In Queensland, the Supreme and District Courts are now closed for the holiday period, set to reopen in mid-late January 2023. We look back on the decisions reported in 2022 with respect to claims for personal injuries.
In total, there were only 8 personal injury court decisions that had gone through a proper trial. The Supreme Court reported 3 decisions following trial, whereas the District Court reported on 5 claims.
For context, most personal injury claims resolve out of court. A claim for personal injuries is only heard in court if:
- all efforts to resolve the claim informally have failed (including a compulsory conference, and usually a pre-trial mediation, and sometimes just hours before stepping into the court room itself); and
- the dispute is for damages in excess of $750,000 for the Supreme Court, or between $150,000 - $750,000 for the District Court.
Injuries Caused by Motor Vehicle Accidents
Murphy v Turner-Jones & Anor [2022] QSC 40
In this case, a taxi-driver was injured in a motor vehicle accident. He appeared in this trial on his own behalf which is rare, and comes with substantial risk. However, the 50-year old plaintiff held a law degree and had experience as a trainee lawyer earlier in his life. He was successful in his claim because liability was admitted by the insurer and the only dispute was over quantum (i.e. the value of the claim).
The injuries claimed were of a severe whiplash nature, yet the plaintiff was seeking over $10 million dollars in damages. An Australian court has never awarded damages this high - or even close to it - for a whiplash injury. The judge said that there was insufficient evidence, nor a proper legal basis to accept some of what the plaintiff was attempting to claim, but accepted that he indeed had a level of neck pain that might make it difficult to drive his taxi and was entitled to compensation.
The plaintiff was awarded $200,776 in damages. The largest component of his compensation award was future loss of earnings calculated at $107,786.
Injuries Caused by Workplace Accidents
Potter v Gympie Regional Council [2022] QSC 9
In this lengthy decision, the plaintiff worked for the Gympie Regional Council as a manager for the local laws team. For context, a council local laws team enforce rules such as parking restrictions, etc. In mid-2014, various meetings were held where the plaintiff was wrongly accused of serious misconduct in his role. Following the accusation, he was stood down on full pay whilst an investigation commenced. However, he was later exonerated (but found to have committed a much more minor level of misconduct). The plaintiff claimed that as a result of the serious accusations, he suffered a significant psychiatric injury. The psychiatric injury was substantiated with medical evidence.
However, the claim was dismissed because the plaintiff failed to establish that his employer was liable in negligence for the psychological injury and damages suffered.
Section 305B of the Workers Compensation and Rehabilitation Act 2003 sets out general principles for the standard of care expected of employers as follows:
(1) A person does not breach a duty to take precautions against
a risk of injury to a worker unlessâ?"
(a) the risk was foreseeable (that is, it is a risk of which the
person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of
the person would have taken the precautions.
Specifically, for the court to impose liability on the defendant employer, the plaintiff needed to establish that his employer knew or ought to have known of the foreseeable risk that he could sustain a psychiatric injury from the meetings/allegations. However, it was determined by the court that the employer could not have reasonably been aware of the risk until after the meeting had taken place.
Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd [2022] QDC 3
This plaintiff was 26 years old and employed as sheet metal tradesman by the defendant company. Whilst at work, he was directed by his supervisor/employer to help lift a 120kg benchtop. Shortly after the two-person lift, the plaintiff complained of a of significant back pain. His medical evidence suggested a whole person impairment (WPI) score of 7% due to having sustained a permanent back injury from the lift. He also tendered evidence of having developed a secondary psychological injury.
It was the defendant's position that the plaintiff's injury was the result of an 'obvious risk', especially in circumstances where the plaintiff knew the benchtop was heavy, and where he had a pre-existing back condition. If the court found that the risk was indeed an obvious one, Section 305H of the Workers Compensation and Rehabilitation Act 2003 would allow the court to make a reduction of the damages awarded to the plaintiff on the basis that he was contributorily negligent for his injuries. The defendant was seeking to absolve themselves of liability entirely due to the alleged contributory negligence.
In the decision, the judge referred to a prior case of Kabic v AAI Ltd [2019] NSWCA 247 which held that a plaintiff is not contributorily negligent simply by following the instructions of their employer and that a finding of contributory negligence can only be made if it was reasonably practicable for [the plaintiff] to have taken an alternative course of conduct which would have obviated the risk of injury. However, there was no reasonable alternative course of conduct for the plaintiff other than to help his employer lift the benchtop as he was instructed to do so.
The plaintiff was awarded $769,345.47 in damages which was reduced to the District Court's jurisdictional limit of $750,000. The largest component of the awarded sum was for future loss of earnings calculated at $459,600.
Schafer v Glendale RV Syndication [2022] QDC 263
In this case, a 54 year old plaintiff approximately 5'2? in height and of slight build was employed as a chef. Her employer required her to stack food trays in ovens (and distribution trolleys) at her shoulder/head height. The trays weighed approximately 5.5kg. The Plaintiff said that while performing this procedure, she experienced severe pain in her left shoulder. She reported the injury to her supervisor, but continued to work for the next few days.
The defendant said that the plaintiff had not complained about difficulties loading the oven and therefore the risk of injury was note foreseeable and as such they should not be held liable. However the plaintiff said she'd in fact reported concerns regarding the oven to two superiors prior to sustaining the injury. The defendant's lack of undertaking a risk assessment with respect to the potential risks associated with the plaintiff's duties was key in the judge's finding of liability against the defendant employer. The Manual Tasks Code of Practice 2011 (published by Queensland Workplace Health & Safety) was also referred to in helping establish the defendant's breach of their duty of care to the plaintiff. It was considered that lowering the oven racks or providing a step stool may have discharged the defendant's obligations.
The plaintiff was awarded $397,952.93 in damages. The largest component of the awarded sum was for past loss of earnings calculated at$160,237. A similar sized award for future economic loss was awarded, factoring in that the plaintiff was now working around 22 hours per week in new alternative employment.
Norsgaard v Aldi Stores (A Limited Partnership)Â [2022] QDC 260
In this case, the 37yr old plaintiff was employed by the defendant as a store person and sustained an injury to her lumbar spine (lower back). The plaintiff argued that the injury occurred because the defendant employer failed to provide adequate training in 'manual handling techniques'. Specifically, the plaintiff was required to required unload stock from a pallet of goods. That task was expected to be completed by her within 20 minutes per pallet, however she struggled to achieve this. Her back injury occurred when she was unloading 3 trays of canned tomatoes that weighed around 15kg from a pallet.
The trial considered whether the defendant employer discharged their duty of care to the plaintiff with respect to the provision of appropriate training. The defendant employer said that the plaintiff had watched an induction video during her first week of work and told the employer she knew how to do it. She had completed a 'safe manual handling module' on a work iPad. The employer/supervisor had demonstrated stretching postures, a safe lifting technique and the plaintiff performed a demonstration back to the supervisor to confirm her understanding. As she and her employer would often unload from the same pallet, the employer said he would often monitor her lifting technique and provide further demonstrations as necessary.
However, the plaintiff said that the training video was deficient as it was not totally applicable to the plaintiff's role, did not specify any maximum weight limit, and the iPad module contained only a very basic quiz with two possible answers. The plaintiff also argued that the employer encouraged her to work faster, and counselled her on her slow speed, which took the focus off safe lifting and emphasized the need to undertake the repetitive lifting at an unreasonable pace. The judge further noted that there appeared to be a lack of 'proper supervision' of the plaintiff at relevant times.
The defendant employer attempted to argue contributory negligence to the extent of 100% on the plaintiff, suggesting that she caused her own injury as such a risk of injury was 'obvious'. The judge rejected this argument entirely and held that the defendant had breached their duty of care to properly train the plaintiff. The primary reason being that she was not instructed to lift any maximum weight and was not instructed to lift any maximum number of trays which could have been prohibited or at least discouraged.
The plaintiff was awarded $157,767.71 in damages, the largest component being a global sum of $60,000 for future economic loss.
Nkamba v Queensland Childcare Service Pty Ltd [2022] QDC 292
In this case, the plaintiff was employed at the defendantâ?Ts childcare centre and was setting up an activity for the children. When gathering equipment from a storage shed, she stepped backwards and down onto an area covered with artificial grass on which there was a small Lego block that had been dragged out of the shed with some of the larger equipment she had moved out (specifically, an A-frame). Her ankle rolled on the Lego block and inverted, rupturing her anterior talofibular ligament.
At the time, it was around 6am in the morning and was still dark, being a winter morning with sunrise not occurring until 6.06am. The shed had a defective light and visibility around the area was impaired. However, there was external lighting to a degree. The defence argued that it was light enough to see the Lego block, that there was no defective shed light (or if there was, they had not been told), and that she simply didn't look where she was stepping. Because of this, the defendant argued that she was guilty of contributory negligence.
The plaintiff was subjected to considerable cross-examination but did not back down from her claims. Her responses to cross-examination assisted the judge to agree with her version of events on the balance of probabilities. It was determined that the plaintiff had told her employer about the issue with the defective shed-light, but it was not actioned. The judge said that it was not necessary for there to have been lighting issues before there was any foreseeability of the risk, inferring that an untidy shed poses a risk alone. The defendant's argument of contributory negligence was rejected in full.
She was awarded $197,013.98 in damages, clear of any workers' compensation refund liability. The largest component of her damages was for past economic loss of $116,288.
Injuries caused by Medical Negligence
Chapman v Wide Bay Hospital and Health Service [2022] QDC 271
This plaintiff attended a Hervey Bay hospital in mid December 2015 when she was 40 years old. She was admitted to have a laparoscopic hysterectomy. During the hysterectomy procedure, she inadvertently suffered a bowel perforation (a medical tool punctured her large intestine). The perforation was not immediately apparent to the surgeon or the patient. However, due to complaints of pain after the procedure, a further exploratory procedure was undergone the following day to determine the cause. During the exploratory procedure, the puncture was identified and surgically repaired as a matter of urgency.
In shock, the plaintiff awoke from the exploratory procedure to discover a colostomy bag had been fitted to her abdomen which was necessary to stay in place until late February 2016. Her claimed injuries were a moderate bowel injury, scarring to her abdomen (17cm in length), and a psychological injury (adjustment disorder) as a result of the surgeon's negligence. She also claimed that an onset of obstructive sleep apnoea a couple of years later was related. Liability for the injuries was admitted but quantum was in dispute.
The plaintiff had a work history largely in administrative roles. By the time of the trial, she was actually working longer hours post-injury than she was before the incident and earning substantially more income. The defendant argued that she had accordingly not lost any work capacity. The plaintiff had however reduced her work hours from 40 hours per week to 35 hours per week approximately two years before the trial to better cope with her psychological adjustment disorder. The judge confirmed the court's already well-established position that awards for future economic loss are related to reduced earning capacity (or the chance of), and that actual earnings are not as relevant.Â
The plaintiff was awarded $201,770 in damages. Her largest head of damage was for past gratuitous care and assistance on account of reasonable and necessary domestic care provided to her by her husband after the stoma procedure, calculated at $38/hr and totalling $47,100.
Part of the judgement award included a claim for approximately $8,000 on account of payments made by her private health insurer. Interestingly, the defendant contested such an award, arguing that there was no evidence that the private health insurer required the plaintiff to repay the funds. The judge disagreed with the defendant and allowed the claim, saying that "a tortfeasor should indemnify the injured person for the loss, rather than enjoy a windfall gain by shifting the burden of compensation to [the private health insurer]".Â