Queensland plaintiff lawyers are favouring the state’s District Court for personal injury filings, particularly since the jurisdiction’s limit was lifted to $750,000, barrister Andrew Philp QC told an AILA breakfast in Brisbane.

Cairns-based Mr Philp said the trend was evident in far north Queensland, but also applied in Brisbane.

Some plaintiff lawyers had been “unnecessarily spooked” into preferring District Court filings in the belief they were more likely to win, but Mr Philp said there were insufficient cases to say there was any definitive trend to a greater likelihood of a District Court win than a Supreme Court win.

But he also said the new District Court limit and it being cheaper to run cases in the District Court were likely factors.

Mr Philp said there was a perception until 2011 that “a north Queensland factor” existed in jurisdictions beyond Queensland’s south-east corner, and insurers and their lawyers had been wary. “The jury is still out on whether that situation still exists.”

Results were mixed, and few cases now went to judgement with alternative dispute resolution seeing 97% of cases settled pre-trial.

Insurers generally only ran trials on liability or contributory negligence issues, he said.

One case that gave “oxygen” to arguments in favour of District Court filings was Tompkins v Kemp Meats, before Judge Stuart Durward.

Keith Louis Tompkins won damages of $337,000 for personal injuries sustained on August 9, 2010, while working as a slaughterman in a Sarina, Queensland abattoir operated by Kemp Meats Pty Ltd.

Mr Tompkins alleged a breach of duty of care by Kemp Meats in having failed to take all reasonable precautions for his safety at work and in the performance of his assigned work tasks, which exposed him to unnecessary risks of damage or injury; and by failing to provide and maintain a safe system of work.

While Mr Philp said there was “nothing surprising” in the July 2013 decision – “I can’t remember the last time a meatworks won a case” – contributory negligence and the quantum of damages were the issues.

Kemp admitted liability, but argued Mr Tompkins did not wear cut-resistant gloves. But Judge Durward found no contributory negligence, agreeing Kemp Meats did not make wearing the gloves compulsory until after Mr Tomkins’s injury because slaughtermen said the gloves reduced efficiency and grip strength.

Mr Philp discussed Townsville District Court Judge John Baulch’s decision in a quantum-only trial for a man who sustained “significant injuries” in the mining industry, but retrained to another role.

He earned more in the new role, the performance of which was not affected by his injury. Judge Baulch found a 25% chance of the man’s injuries affecting his work in future.

He was awarded future economic loss damages of $500,000 and $30,000 in general damages.

Mr Philp said the decision, like several others of Judge Baulch, was unavailable on the web.

He highlighted Cairns Supreme Court Justice James Henry’s case last December in which he was very critical of accident scene analysts’ reconstruction evidence.

In Habig v McCrae & Ors, German tourist Johannes Baptist Habig sustained a serious head injury when the van he was travelling in was struck by Ian Allan McCrae’s truck on the Bruce Highway north of Pindi Pindi, near Calen.

The van had broken down on the highway, blocking the southbound lane, with its lights off. Mr McCrae failed to notice the van until the last moment and swerved to the right, impacting with the tail of the van and propelling it off the highway.

Mr Habig claimed damages for personal injury and consequential loss caused by Mr McCrae’s negligence and/or breach of duty.

The quantum of Mr Habig’s damages was agreed at $800,000 but liability was in issue.

Mr McCrae and his insurer AAI Ltd denied negligence, but argued if Mr McCrae had been negligent, Mr Habig voluntarily assumed the risk of injury and his negligence entirely caused his loss.

Justice Henry ruled an apportionment of 50% and awarded Mr Habig $400,000. “The relative culpability of both players as well as the relative importance of their acts in causing the injury is, overall, evenly balanced.”

Mr Philp said Justice Henry “savaged” accident investigators’ reports, considering only their basic conclusions about reaction times and how far headlights would shine, before making his own calculations.

In a Townsville Supreme Court action, Silvester v Husler & Suncorp Metway Insurance Ltd, Mr Philp highlighted the judge’s views on the benefits of video surveillance.

Justice David North awarded $378,000 to Vikki Maree Silvester for damages sustained in a May 11, 2010, incident in which her car collided at an intersection with a vehicle driven by Winifred Mary Husler. Mrs Silvester suffered spine and chest injuries.

Ms Husler and her insurer, Suncorp Metway Insurance, admitted liability. The issue was the quantum of the damages recoverable from Suncorp.

Mr Philp said a substantial amount of video evidence came to light, which Justice North compared to Mrs Silvester’s evidence. Justice North put more weight on the video evidence than on an occupational therapist’s assessment of the extent of Mrs Silvester’s injuries and their potential effect on her earning capacity.

The therapist said the surveillance evidence did not change her opinion. But her opinion differed from medical witnesses who viewed the footage and said Mrs Silvester demonstrated a greater range of movement than when she had been tested.

Justice North found Mrs Silvester had lost 40% of her earning capacity.

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