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Injury attributable to pre-existing back disease

Geary v REJV Services Pty Ltd & Ors [2011] QSC North J21 December 2011

Geary v REJV Services Pty Ltd & Ors [2012] QCA 238 Chief Justice, Muir and White JJA

4 September 2012

Background

The worker was injured on a mine site on 17 August 2005 when a 56 tonne rock was dropped into the back of his dump truck causing the claimant to be significantly jolted. He suffered an injury to his lumbar spine and a secondary psychiatric injury. Apportionment was agreed between the four defendants prior to trial and proceeded on a quantum only basis.

The facts

At trial, the worker maintained that, apart from an episode in 1985, he had suffered no symptoms in his lower back until the subject incident in 2005. This was inconsistent with evidence led by the defendants at trial. The worker also gave evidence that since the subject incident he suffered persistent back pain which significantly restricted him, despite the worker being able to gain various employment following the incident. The worker gave evidence that he faced difficulties managing his work activities.

The defendants mounted a considerable attack on the worker's credit particularly in relation to the worker's varied histories provided to medical practitioners, his history of violent altercations and his abuse of alcohol.

Judgement

His Honour accepted that the worker had misled the medical specialists and various employers regarding his lower back injury.

His Honour considered that "the difficulty is that all three doctors reported on the assumption that the worker did not have any symptoms between 1985 and the accident. I have found to the contrary."

Ultimately, His Honour considered the "assessment of damages should be on a basis that the worker's post accident impairment assessed by the doctors attributable to the pre-existing back disease was greater than the doctors considered and that it was likely that, by the time of the accident or shortly after, he would have begun to suffer restrictions in working in employment of the nature he described."

Overall quantum was allowed at $367,449.13.

The claimant appealed the decision.

Appeal

The appeal by the worker was heard on 19 July 2012, in the Queensland Court of Appeal, before the Chief Justice, Justice Muir and Justice White. The two major grounds of appeal were that the findings were not open to the primary Judge:

1. That the pre-existing degenerative lumbar condition was symptomatic at the time of the subject incident; and

2. That the extent of the worker's use of alcohol after the incident would have occurred anyway because of the worker's
pre-accident habits.

The remaining grounds of appeal related to the impact on assessment of damages based on the above findings.

The Chief Justice, with whom Justice Muir agreed, dismissed the appeal. He found that the factual conclusions of the primary Judge were sufficiently supported by the evidence and that there was a meticulous examination of the issues bearing on the worker's credibility.

Justice White delivered a dissenting judgement. Her Honour found that the primary Judge was in error in concluding that the worker was symptomatic prior to the subject incident to the point that he would have been likely to have been virtually unemployable by trial. Based on this finding, her Honour reassessed quantum at $523,698.53. The major change was that her Honour allowed an additional $150,000 for future economic loss.

The appeal was dismissed with a 2 to 1 majority and the worker was ordered to pay the defendants' costs.