Slight v Ben-Mac Pty Ltd - [1996] QSC 129

IN THE SUPREME COURT

OF QUEENSLAND
No. 1971 of 1994

[Slight v. Ben-Mac Pty Ltd]

BETWEEN:
SANDY ROBYN SLIGHT
Plaintiff

AND:
  BEN-MAC PTY LTD (formerly STOCKMAN'S
  AUSTRALIAN CAFE PTY LTD) (ACN 011 051 871)
  Defendant

JUDGMENT - THOMAS J.

Delivered:19 July 1996

CATCHWORDS: DAMAGES - Back injury - Van Gervan v. Fenton discussed - Quantum

Counsel:Mr P de Plater for the Plaintiff
Mr J Rolls for the Defendant

Solicitors:MacGillivrays for the Plaintiff
Mullins & Mullins for the Defendant

Hearing Date: 11 and 12 July 1996

IN THE SUPREME COURT

OF QUEENSLAND
No. 1971 of 1994

[Slight v. Ben-Mac Pty Ltd]

BETWEEN:
SANDY ROBYN SLIGHT

Plaintiff
AND:
  BEN-MAC PTY LTD (formerly STOCKMAN'S
  AUSTRALIAN CAFE PTY LTD) (ACN 011 051 871)
  Defendant
JUDGMENT - THOMAS J.

Delivered 19 July 1996

Liability is admitted, and my only task is to assess the plaintiff's damages.
           The plaintiff was born on 18 April 1966 and was twenty-five years old when she commenced working as a chef at a restaurant called "Eat Street" at Marina Mirage, Main Beach. She worked long hours and performed strenuous tasks including the lifting of heavy pots and bags of produce. This ultimately produced a ruptured lumbo-sacral disc. The first occasion when serious symptoms appeared was 29 March 1992.
           There was a short but unsuccessful return to work under a workers' compensation rehabilitation scheme in July 1992. She underwent surgery in September 1992 during which the ruptured lumbo-sacral disc was removed. After a few weeks there was some easing of pain and she commenced intensive physiotherapy and conscientiously endeavoured to recover her strength and mobility. In February 1993 she commenced a full-time TAFE course which would, if completed result in an associate diploma in business and hospitality. However she found that some of the practical work required of participants in the course, including some serving and waitressing functions, beyond her and she dropped out of the course after six weeks.
           Apparently she was suffering from a recurrent disc prolapse and symptoms similar to her original symptoms returned. The defendant accepts responsibility for those consequences. She was generally disabled, as persons with serious back disabilities are disabled. Not only was she unable to cope with work, but her housework and her relationship with her fiance with whom she lived also suffered.
           On 29 July 1993 she underwent further surgery, this time by a neurosurgeon Dr Tan. There was further removal of the right L5-FS1 disc. Once again the pain in her leg disappeared, although some back pain remained. By February 1994 she was looking forward to finding a job. April of that year she attempted work as a supervisor in a restaurant, in the expectation that she would not be required to carry trays or be involved in other than very light physical work. However the employer desired her to do more than escort patrons to tables and generally supervise. After two or three weeks she found the bending and lifting tasks beyond her and she ceased that…

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 Slight v Ben-Mac Pty Ltd

Details

AGLC: Slight v Ben-Mac Pty Ltd [1996] QSC 129
Case: [1996] QSC 129
Decision Date: 19 July 1996

CaseChat Overview and Summary

Sandy Robyn Slight brought an action against Ben-Mac Pty Ltd for damages resulting from a back injury sustained while working as a chef at the restaurant "Eat Street" at Marina Mirage, Main Beach. The defendant admitted liability, and the court was tasked with assessing the plaintiff's damages. The plaintiff, born on April 18, 1966, experienced a ruptured lumbo-sacral disc due to strenuous tasks including heavy lifting, leading to significant physical and psychological impairments. The plaintiff underwent two surgeries, engaged in physiotherapy and various retraining courses, but has been unable to return to full-time employment. The plaintiff's relationship with her fiancé deteriorated, and she later had a child with another man. Her condition has resulted in constant pain, headaches, and limitations in daily activities and employment opportunities.

The court examined several legal issues, including the assessment of damages for pain, suffering, and loss of amenities; economic loss; and future expenses. For pain, suffering, and loss of amenities, the court awarded $45,000, considering the plaintiff's young age, work-oriented lifestyle, and the significant impact of the injury on her life. For economic loss, the court assessed the plaintiff's earning capacity as reduced by about fifty percent, awarding $80,000 for past economic loss and $150,000 for future economic loss. The court also considered claims for care and assistance under Griffiths v. Kerkemeyer, awarding $10,000 for past care and $20,000 for future care, despite difficulties in applying the principles of Van Gervan v. Fenton to the evidence. Future expenses included medication, acupuncture, and other medical needs, totaling $8,000, $5,250, and $1,400 respectively.

The court summarised the damages as follows: $45,000 for pain, suffering, and loss of amenities; $80,000 for past economic loss; $150,000 for future economic loss; $10,000 for past care; $20,000 for future care; and various amounts for future medical expenses. After deducting Workers' Compensation payments, the total award was $301,558.03, with liberty to apply on questions of mathematics and interest.

Orders