Krieger v Bundaberg City Council [2009] QSC 412

 

 

The issue in dispute [para 3]:

…whether Mr Krieger has suffered a cervical myelopathy i.e. damage to his spinal cord at the cervical level, which can be attributed either directly to the trauma of the subject incident, or indirectly eg caused in the subsequent surgery or due to micro trauma resulting from the altered mechanics of the spine due to and following on from the surgery. There is no suggestion that the surgery was not competently performed and hence no suggestion of any novus actus interveniens severing the causal connection as discussed in Mahony v J Kruschich (Demolitions) Pty Ltd.[3] 

 

Ultimately, his Honour McMeekin J after extensive consideration of the medical evidence, including; radiological, clinical, medical reports and testimony, concluded that the appearance of a compression in one scan, in the context of other scans and evidence, together with the nature of the symptoms recorded in the clinical notes, was not attributable to cervical myelopathy:

 

[77] In summary the signs that the doctors expect from cervical myelopathy are not present, the symptoms that are demonstrably present are explicable by another diagnosis namely that of a degenerating peripheral sensory motor neuropathy which the plaintiff undoubtedly has, there are potentially other explanations for some symptoms that have not been excluded, the manner of onset of the leg symptoms is more consistent with the developing neuropathy, the gait disturbance again is not typical of a cervical myelopathy but more consistent with the neuropathy, and the matters that Dr Todman calls in aid of his views are no better than neutral and not particularly persuasive.

 

Causation was thus not sustained.

 

As to what was compensable the principles were re-stated:

 

[100] The onus lies on the defendant, once a causal link between the breach of duty and a condition or symptom is established, to separate the effects of the claimed supervening cause from those that are compensable with some reasonable precision: Watts v Rake[65]; Purkess v Crittenden[66]; cf. Malec v JC Hutton Pty Ltd[67]; Smith v Topp[68]; Hopkins v WorkCover Queensland[69].

 

Damages were assessed at $165,080.00, including $75,000.00 impaired earning capacity (past and future). His Honour assessed damages on the alternative basis if he was wrong on causation in the amount of $878,251.65, including an amount of $385,000.00 in respect of earning capacity.

 

Brisbane Barrister – David Cormack

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