Stewart v Fehlberg

[2008] QSC 292

SUPREME COURT OF QUEENSLAND

CITATION:

Stewart v Fehlberg & Anor  [2008] QSC 292

PARTIES:

GENE SCOTT AIDEN BRETT STEWART
(Plaintiff)
v
GARY ALLAN FEHLBERG
(First Defendant)
And
PERSAL & CO CONSTRUCTIONS PTY LTD
(Second Defendant)

FILE NO/S:

Rockhampton 373 of 2007

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

21 November 2008

DELIVERED AT:

Rockhampton

HEARING DATE:

22, 23, 24, 25 September and 9 October 2008

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff against the first defendant in the sum of $369,867.49. 1.    

Judgment for the plaintiff against the second defendant in the sum of $358,600.36. 2.    

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES - PERSONAL INJURIES – SUPERVENING NATURAL CAUSE – assessment of damages for personal injuries - where the plaintiff received an electrical shock – where no organic basis for symptoms - whether the patient’s tremors involves Parkinson’s disease

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 311, followed

Lee v Quality Bakers Australia Limited [2000] QCA 285, followed

COUNSEL:

M Grant-Taylor SC and R Morton for the Plaintiff

G O’Driscoll for the Defendants

SOLICITORS:

Suthers Lawyers for the Plaintiff

Gadens Lawyers for the Defendant

1. McMEEKIN J: In this action Mr Stewart seeks damages for personal injuries suffered when he sustained an electric shock on 2 February 2000, when aged 34 years,[1] at the premises of the first defendant and while in the course of employment with the second defendant. Liability is admitted.

   [1]Mr Stewart was born 23 October 1965

Circumstances of the accident

1. The only account of the accident itself comes from the plaintiff and he has given slightly differing versions according to the reports tendered. The differences relate to the period of exposure to electric current and the immediate effect as to whether he fell or not. Those differences do not seem to me to be particularly relevant. The early reports seem to indicate that he did not fall or lose consciousness. Mr Stewart said in his evidence that he could not say for how long he was exposed[2] but in his statement that was tendered said that the length of exposure was 12 seconds.[3] Counsel seemed content to argue the case on that basis. The current was normal domestic current of 240 volts.

   [2]T 1-19/40

   [3]Ex 40 para 2

1. The probabilities suggest that the current travelled from Mr Stewart’s right hand, where he suffered an entry wound, probably through his chest, and out through the left hand.[4] There is no evidence that the current reached the brain or spinal chord.[5]

   [4]Dr Reid: 4-15/10

   [5]T 4-17/14; There is no evidence of brain damage: Dr Field: Ex 45 at p17; Mr Salzman: Ex 31 at p 11. All tests have proved normal – Ex 8 at p1; Ex 68 at p 8. I note the views of Dr Andrews (T5-13/10-15/20) but have no reason to think they are based on evidence as opposed to theoretical assumptions.  Dr Todman…