Norsgaard v Aldi Stores (A Limited Partnership) - [2023] QCA 204

SUPREME COURT OF QUEENSLAND

CITATION:

Norsgaard v Aldi Stores (A Limited Partnership) [2023] QCA 204

PARTIES:

LUCY VICTORIA NORSGAARD
(appellant)
v
ALDI STORES (A LIMITED PARTNERSHIP)
ABN 90 196 565 019
(respondent)

FILE NO/S:

Appeal No 16024 of 2022
DC No 1872 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2022] QDC 260 (Jarro DCJ)

DELIVERED ON:

20 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 June 2023

JUDGES:

Mullins P, Livesey AJA and Callaghan J

ORDERS:

1.   Appeal dismissed.

2.   Cross appeal dismissed.

3.    The costs of the appeal and the cross appeal are reserved to be decided on the papers.

4.    Any submissions on costs by the appellant must be made in writing within seven days of the date on which the reasons for judgment are published and must not exceed two A4 pages.

5.    Any submissions on costs by the respondent must be made in writing within seven days of the receipt by the respondent of the appellant’s submissions and must not exceed two A4 pages.

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – LOSS OF PRE-TRIAL INCOME – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the trial judge awarded damages for past economic loss by reducing the calculated amount for past economic loss by 30 per cent – whether the trial judge erred in discounting past economic loss by 30 per cent

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the respondent had employed the appellant as a storeperson – where the appellant completed a Certificate III in Fitness after the injury but called no evidence as to how much she could earn in that occupation – whether the trial judge erred in ordering a global sum for damages for loss of future earning capacity – whether the trial judge erred in not placing enough weight on the appellant’s ability to complete a Certificate III in Fitness and gain employment in that field

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – DAMAGES FOR NON-ECONOMIC LOSS – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the medical evidence favoured by the trial judge included that the appellant sustained a seven per cent whole person impairment – where the trial judge assessed an injury scale value (ISV) of 8 under the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) – where the respondent did not challenge the factual findings in…

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: [2023] QCA 204
Decision Date: 20 October 2023

CaseChat Overview and Summary

Norsgaard v Aldi Stores (A Limited Partnership) involved an appeal by the appellant, who had sustained an injury to her lumbar spine while working for the respondent, against the damages awarded by the trial judge. The trial judge had awarded damages for past economic loss by reducing the calculated amount by 30 per cent. The appellant challenged the discount and the global sum awarded for loss of future earning capacity. The court was required to determine whether the trial judge erred in discounting past economic loss by 30 per cent, in ordering a global sum for damages for loss of future earning capacity, and in not placing enough weight on the appellant’s ability to complete a Certificate III in Fitness and gain employment in that field.

The court found that the trial judge had not erred in discounting the past economic loss by 30 per cent. The trial judge had considered the appellant’s limited and sporadic work history, limited qualifications and skills, breaks in employment, and the possibility that she would have changed jobs before settling into a permanent line of employment. The court also found that the trial judge had not erred in ordering a global sum for damages for loss of future earning capacity. The appellant had called no evidence as to how much she could earn in her Certificate III in Fitness occupation, and the trial judge had not erred in not placing weight on this qualification. Finally, the court found that the trial judge had not erred in selecting an injury scale value of 8. The respondent did not challenge the factual findings on which the trial judge based this selection.

The appeal and cross appeal were dismissed. The costs of the appeal and cross appeal were reserved to be decided on the papers. The appellant and respondent were required to submit written submissions on costs within seven days of the date on which the reasons for judgment were published and the receipt of the appellant’s submissions, respectively. The submissions were limited to two A4 pages.

Orders

Orders of the court

1. Appeal dismissed.

2. Cross appeal dismissed.

3. The costs of the appeal and the cross appeal are reserved to be decided on the papers.

4. Any submissions on costs by the appellant must be made in writing within seven days of the date on which the reasons for judgment are published and must not exceed two A4 pages.

5. Any submissions on costs by the respondent must be made in writing within seven days of the receipt by the respondent of the appellant’s submissions and must not exceed two A4 pages.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant remained unemployed when the trial took place in July 2022.Medical evidence The appellant was seen by neurologist Dr Todman on 23 February 2021 and by orthopaedic surgeon Dr John Tuffley on 24 February 2021. The trial judge concluded (at [84] of the reasons) that “Dr Todman’s opinion, on the whole, was slightly more compelling than that of Dr Tuffley in light of the overall evidence”. The trial judge summarised Dr Todman’s evidence at [76] of the reasons:“On the occasion Dr Todman assessed the plaintiff, she reported to him that she was still suffering from symptoms related to the incident, namely persistent pain across her low back. Dr Todman was of the view that, on examination, the plaintiff showed some tenderness in the lumbar paravertebral muscles. He noted there was reduced forward flexion in the lumbar spine by 40 degrees, a left lateral flexion by 40 degrees and a right lateral flexion by 30 degrees. He also noted that strength, reflexes and sensation were normal in the lower extremities. The rotation of her hip was also normal. Dr Todman's view was that on 28 June 2019, the plaintiff developed acute lower back pain, the symptoms of which continue. In his view, the ongoing symptoms are directly attributable to the incident. The incident was consistent with causing trauma to the lumbar spine. He assessed the plaintiff’s injury as DRE Category II injury using AMA 5 guidelines which represents a seven percent whole person impairment. He was also of the view that the increase in pain after attending gym on 11 September 2019 was an aggravation of the plaintiff's pre-existing injury, rather than a new incident.”Calculation of past economic loss The appellant gave evidence at the trial that she had applied for other jobs, but the trial judge was not convinced (at [95] of the reasons) that those efforts had been genuine, as the appellant neither gave detailed evidence as to how many jobs she applied for nor adduced evidence of any applications she had made. This failure to make genuine efforts to obtain employment since July 2021 and the appellant’s sporadic employment history prior to her first pregnancy caused the trial judge (at [95] and [99]) to consider that a discount should be made in the circumstances in calculating past economic loss. The trial judge recorded (at [100]) another reason for the discount as the appellant was unable to work due to either unrelated medical issues, holidays or her own voluntary decision not to work during the COVID pandemic. Even though the trial judge rejected (at [103] of the reasons) the respondent’s contention at the trial that the appellant was fit to return to full duties by September 2019, the trial judge then emphasised (at [103]) the reasons for selecting the discount of 30 per cent to the amount otherwise calculated for past economic loss:“It is my assessment however that there should be an appropriate discount for the [appellant’s] past economic loss. Adopting the calculations identified by the [appellant], a significant discount of 30 percent will be applied to reflect certain considerations, those being: the [appellant’s] limited and sporadic work history since leaving school and producing her first child; the [appellant’s] limited qualifications and skills; that the [appellant] had a migraine condition for a period of approximately two weeks from 29 December 2019 for which she was unable to work; that the [appellant] had breaks in her part time employment between the date of the incident to the present day; and given her limited work history and age, it is my impression that there is a very real possibility that the [appellant] would have changed jobs from time to time before she settled into a permanent line of employment despite her evidence that she was content to be promoted through the ranks at Aldi.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Norsgaard v Aldi Stores (A Limited Partnership) [2023] QCA 204
PARTIES:	LUCY VICTORIA NORSGAARD (appellant) v ALDI STORES (A LIMITED PARTNERSHIP) ABN 90 196 565 019 (respondent)
FILE NO/S:	Appeal No 16024 of 2022 DC No 1872 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2022] QDC 260 (Jarro DCJ)
DELIVERED ON:	20 October 2023
DELIVERED AT:	Brisbane
HEARING DATE:	7 June 2023
JUDGES:	Mullins P, Livesey AJA and Callaghan J
ORDERS:	1. Appeal dismissed. 2. Cross appeal dismissed. 3. The costs of the appeal and the cross appeal are reserved to be decided on the papers. 4. Any submissions on costs by the appellant must be made in writing within seven days of the date on which the reasons for judgment are published and must not exceed two A4 pages. 5. Any submissions on costs by the respondent must be made in writing within seven days of the receipt by the respondent of the appellant’s submissions and must not exceed two A4 pages.
CATCHWORDS:	DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – LOSS OF PRE-TRIAL INCOME – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the trial judge awarded damages for past economic loss by reducing the calculated amount for past economic loss by 30 per cent – whether the trial judge erred in discounting past economic loss by 30 per cent DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the respondent had employed the appellant as a storeperson – where the appellant completed a Certificate III in Fitness after the injury but called no evidence as to how much she could earn in that occupation – whether the trial judge erred in ordering a global sum for damages for loss of future earning capacity – whether the trial judge erred in not placing enough weight on the appellant’s ability to complete a Certificate III in Fitness and gain employment in that field DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – DAMAGES FOR NON-ECONOMIC LOSS – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the medical evidence favoured by the trial judge included that the appellant sustained a seven per cent whole person impairment – where the trial judge assessed an injury scale value (ISV) of 8 under the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) – where the respondent did not challenge the factual findings in…