Phillips v MCG Group Pty Ltd

[2012] QSC 149

SUPREME COURT OF QUEENSLAND

CITATION:

Phillips v MCG Group Pty Ltd [2012] QSC 149

PARTIES:

LAWRENCE WILLIAM PHILLIPS
(plaintiff)
v
MCG GROUP PTY LTD
(defendant)

FILE NO:

BS11924 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

8 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30-31 January 2012

JUDGE:

Mullins J

ORDER:

Judgment is given for the plaintiff in the sum of $413,082.39

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY– where the plaintiff sustained injury to his lumbar spine in 1990 and underwent a spinal fusion, but was left with chronic lower back pain for which he took narcotic analgesics on a daily basis – where two weeks after plaintiff commenced working as a machine operator on a mine site, he had an accident where he suffered a compression fracture of L2 with up to 70% loss of vertebral height – where liability was admitted – where general damages, past economic loss and loss of future earning capacity were in issue – whether general damages should be reduced for pain and suffering due to the 1990 injury – whether damages for loss of  earning capacity should be assessed on the basis that plaintiff would have been able to continue to work on a mine site, but for the accident

Bell v Mastermyne Pty Ltd [2008] QSC 331, considered
Cameron v Foster [2010] QSC 372, followed
Hopkins v WorkCover Queensland [2004] QCA 155, considered
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, followed
Purkess v Crittenden (1965) 114 CLR 164, considered
Smith v Topp [2003] QCA 397, considered

COUNSEL:

R C Morton for the plaintiff
G W Diehm SC and G C O’Driscoll for the defendant 

SOLICITORS:

Morton & Morton for the plaintiff
McInnes Wilson Lawyers for the defendant

1. The plaintiff was driving a scraper as an employee of the defendant at a mine site on 28 August 2008 when he injured his back (the accident).  Liability for the injury is admitted.  The parties agreed on many aspects of the assessment of damages, but the trial proceeded as the amounts for general damages, past economic loss, and loss of future earning capacity, were not agreed.  It was an agreed fact that the defendant ceased its operations at the subject mine site on 22 December 2009.

The plaintiff’s antecedents

1. The plaintiff was born in 1957.  He was educated to year 10.  He started as an apprentice boilermaker, joined the Army, and worked as a truck driver, crane driver and labourer.  He was working as a sales representative in 1990, when he suffered an injury to his lumbar spine at the level of L5/S1.  He suffered extreme pain.  He was treated conservatively with an opioid analgesic Palfium.  In 1992 he underwent an L4/L5/S1 instrumental fusion operation that inserted metalware into his spine.  Following that he had extensive rehabilitation.  The plaintiff continued to take Palfium, as…