For the Defendant - November 2017

 For The Defendant

Welcome to the latest edition of our newsletter to keep our clients up to date with the latest developments in personal injury and insurance law in Queensland & what they mean for you.

Special Leave for Workplace Assault

In the April 2016 edition of For The Defendant, we discussed the matter of Govier v Unitingcare Community [2016] QDC 56.

Ms Govier claimed damages for physical and consequential psychiatric injuries stemming from a brutal workplace assault by a colleague and two letters she received from her employer during its investigation of the incident.

Though the plaintiff sent her employer a letter of complaint detailing non-physical abuse by her colleague six weeks prior to the assault, the trial judge found a physical threat was not foreseeable. He also found the employer did not owe the plaintiff a duty of care during the investigative process.

The Court of Appeal upheld the trial judge’s findings.[1]

The plaintiff then applied for special leave to the High Court,[2] arguing two grounds:

1. State of New South Wales v Paige (2004) 60 NSWLR 371 does not preclude an employer from owing a duty of care to an employee merely because the acts are done in the course of a workplace investigation; and
2. The trial judge’s attribution of 15% of the plaintiff’s psychiatric condition to the letters and 85% to the assault was an erroneous application of Watts v Rake (1960) 108 CLR 158.

The High Court granted special leave, but confined it to the first ground of appeal.[3]

Truck Driver’s Claim Dismissed

In Clarricoats v JJ Richards & Sons Pty Ltd [2017] QSC 214, the plaintiff claimed damages for a spinal injury suffered after the shock absorber on the driving seat of his employer’s truck broke away from its mounting bracket.

When the absorber broke, the seat suddenly collapsed. Upon arrival at Moranbah, the plaintiff reported this to his manager, who told him to drive a few kilometres to a repairer. The mechanic advised the seat was irreparable. The manager, unaware the plaintiff had complained of back pain four weeks prior, then ordered the plaintiff to drive the truck 120km to a home depot at Clermont.

Justice McMeekin dismissed the plaintiff’s claim on breach and causation, and made no allowance for contributory negligence.

Breach

The plaintiff was found to be an unreliable witness who exaggerated his symptoms and misrepresented his condition to medical practitioners. Justice McMeekin proceeded on the basis that, “…unless Mr Clarricoats’ evidence seems to me inherently probable, or is supported by other reliable evidence, I am not prepared to act on his evidence.” [4]

Weight was given to the evidence of the defendant’s workplace manager that, in his experience, the truck’s remaining suspension systems would have ensured the driver’s seat, albeit damaged, was effectively subject to the same forces as the passenger’s seat.

The manager qualified his opinion by saying he would have ordered someone else to drive the truck had he known of the plaintiff’s pre-existing back problems. Nonetheless, Justice McMeekin observed that, “…one complaint of discomfort four weeks before hardly amounts to notice of a vulnerability to injury over and above that common to us all.” [5]

Causation

His Honour accepted Dr McPhee‘s evidence that the disc protrusion was likely caused by the initial “bottoming out” of the seat and aggravated during the subsequent journey to Clermont. The plaintiff’s experts, Dr Gillett and Dr Pincus, were unable to exclude this hypothesis.

The defendant directing the plaintiff to drive to Clermont after seeing the mechanic was therefore not causative of his injury.

Contributory Negligence

The plaintiff’s evidence was that he was in discomfort at Moranbah, but no more than usual. His Honour therefore observed, “… I cannot make a finding that Mr Clarricoats should have realised that he had an injury… at a time that would have made a difference to the disc prolapse.” [6]

Roadworks Argument Dismissed

In Mott v Philip; Prosser v Philip [2017] QSC 212, Justice McMeekin delivered judgment in two proceedings arising from a head on collision. The first plaintiff was the driver of the first vehicle. The second plaintiff was a passenger in the second vehicle, driven by the second defendant.

At issue was whether the accident was caused:

1. Solely by the second defendant, who sped, failed to maintain control over her vehicle and ended up driving on the wrong side of the road; or
2. Solely by the state of the roadway (for which the remaining defendants were responsible), which was covered in aggregate and allegedly had inadequate speed and warning signage; or
3. A combination of the two.

His Honour found the signage to have been adequate both in terms of speed control and warning of loose stones, and that the accident was solely caused by the second defendant’s driving.

Both plaintiffs therefore recovered against the second defendant.