Peebles v WorkCover Queensland - [2021] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

Peebles v WorkCover Queensland [2021] QCA 21

PARTIES:

DANIEL JOHN PEEBLES
(appellant)
v
WORKCOVER QUEENSLAND
ABN 40 577 162 756
(respondent)

FILE NO/S:

Appeal No 6794 of 2020
SC No 10750 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2020] QSC 106 (Jackson J)

DELIVERED ON:

16 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2020

JUDGES:

Fraser, McMurdo and Mullins JJA

ORDERS:

1.   The appeal be allowed.

2.   The judgment sum be varied by substituting the sum of $967,052.92.

3.   Within 14 days of the delivery of this judgment, the parties provide written submissions (if any), not exceeding four pages, as to the costs of the appeal.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – LEGAL PRINCIPLES – where the appellant suffered injuries as a result of his employer’s negligence – where the appellant was permanently incapacitated – where there was evidence the appellant had a pre-existing condition and there was a possibility it would have prevented him from working at some time in the future – where the primary judge discounted the future economic loss by 50 per cent for contingencies, including the hypothetical event that the appellant would, in any event, have suffered from a similar disabling condition – where the primary judge applied the same 50 per cent discount to past economic loss – whether the primary judge’s discretionary judgment was so unreasonable that the court should infer that an error had been made

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – REFERENCE TO AMOUNT CLAIMED – where the primary judge accepted a certain calculation of lost earning capacity for past economic loss, but did not accept that calculation for future economic loss – whether the primary judge erred in doing so

Neall v Watson (1960) 34 ALJR 364, applied

COUNSEL:

C Heyworth-Smith QC, with M Black, for the appellant
B F Charrington for the respondent

SOLICITORS:

Travis Schultz Law for the appellant
BT Lawyers for the respondent

FRASER JA: I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
McMURDO JA: The appellant worked as a truck driver until 2014, when he became permanently incapacitated as a result of a back injury which he suffered in the course of his employment. He suffered a spinal disc protrusion or herniation, which occurred in May 2014 and he was permanently incapacitated by the end of that year, when he was then aged 32 years.
It is not now in dispute that the appellant’s injury was caused by the negligence of his employer, by requiring him to drive a truck with a defective driver’s seat. The only issues involve the assessment of damages.
He was awarded the sum of $764,345.12.[1] He…

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 Peebles v WorkCover Queensland

Details

AGLC: Peebles v WorkCover Queensland [2021] QCA 21
Case: [2021] QCA 21
Decision Date: 16 February 2021

CaseChat Overview and Summary

The case of Peebles v WorkCover Queensland involved the appellant, who had suffered injuries due to his employer’s negligence, leading to permanent incapacity. The dispute centred on the assessment of damages, particularly concerning the loss of earnings and earning capacity, in light of a pre-existing condition that might have incapacitate him in the future. The primary judge had discounted the future economic loss by 50 per cent due to contingencies, including the hypothetical event that the appellant would have suffered from a similar disabling condition. The primary judge also applied the same 50 per cent discount to past economic loss. The central legal issues were whether the primary judge's discretionary judgment was so unreasonable that it should be inferred an error had been made, and whether the primary judge erred in using a different multiplicand for future economic loss compared to the agreed figure for past economic loss.

The court found that the primary judge’s discount for future economic loss was not unreasonable given the contingencies, but the use of a different multiplicand for future economic loss without clear justification was problematic. The court held that since the evidence had established a weekly loss of $1,300, it was this amount that should have been used for both past and future economic loss assessments. The court concluded that the assessment of damages must be revised accordingly. The court further held that the primary judge’s method of assessment, while not incorrect in principle, was not applied consistently, leading to an unjustifiable disparity in the treatment of past and future economic losses.

The appeal was allowed, and the judgment sum was varied to $967,052.92. The parties were directed to provide written submissions on the costs of the appeal within 14 days of the judgment. The court emphasised that the primary judge’s assessment should be consistent and grounded in the established evidence, ensuring fairness in the calculation of damages. This case underscores the importance of consistent application of evidentiary findings in assessing damages in personal injury cases.

Orders

Orders of the court

1. The appeal be allowed.

2. The judgment sum be varied by substituting the sum of $967,052.92.

3. Within 14 days of the delivery of this judgment, the parties provide written submissions (if any), not exceeding four pages, as to the costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is curious that a different figure was used as the multiplicand for future economic loss from the amount $1,300, which the parties had agreed for the assessment of the appellant’s loss of income before the trial, without something being identifiable as an explanation for the difference. The parties were not bound by their agreement on that figure in making their respective submissions for future economic loss. Importantly, however, there was also the judge’s finding that there was a sufficient evidentiary basis for a loss of $1,300 per week. In my respectful opinion, the evidence having proved a weekly loss of that amount, it is that amount which should have been allowed. For that reason also, the assessment of damages must be revised.Conclusions and orders The parties helpfully provided calculations for the possible outcomes of this appeal. On those calculations, I would vary the award in the following respects: In consequence, the judgment must be increased by a total of $202,707.80, to the sum of $967,052.92. I would order as follows:1.The appeal be allowed.2.The judgment sum be varied by substituting the sum of $967,052.92.3.Within 14 days of the delivery of this judgment, the parties provide written submissions (if any), not exceeding four pages, as to the costs of the appeal. MULLINS JA: I agree with McMurdo JA.

Ratio Decidendi

Legal Principle Established

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CITATION:	Peebles v WorkCover Queensland [2021] QCA 21
PARTIES:	DANIEL JOHN PEEBLES (appellant) v WORKCOVER QUEENSLAND ABN 40 577 162 756 (respondent)
FILE NO/S:	Appeal No 6794 of 2020 SC No 10750 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2020] QSC 106 (Jackson J)
DELIVERED ON:	16 February 2021
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 2020
JUDGES:	Fraser, McMurdo and Mullins JJA
ORDERS:	1. The appeal be allowed. 2. The judgment sum be varied by substituting the sum of $967,052.92. 3. Within 14 days of the delivery of this judgment, the parties provide written submissions (if any), not exceeding four pages, as to the costs of the appeal.
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – LEGAL PRINCIPLES – where the appellant suffered injuries as a result of his employer’s negligence – where the appellant was permanently incapacitated – where there was evidence the appellant had a pre-existing condition and there was a possibility it would have prevented him from working at some time in the future – where the primary judge discounted the future economic loss by 50 per cent for contingencies, including the hypothetical event that the appellant would, in any event, have suffered from a similar disabling condition – where the primary judge applied the same 50 per cent discount to past economic loss – whether the primary judge’s discretionary judgment was so unreasonable that the court should infer that an error had been made DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – REFERENCE TO AMOUNT CLAIMED – where the primary judge accepted a certain calculation of lost earning capacity for past economic loss, but did not accept that calculation for future economic loss – whether the primary judge erred in doing so Neall v Watson (1960) 34 ALJR 364, applied
COUNSEL:	C Heyworth-Smith QC, with M Black, for the appellant B F Charrington for the respondent
SOLICITORS:	Travis Schultz Law for the appellant BT Lawyers for the respondent