Pollock v Thiess Pty Ltd (No 2)

Case [2014] QSC 95

SUPREME COURT OF QUEENSLAND

CITATION:

Pollock v Thiess Pty Ltd & Ors (No 2) [2014] QSC 95

PARTIES:

SCOTT WILLIAM POLLOCK

Plaintiff

v

THIESS PTY LTD
ACN 010 221 486

First Defendant

and

AUSTRALIAN BEARINGS CORPORATION PTY LTD
ACN 139 918 013

Second Defendant

and

WORKCOVER QUEENSLAND

Third Defendant

FILE NO/S:

S234 /2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

16 May 2014

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

5, 6, 7 May 2014

JUDGE:

McMeekin J

ORDERS:
  1. Judgment for the plaintiff against the first and second defendants in the sum of $865,158.88
  2. Judgment for the plaintiff against the third defendant in the sum of $758,839.45

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where plaintiff suffered an injury at work by tub plates falling on his foot – where liability is admitted by the defendants – where plaintiff complained of significant ongoing pain – whether this pain is of the level described by the plaintiff - whether the plaintiff has suffered a loss of earning capacity – whether the plaintiff is entitled to damages for the care received that was provided by his wife and employer.

Superannuation Guarantee (Administration) Amendment Act 2012 (Cth)
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 308E

Bugge v REB Engineering Pty Ltd [1999] 2 Qd R 227; (1998) QSC 185 cited
Coleman v Anodising and Aluminium Finishers of Queensland Pty Ltd [2002] 1 Qd R 141; (1999) QCA 467 cited
Craddock v Anglo Coal (Moranbah North Management) Pty Ltd [2010] QSC 133 cited
Driver v Stewart [2001] QCA 444 cited
Griffiths v Kerkemeyer (1977) 139 CLR 161; [1997] HCA 45 cited
Grincelis v House (2000) 201 CLR 321; [2000] HCA 42 cited
Heywood v Commercial Electrical Pty Ltd [2013] QCA 70 cited
Kars v Kars (1996) 187 CLR 354; [1996] HCA 37 applied
Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519; [2006] QCA 48 cited
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62 cited
Thomas v O’Shea (1989) ATR 80-251 cited
Whittaker v Farnsway Mining Construction Pty Ltd [2004] QSC 160 cited

COUNSEL:

G O’Driscoll for the Plaintiff

RAI Myers for the First Defendant

S Deaves for the Second Defendant

B Charrington for the Third Defendant

SOLICITORS:

Suthers Lawyers for the Plaintiff

Sparke Helmore for the First Defendant

DibbsBarker for the Second Defendant

Hopgood Ganim Lawyers for the Third Defendant

  1. McMeekin J: The plaintiff, Scott William Pollock, claims damages for personal injury suffered on 7 April 2010.

  1. Mr Pollock was injured at his place of employment when a tub plate weighing in the order of 150kg fell crushing his right foot.

  1. The plaintiff’s employer was a labour hire company, now in liquidation. WorkCover Queensland, the third defendant, stands in its shoes. The plaintiff’s labour was hired to the second defendant, Australian Bearings Pty Ltd. That company had agreed to perform work for the first defendant, Thiess Pty Ltd, the owner of…

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Details
AGLC
Pollock v Thiess Pty Ltd (No 2) [2014] QSC 95
Case
[2014] QSC 95
Decision Date

CaseChat Overview and Summary

The plaintiff, Scott William Pollock, brought an action for damages for personal injury against three defendants, seeking compensation for injuries sustained at work when a tub plate fell on his foot. Liability for the injury was admitted by all parties. The court was required to assess the damages. The plaintiff was 26 at the time of the injury and had suffered a Lisfranc fracture, necessitating two surgeries. The first surgery involved fixing the fracture with screws, and the second involved a tarsometatarsal fusion with bone graft and internal fixation. The plaintiff complained of ongoing pain, swelling, numbness, and pins and needles, as well as degeneration in the tarsometatarsal joints. The court found that the plaintiff had suffered a loss of earning capacity and was entitled to damages for the care provided by his wife and employer. The court awarded judgment for the plaintiff against the first and second defendants in the sum of $865,158.88 and against the third defendant in the sum of $758,839.45.

Orders

Orders of the court

1. Judgment for the plaintiff against the first and second defendants in the sum of $865,158.88

2. Judgment for the plaintiff against the third defendant in the sum of $758,839.45

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Judgment for the plaintiff against the third defendant in the sum of $758,839.45 McMeekin J: The plaintiff, Scott William Pollock, claims damages for personal injury suffered on 7 April 2010. Mr Pollock was injured at his place of employment when a tub plate weighing in the order of 150kg fell crushing his right foot. The plaintiff’s employer was a labour hire company, now in liquidation. WorkCover Queensland, the third defendant, stands in its shoes. The plaintiff’s labour was hired to the second defendant, Australian Bearings Pty Ltd. That company had agreed to perform work for the first defendant, Thiess Pty Ltd, the owner of the mine where the relevant work was being performed. The defendants exchanged notices of contribution or third party notices. Liability for the injury is admitted both to the plaintiff and as between the three defendants. I am required to assess damages. Mr Pollock was born on 5 April 1984. He was 26 years old when injured. He is now aged 30 years. Because Mr Pollock was injured at work the provisions of the Civil Liability Act 2003 (“CLA”) have no application: s 5(1)(b) CLA and see Newberry v Suncorp Metway Insurance Ltd.[1] The only relevant distinction between the three defendants is in the assessment of damages under the Griffiths v Kerkemeyer[2] principle - for the third defendant the assessment is to be determined under the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)[3] (WCRA) and damages under that head are not available: s 308E WCRA.[1][2006] 1 Qd R 519; [2006] QCA 48[2](1977) 139 CLR 161; and see Van Gervan v Fenton (1992) 176 CLR 327; CSR Ltd v Eddy (2005) 226 CLR 1 [3]Reprint 4 Mr Pollock suffered a Lisfranc fracture of the right forefoot. There was, as well, damage to the surrounding soft tissues. Two surgical procedures were undertaken. The first involved a fixation of the fracture with screws. There followed a period where Mr Pollock could not bear weight on the injured foot. The convalescence was long and not trouble free. Mr Pollock needed assistance with some aspects of daily life. His partner assisted him. Mr Pollock complained of ongoing symptoms of pain, swelling, numbness and pins and needles. Degeneration developed in the tarsometatarsal joints. Because of that degeneration Dr Saxby, an orthopaedic surgeon specialising in surgery to the foot and ankle, determined to carry out a second procedure – a tarsometatarsal fusion with bone graft and internal fixation. The medical evidence is that the procedure achieved its aim of fusing the bones and putting a stop to the developing degeneration. Again a period of non weight bearing followed the surgery and then Mr Pollock wore a “moon boot.” He again required assistance from his partner. To an extent the assessment depends upon the accuracy of Mr Pollock’s evidence. One issue concerned his complaints of a burning pain on the top of his injured foot. That symptom was first recorded some time after the accident.

Ratio Decidendi

Legal Principle Established

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