Thomson v State of Queensland - [2019] QSC 95

SUPREME COURT OF QUEENSLAND

CITATION:

Thomson v State of Queensland & Anor [2019] QSC 95

PARTIES:

STEPHEN THOMSON

(plaintiff)

v
STATE OF QUEENSLAND

(first defendant)
and
QUEENSLAND POLICE-CITIZENS YOUTH WELFARE ASSOCIATION (ACN 009 666 193)
(second defendant)

FILE NO:

BS 8331 of 2014

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

10 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12, 13 and 14 February 2019 and 28 March 2019

JUDGE:

Applegarth J

ORDERS:

1.    Judgment for the plaintiff against the first defendant in the sum assessed against it.

2.    Judgment for the plaintiff against the second defendant in the sum assessed against it.

3.    Within seven days the parties bring in minutes of judgments, including any orders for contribution between defendants and proposed orders as to costs.

4.    Liberty to apply.

CATCHWORDS:

DAMAGES – PARTICULAR AWARDS OF GENERAL DAMAGES – QUANTUM – where the plaintiff contracted Q Fever and Q Fever Debility Syndrome and a consequential serious psychiatric injury after working on a school farm – where the plaintiff was an employee of the second defendant and the farm was operated by the first defendant – where the plaintiff sued each defendant for breach of duty of care – where each defendant admits liability to the plaintiff – what the plaintiff’s likely employment and health would have been had he not contracted Q Fever – what is an appropriate assessment of damages

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GRATUITOUS AND COMMERCIAL CARE – where the plaintiff’s Q Fever Debility Syndrome and chronic major depressive disorder create a need for daily care – where care provided by the plaintiff’s wife – what is an appropriate assessment for past and future care

Workers’ Compensation and Rehabilitation Act 2003 ch 5, pt 8, pt 9, s 306N(1)
Workers’ Compensation and Rehabilitation Regulation 2003 sch 9, sch 12

Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 083 cited
Graham v Baker (1961) 106 CLR 340 cited
Watts v Rake (1960) 108 CLR 158 cited
Shaw v Menzies [2011] QCA 197 cited

COUNSEL:

G J Cross and O Perkiss for the plaintiff

M T O’Sullivan for the first defendant
C S Harding for the second defendant

SOLICITORS:

The Personal Injury Lawyers for the plaintiff

Crown Solicitor for the first defendant
McInnes Wilson Lawyers for the second defendant

The plaintiff, Mr Thomson, was employed by the second defendant as a Project Supervisor (Carpenter). In late 2011 he was required to supervise a project to upgrade cattle yards and other items at the Southport High School Farm. This exposed him to the risk of the bacterium which causes Q Fever. He contracted Q Fever in January 2012 and, as a result, Q Fever Debility Syndrome. In turn, he developed a chronic Major Depressive…

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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Details

Case: [2019] QSC 95
Decision Date: 10 April 2019

CaseChat Overview and Summary

The case of Thomson v State of Queensland involved the plaintiff, who contracted Q Fever and Q Fever Debility Syndrome after working on a school farm, leading to a serious psychiatric injury. The plaintiff, who was employed by the second defendant, sued both the first defendant, who operated the farm, and the second defendant for breach of duty of care. Both defendants admitted liability, and the court had to decide on the appropriate assessment of damages, including general damages, loss of earnings and earning capacity, expenses flowing from the plaintiff's inability to work, and past and future care. The plaintiff accepted that due to the Workers Compensation and Rehabilitation Act, he could not be awarded damages against the second defendant for any care provided.

The legal issues before the court involved determining an appropriate award of general damages for the plaintiff's chronic condition and psychiatric injury, the plaintiff's likely employment and income had he not contracted Q Fever, special damages, future medical and other expenses, and past and future care. The court had to consider the plaintiff's pre-existing employment history, his plans to continue working and eventually retire, and the impact of his Q Fever infection on his physical and psychological state. The plaintiff's wife provided a high level of care, and the court had to assess the appropriate amount for past and future care.

The court found that the plaintiff's condition had a significant impact on his physical and psychological well-being, and his and his wife's plans to work for as long as they could and then retire had been shattered. The court awarded damages to the plaintiff, taking into account the appropriate assessment of general damages, loss of earnings and earning capacity, expenses flowing from the plaintiff's inability to work, and past and future care. The court also considered the impact of the plaintiff's Q Fever infection on his employment prospects and income. The final orders included judgment for the plaintiff against both defendants, with the parties required to bring in minutes of judgment, including any orders for contribution between defendants and proposed orders as to costs.

Orders

Orders of the court

1. Judgment for the plaintiff against the first defendant in the sum assessed against it.

2. Judgment for the plaintiff against the second defendant in the sum assessed against it.

3. Within seven days the parties bring in minutes of judgments, including any orders for contribution between defendants and proposed orders as to costs.

4. Liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The substantial issues include:(a) an appropriate award of general damages;(b)the plaintiff’s likely employment and income if he had not contracted Q Fever in January 2012, including the prospect that he would have continued to work after turning 65;(c) special damages;(d) future medical and other expenses;(e) past and future care.As to the last matter, the plaintiff accepts in his pleading in reply that by virtue of the provisions of the WCRA, he is precluded from being awarded damages against the second defendant in respect of any care and assistance provided to him, either in the past or future.Overview of the evidence The plaintiff was a highly valued employee and enjoyed his work supervising disadvantaged individuals on programs which gave them work experience and improved their skills and employability. He was born on 18 April 1954 and after leaving a technical school, completed an apprenticeship and became a sign writer. Over the following decades he worked for himself or was employed, either as a sign writer or in carpentry work. In addition, he became a Tae Kwon Do instructor and earned income teaching Tae Kwon Do. His association with the Police and Citizens Youth Club (PCYC) led him into being employed to act as a supervisor in the late 1990s. This included supervising “work for the dole” projects where he would teach individuals skills. Before the plaintiff contracted Q Fever he planned to continue to work for the second defendant as a supervisor because he enjoyed the work and needed to earn an income to support himself and his wife. His wife and he each planned to work for as long as possible, and to eventually retire to a home they planned to build at Ashby on the Clarence River in northern New South Wales. Some people who contract Q Fever hardly notice it and are not diagnosed because their immune system conquers the infection.[2] In other cases, Q Fever is in an acute form and occasionally it can be a chronic illness. The plaintiff probably became infected with a bacterial organism called Coxiella burnetii in December 2011, shortly before he and others went on Christmas holidays. The likely source was from dust or from soil that he dug up or came in contact with on the farm. The “modal incubation period”[3] is between 14 and 21 days. The plaintiff’s Q Fever symptoms became severe in early January 2012, but unfortunately he was not diagnosed with Q Fever for a substantial time. The acute Q Fever which he suffered, followed by Q Fever Debility Syndrome, meant that he never returned to work. [2] Some evidence suggests 60 per cent of cases in adults are asymptomatic. [3] This is the most common incubation period, and in terms of epidemiology, it means that 95 per cent of infections will occur during that period. Several years after contracting Q Fever, the plaintiff remains in a parlous physical and psychological state. His and his wife’s plans to work for as long as they could and then to retire and enjoy life have been shattered. The plaintiff’s state is such that his wife provides a high level of care. With medical and other advice, the plaintiff has tried to rehabilitate himself and become more active. However, there is no indication that either his physical or psychological condition is likely to improve substantially.Q Fever Debility Syndrome

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thomson v State of Queensland & Anor [2019] QSC 95
PARTIES:	STEPHEN THOMSON (plaintiff) v STATE OF QUEENSLAND (first defendant) and QUEENSLAND POLICE-CITIZENS YOUTH WELFARE ASSOCIATION (ACN 009 666 193) (second defendant)
FILE NO:	BS 8331 of 2014
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	10 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11, 12, 13 and 14 February 2019 and 28 March 2019
JUDGE:	Applegarth J
ORDERS:	1. Judgment for the plaintiff against the first defendant in the sum assessed against it. 2. Judgment for the plaintiff against the second defendant in the sum assessed against it. 3. Within seven days the parties bring in minutes of judgments, including any orders for contribution between defendants and proposed orders as to costs. 4. Liberty to apply.
CATCHWORDS:	DAMAGES – PARTICULAR AWARDS OF GENERAL DAMAGES – QUANTUM – where the plaintiff contracted Q Fever and Q Fever Debility Syndrome and a consequential serious psychiatric injury after working on a school farm – where the plaintiff was an employee of the second defendant and the farm was operated by the first defendant – where the plaintiff sued each defendant for breach of duty of care – where each defendant admits liability to the plaintiff – what the plaintiff’s likely employment and health would have been had he not contracted Q Fever – what is an appropriate assessment of damages DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GRATUITOUS AND COMMERCIAL CARE – where the plaintiff’s Q Fever Debility Syndrome and chronic major depressive disorder create a need for daily care – where care provided by the plaintiff’s wife – what is an appropriate assessment for past and future care Workers’ Compensation and Rehabilitation Act 2003 ch 5, pt 8, pt 9, s 306N(1) Workers’ Compensation and Rehabilitation Regulation 2003 sch 9, sch 12 Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 083 cited Graham v Baker (1961) 106 CLR 340 cited Watts v Rake (1960) 108 CLR 158 cited Shaw v Menzies [2011] QCA 197 cited
COUNSEL:	G J Cross and O Perkiss for the plaintiff M T O’Sullivan for the first defendant C S Harding for the second defendant
SOLICITORS:	The Personal Injury Lawyers for the plaintiff Crown Solicitor for the first defendant McInnes Wilson Lawyers for the second defendant