We look back on decisions made in the Supreme Court of Queensland for 2021 with respect to claims for personal injuries.
In total, only 8 claims made it to a trial in 2021 because a claim for personal injuries is only heard in the Supreme 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.
A summary of the 8 Supreme Court trials is as follows:
Injuries Caused by Motor Vehicle Accidents
Kate Ann Sutton v Lauren Nicole Hunter (Allianz)  QSC 249
A motor vehicle accident caused a 44 year old mother to suffer minor physical injuries (whiplash) in addition to significant PTSD. Liability was admitted by the insurer (Allianz) so the dispute forcing a trial was on the appropriate amount of compensation payable. At the time, the claimant wasn’t employed formally but was taking steps to re-enter the workforce. Doubt was cast as to whether she could return to work at all, or whether she could work up to around 20 hours per week.
The judge awarded her $314,345.00 in damages. The most significant component of the damages was for earnings lost from the date of the accident to the date of the judgement. Future loss of earnings was calculated more conservatively as it was expected that she could eventually (and soon) return to some form of employment.
Allen v O’Donnell & Anor (RACQ Insurance)  QSC 63
A Nissan Patrol veered onto the incorrect side of the road and caused a high-speed head-on collision with the plaintiff, Mr Allen (age 49), who was driving his van with his 3 children as passengers from Townsville to Brisbane. Liability was admitted by the insurer (RACQ) so the dispute forcing a trial was on the appropriate amount of compensation payable. Mr Allen was described as a “big guy”, “intelligent” and “switched on” before the accident. The list of injuries sustained in the accident was long, and caused him to walk with a limp and a cane. Despite his multiple serious physical injuries, the most significant injury was of a psychiatric nature where his wife described him as no longer being the man that she married.
The judge awarded $2,499,399.69 in damages. About $1.5 million of the damages was in relation to loss of earnings in the past and future. The second largest component was over $200,000 to pay for care and assistance in the future as he was not able to complete domestic tasks by himself anymore (such as cleaning and laundry).
Bosk v Burgess & Anor (QBE Insurance)  QSC 338
The plaintiff was a 31-year-old German national, who was injured while holidaying in Australia. In 2014, the plaintiff was walking along a footpath at Noosa Heads when the defendant lost control of her car at a roundabout, drove onto the footpath and collided with him. The plaintiff sustained severe injuries, the most serious of which resulted in a below-knee amputation of his left leg. Liability was admitted by the insurer (QBE) so the dispute forcing a trial was on the appropriate amount of compensation payable.
Due to the plaintiff returning to Germany, the judge ordered that the insurer pay his damages to the sum of $573,616.13 in AUD plus an additional sum to be paid in his native currency of €871,373.04. The most significant component of the damages payable was the cost to purchase and replace (every 4 years over his lifetime) four different styles of prosthetic limbs for different purposes (calculated in total to be an anticipated €529,240.67).
Injuries Caused by Workplace Accidents
Tyndall v Kestrel Coal Pty Ltd (No 3)  QSC 119]
Mr Tyndall, a 45 year old man was working as an operator/maintainer at the Kestrel Mine in 2016. Most of the time he worked underground as a loader driver. The loaders were described as ‘bouncy’ and sent vibrations though the plaintiff’s body when he drove them – particularly through the steering wheel. Most of the vibrations impacted his hands and arms. Kestrel as the employer owed Mr Tyndall as an employee a duty to take reasonable care to ensure that Mr Tyndall was not injured in the course of his employment. The employer had investigated vibration levels of some but not all of their loaders and it was found that the vibration levels exceeded safety standards. Further investigations were recommended at the time but that did not occur. The plaintiff claimed that due to his employer requiring him to drive the loader for extended periods of time over a 9 month period, he sustained a vascular injury to both of his arms and hands (and white finger syndrome also known as “dead finger” to his left ring finger). Because of the weakness in his upper limbs, he was considered to be unsuitable for alternative occupations such as a light delivery driver or picker packer.
The case had complex considerations with respect to liability and causation – i.e. whether or not it truly was the vibration of the loaders that caused the vascular injury or whether something else caused it. Ultimately, based on the evidence the judge awarded $1,483,318.57 to the plaintiff. The sum reflected the plaintiff’s inability to work in an office due to anxiety and depression. The largest component of his compensation award was for future loss of earnings.
Schokman v CCIG Investments Pty Ltd  QSC 120
In this case, the plaintiff sued their employer who ran Daydream Island Resort for forcing him to sleep in the same accommodation as another co-worker. The co-worker was alleged to be exceedingly intoxicated one night where he mistakenly and unconsciously pulled down his pants and urinated onto the bed which the plaintiff was sleeping. The plaintiff felt humiliated by this and suffered an aggravation to a pre-existing psychiatric injury. Unfortunately for the plaintiff, he was unable to prove that it was more probable than not that, had the employer had a code of conduct or an alcohol policy which was enforced, the urination event would not have occurred. Further, he was unable to satisfy the court that the principles of vicarious liability applied to the employer for the actions of the co-worker. Vicarious liability failed because the judge could not see a connection or nexus between the employment enterprise and the wrong committed by the co-worker.
The judge therefore ordered in favour of the employer. If liability of the employer was able to be established, the plaintiff would have been awarded $431,738.88. The plaintiff appealed the decision.
Update – March 2022: The plaintiff was successful in the appeal. The court decided that the original judgment should be set aside because the principles required to satisfy vicarious liability ought to have been met and that the amount of $431,738.88 was payable to the plaintiff.
The appeal judge quoted the judgment of Prince Alfred College Incorporated v ADC  HCA 37 – noting that vicarious liability requires an “employee’s wrongful act be committed in the course or scope of employment”. Two tests for vicarious liability were considered, being whether the act:
- is authorised by the employer; or
- is an unauthorised mode of doing some other act authorised by the employer (the implication being that an employer would also be liable for unauthorised acts provided that they are “so connected” with authorised acts that they may be regarded as modes, although improper modes, of doing them).
The appeal judge concluded: “A term of [the urinator’s] employment [was] that he reside in the staff accommodation on the island, and more particularly in the room assigned to him. Whilst he remained employed at the resort, he was required to live there, and once he ceased to be employed at the resort, he was required to leave. The terms of his employment required him to take reasonable care that his acts did not adversely affect the health and safety of other persons. That was an obligation which governed his occupation of this room. He was not occupying the room as a stranger, but instead as an employee, pursuant to and under the obligations of his employment contract. There was in this case the requisite connection between his employment and the employee’s actions. The respondent should have been held to be vicariously liable for his negligence and the loss which it caused”.
Longbottom v L & R Collins Pty Ltd  QSC 242
The plaintiff sued his employer for damages for personal injuries sustained in 2016 while harvesting bananas on the employer’s farm. On the day in question, the plaintiff had been working as a “humper”, the person required to catch the banana bunch, when the other employee with whom he was working (the “cutter”) made a large incision in a banana tree, which, instead of allowing the bunch to bend gradually in his direction, caused the top of the tree, with the bunch, to collapse onto the plaintiff. The plaintiff sustained injuries to his right hip and right shoulder, as well as a psychiatric injury. Accordingly, doctors agreed that he was no longer fit for labouring work.
The judge determined that had the cutter made a smaller cut like he was supposed to, the accident would not have happened. But also determined that had the humper been standing clear instead of directly under the bunch of bananas, he would not have been hit. The judge awarded $482,696.99 to the plaintiff which factored in a reduction of 10% reflecting his contribution to the circumstances of the accident by standing directly under the tree. The impact to future earnings of the plaintiff formed the primary basis for the award.
Ackers v Cairns Regional Council  QSC 342
The plaintiff, Mr Ackers alleged that Cairns Regional Council owed him a duty to take reasonable care to avoid unnecessarily exposing him to a foreseeable risk of psychiatric injury. Specifically, he said that he sustained a permanent psychiatric injury due to a combination of:
- Council’s investigation of a Union complaint against the plaintiff;
- the plaintiff’s excessive hours of work required after terminating 3 other employees; and
- Council’s imposition of a Performance Improvement Action Plan on the plaintiff.
The judge commented that a person of greater fortitude might have coped with formal performance management (and most of the time would be considered reasonable management action), but as Council knew, the other two workplace factors caused the plaintiff to already be in psychological distress by this time. Additionally, the performance management plan was implemented and administered poorly which caused the plaintiff to ruminate. Most importantly, the judge determined that had the Council followed their own procedures with respect to performance management, they would have identified that their own actions (in dismissing staff) caused the decrease in the performance of the plaintiff and they therefore could have remedied the problem instead of initiating performance management action against the plaintiff.
The judge awarded $1,099,132.69 in damages to the plaintiff. Past and future loss of earnings as a result of the permanent psychological injuries sustained were the largest components of compensation.
Injuries Sustained due to Sexual Abuse
Brockhurst v Rawlings  QSC 217
A former teacher of Toowoomba Grammar School, Meredith Lynne Rawlings seduced a 13 year old student (Brockhurst) in 1996-1997. The relationship progressed to kissing and touching and led to intercourse and fellatio by the time he was 14. Due to his age, he was unable to consent to the activities at the time, and when the relationship was discovered he struggled for years in the aftermath.
Because Toowoomba Grammar School had already paid the plaintiff the sum of $150,000 in compensation for the abuse that occurred by their institution, the plaintiff claimed damages from Rawlings personally in trespass, by battery. The tort of battery is committed when one person intentionally makes contact with another in a harmful or offensive way. Personal, intimate or sexual contact, without voluntary consent, is offensive contact. The now 38 year old plaintiff proved that he had sustained psychological injury in the form of a depressive disorder and suffered loss as a result for years thereafter. Specifically, he was unable to find the motivation to work and maintain employment.
The judge awarded the plaintiff $1,443,459.06 in compensation to be paid by Rawlings in addition to the $150,000 already paid to him by Toowoomba Grammar School. The most significant component of the compensation was over $1m for past loss of earnings which he would have been able to earn if not for the injury.