Muller v Nebo Shire Council - [2002] QSC 313

SUPREME COURT OF QUEENSLAND

CITATION: Muller v Nebo Shire Council [2002] QSC 313

PARTIES: SHANE MULLER
(Plaintiff)
v
NEBO SHIRE COUNCIL
(Defendant)

FILE NO: S127 of 2002

DIVISION: Trial Division

DELIVERED ON: 9 October 2002

DELIVERED AT: Rockhampton

HEARING DATE: 15, 16 July & 2 August 2002 in Mackay

JUDGE: Dutney J

ORDERS:Judgment for the plaintiff against the defendant in the sum of $305,810.88
CATCHWORDS: PERSONAL INJURIES – QUANTUM – whether plaintiff had spinal weakness which made him more susceptible of injury

COUNSEL:Mr DV McMeekin SC for the Plaintiff
Mr P Land for the Defendant

SOLICITORS: Macrossan and Amiet for the Plaintiff
HBM Lawyers for the Defendant

The plaintiff in this action was injured on 11 December, 1997. At the time he was working for Nebo Shire Council as an apprentice diesel fitter on placement from his employer, Mackay Region Apprentice Employment Ltd.

In the course of his work, the plaintiff was holding onto a 200 litre drum of scrap steel which was being loaded onto the back of a truck. The drum was on the tynes of a fork lift. As the forklift reversed the plaintiff was endeavouring to pull the drum off the tyres and onto the back of the truck. As he did so, the plaintiff experienced a tearing crack in his back.

The plaintiff continued to work for about 15 minutes. While kneeling down to work on an air conditioning pump he collapsed from pain in his lower back. The plaintiff described the pain in his legs as intense. He fell over backwards and could not feel his legs.

After recovering sufficiently to stand, the plaintiff ceased work for the day.

On Monday 15 December the plaintiff attended Dr McNaught at the Paul Hopkins Medical Centre in Mackay. He was advised that he had suffered a muscle strain and was provided with a certificate to remain off work until 17 December. He was prescribed anti-inflammatory medication and advised to have physiotherapy which he did.

The plaintiff was cleared to return to work from 18 December, 1997. He continued to suffer discomfort in his back and periodic spasms. The plaintiff continued taking anti-inflammatory tablets and had holidays in January.

On 5 February, 1998 in the course of his employment the plaintiff was tightening nuts on the bull bar of a motor vehicle when he suffered severe pain in his lower back. The work was not particularly strenuous. The pain was similar to that on the occasion of the earlier incident.

The plaintiff went back to the doctor where he was again diagnosed with a muscle strain and recommended to physiotherapy. He was put on light duties.

The plaintiff continued receiving physiotherapy.

In April 1998 the plaintiff was moved from Nebo Shire Council to Carlisle Tractors. The work at the new location was heavy and strenuous. The plaintiff continued to suffer back trouble. Ultimately, in November 1998 the plaintiff consulted a Dr Schneider who recommended a rehabilitation programme. He also consulted a Dr Cherry who suspected an…

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: [2002] QSC 313
Decision Date: 09 October 2002

CaseChat Overview and Summary

The case of Muller v Nebo Shire Council involved the plaintiff, Shane Muller, who was injured while working for the defendant, Nebo Shire Council. Muller was an apprentice diesel fitter working under the council when he suffered a tearing crack in his back while handling a drum of scrap steel being loaded onto a truck. The injury led to ongoing back pain and difficulty working, culminating in the termination of his apprenticeship and inability to secure employment in his trade. The case revolved around the issue of whether Muller's back condition was degenerative or a result of the injury on 11 December 1997. The court had to determine the extent to which the injury contributed to Muller's current condition, his capacity for future work, and the appropriate quantum of damages.

The central legal issue before the court was whether Muller's back condition was degenerative or caused by the trauma of the incident on 11 December 1997. The medical evidence was divided, with the defendant relying on evidence suggesting degenerative changes in Muller's spine, while the plaintiff argued that such changes were unlikely without prior trauma. The court found that Muller did have a spinal weakness at L5-S1, making him more susceptible to injury, but concluded that his current complaints were not inevitable due to the injury or any existing degeneration. The court accepted that Muller could not return to heavy work, including his trade as a diesel mechanic, but could perform lighter duties, thus retaining a substantial residual earning capacity.

The court's reasoning led to the determination that Muller was entitled to damages for his injuries. The judgment awarded Muller $305,810.88 in damages, which included compensation for pain and suffering, past and future loss of income, future superannuation, and future medical expenses. The court assessed Muller's weekly loss of earning capacity at $250 per week, considering his age, the nature of his injuries, and the likelihood of finding suitable employment. The court also rejected a claim for future care costs, finding that Muller's disability level did not necessarily preclude him from performing lawn mowing and car servicing.

In summary, the Supreme Court of Queensland found in favour of Muller, awarding him $305,810.88 in damages. The court accepted that Muller had a pre-existing spinal weakness but found that his current condition was not inevitable due to the injury or any existing degeneration. The award reflected the impact of the injury on Muller's ability to work and his residual earning capacity.

Orders