WCRA: credit & failure to disclose pre-existing symptoms

Geary v REJV Services Pty Ltd & Ors [2011] QSC 419

Issues: quantum only – the plaintiff’s credibility when reporting to doctors, pre-existing symptomatology and alcohol consumption.

Facts:

The plaintiff was injured when the large dump truck called a “hall truck” received a load including a rock that weighed some 56 tonne, resulting in the cab moving “violently” and injuring his lower back.

North SC

The plaintiff’s credit come under scrutiny from a number of areas including: his false and misleading answers to prospective employers concerning his health and back condition; alcohol consumption pre and post work incident; his physical/violent nature; and failure to disclose to the medical specialists his earlier back symptomatology.

His Honour was more sympathetic towards the plaintiff in respect of his answers to employers about his work ethic, but noted it was a matter which alerted the need to be cautious. The allegations in relation to domestic violence were inclusive as well his post incident altercations. However, North SC found it give rise to the impression the plaintiff was playing at “catch me if you can” in the cross-examination, which was another factor to be taken into account in assessing his credit. His Honour was not satisfied with the psychiatric evidence, especially in the context of the alcohol consumption and the reasons for it and the reporting of it by the respective psychiatrists Dr Leong and Dr Likely. However,  North SC found the basis of the back specialists’ reports and evidence of the plaintiff’s back complaint was flawed because it did not include the history of pre-existing symptoms. His Honour formed the view this was greater than that reported, although not setting to what degree it was. This matter weighed heavily in the resulting economic loss components, but not to the extent envisaged by the Defendants.

His Honour allowed $50,000 for general damages for a back with pre-existing degeneration and an impairment in the order of 6-10% of which more than half was pre-existing. North SC found that past economic loss was substantially discounted because of the likelihood the pre-existing condition would have impacted on his earning capacity and allowed a loss of $70,000 for 6.3 years. As to future loss of earning capacity, North SC took the view that his pre-existing condition may well have caught up with him. Nevertheless, taking into account his work ethic and the loss of opportunities, a loss of $200,000 was allowed, broadly calculated as $300/week until the age of 67 years (20 years) and discounted.

Brisbane Barrister – David Cormack

NB:

The decision was upheld on appeal: Geary v REJV Services Pty Ltd & Ors [2012] QCA 238

 

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