Australia: "Footloose backpacker" receives nil for future loss

Last Updated: 22 July 2012
Article by Kerryn Gaskell

Focus: O'Connell v 1st Class Security P/L [2012] QDC 100
Services: Insurance
Industry Focus: Insurance

O'Connell v 1st Class Security P/L [2012] QDC 100


In this case an employer was held vicariously liable for the actions of a security officer/bouncer who broke the Plaintiff's leg whilst 'assisting' police during his arrest. The judgment discussed a number of issues, including whether a battery had occurred and the statutory defences which exist for people who injure others whilst helping police. However, this case note focuses on the award of quantum given that no damages were awarded for future economic loss.


The Plaintiff was a 24 year old backpacker at the time of the incident, staying in a Brisbane backpacker's hostel. The Plaintiff was drunk and angry about being evicted from his hostel late at night. The Plaintiff remained outside the hostel and upset. Police officers attended and issued a direction to the Plaintiff to move on, and subsequently attempted to arrest him. The Plaintiff struggled with the officers in the course of the arrest and a security officer employed by the Defendant took the Plaintiff to the ground, breaking the Plaintiff's leg.

Ultimately the Court found that the force used by the security officer was more than "reasonably necessary force" and his employer was held to be vicariously liable for the intervention.

Assessment of quantum

After the incident on 9 June 2009, the Plaintiff underwent surgery when a closed fracture at the mid-shaft of the right femur was fixed with an intramedullary rod and fixation screws. He had no complications and no infection following the surgery.

Dr Montgomery, orthopaedic surgeon, opined that the Plaintiff's level of impairment was 2% to 3% and minimal. Further Dr Montgomery, whilst accepting the symptoms from some degenerative changes in the Plaintiff's hip might have been accelerated by a year, considered the Plaintiff should have been able to return to any kind of work within 6 months and lead a completely normal life.

When the Court was assessing economic loss several factors were considered, including:

  • previous arrests for conduct related to binge drinking;
  • a work history of only part-time and predominantly call centre work; and
  • a poor work ethic.

In 2007, the Plaintiff completed a one year bricklaying course and undertook some work for bricklayer friends. In 2008, he enrolled to do another year long course in construction but ceased the course in February 2008 and undertook infrequent work for a friend as a labourer. At this stage he was predominantly doing call centre work until heading to Australia in October 2008 with a 12 month visa where he planned to continue to do "event set up" work and other odd work until his visa expired in 2009.

The Plaintiff submitted that he had lost the opportunity to pursue bricklaying for which he was suited and that after the incident, bricklaying was too physical for him. He had attempted to complete two days of bricklayer labourer's work but was too slow and did not continue with that job. The Court considered there was no evidence that the Plaintiff would have been able to retain work at that site beyond the two days or that the employment conditions in England from 2010 and onwards had been such that the Plaintiff could have obtained bricklaying work, even if he had sought it. The Plaintiff's less than impressive prior employment history and the expert medical evidence which supported his ability to return to work resulted in an award of just $6,000 for past economic loss.

As to future economic loss, the Plaintiff submitted that as a result of the injury he had lost the opportunity to pursue bricklaying and that as such, a global sum of $60,000 would be appropriate. The Court rejected the Plaintiff's submissions. The Court accepted the evidence of Dr Montgomery and found that as the Plaintiff's earning capacity was not impaired, a "nil" damages award for future economic loss was appropriate.


This decision is noteworthy given the Plaintiff's relative youth and the fact that he was assessed as suffering from a permanent impairment as a result of the incident. Some might see these two factors as establishing an automatic entitlement to some global award for future economic loss. However, the Court was not prepared to make any award for future economic loss where Dr Montgomery considered the Plaintiff would be able to return to work and lead a completely normal life.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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