corporate risk and insurance update - march 2010

Gibbings-Johns v Corliss [2010] QSC 49by David Slatyer, Partner of Gadens Lawyers Brisbane

Brief Facts/Catchwords

Tort – Measure and Remoteness of Damages for Personal Injuries – General Principles

Terry Gibbings-Johns sought damages for a penetrating injury to his left eye, which he alleges occurred when struck by a beer glass thrown at him by the defendant, Dennis Corliss.

The defendant was the publican conducting the Grand Hotel at Childers. He was acquainted with the plaintiff and had previously barred him from entering the hotel some months before. There was evidence of bad feeling between the two men.

The plaintiff had commenced drinking at a different hotel earlier. His path home took him past the Grand Hotel. The plaintiff contends he lent against a partially opened window and asked the defendant to be let in. He says he was abused by the defendant, who then threw a pot glass, striking him in the face.

The defendant, however, testified that he first heard a loud kicking on the front door of the hotel when he had already closed for the night. He says an object was thrown through a window and the plaintiff then headbutted the remaining glass around the window frame. He denies abusing the plaintiff or throwing anything at him.

Each party called various witnesses to attempt to support their version of events. Each witness was subjected to criticism because of their alleged partisanship or because of their capacity to accurately observe, record and recall the relevant events.

The defendant attacked the plaintiff's credibility citing his extensive criminal history, which included offences of dishonesty, admitting to false statements to a prospective employer, an ATO adjustment as a result of an audit, and other matters.

Interestingly the defendant destroyed DVD surveillance of that evening and told one of his residents that if he was asked about the events of the evening he was to say that the plaintiff ran into a wall.

Findings

Justice McMeekin of the Rockhampton Supreme Court determined that the probabilities favoured a finding that the defendant did throw a glass object at the plaintiff thereby causing his eye injury. Whilst the judge was concerned with the plaintiff's credibility, he accepted that three witnesses each claimed to have seen an object thrown through the window of the hotel and strike the plaintiff in the face.

The evidence was that the plaintiff suffered an 80% loss of vision in that eye which equated to a 19% whole person impairment. There was some cosmetic deformity, interference with the plaintiff's pastimes and employment (due to problems with depth perception), pain behind the eye and headaches.

Whilst the plaintiff's credibility scraped over the line for a favourable liability finding, it was again called into question and this time found wanting with respect to his claim for economic loss.

In relation to past and future economic loss, the plaintiff sought $141,000 and $242,000 respectively – 75% of his entire claim. The plaintiff argued that he was unable to maintain pre-accident employment as a construction labourer because of the injury, more particularly because of debilitating headaches caused by the injury.

The judge noted that the issue was not whether the eye injury is capable of producing headaches from time to time, but whether the grossly debilitating headaches of which the plaintiff complained were a consequence of the subject injury. The judge was not persuaded that the plaintiff satisfied the onus of proof in this regard.

Dr Moon (ophthalmologist) and Dr Sole (physician) gave evidence. Dr Sole diagnosed an “atypical migraine” associated with pain behind the eye and photophobia. However, neither doctor positively attributed the plaintiff's complaints of headaches as being caused by the eye injury. During re-examination by the plaintiff's counsel, the doctors were not asked to relate the headaches to the eye injury, despite it being clear from the defendant's cross-examination that it was put in issue. The judge held that; “an expert ophthalmologist was called but not asked to relate the plaintiff's complaint of headache to the subject injury. That failure permits an inference to be drawn that any answer she might have given would not have assisted the plaintiff; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd ” .

Whilst the plaintiff had previous experience as a roof tiler, Dr Moon said he could no longer work in that capacity because of a risk of working at height, due to difficulties with depth perception. However, Dr Moon held that he could work in an abattoir or perform general labouring work which was not at height (obviously the claimant would need to wear eye protection).

The judge accepted the defendant's points that the plaintiff had a number of plainly unrelated conditions that would have impacted on his incapacity to work, including carpal tunnel syndrome, a back strain and gout, and was also a heavy drinker and user of marihuana.

The judge was not persuaded that the plaintiff was entitled to a loss of $700 per week since the date of injury for past economic loss (a period of almost five years) as claimed. The judge awarded a global sum of $50,000 (or circa $10,000 per year).

As to future earning capacity, the judge relied on the fact that the plaintiff could not return to his trade as a roof tiler but could perform general labouring work over the next 26 years until the usual age of retirement. The judge also noted that the plaintiff was at risk of serious complications with his eye injury as stated by Dr Moon, which would interfere with his work capacity further, and assessed a global sum of $75,000 for future economic loss.

Interestingly, a claim was made for aggravated and exemplary damages. In this regard, the judge said; “Given the plaintiff's own conduct, he in my view being the initial aggressor, the significant compensation that I propose to award, the fact that the defendant reacted on the spur of the moment to the attack on his hotel, and the lack of any significant humiliation or distress to the plaintiff in the matter of injury, it would be inappropriate to allow that claim; Giller v Procopets.”

In summary, damages were awarded as follows:

General damages $35,000.00Past economic loss $50,000.00Interest on past economic loss $6,840.00Past loss of superannuation benefits $4,500.00Future loss of earning capacity $75,000.00Future loss of superannuation benefits $6,750.00

Future treatment costs $10,000.00Special damages $8,000.00Interest on special damages $62.00Total damages $196,152.00

Lessons

The plaintiff failed to prove on the balance of probabilities that his eye injury was the cause of allegedly debilitating headaches which caused him difficulty with work from time to time. Curiously the medical experts were not asked and did not offer an opinion on the subject.

Coupled with the defendant's sustained attack on the plaintiff's credibility, the Judge was able to reasonably conclude that whilst the claimant may suffer headaches from time to time, they were not the result of the eye injury.

The case reminds us that it is the claimant's onus to prove each component of their loss/damage, and that defendants should examine the claimant's expert evidence closely to determine if it satisfies the onus. Where the principal complaint is of headaches, which are difficult to objectively medically verify, the plaintiff's credibility will be highly relevant.

This publication is provided to clients and correspondents for their information on a complimentary basis. It represents a brief summary of the law applicable as at the date of publication and should not be relied on as a definitive or complete statement of the relevant laws.