‘Glassing’ & assessment of damages

Gibbings-Johns v Corliss [2010] QSC 49

His Honour McMeekin J found for the plaintiff on conflicting testimonial evidence as to how his eye was injured when ‘glassed’; accepting in main the evidence of a former employee of the defendant’s hotel and making adverse inferences about the absence of surveillance footage and immediate report to the police. His Honour in doing so overcame some significant credit issues of the defendant in respect of past dishonesty and the alike offences.

Of interest in assessing damages his Honour noted the reason why significant damages for past and future loss of earning capacity were not allowed:

[70] A report was tendered from a Dr Sole, a consultant physician, in which he proffered a diagnosis of “atypical migraine”. The history that Dr Sole received was that the headaches were associated with pain behind the eye, photophobia, and “very slight tearing”. While that history suggests that the subject injury plays some apart in the aetiology of the headaches, all depends, obviously, on the reliability and accuracy of the history provided. Significantly, there is nothing in Dr Sole’s discussion or treatment, at least to a layman’s eye, that seems to indicate an acceptance that the cause of the severe headaches was the eye injury.

[71] Dr Moon was not asked to relate the headaches to the eye injury despite it being perfectly evident from Mr Grant-Taylor’s cross-examination of the plaintiff that he was putting in issue their connection with the injury.

[72] Finally Dr Moon said in relation to a question directed to the appropriateness of certain medication, that it might be justified if there was a headache, and that was said in a context clearly relating the symptom to the subject injury. That is the full extent of the medical evidence.

[73] The point is of some significance. The plaintiff clearly attributes his continued unemployment to these debilitating headaches. While he attributes his resignation from his employment at Borthwick’s Meatworks in Mackay, where he worked for a period of about 13 months and easily the most significant employment that he has had post accident, to his eye injury, it seems clear that it was the onset of these migrainous type headaches that was the cause of him ceasing work.

[74] It is fundamental that the degree of proof required will depend on the importance of the issue and the means available to a party to advance proofs of their contentions. Here the plaintiff seeks $141,000 for past loss and $242,000 for the future – 75% of his claim. 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 (1991) 22 NSWLR 389 at 418-419 per Handley JA.

[75] The issue, of course, is not whether the eye injury is capable of producing headaches from time to time, or whether the plaintiff might well have headaches from time to time. Rather the issue is whether the grossly debilitating headaches of which the plaintiff complains and for which he has needed treatment are a consequence of the subject injury. I am not persuaded that the plaintiff has established that they are such a consequence. That finding severely limits the damages that can be allowed.

[79] As noted above there was some force in the criticisms that Mr Grant-Taylor made of the plaintiff’s credit worthiness.

[80] As well the defendant points out that the plaintiff has had a number of plainly unrelated conditions that would have impacted on his earning capacity including carpal tunnel, back strain and gout. He was a heavy drinker and a user of marijuana which may have affected his ability to access some sites.

[81] On balance I am not persuaded that the plaintiff has made out a case that the injury explains the difference between what he has earned since the injury was sustained ($26,804) and what he might have earned as a construction labourer (suggested by Mr Crow to be in the order of $700 per week and $173,600 in total).

[82] In my view the plaintiff has suffered some loss given his need for treatment to his eye, his need to attend at the eye clinic from time to time, and his inability to return to his trade. He had well paid employment at the time of injury earning approximately $800 per week which I accept that he lost as a consequence of this injury.

[83] Doing the best that I can I assess the loss in a global sum of $50,000.

Impairment of Earning Capacity in the Future

[84] Assessment of future impairment of earning capacity involves similar considerations. Given Dr Moon’s opinion that the plaintiff can perform labouring work and given that that is the type of work that the plaintiff was likely to follow if uninjured then only a modest sum can be allowed.

[85] It is significant that the plaintiff cannot return to his trade.

[86] Again all that I can do is assess a global sum bearing in mind that any impairment is over the next 26 years

[87] He has the significant risk of the complications I have mentioned which, if they occur, will interfere with his capacity further.

[88] I assess the damages at $75,000.

[97] In summary I assess the damages as follows:

General Damages $35,000.00
Past Economic Loss $50,000.00
Interest on Past Economic Loss[3] $6,840.00
Past loss of Superannuation Benefits $4,500.00
Future Loss of Earning Capacity $75,000.00
Future Loss of Superannuation Benefits $6,750.00
Future Treatment Costs $10,000.00
Special Damages $8,000.00
Interest on Special Damages $62.00
Total Damages $196,152.00

Brisbane Barrister – David Cormack

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