.
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’s injury was an aggravation of a degenerative condition – damages for loss of future earning capacity assessed on the basis that plaintiff is unemployable in former capacity but has gained and retains better paying employment with the defendant DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – pre-existing health problems and intervening accident contributing to the incapacity – where the plaintiff would not have reached retirement age in former employment regardless of the accident. Hopkins v WorkCover Queensland [2003] QSC 257 applied Hopkins v WorkCover Queensland [2004] QCA 155 followed Medlin v State Government Insurance Commission (1995) 182 CLR 1 followed Nilon v Bezzina [1988] 2 Qd R 420 applied Purkess v Crittenden (1965) 114 CLR 164 followed Wilson v Peisley (1975) 7 ALR 571 followed
COUNSEL:	J Baulch SC for the plaintiff J Miles for the defendant
SOLICITORS:	Macrossan and Amiet Solicitors for the plaintiff Bruce Thomas Lawyers for the defendant