Pearce v Prescare - [2020] QDC 149

DISTRICT COURT OF QUEENSLAND

CITATION:

Pearce v Prescare [2020] QDC 149

PARTIES:

ULRIKE PEARCE

(plaintiff)

v

PRESCARE

(defendant)

FILE NO/S:

BD 397 of 2017

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 and 28 April 2020

JUDGE:

Jarro DCJ

ORDER:

Damages are assessed at $354,072.81.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff claims damages for injuries suffered in the course of employment with the defendant – where liability is admitted - where quantum is in dispute.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES - where the parties are in dispute as to the exact nature of the injuries sustained by the plaintiff – where it is the plaintiff’s case that she sustained a fracture of the left hip from the incident – where it is the defendant’s case that the plaintiff suffered a stress fracture involving the shaft of the left femur adjacent to the cement femoral component of a total left hip replacement – where the plaintiff has pre-existing medical conditions – the extent to which the plaintiff’s damages should be reduced in light of the plaintiff’s pre-existing conditions

Workers’ Compensation and Rehabilitation Act 2003

Workers’ Compensation Rehabilitation Regulation 2014

Dance v Jemeas Pty Ltd (No 2) [2019] QSC 303, applied

Hopkins v WorkCover Queensland [2004] QCA 155, followed

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, cited

McQuitty v Midgley & Anor [2016] QSC 36, cited

Rodger v Johnson [2013] QSC 117, followed

White v Hertz Australia Pty Ltd [2017] QSC 82, followed

COUNSEL:

J Sorbello for the plaintiff

B Charrington for the defendant

SOLICITORS:

Morton and Morton Solicitors for the plaintiff

Mullins Lawyers for the defendant

The plaintiff, Mrs Ulrike Pearce, seeks to recover damages as a result of being injured in her workplace on 2 August 2015. On that day, Mrs Pearce was performing her duties as an endorsed enrolled nurse at an Aged Care Facility operated by the defendant when she stumbled on a rise on a corridor floor and injured her left hip (“the incident”).

Liability has been admitted. The issue of quantum remains in dispute.

It is Mrs Pearce’s case that as a consequence of the incident, she suffered a fracture of the left hip. The defendant contends that the injury suffered by Mrs Pearce was a stress fracture involving the shaft of the left femur adjacent to the cement femoral component of a total left hip replacement.

The amount sought to be recovered by Mrs Pearce is $567,012.49 (clear of the WorkCover refund). The bulk of this amount relates to awards for past and future economic loss. The defendant submits an award of damages of $26,330.07 (clear of the WorkCover refund) is appropriate should I accept the proposition that the work related injury was of a temporary and short-term…

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 Pearce v Prescare

Details

AGLC: Pearce v Prescare [2020] QDC 149
Case: [2020] QDC 149
Decision Date: 3 July 2020

CaseChat Overview and Summary

In the case of Pearce v Prescare, the plaintiff sought damages for injuries sustained during her employment with the defendant. Liability was conceded by the defendant, leaving the quantum of damages as the sole issue for determination. The plaintiff argued that she had sustained a fracture of the left hip, while the defendant contended that the injury was a stress fracture involving the shaft of the left femur adjacent to the cement femoral component of a total left hip replacement. Further complicating the matter were the plaintiff’s pre-existing medical conditions, which the defendant sought to use to reduce the damages awarded.

The court was tasked with determining the precise nature of the plaintiff’s injuries, and assessing the extent to which the damages should be adjusted for the plaintiff’s pre-existing medical conditions. The court had to weigh the evidence and arguments presented by both parties and decide on the appropriate measure of damages, considering the nature of the injuries, the plaintiff's pre-existing conditions, and their impact on the overall assessment of damages.

After evaluating the evidence and submissions, the court concluded that the plaintiff had indeed sustained a fracture of the left hip. However, the court also found that the plaintiff's pre-existing conditions were relevant to the assessment of damages. Taking these into account, the court determined that the total damages should be assessed at $354,072.81. This amount reflected a careful consideration of both the injuries sustained and the plaintiff's pre-existing medical history.

The court's final order was that damages be assessed at $354,072.81, reflecting the court's determination of the nature of the plaintiff's injuries and the impact of her pre-existing medical conditions on the overall quantum of damages.

Orders

Orders of the court

Damages are assessed at $354,072.81.

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:	Pearce v Prescare [2020] QDC 149
PARTIES:	ULRIKE PEARCE (plaintiff) v PRESCARE (defendant)
FILE NO/S:	BD 397 of 2017
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	27 and 28 April 2020
JUDGE:	Jarro DCJ
ORDER:	Damages are assessed at $354,072.81.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff claims damages for injuries suffered in the course of employment with the defendant – where liability is admitted - where quantum is in dispute. DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES - where the parties are in dispute as to the exact nature of the injuries sustained by the plaintiff – where it is the plaintiff’s case that she sustained a fracture of the left hip from the incident – where it is the defendant’s case that the plaintiff suffered a stress fracture involving the shaft of the left femur adjacent to the cement femoral component of a total left hip replacement – where the plaintiff has pre-existing medical conditions – the extent to which the plaintiff’s damages should be reduced in light of the plaintiff’s pre-existing conditions Workers’ Compensation and Rehabilitation Act 2003 Workers’ Compensation Rehabilitation Regulation 2014 Dance v Jemeas Pty Ltd (No 2) [2019] QSC 303, applied Hopkins v WorkCover Queensland [2004] QCA 155, followed Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, cited McQuitty v Midgley & Anor [2016] QSC 36, cited Rodger v Johnson [2013] QSC 117, followed White v Hertz Australia Pty Ltd [2017] QSC 82, followed
COUNSEL:	J Sorbello for the plaintiff B Charrington for the defendant
SOLICITORS:	Morton and Morton Solicitors for the plaintiff Mullins Lawyers for the defendant