Judgment for the plaintiff against the defendant for $1,125,949.04
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where plaintiff claims damages for injuries suffered in the course of employment with the defendant – where both liability and quantum of damages are in contention
TORTS – NEGLIGENCE – BREACH OF DUTY – where the plaintiff was operating a loader when the canopy of the loader collided with a steel beam erected across the roof of the mine – where the canopy together with the deck which the operator’s chair was located could travel up and down – where the plaintiff was unaware of the existence of the lever or the capacity for the canopy and cabin height to be altered by the operator – where the manufacturer had warned about the possibility of an accidental raising of the canopy – where the case advanced by the plaintiff was that the plaintiff’s gumboot must have inadvertently caught under the lever located on the floor of the operator’s cabin causing the cabin to rise up – where the defendant’s case is that the canopy was deliberately raised by the plaintiff and the plaintiff forgot to lower it back down – where after the accident a guard was fitted over the lever to prevent any inadvertent raising of the canopy – whether it was possible for the canopy and cabin to rise up without the operator knowing – whether the defendant was in breach of its duty of care
TORTS – NEGLIGENCE – CAUSATION – where the plaintiff is diagnosed with a disc prolapse at the C6/7 level of his spine – where it is in contest as to whether the prolapse was caused by the loader incident on 26 June 2013 or by an event at a later date – where it is the plaintiff’s case that he did have symptoms consistent with a disc prolapse from the date of the loader incident – where no medical records or other record supports the plaintiff’s assertions that he had such symptoms – where some records are positively against the plaintiff – where the symptoms described by the plaintiff to his treating neurosurgeon are consistent with a frank prolapse occurring not at the time of the collision but after 25 October 2013 – where conversely several lay witnesses attest that the plaintiff exhibited and spoke of continuing symptoms sufficient to base a finding of a probable causal connection between the incident and the prolapse – whether the plaintiff experienced symptoms consistent with a disc prolapse after the loader hit the overcast on 26 June 2013 –…
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.
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AGLC
Souz v CC Pty Ltd [2018] QSC 36
Case
[2018] QSC 36
Decision Date
CaseChat Overview and Summary
Souz v CC Pty Ltd is a case involving a claim for damages for injuries sustained by the plaintiff while operating a loader at a mine operated by the defendant. The plaintiff claims damages for a disc prolapse at the C6/7 level of his spine, which he alleges was caused by a collision between the loader canopy and a steel beam. The case raises issues of breach of duty of care, causation, and the measure and remoteness of damages for personal injuries. The court had to determine whether the defendant was negligent in failing to warn the plaintiff about the lever that could raise the canopy, whether the injury was caused by the incident in question, and how the damages should be assessed. The court found that the defendant breached its duty of care by not adequately warning the plaintiff about the lever, and that the injury was likely caused by the incident. The court awarded damages for general, past economic, and future economic losses, as well as for care and assistance. The plaintiff was awarded $1,125,949.04 in total damages, which included a deduction for deemed Medicare charges and a reduction in the claim for pharmaceutical expenses and travel costs. Interest on past monetary losses was calculated according to the appropriate rate for 10-year Treasury bonds published by the Reserve Bank of Australia. The court's judgment provides guidance on the assessment of damages for personal injuries and the application of the relevant legislation.
Orders
Orders of the court
Judgment for the plaintiff against the defendant for $1,125,949.04
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Counsel for the plaintiff tendered a schedule setting out the damages claimed.[84] The damages total $47,609.74. There are various assumptions underlying the schedule which are in dispute. The disputed claims are set out followed by my response in bold:(a) A claim is made for $6,424.75 under the heading “Medicare Notice of Charge – deemed (dated 30.09.17)”. The defendant submits that deemed Medicare charge is of no evidential value. - There is no analysis of the Medicare Notice of Charge sufficient to satisfy me that the charge relates to the expenses for which the defendant ought to be liable. Medicare simply assumes that to be so. As the defendant pointed out in its submissions there are other medical issues and attendances that are unrelated.(b) Under “Pharmaceutical” a claim is made for $1,500 for the cost of medicines at $25 per week from 26 June 2013 to 21 August 2014. The defendant submits that the record does not show Mr Souz spending $25 a week from the 26th of June. It shows very little expenditure - only about $20 - before 25 October 2013 - The plaintiff made no response to this submission. The claim must be moderated by the evidence. I will allow $1,000 of the amount claimed, restricting the claim to 42 weeks.(c) A claim is made for $4,382.40 for travel. The assumption is of fortnightly travel to Rockhampton from 1.12.14 (when the plaintiff relocated to Yeppoon) to the present for attendances on general practitioners and a psychologist. The defendant submits that the assumption was not borne out by the evidence - Again no response is made to the submission. No analysis of the evidence was made to persuade me that the claim as formulated is accurate. No doubt there have been many such journeys for the stated purpose, but the claim is really in the nature of a claim for general damages. In the absence of any precise evidence I will allow one-half of the amount claimed as at least not overstating the loss.[84]Exhibit 23 page 26. I allow $39,000 under this head of loss. Interest on past monetary losses is governed by s 306N WCRA. It relevantly provides:306N Interest(1) A court can not order the payment of interest on an award for general damages.(2) - H2 Interesthttps:// - H4 awarded on damages compensating past monetary loss—(a) must not be more than - H3 interesthttps:// - H5 at the appropriate rate; and(b) must be related in an appropriate way to the period over which the loss was incurred.(3) The appropriate rate is the rate for 10 year Treasury bonds published by the Reserve Bank of Australia under ‘Interest - H6 rates and yields—capital market’ as at the beginning of the quarter in which the award of interest is made. Senior Counsel for the plaintiff advances the “appropriate rate” as 2.75%. No contrary submission was made by counsel for the defendant. For past economic loss the calculation should be performed on the amount allowed less WorkCover weekly benefits. The exhibit suggests those total $44,044,[85] but counsel for the plaintiff submits, again without complaint from the defendant, that the correct amount is $32,000. I will adopt the plaintiff’s submissions.[85]Exhibit 1 tab “Quantum” page5.