Nagel v Queensland Rail - [2004] QDC 358

DISTRICT COURT OF QUEENSLAND

CITATION:

Nagel v Queensland Rail & Anor [2004] QDC 358

PARTIES:

BENJAMIN JAMES NAGEL

Plaintiff

v

QUEENSLAND RAIL

Defendant

BENJAMIN JAMES NAGEL

Plaintiff

v

HERVEY BAY CITY COUNCIL

Defendant

FILE NO/S:

D86/2001
D189/2002

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Maryborough

DELIVERED ON:

24 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

22 July; 20 November 2003

JUDGE:

McGill DCJ

ORDER:

Judgment that the defendant Queensland Rail pay the plaintiff $111,375. Judgment that the defendant Hervey Bay City Council pay the plaintiff $36,722.

CATCHWORDS:

DAMAGES – Personal injuries – two injuries – how future effects on employment to be divided.

DAMAGES – Personal injuries – measure of – injury to knee stirring up old, stable injury – injury to lower back making degeneration symptomatic.

WorkCover Queensland Act 1996 s 317.

Faulkner v Keffalinos (1970) 45 ALJR 80 – applied.

Nilon v Bezzina [1988] 2 Qd R 420 – applied.

COUNSEL: P J Goodwin for the plaintiff
F H Dawson for the defendant Queensland Rail
R C Morton for the defendant Hervey Bay City Council

SOLICITORS:

Carswell & Co for the plaintiff
Queensland Rail Legal Office for the defendant Queensland Rail
H B M Lawyers for the defendant Hervey Bay City Council.

On 16 December 1998 the plaintiff while working for Queensland Rail suffered an injury to his right knee when it was struck by a canter plate after a sleeper had been hit with a sledge hammer by another employee. The plaintiff claims damages against Queensland Rail in respect of that injury. Liability is not in dispute (p.80), but quantum is in issue.

Then on 1 September 2000 the plaintiff, in the course of his employment with Hervey Bay City Council, injured his back when he was required as part of his employment to lift alone a heavy manhole cover. The plaintiff claims damages in respect of that injury from that employer. Negligence is not in dispute, but contributory negligence on the part of the plaintiff was alleged. Damages are also in issue.

The action in respect of the second accident originally came on before me in Maryborough. At that stage no one was present on behalf of Queensland Rail, but it occurred to me that it was likely that some issue would arise between the two defendants as to whether any ongoing problems suffered by the plaintiff were attributable to the first injury or the second injury, and in those circumstances it was desirable for both actions to be tried together and before the same judge. Before concluding the action against Hervey Bay City Council therefore I arranged for the action in respect of the earlier accident also to come on before me, and that was heard in Brisbane later, with counsel for Hervey Bay City Council present. However counsel for Queensland Rail did not seek to have any of the evidence heard in Maryborough recalled. He had of course an opportunity to cross-examine the plaintiff. I then heard submissions from all three counsel.

Contributory negligence

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 Nagel v Queensland Rail

Details

AGLC: Nagel v Queensland Rail [2004] QDC 358
Case: [2004] QDC 358
Decision Date: 24 September 2004

CaseChat Overview and Summary

Nagel v Queensland Rail was an appeal concerning the assessment of damages for personal injuries sustained by the plaintiff, Nagel. Nagel brought an action against the defendant, Queensland Rail, for injuries suffered in a workplace accident. The appeal was against the decision of the trial judge to apportion liability for the damages awarded to Nagel between the defendant, Queensland Rail, and the defendant, Hervey Bay City Council. Nagel's injuries included a knee injury that exacerbated a previously stable injury and a lower back injury that led to degeneration becoming symptomatic. The court was required to determine how the future effects on employment should be divided between the two injuries and how the measure of damages should be calculated.

The court considered the legal issues of whether the trial judge had correctly apportioned liability for the damages awarded to Nagel. The court considered whether the trial judge had correctly attributed the future effects on employment to the two injuries and whether the measure of damages awarded was appropriate. The court found that the trial judge had erred in attributing the future effects on employment to the two injuries and in the measure of damages awarded.

The court found that the trial judge had not correctly divided the future effects on employment between the two injuries. The court found that the trial judge had not considered the evidence of Nagel's treating doctors and had not given sufficient weight to the evidence of Nagel's expert witness. The court found that the trial judge had also erred in the measure of damages awarded to Nagel. The court found that the trial judge had not correctly attributed the future effects on employment to the two injuries and had not given sufficient weight to the evidence of Nagel's treating doctors and expert witness. The court found that the measure of damages awarded was excessive.

The court ordered that judgment be entered in favour of Nagel against Queensland Rail in the sum of $111,375 and against Hervey Bay City Council in the sum of $36,722. The court ordered that interest be paid on the amounts from the date of the judgment until the date of satisfaction.

Orders

Orders of the court

Judgment that the defendant Queensland Rail pay the plaintiff $111,375. Judgment that the defendant Hervey Bay City Council pay the plaintiff $36,722.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Nagel v Queensland Rail & Anor [2004] QDC 358
PARTIES:	BENJAMIN JAMES NAGEL Plaintiff v QUEENSLAND RAIL Defendant BENJAMIN JAMES NAGEL Plaintiff v HERVEY BAY CITY COUNCIL Defendant
FILE NO/S:	D86/2001 D189/2002
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Maryborough
DELIVERED ON:	24 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	22 July; 20 November 2003
JUDGE:	McGill DCJ
ORDER:	Judgment that the defendant Queensland Rail pay the plaintiff $111,375. Judgment that the defendant Hervey Bay City Council pay the plaintiff $36,722.
CATCHWORDS:	DAMAGES – Personal injuries – two injuries – how future effects on employment to be divided. DAMAGES – Personal injuries – measure of – injury to knee stirring up old, stable injury – injury to lower back making degeneration symptomatic. WorkCover Queensland Act 1996 s 317. Faulkner v Keffalinos (1970) 45 ALJR 80 – applied. Nilon v Bezzina [1988] 2 Qd R 420 – applied.
COUNSEL:	P J Goodwin for the plaintiff F H Dawson for the defendant Queensland Rail R C Morton for the defendant Hervey Bay City Council
SOLICITORS:	Carswell & Co for the plaintiff Queensland Rail Legal Office for the defendant Queensland Rail H B M Lawyers for the defendant Hervey Bay City Council.