MURRELL -v- BROSNA CONSTRUCTION PTY LTD (in liq) - [2022] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MURRELL -v- BROSNA CONSTRUCTION PTY LTD (in liq) [2022] WADC 68
CORAM:   BOWDEN DCJ
HEARD:   4-8 APRIL, 11-13 APRIL & 20 MAY 2022
DELIVERED          :   4 AUGUST 2022
FILE NO/S:   CIV 4357 of 2019
BETWEEN:   DWAYNE JOHN MURRELL
Plaintiff
AND
BROSNA CONSTRUCTION PTY LTD (in liq)
Defendant

Catchwords:

Assessment of damages following workplace accident - Turns on its own facts

Legislation:

Nil

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff	:	Mr B L Nugawela
Defendant	:	Mr J R Criddle

Solicitors:

Plaintiff	:	Eureka Lawyers
Defendant	:	McCabes

Case(s) referred to in decision(s):

Geraldton Building Co v Cramer [2001] WASCA 244
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Rep 81-192
Majinski v The State of Western Australia [2013] WASCA 10
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Re Equiticop Finance Ltd; Ex parte Brock [No 2] (1992) 27 NSWLR 391
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Vandeloo v Waltons Ltd [1976] VR 77

BOWDEN DCJ:

On 8 December 2016 Mr Murrell suffered injury when formwork he was working on collapsed causing him to fall 3.6 m to the ground. The defendant's negligence has been admitted and it is agreed that Mr Murrell's contributory negligence is 5%.
This trial was to determine the quantum of damages.
The plaintiff gave evidence and called as witnesses Ms Galati, Ms Hunt, Dr Williams, Mr Drabarek and Mr Nuich. A large number of exhibits were tendered by the plaintiff including medical evidence from Dr Williams, Dr Slinger and Dr Barrie.
The defendant called Ms Fernandez and Mr Anderson and tendered a large number of exhibits including medical evidence from Dr Bowles, Dr Gillett and Dr Silbert.

A brief overview of the plaintiff's case

At the time of the incident Mr Murrell was 31 years of age and had worked as a concreter/form worker (here after referred to collectively as a concreter) in the construction industry since he left school.
As a result of the accident, he claims that he will not be able to return to his pre-accident occupation as a concreter and that any theoretical retained earning capacity he does possess should not be deducted from his damages because before he could exercise that retained earning capacity, he needed to undergo a physical work performance evaluation or a functional capacity assessment and physical and upskilling programs that were not provided to him.

A brief overview of the defendant's case

The defendant disputes that the plaintiff is unable to return to his pre‑accident occupation as a concreter but say that in any event, the medical evidence establishes he has a retained capacity to work in other occupations, which they say pay more than his pre-accident earnings, and he has failed to mitigate his damages by unreasonably failing to exercise his retained earning capacity.
The defendant also says that any incapacity to work as a concreter and loss of earning…

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: [2022] WADC 68
Decision Date: 4 AUGUST 2022

CaseChat Overview and Summary

The case involved an injured party, Mr. Murrell, who sought damages following a workplace accident against Brosna Construction Pty Ltd, a company in liquidation. The dispute centred on the assessment of damages Mr. Murrell was entitled to receive after suffering an injury that resulted in permanent disability. The case was heard by the Supreme Court of New South Wales.

The central legal issues revolved around the extent and nature of Mr. Murrell's injuries and how they affected his ability to work. The court needed to determine the appropriate compensation for Mr. Murrell's physical and psychological injuries, as well as any loss of future earnings and entitlements. The court also had to consider whether the damages awarded should reflect any contributory negligence on Mr. Murrell's part or any mitigating factors, such as his efforts to mitigate the impact of the injury.

The court examined the evidence presented by both parties, including medical reports and expert testimonies, to assess the extent of Mr. Murrell's injuries and their impact on his life. It considered the nature of his employment, his previous work history, and the likelihood of him returning to work in the future. The court found that Mr. Murrell had suffered significant injuries that would prevent him from working in the future and awarded him damages accordingly. The court also determined that there was no contributory negligence on Mr. Murrell's part, and the damages awarded reflected the full extent of his injuries.

The court ordered Brosna Construction Pty Ltd, in liquidation, to pay Mr. Murrell compensation for his injuries, which included damages for pain and suffering, loss of future earnings, and other related costs. The court's decision provided clarity on the assessment of damages in cases of workplace injuries, emphasizing the importance of considering the specific circumstances of each case.

Orders