Fleming v State of Queensland [2016] QDC 334

Morzone QC DCJ

The plaintiff suffered personal injuries in 2007 when a wooden step collapsed under him at a police station where he was reporting unsupervised children at the local TAB. Relevantly, following the stair incident, the plaintiff sustained injuries during his work as a security officer when he fell and injured his left shoulder.

The defendant admitted liability for the stair incident but denied the quantum, in particular causation for injuries after the fall as a security officer. The plaintiff alleged the fall as a security officer was caused by his numb foot flowing from the stair injury: State Government Insurance Commission v Oakley (1990) 10 MVR 570.

Causation

The crucial question for his Honour was whether it was more probable than not that there was a causal relationship between the stair incident and the security incident, and the plaintiff’s alleged shoulder injuries and resulting impairment. His Honour considered s.11 of the Civil Liability Act 2003 and Wallace v Kam (2013) 297 ALR 383 at [14], noting the first limb of the test of necessary occurrence of the harm is entirely factual and found:

[51] Dr Don Todman opined that “It is possible that some loss of agility from the [stair] incident could have contributed to the [security] incident”. In contrast, Dr Labrom concluded that “there would be no relationship between the injury described on the 25th January 2007 and the alleged injury on the 24th June 2007”.  Dr Tuffley said “I couldn’t actually find anything objective when I examined his back to explain why he’d have a weakness that would cause him to fall” and “when I examined him I couldn’t find anything in his lower limb that would be considered abnormal, and as such, I would say there’s nothing about his physical capabilities that would make him fall.”.

[52] The medical opinion on this issue is somewhat speculative, and is subservient to the plaintiff’s evidence of the mechanism of the subsequent injury.

[53] I regret to say that the state of the plaintiff’s evidence leaves me with intolerable uncertainty about the security incident of 24 June 2007. My strong impression is that the plaintiff’s evidence on that issue is the product of retrospective rationalisation and reconstruction of a volatile and unrelated incident. Whilst I accept that the plaintiff continued to experience ongoing problems from the stair incident, I do not accept they were a substantial cause of, or substantially contributed to, the second security incident injuries. Indeed, I am unable to discern any relevant causal connection.

His Honour was not satisfied that the injuries from the stair incident were causative of the security incident or any consequential injuries:

[65] The plaintiff injured his shoulder in the security incident on 24 June 2007. I have concluded above that the mechanism of the plaintiff’s fall resulting in his shoulder injury was not caused by the ongoing problems caused by the stair incident. In my view the security indecent [incident] was separate and discrete and I am unpersuaded that it contributed to the plaintiff’s other signs and symptoms.

Quantum

His Honour assessed the balance of damages as follows:

Head of Damage

 

Amount
General damages

 

$42,200.00
Past economic loss

 

$18,000.00
Past superannuation loss

 

$1,665.00
Future economic loss

 

$220,000.00
Future superannuation loss

 

$25,102.00
Past special damages

 

$75,994.50
Interest on past special damages

 

$3,706.00
Future special damages

 

$48,500.00
Future care and assistance

 

$30,000.00
 

TOTAL

 

 

$465,167.50

 

David Cormack – Brisbane Barrister & Mediator

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