Reddock v ST&T Pty Ltd[2022] QSC 293

SUPREME COURT OF QUEENSLAND

JACKSON J:

1. [1]
   26 July 2018 was the plaintiff’s 41^st birthday. On that day she injured her hand at work whilst carrying out her duties as a concrete delivery truck driver. This proceeding is a claim by her for damages for negligence that caused her injuries.  The first defendant was her employer. It supplied the concrete delivery trucks with drivers, to the second defendant under a written contract. The second defendant operated a concrete batching plant from which trucks, including those supplied by the first defendant and driven by its employees, carried and delivered ready mixed concrete to job sites to the second defendant’s customers.

The plaintiff

2. [2]
   The plaintiff was born and grew up near Ashburton on the South Island of New Zealand. She was educated to approximately grade ten level.  Over the following years, she worked in a number of occupations involving driving or operating machinery, including concrete delivery trucks.
3. [3]
   On 18 May 1996, the plaintiff gave birth to her first daughter. After that, she did not work for some years. Then the plaintiff completed a heavy vehicle, heavy trades course qualifying her to drive trucks and forklifts and to carry dangerous goods. Employment followed in operating machinery in the construction of a manmade lake in Ashburton and in a coal mine on the west coast of the South Island.
4. [4]
   After returning to Ashburton, the plaintiff worked at a timber processing plant that carried out finger jointing. The work was physical. Then she worked at a scrap metal yard, operating an excavator with a grapple and later at another timber factory in Dunedin, grading timber and operating forklifts.
5. [5]
   After returning to Ashburton again, the plaintiff was employed by Firth Concrete driving a concrete delivery truck for a year or two. She then moved to Western Australia and worked in a limestone quarry operating a limestone block saw for about a year.  She again returned to Ashburton and worked for PGG Wrightson processing sheep wool and loading and unloading trucks with a forklift.
6. [6]
   In 2011, whilst working at PGG Wrightson, the plaintiff met her husband Robert who is a truck driver. After that, she returned to work for Firth Concrete, again driving a concrete delivery truck.
7. [7]
   On 30 June 2013, the plaintiff gave birth to her second daughter. After ten weeks of leave, she returned to work but did not continue because of the incompatibility between early morning starts and caring for her baby.
8. [8]
   In 2014 or 2015, she worked for a firm carrying out NBN cabling in Ashburton, operating an excavator. After that she worked for another firm, Allied Concrete, driving a concrete delivery truck. She obtained certificates for working at heights and in confined spaces and completed fire training.
9. [9]
   After a year, she worked for yet another firm, Ashburton Contracting Ltd driving a concrete delivery truck for about a year or just under that.
10. [10]
    In October 2017, the plaintiff, her husband and her younger daughter moved from New Zealand to Tanah Merah in the City of Logan.  The move was motivated by the plaintiff’s elder daughter living there.
11. [11]
    The plaintiff then briefly worked for a woman who did concrete painting.

Relationship between the first and second defendants

12. [12]
    The second defendant carried on business operating a wet mix concrete batching plant at Browns Plains and supplying ready mixed concrete from the plant to customers at site. A delivery of concrete was carried in a concrete delivery truck in a revolving agitator bowl and delivered at the customer’s site from the bowl using a delivery chute mounted on the back of the truck. 
13. [13]
    The first defendant carried on business supplying trucks and drivers to the second defendant.  Each relevant truck was fitted with an agitator bowl, a delivery chute and other equipment adapted to the delivery of concrete at site.
14. [14]
    A contract in writing styled a “Concrete Cartage Agreement” dated 1 September 2012 governed the contractual relationship between the first and second defendants.  The first defendant supplied approximately 16 trucks or trucks and drivers to the second defendant under the contract.  Some, but not all, of the trucks were fitted with an agitator bowl that was supplied and installed by the second defendant. 
15. [15]
    Under the express provisions of the contract:

    1. (a)
       the first defendant was obliged to maintain the truck to a roadworthy, safe and fully operable state (clause 7.1(a));
    2. (b)
       the second defendant was entitled to direct the first defendant to cease using any truck if in the second defendant’s reasonable opinion that was appropriate pending the carrying out of any repairs, maintenance, inspection or testing (clause 7.6);
    3. (c)
       the second defendant was entitled to direct a driver of the first defendant’s truck to cease to use any agitator supplied and installed by the second defendant pending the carrying out of any repair, maintenance, inspection or testing (clause 8.4);
    4. (d)
       the second defendant was responsible for the maintenance and repair of the agitators that it supplied and installed (clause 8.3);
    5. (e)
       the second defendant was entitled to suspend the allocation of cartage work to the first defendant if a truck was unroadworthy or was unsafe or in an unroadworthy condition (clause 24.1(a));
    6. (f)
       the relationship between the first defendant and second defendant was that of principal and independent contractor (clause 3.1);
    7. (g)
       the first defendant was required to ensure the drivers were clearly informed that they had no contractual or other legal relationship with the second defendant (clause 3.2); and
    8. (h)
       the first defendant was required to perform the work in accordance with the day to day operational directions given by the second defendant (clause 1.1(e)).
16. [16]
    At the batching plant, a driver of a truck supplied by the first defendant was subject to the instruction of the batching manager (or “batcher”), who was an employee of the second defendant, as to movements of the truck and as to loading concrete for delivery to a customer of the second defendant.  To assist in this process, the first defendant’s trucks were fitted with radio devices to communicate with the operator carrying out the batching activities, over which the batcher would give a driver instructions.

Employment by the first defendant to drive for the second defendant

17. [17]
    In April or May 2018, the plaintiff applied for employment by the first defendant as a concrete delivery truck driver.
18. [18]
    On 14 May 2018, she was interviewed by Wade Schrodter, a director of the first defendant. With Mr Schrodter, she test drove one of the first defendant’s trucks. Mr Schrodter explained that the job entailed working at the Boral Coopers Plains batching plant and that she would take orders from the batching manager.
19. [19]
    In the result, the plaintiff engaged in two interviews or induction processes for the proposed employment.  On 8 May 2018, Mr Schrodter interviewed or inducted the plaintiff for the first defendant.  On 14 May 2018, the plaintiff attended a Boral induction or training day for the second defendant.
20. [20]
    Part of the second defendant’s training or induction included familiarisation with a pro forma Boral work logbook sheet. From commencement of employment at the second defendant’s batching plant, a concrete delivery truck driver was expected to complete a work logbook sheet each day. One part of the document was headed or designated as a safety pre-start checklist. One checklist item was “swivel chute brake operational”.  There was a box to be ticked for that item to show that the swivel chute brake had been checked as part of the safety pre-start procedures.

The concrete delivery truck chute and parts

21. [21]
    The plaintiff was injured trying to rotate the swivel chute at the rear of her truck.  Below is a photographic image of the rear of a concrete delivery truck like the truck numbered 4008 that was driven by the plaintiff.

22. [22]
    The image shows the rear of the truck, including the grey coloured swivel chute.   On delivery at site, concrete from the agitator flows down the chute to the point of delivery.
23. [23]
    On the image the chute is shown swivelled to the left-hand side of the truck. That is the transit position when the truck is driven to or from site. When concrete is to be delivered from the agitator via the chute, the chute is rotated from the transit position in an anticlockwise direction to project from the rear of the truck.
24. [24]
    The chute is mounted on a vertical rotating cylindrical shaft (“the post”).  The post is housed in a tubular sleeve attached to the framing of the truck (“the sleeve”). A hydraulic ram arm attaches towards the lower outboard end of the chute and to the bottom of the post. A fixed strut with a rotating connection at the top of the chute attaches the top of the chute to the top of the swivelling post.
25. [25]
    Both when the chute is in the transit position and when it is rotated or “opened” from the transit position to the delivery position, it may be locked in position by means of the swivel chute brake. The brake is mounted at the top of the sleeve. In the image it has the appearance of a crown with a white coloured outer diameter. The brake is engaged or operated by a brake handle lever located alongside and near the top of the post.
26. [26]
    The brake consists of two semicircular shoes.  When the brake is engaged, they clamp around the cylindrical outer circumference of the post. Brake liners are attached to the inside engaging surfaces of the brake shoes.  When the brake is engaged, the liners are the friction surfaces that clamp to the post and stop the post, and attached chute, from rotating.

Day of the injury

27. [27]
    On 26 July 2018, when the plaintiff attended the Boral Coopers Plains yard, she carried out the pre-start safety check, including a check of the swivel chute brake. The plaintiff disengaged and re-engaged the brake using the brake lever but she did not swivel or open the chute from the transit position.
28. [28]
    After that, the plaintiff loaded four metres of concrete for delivery to an address in Mansfield. She arrived on site at 7:05am and left at approximately 8:05am. The job was a “wheelbarrow” job, meaning that she was at the back of the truck and had to move the chute to aim it into a wheelbarrow, then move the chute away so that the worker could pull the wheelbarrow out, with the process being repeated. When the plaintiff opened the chute to start pouring the concrete, she noticed that it was stiff and hard to move. When she finished the job and was putting the chute back into the transit position it was also stiff to move.
29. [29]
    The plaintiff returned to the Coopers Plains batching plant. She went to see the batching manager responsible for deliveries from the plant, Simon Dignan. He was an employee of the second defendant. The plaintiff told Mr Dignan there was something wrong with her chute and it was stiff and hard to move. Mr Dignan said he thought he might know what was wrong. He came down from the batcher’s room to the plaintiff’s truck in the yard.
30. [30]
    As previously mentioned, the chute was mounted on a post housed in a tubular sleeve that was fixed to the truck. There are grease nipples located on the sleeve at higher and lower points to enable injection of grease to lubricate the contact surfaces between the post and the sleeve. Mr Dignan got a grease gun kept at the batching plant yard and pumped grease into each of the nipples. He then rotated the chute. He said to the plaintiff it was still a bit stiff, but he needed her to do another job because they had no other trucks available.
31. [31]
    The plaintiff loaded six metres of concrete into the truck and delivered it to the second job for the day at Juliette Street in Annerley. That job was a footpath or footpath crossing job. The plaintiff arrived at 9:25am and left at 10:10am. At the job site, the site workers opened the chute to pour the concrete. The plaintiff operated the hydraulic ram control to adjust the height of the chute discharge point from the cabin of the truck.
32. [32]
    At the end of the job, the plaintiff packed up relevant items and attempted to rotate the chute into the closed transit position. She was unable to get it to move enough to push it around to the transit position. She was standing at the back of the truck on the ground whilst pushing and pulling with both hands. She pulled it, she pushed it and she “rammed” it, meaning she pushed it with force. I infer the chute rotated clockwise to some extent but then stopped or jammed. The plaintiff said that she “kept going, so it just jarred.” The plaintiff felt a slight tweak or twinge in her hand but did not think anything of it.  One of the site workers held the chute at the back of the truck (I infer in the transit position) while she wound the locking lever handle because she was not strong enough to do that on her own.
33. [33]
    The plaintiff returned to the batching plant and loaded her third load of the day, again of four meters of concrete. She delivered it to a site in Chapel Hill. She arrived at 11:30am and left at 11:55am. A site worker helped with opening the chute. The plaintiff had issues using the remote device that controls the agitator and the chute height. When she attempted to operate the remote control with her left thumb, she felt pain and “pulling” in her hand. At the end of the job, the site worker who was assisting her closed the chute into its side transit position.
34. [34]
    The plaintiff returned to the batching plant. On arrival at the yard the plaintiff used a radio communication device to tell Mr Dignan that “008 is back in the yard”. He told her she could wash the bowl of her truck out and take it to be repaired.
35. [35]
    The plaintiff took the truck to the washing area to wash out the agitator bowl. She opened the chute with difficulty but managed to do it. Another driver in the yard helped her to close the chute to the transit position.
36. [36]
    The plaintiff then called Mr Schrodter. She asked him if he was at the first defendant’s workshop at Wakerley because she needed to bring her truck there to be fixed due to there being something wrong with the chute. Mr Schrodter said to bring the truck.
37. [37]
    The plaintiff says that she then went to see Mr Dignan to do an incident report. She went to the batching room but Mr Dignan was on the telephone. The plaintiff went downstairs to the toilet and noticed that she could not stretch out her left hand to flush the toilet. After that, she went to the drivers’ area downstairs and waited for Mr Dignan. She was outside with two other drivers when he came down. Mr Dignan said he needed the plaintiff to take her truck out again. The plaintiff said that her truck needed to be fixed but he shrugged her off.
38. [38]
    The plaintiff called Mr Schrodter and advised him that it appeared she needed to take her truck out again. Mr Schrodter responded that she was not to do so because it was a health and safety issue. She replied that she knew that because she had already “buggered” her hand. Mr Schrodter said she needed to tell Mr Dignan that the truck was not going back out. The plaintiff asked Mr Schrodter to call Mr Dignan. Mr Schrodter said he would sort it out.
39. [39]
    The plaintiff says that after that Mr Dignan came down from the batching room and asked her if she had injured herself. She said yes and she needed to do an incident report. She says that is what they then did.
40. [40]
    The report was completed by Mr Dignan typing an electronic document on a computer whilst the plaintiff gave him information. The plaintiff says that Mr Dignan called one of his bosses in her presence. After that, she said Mr Dignan said he was going to lose his job because of the duty of care. She did not know what that meant.
41. [41]
    After that, Mr Schrodter came to the yard and picked the plaintiff up. She left her private vehicle parked at the yard. Her hand and wrist were sore. She called the Hyperdome Medical Centre, which was the general practice she used, and made an appointment to see a doctor the next morning.

Cause of the stiffness or jamming

42. [42]
    On 26 July 2018, the truck was taken to the first defendant’s workshop for inspection.
43. [43]
    The cause of the stiffness or jamming of the chute was that the lining material on the chute brake was faulty and was folding back on itself, presumably meaning it had delaminated or broken.  The evidence was that the brake lining material has a service life of a number of years. It is not possible to inspect the lining without dismantling the chute brake, so it is not maintained or replaced in advance of failure.  Instead, it is repaired as and when the lining fails.
44. [44]
    The repair was carried out on the same day.

Instructions by the first defendant

45. [45]
    During the induction on 8 May 2018, Mr Schrodter, on behalf of the first defendant, had the plaintiff sign a register recording that she was given the induction.
46. [46]
    The plaintiff’s evidence was that she did not recall any particular instruction she was given to report all issues to her supervisor from the first defendant before proceeding further.  Her recollection, perhaps informed by previous experience in driving concrete delivery trucks at batching plants in New Zealand, was that her reporting line was to the batcher.  That is what she did.
47. [47]
    Mr Schrodter’s evidence was that his interview and induction of the plaintiff entailed orally going through the instructions on a printed induction instruction document and giving the plaintiff a copy of the document.
48. [48]
    The plaintiff neither remembered the suggested instructions on that document, nor that she was given a copy of the document.
49. [49]
    There are four possibly relevant paragraphs of the document, as follows:

    1. (a)
       “Safety” – “If you feel something is unsafe DO NOT PROCEED.”
    2. (b)
       “Incident reporting” – If you are involved in an incident or accident during your work day you must inform [the first defendant] immediately.  We will inform [the second defendant’s] management of the incident and let you know how to proceed.”
    3. (c)
       “Prestart” – “If there are any issues with your truck report them to [the first defendant] immediately.”
    4. (d)
       “Remember” – “We deliver concrete for [the second defendant] in [the second defendant] marked vehicles… but at the end of the day you work for [the first defendant] and we must be informed of and (sic) issues you have in the completion of your work. The batcher in charge of your plant is in control of your day to day activities so getting along with him/her makes you working environment much more enjoyable.”
50. [50]
    Mr Schrodter gave evidence that he actually recalled giving instructions to the plaintiff in accordance with the first defendant’s induction document.  I found that unusual.  Apart from the plaintiff not recalling being given the alleged instructions, or the document, there were other indications that the instructions may not have been given as Mr Schrodter said. 
51. [51]
    First, he accepted that his recollection of the events generally was not good.  In a practical sense, that was a concession rightly made by him, because until the start of the trial when the first defendant’s defence was amended to delete the relevant parts, the first defendant’s case had been that the plaintiff had telephoned him to report the defect in the chute before she was injured, that he had then instructed her to bring the truck to the workshop and that she had then gone on another job in defiance of his instruction and been injured.
52. [52]
    Second, the allegation that the first defendant had given the plaintiff an instruction that the first defendant be informed of any issues the plaintiff had in the completion of her work was raised by a late amendment.
53. [53]
    Despite those points, the first defendant submitted that Mr Schrodter’s evidence should be accepted because he had only begun doing the induction process for employees since the beginning of May 2018 and it was more likely, accordingly, that he remembered the plaintiff’s induction in detail.
54. [54]
    Overall, I consider that it is more likely that not that Mr Schrodter orally instructed the plaintiff generally in terms of the induction document but did not give her a copy of the document.  The plaintiff appeared in the witness box to be an alert and reasonably careful woman.  She had experience of working in environments similar to the operation of the second defendant’s batching plant, although there was no evidence that she had worked before in a structure where an external contractor such as the first defendant supplied and maintained any of the trucks. 
55. [55]
    The plaintiff’s experience likely informed her view that she was to report defects that might interfere with the operation of the truck to the batching manager, as the operability of the truck was an integral part of the functioning of the batching plant to supply concrete to Boral’s customers. But, in any event, I find it is more likely than not that Mr Schrodter did inform the plaintiff that if there were a defect in the truck, she should inform the batcher.
56. [56]
    The plaintiff tendered maintenance records that showed a number of repair, modification and maintenance tasks that the first defendant carried out on the truck driven by the plaintiff at its workshop.
57. [57]
    From that evidence, it should be inferred that the plaintiff was generally aware that repair and maintenance of her truck were the responsibility of the first defendant not the second defendant.  However, there was also evidence that of the sixteen trucks supplied by the first defendant to second defendant, the agitators and chutes of all but two were the second defendant’s property and were repaired and maintained by the second defendant.  The plaintiff was not asked about whether she was aware of that.
58. [58]
    As well, although Mr Dignan said that in 90 per cent of instances where there was a problem with one of the first defendant’s trucks, the driver would call the first defendant’s workshop or supervisor, in the other ten per cent of instances, the driver would inform him of the problem.
59. [59]
    The plaintiff submitted that the written instructions were not given but, if they were, that the first part was inadequate, because it depended on the plaintiff forming a view as to safety (which she was not qualified or trained relevantly to assess) and that the second part was inadequate because it only applied to the pre-start safety check.  The plaintiff submitted further that the “Prestart” section of the logbook page was irrelevant as the defect in the chute only emerged on the day in question after the pre-start check.  The plaintiff submitted that any instruction to inform the first defendant as to any issues in completion of her work was too vague and did not apply where the plaintiff was directed to continue after Mr Dignan applied grease to the nipples on the sleeve of the swivel chute.

Breach of duty of the first defendant

60. [60]
    In 1986 a plurality of the High Court said it was as accurate then as it was thirty years before that the duty of care of an employer to an employee:

“‘is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury’: Hamilton v Nuroof (WA) Pty Ltd, per Dixon CJ and Kitto J”.^[1]

61. [61]
    Cases decided before and after that statement was made recognise that the standard of reasonable care to avoid unnecessary risks of injury is not a low hurdle. As well, in the range of factual circumstances considered over the years, decisions in modern conditions about what reasonable care requires on the part of an employer may be in sharp conflict with what reasonable care required in the nineteenth century or even twenty or thirty years ago.  That conflict reflects an increased appreciation of the likely causes of injury, the more general availability of means and methods of avoiding such injury and the contemporary tendency to reject the discounting of any real risk of injury in the assessment of what is reasonable.^[2]
62. [62]
    The plaintiff alleged a breach of duty by the first defendant in failing to provide the plaintiff with a clear instruction that in the event of any issue she had in the operation of the truck, including the agitator and its components, at any time during the course of her work duties, she was required to stop work and notify a supervisor employed by the first defendant and was not to proceed until receiving further direction from the first defendant (“stop work instruction”).
63. [63]
    The first defendant denied the alleged breach of duty on the grounds that the plaintiff was instructed:

    1. (a)
       if she thought something was unsafe, not to proceed;
    2. (b)
       if she thought something was not safe to contact the first defendant and the batcher employed by the second defendant immediately; and
    3. (c)
       to inform the first defendant of any issues she had in the completion of her work.
64. [64]
    The first defendant alleged that the plaintiff failed to inform the first defendant that she had encountered an issue with the truck. It further alleged that the plaintiff was directed by Mr Dignan not to attempt to move the chute herself and to seek assistance from site workers at the delivery job site. The first defendant denied that it breached its duty of care.
65. [65]
    There is a factual question as to the instructions given by the first defendant as employer to the plaintiff as employee and a further question about whether, in any event, the first defendant’s alleged instructions were sufficient to discharge its duty of care as employer, because the plaintiff submitted that reasonable care by the first defendant as employer required the stop work instruction.
66. [66]
    On the second of those questions, the parties did not refer to any comparable cases.  However, there are both High Court and intermediate appellate court decisions that consider cognate questions.
67. [67]
    In TNT Australia Pty Ltd v Christie,^[3] a worker was employed by a labour hire company and his services were hired to TNT at their brewery premises.  The worker worked alongside TNT employees and reported to and was directed in his duties by TNT’s warehouse manager.  The worker’s duties as a “load picker” included the operation of a pallet jack to pick up cartons of beer, thereby placing the cartons on pallets in the process of assembling the daily orders, and to drop the loaded pallets off to be wrapped, ready for delivery.  If the worker had any problems with the equipment, he was to report it to his leading hand or another TNT employee who was in charge of the area where he worked.  The worker was injured when a pallet jack malfunctioned.
68. [68]
    On appeal, one of the issues concerned the scope of the employer’s duty of care.  After referring to a number of cases in different contexts,^[4] Mason P said of the duty of care owed by the employer that:

“… it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.”^[5]

69. [69]
    In the present case, the stop work instruction alleged by the plaintiff is cast in wide terms.  It is not an instruction to report any concern as to safety.  In submissions, the plaintiff eschewed an instruction to that effect as inadequate because it required the plaintiff to form a view or opinion about the possible effect of the discovered issue before the requirement to report came into effect.  Second, the alleged stop work instruction required the plaintiff to stop the concrete delivery truck when any issue in operation arose, whether at the batching plant, in transit, or on site, until the first defendant’s supervisor authorised the plaintiff, as a driver, to proceed.  The inconvenience or impracticability of such a stringent requirement must be considered in terms of whether it was a breach of the first defendant’s duty of care as employer in negligence not to give the alleged required instruction.^[6]
70. [70]
    Analysis of the first defendant’s duty of care in the present case is assisted by the application of principle by the High Court as to the requirements for a safe system of work for loading and unloading, where an employer supplied a truck with driver to a third party’s workplace:

“[t]he loading and unloading of linen trolleys from a delivery truck, pursuant to a contractual arrangement requiring regular repetition of that activity, clearly falls within these descriptions. As a result, Andar was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required Andar to develop, and maintain, a methodology or system which would achieve that result. As a sub-set of the general common law duty of care outlined earlier in these reasons, the obligation is non-delegable.”^[7]

71. [71]
    Other intermediate appellate court cases contain useful broad-ranging relevant discussions of the contents of the duty of care of an employer who provides an employee to work on tasks for a third party.^[8] 
72. [72]
    What was required of the first defendant as employer must be considered in the relevant factual context of the present case.  The plaintiff was employed as a driver of a concrete delivery truck.  The operation of the truck for its intended purposes exposed the plaintiff to a range of safety risks in different contexts or situations, which the first defendant had to consider and take steps to protect the plaintiff from, to the extent that reasonable care required. 
73. [73]
    The relevant risk in the present case was the risk of injury in operating the agitator and chute for the delivery of concrete at site.  Although it involved specialist machinery, it is analogous to the risks facing workers who deliver construction materials to building sites generally.
74. [74]
    The inherent risks faced by the plaintiff in carrying out her duties in that situation were affected by the conditions at the construction sites at which deliveries were made.  The conditions on site were not within the control of the first defendant or the plaintiff.  In essence, the plaintiff was a visitor or invitee to a site controlled by a third party who had ordered ready mixed concrete from the second defendant.  The first defendant was a stranger to that contract and the physical arrangements on site when the order was made and accepted.
75. [75]
    The chute, and the attachments and devices to be used with it, were essential tools provided to the plaintiff to permit the delivery of concrete on site.  The chute had mechanical components that could wear out or cease to function, including that the swivelling hinge for the chute might become stiff if worn or not lubricated and the chute might become stiff or jam if the chute brake lining failed.
76. [76]
    If the chute became stiff or jammed because of either reason, the functionality of the chute and its attachments to permit the delivery of concrete would or could be affected.  That was an operational issue that would or could require repair.  As well, it could present or increase a risk of injury to a person attempting to rotate the chute.
77. [77]
    All parties’ cases proceeded on the assumption that a stiff or jammed chute was a defect that required repair before normal operation of the truck to deliver concrete could resume.  There was a dispute on the evidence as to the extent of the stiffness in the present case but that may be put to one side for the moment.  To get a stiff or jammed chute repaired, the plaintiff would have to report the defect and take the truck to the first defendant’s workshop.
78. [78]
    It was common ground between the plaintiff and the first defendant that had the plaintiff reported the stiffness of the chute she experienced on the first (Mansfield) job to the first defendant’s supervisor, he would have required her to return the truck to the workshop.  Had that occurred, the plaintiff would not have been injured on the second (Juliette Street) job.
79. [79]
    Both because Mr Schrodter informed the plaintiff to notify the batching manager of any problem or defect with the truck and because it was logical and likely that a driver would inform the batching manager if there were a problem, perhaps there should have been an agreed practice between the second defendant and the first defendant that either the batching manager would instruct the driver to notify the first defendant or the batching manager would do so if an operational issue as to one of the first defendant’s trucks arose.  However, neither of the other parties raised the absence of such a system of work as a negligent omission by the first defendant to the plaintiff.
80. [80]
    I return to the alleged negligence of the first defendant in failing to provide the stop work instruction to the plaintiff. In one broadly comparable case, it was held at first instance that the delivery driver should have been instructed by the employer that if he encountered “site conditions that involved risk to him” he should notify the employer or the third party site operator immediately.^[9]  That finding was affirmed on appeal and it was said the employer had to adopt measures by way of both warning and training to require persons such as the driver “to report dangerous conditions and to seek instruction” as to what to do in the circumstances.^[10]
81. [81]
    The duty of care in that case did not require an instruction to report immediately an issue that did not present to the driver as a risk to the driver, whereas the plaintiff’s alleged negligence by the first defendant in failing to instruct the plaintiff to report immediately any issue in operation of the truck would require that.  In my view, the first defendant’s failure to give an instruction in those absolute terms as alleged by the plaintiff was not negligent.
82. [82]
    But that is not an end to the matter of the first defendant’s liability.  By instructing the plaintiff that the batcher was in control of her day-to-day activities and that getting along with him/her would make her working environment much more enjoyable, the first defendant authorised the plaintiff to deal with the batcher in the immediate context of instructing her to inform the first defendant of any issues she had in the completion of her work.  These were mixed messages.  It was not clear that the plaintiff was to contact the first defendant before proceeding further in the event of any issue in the operation of the truck that might create a risk to the driver, irrespective of any discussion with the second defendant’s batcher or employees, or instructions given by them.
83. [83]
    Under the relevant statutory provisions as to the general principles regulating the breach of a duty to take reasonable precautions against a risk of injury to a worker,^[11] it is required that the risk of injury is one that the first defendant ought reasonably to have known.  In my view, the first defendant ought to have known that there was a risk of injury as a result of one of its drivers being instructed by the second defendant’s batcher as to the operation of one of the first defendant’s concrete trucks. 
84. [84]
    It is also required that such a risk of injury not be insignificant.  In my view, it was not.  Third, it is required that in the circumstances a reasonable person in the position of the first defendant would have taken the precaution.
85. [85]
    It may be accepted that the probability of some injury occurring in the absence of a clear direction that the plaintiff was to contact the first defendant before proceeding further, in the event of any issue in the operation of the truck that might create a risk to the driver, irrespective of any discussion with the second defendant’s batcher or employees, or instructions given by them, was not high.  It may also be accepted that the likely seriousness of an injury if a clear direction of that sort was not given across the range of situations that might occur was not apparent.  However, the burden of the suggested precaution was not high.  There would have been no difficulty for the first defendant to give a clearer direction and instruction to the plaintiff.
86. [86]
    In my view, the failure of the first defendant to give a clear instruction that the plaintiff was to contact the first defendant before proceeding further, in the event of any issue in the operation of the truck that might create a safety risk, irrespective of any discussion with the second defendant’s batcher or employees, was a precaution a reasonable person in the position of the first defendant would have taken.  It was negligent for the first defendant not to do so.

Breach of duty of the second defendant

87. [87]
    The liability case alleged against the second defendant at first blush appears to be cast in part as a breach of a “personal” duty of care owed by the second defendant to the plaintiff and in part as vicarious liability as employer for a breach of a duty of care owed by Mr Dignan to the plaintiff.  However, no close attention was given to that distinction in the way that the plaintiff’s and second defendant’s cases were ultimately presented.
88. [88]
    In effect, the plaintiff submitted that the second defendant, as the “principal” of the relationship of principal and independent contractor between the second defendant and the first defendant, owed a duty of care in negligence to the plaintiff to establish a “safe system of work” for the plaintiff in carrying out her duties as a driver who is an employee of the first defendant.  Reliance was placed on a number of cases.^[12] And it was also submitted that the “Shirt calculus” applied.^[13]
89. [89]
    As to foreseeability of the risk, the plaintiff submitted that the risk of injury to a driver from a chute rendered defective by its stiffness was reasonably foreseeable in the context where Mr Dignan’s attempt to repair the chute with grease was inadequate and Mr Dignan was not qualified to determine that the chute was safe to use.
90. [90]
    In putting it that way, in my view, the plaintiff elides the different possible bases of liability of the second defendant for breach of its alleged “personal” duty of care and vicarious liability for Mr Dignan’s negligence.
91. [91]
    It was not alleged by the plaintiff that the second defendant breached its personal duty of care by failing to provide a safe system of work by not having a qualified person available to determine that the chute was safe to use or by having a system of work where its untrained employee would attempt to repair a defective chute when that was a matter for which a significant repair was required.
92. [92]
    When the alleged breaches of the second defendant’s duty of care are analysed, each of them is in effect an allegation of something done by Mr Dignan or a failure by Mr Dignan to do something.  Therefore, it is appropriate to focus on Mr Dignan’s alleged breaches of the duty of care.  It is not in issue that his acts or omissions were made within the “course of his employment” or “scope of his employment”.^[14]
93. [93]
    There is an issue of fact as to what occurred when Mr Dignan attempted to assist the plaintiff by greasing the chute.  The plaintiff said in evidence that when she told Mr Dignan there was something wrong with the chute and it was stiff and hard to move, he responded that he might know what was wrong and came down from the batching room to her truck.  That was not challenged in cross-examination.  Both the plaintiff’s and Mr Dignan’s evidence was that he did come down to her truck, got a grease gun and pumped grease into the nipples on the sleeve of the chute post.  Both of them also said that Mr Dignan moved, meaning rotated, the chute after injecting the grease. 
94. [94]
    The plaintiff said in evidence that Mr Dignan then said it was still a bit stiff but he needed her to do another job because he had no other trucks available.  She rejected in cross-examination that greasing made the chute a lot easier to move.  But she agreed that Mr Dignan said to her, when asking her to do another job, that if she got into any trouble on site, she could get someone on site to give her a hand.  She said she was unable to compare the stiffness she experienced at the Juliette Street site with the stiffness after Mr Dignan injected the grease. 
95. [95]
    Mr Dignan said in evidence that the plaintiff approached him and told him that her chute had become hard to move.  He went down to the plaintiff’s truck and the chute was fairly hard to move.  He said to him it did not feel like it had a bearing failure, did not feel notchy and he could not hear a grinding.  He got the grease gun that the second defendant had available at the yard and greased the two or three grease nipples on the sleeve. 
96. [96]
    Mr Dignan said in evidence that after injecting the grease he wiggled the chute and then moved it backwards and forwards and he would have been doing that with one hand because he had the grease gun in the other hand.  That part of the evidence was not put to the plaintiff in terms and, in my view, was a reconstruction. 
97. [97]
    Mr Dignan said in evidence that after greasing and moving the chute it was much better to move and it was easy to move.  He said that after locking the chute he told the plaintiff that if she had any trouble with it on site, being a council job, they will normally move the chute for her.  Again, the detail that he said about the job being a council job was not put to the plaintiff.
98. [98]
    I reject Mr Dignan’s evidence that the chute was much better to move and was easy to move.  I do so for three reasons contained in the evidence. 
99. [99]
    First, the failure of the chute brake lining was what caused the chute to become stiff.  Greasing the nipples on the sleeve or housing supporting the chute post to lubricate between the surfaces of the sleeve or housing and the post would not be likely to free up stiffness caused by disintegration of the brake lining within the chute brake, because it is not logical that grease injected via the nipples would lubricate the surfaces between the chute brake shoes and the section of the post on which they clamped.
100. [100]
     Second, both the plaintiff and Mr Dignan’s evidence was that after he had injected grease into the nipples, he said to the plaintiff that the site workers might move the chute for her at the job.  That was consistent with Mr Dignan anticipating that the chute might still be stiff at the job, but not consistent with it being easy to move after greasing. 
101. [101]
     Third, as a matter of credibility, I preferred the plaintiff generally to Mr Dignan in relation to their respective accounts in the evidence where they conflicted.  This was partly because I considered Mr Dignan was reconstructing his account, whereas the plaintiff appeared to be able to distinguish between what she could and could not remember.  It was also because of the plaintiff’s account of what happened later in the day when she told Mr Dignan she had injured herself trying to move the chute and he filled out an incident report in her presence. I accept the plaintiff’s evidence that before filling out that report Mr Dignan expressed concern that he might be held responsible.  And I find that in completing the report, which she did not acknowledge or sign, and I do not find was shown to her, he attempted to minimise his responsibility.
102. [102]
     This is reflected to some extent in the contents of the incident report filled out by Mr Dignan.  He said in the report that greasing made the chute “a lot easier to move”, but somewhat inconsistently that he “asked her if she could do one more job and get the concreters to move the chute for her” as he knew the site and knew there would be several workers there.  Both the reference to “one more job” and the suggestion that the plaintiff “get the concreters to move the chute” are consistent with the chute still not operating freely after injecting the grease and moving it.  They are also consistent with the plaintiff’s evidence that Mr Dignan said to her that he needed her to do the job, possibly because there was not another truck and driver available to carry the ordered concrete within the one hour sensitive time frame between mixing a batch of concrete and delivery to the site as ordered.  Mr Dignan’s evidence included that he could easily have waited for another driver to come back or made a phone call to the allocators to move the job.  But that does not mean, in my view, that he did not say to the plaintiff that he needed her to do the job.
103. [103]
     I find that after Mr Dignan injected grease into the nipples and moved the chute it was still stiff to move.  Stiff enough that he foresaw that the plaintiff might have difficulty in moving it, which led him to suggest to her to get the site workers to move it.  Of course, at the job those workers did move the chute to open it and pour concrete from the chute, but it fell to the plaintiff after the delivery was complete to close the chute and this was when she suffered her injury.
104. [104]
     At the time of the incident, Mr Dignan had several years’ experience as the batching manager or “batcher” at the second defendant’s plant, previous experience in a non-managerial capacity of that kind and some experience driving a loader as well.  However, he had no mechanical training or qualification.  Even so, he said he was ninety-nine per cent certain he knew what the problem was with the chute.  Unfortunately, he was wrong.
105. [105]
     The first of the relevant questions is whether, in attending to the plaintiff’s truck and dealing with the problem of the stiff chute, Mr Dignan owed a duty of care to the plaintiff to take reasonable care to avoid the risk of injury to her by her attempting to operate the stiff chute.  In my view, he did.  By interposing himself in what may have been the cause of the stiffness of the chute and requesting the plaintiff to do one more job and to get the concreters to move the chute for her after he injected grease into the grease nipples, Mr Dignan assumed a degree of control or responsibility in relation to the condition of the chute and its state of repair.  That gave rise to a duty of care to the plaintiff in relation to the risk of injury to her from operating a still stiff chute on what became the Juliette Street job.
106. [106]
     The second relevant question is whether Mr Dignan failed to exercise reasonable care by his ineffective attempt to remove the stiffness by greasing the chute and his subsequent request to the plaintiff to carry out the Juliette Street job. 
107. [107]
     Mr Dignan had no mechanical qualification and no expertise that was proved.  I infer that he was not aware that a possible cause of a stiff chute was a failure of the chute brake lining or that a defect of that kind would not be repaired or remedied by injecting grease through the nipples on the chute sleeve or housing.  He did not say to the contrary.
108. [108]
     In my view, once it was apparent that the chute was still stiff after injecting the grease, Mr Dignan failed to exercise reasonable care in requesting the plaintiff to do one more job and to get the concreters to move the chute for her.  At that point, reasonable care required him to advise her to get the chute inspected and repaired by the first plaintiff to remedy the stiffness.  He had clear power to direct her not to use the truck to carry the second defendant’s concrete until the chute was inspected and repaired by the first defendant.
109. [109]
     Mr Dignan’s statements to the plaintiff that the chute was still stiff and to get the concreters to move the chute show he foresaw that she might have difficulty in moving the chute.  A reasonable person in Mr Dignan’s position would have foreseen that there was a real risk that the plaintiff would be required to move the chute herself and that if it was stiff she might injure herself in moving it. 
110. [110]
     If that be correct, should he have contributed to the plaintiff taking that risk by asking her to do one more job and suggesting she get the concreters to move the chute for her?  The answer to that question requires consideration of the magnitude of the risk of injury and the degree of probability of its occurrence.  There was no direct evidence as to these points, but the intuitive answer based on the plaintiff’s account of suffering the injury is that the relevant risk and degree were both relatively low.  However, the expense, difficulty and inconvenience of taking action to avoid the risk by directing the plaintiff to get the chute inspected and repaired by the first defendant were also low.  In my view, a reasonable person in Mr Dignan’s position would have taken that course and it was negligent for him to request the plaintiff to do one more job in the circumstances.
111. [111]
     Because the second defendant is vicariously liable for Mr Dignan’s negligence, it is unnecessary to consider further whether the second defendant was also in breach of its personal duty of care by reason of Mr Dignan’s error.

Causation against the first defendant

112. [112]
     Under the relevant statutory provision regulating whether a breach of a duty to take reasonable precautions against a risk of injury to a worker caused a particular injury,^[15] the first defendant’s breach of duty must be a necessary condition of the occurrence of the plaintiff’s injury, which is designated “factual causation”.  As well, it must be appropriate for the scope of liability of the first defendant to extend to the plaintiff’s injury, which is designated “scope of liability”.
113. [113]
     Factual causation against the first defendant in the present case requires a finding that had the plaintiff been given a clear direction and instruction that she was to contact the first defendant before proceeding further in the event of any issue in the operation of the truck that might create a safety risk, irrespective of any discussion with the second defendant’s batcher or employees, or instructions given by them, the injury would have been avoided.  That is to say, the plaintiff would have contacted the first defendant before proceeding to the Juliette Street job and the first defendant would have instructed her to bring her truck into the workshop for inspection and attention before proceeding to another job.
114. [114]
     As to the second of those questions, I infer from Mr Schrodter’s response when he was contacted later in the day that he would have instructed the plaintiff to bring her truck into the first defendant’s workshop if contacted by her earlier in the day and informed that the chute was stiff.
115. [115]
     The more difficult question is whether the plaintiff would have contacted the first defendant before proceeding had she been given the clear direction or instruction postulated.  That would depend on whether the plaintiff perceived that there may be any safety risk in proceeding with the stiff chute.  Under the relevant statutory provision regulating proof of these matters against the first defendant, the plaintiff bears the onus of proof.^[16] 
116. [116]
     The plaintiff was not asked whether she did perceive any such risk or whether she would not have gone to the Juliette Street job without contacting the first defendant if she had been clearly instructed to do so,^[17] so a positive answer to these questions depends on inference.
117. [117]
     In my view, that inference should be drawn in the plaintiff’s favour.  The plaintiff perceived an operational or functional problem in the movement of the chute that caused her to raise the matter with Mr Dignan as the batcher.  If given a clear instruction to contact the first defendant about any matter that might create risk to her as a driver irrespective of anything the batcher might say, the logical inference is that she would have done so.  As to the inference that a stiff chute might create a risk to her as a driver, in my view the inference should be drawn that the plaintiff, subjectively, perceived that possibility but acted on the instructions given to her by Mr Dignan in the circumstances.

Causation against the second defendant  

118. [118]
     Causation against the second defendant is to be considered under the common law.  There is no statutory condition that requires that the negligent act or omission is a necessary condition of the occurrence of the injury.  Instead, the question at common law is whether the negligent act or omission was a cause of the injury as a matter of common sense.^[18]
119. [119]
     Even so, in my view, there is an unsatisfactory aspect of reasoning upon a principle that is said to devolve to a matter of common sense.  The High Court has said so, more than once.^[19] The same may be said of the alternative sometimes advanced of a “material” cause,^[20] unless there is a criterion or principle to distinguish between what is material and what is not. 
120. [120]
     When the question is one of factual causation, the logical comparison is between what actually happened and what would have happened if the negligent act or omission had not occurred.^[21] 
121. [121]
     If causation as a matter of common sense or as a matter of material cause would produce an answer to the factual causation question that is the opposite to the answer that would be produced by causation as a matter of a necessary condition, then common sense or materiality is being applied not as a matter of fact but as a matter of policy for causation in law.  Where causation as a matter of common sense or as a matter of material cause would produce a positive answer to the factual causation question but causation as a matter of a necessary condition would produce a negative answer, perhaps the application as a matter of policy is to bridge a gap in the available degree of proof of the factual question.
122. [122]
     As well, despite the preference in cases of binding authority for common sense causation or for a material cause to be enough to prove causation, the run of cases of highest authority, in general, consistently shows consideration of whether the alleged cause was a necessary condition of the injury that occurred.^[22]
123. [123]
     In any event, in the present case, in my view, the second defendant’s negligence was a cause of the plaintiff’s injury.  Had Mr Dignan not asked the plaintiff to do one more job and instead simply said the chute was still stiff and she should get the chute inspected and repaired by the first defendant, she would have done so.

Apportionment of contribution

124. [124]
     Because each defendants’ liability is for the tort of negligence, and the plaintiff’s damage was personal injury,^[23] the general statutory regime for contribution between tortfeasors applies.^[24]  Each defendant may recover contribution from the other who is liable in respect of the same damage.^[25]  Each of the defendants has claimed contribution against the other.  The amount of the contribution is to be that found by the court to be just and equitable having regard to the contributing person’s responsibility for the damage.^[26]
125. [125]
     Because the amount of the plaintiff’s damages against the first defendant is regulated by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”), whereas the amount of the plaintiff’s damages against the second defendant is assessed under the common law, those amounts are not the same.  To the extent that the first defendant is not liable to the plaintiff for amounts that the second defendant is so liable, the second defendant is not entitled to contribution from the first defendant, because the first defendant to that extent is not liable for the same damage.^[27]
126. [126]
     As to apportionment of the amount for which both defendants are liable to the plaintiff, relatively recent and relevant intermediate appellate court authority^[28] confirms the long-standing approach that the question is one of proportion, involving a comparison of culpability and the relative importance of the acts of the parties in causing the damage.^[29]
127. [127]
     Some cases have sought to distinguish between the responsibility of an employer who owes an onerous duty of care to an employee as greater than the responsibility of a third party occupier or other person who commits an act of negligence, on the footing that the employer owes a higher duty.^[30]  For my part, although on one set of facts it might be right to assess an employer’s culpability as greater because of the employment relationship and scope of the duty to the employee, there is no principle that elevates the relative culpability of an employer as such.  Consistently with that view, some relevant cases apportion equally or in favour of the employer as between an employer’s responsibility and that of an occupier or person with overall operational responsibility.^[31]
128. [128]
     The question of apportionment in the present case must be arrived at by reference to the facts of this case, not by seeking to extract other broad notions or by comparison to other cases on different facts.  The starting point of contribution as a concept in other contexts is that equity is equality.^[32]  Consistently with that, if the relative culpabilities and the causal impacts of the defendants are indistinguishable, it would be just and equitable to apportion between them equally.
129. [129]
     As to culpability, neither of the defendants departed from the standard of care that each was required to observe by a more significant degree.  The first defendant’s negligence can be described as a failure to have a safe system of work against a foreseeable risk whilst the second defendant’s negligence might be considered a non-systemic failure by Mr Dignan who was trying to balance the two objectives of assisting the plaintiff on the one hand and making her vehicle fit to carry out the Juliette Street job on the other. 
130. [130]
     As to causal impact, Mr Dignan’s negligence might be thought of as more directly causal but against that the first defendant’s negligence was in failing to instruct the plaintiff as to a procedure that would protect against that kind of risk. 
131. [131]
     In the result, in my view, application of the relevant approach to the facts does not distinguish between the defendants in a way that makes it just and equitable that one should bear a greater proportion of responsibility for the damages both are liable to pay to the plaintiff.
132. [132]
     The result is that it is just and equitable that the defendants bear equal liability upon apportionment of their contribution to liability for the same damage.

Consequences of the injury and causation of those consequences

133. [133]
     On the day following her injury, the plaintiff consulted her General Practitioner, Dr Marlies Dowland.  She was referred for x-ray and ultrasound investigations.  They demonstrated there was fluid under her extensor tendons.  She was referred to Advance Therapy Solutions, a specialist hand and upper limb therapy practice.  The therapist applied a splint to her wrist but her symptoms did not subside.
134. [134]
     On 7 August 2018, the plaintiff consulted Dr Sanjay Joshi, an orthopaedic surgeon.  On 10 August 2018, an MRI scan of her left wrist was carried out.  It showed some changes in the first dorsal extensor compartment as well as low grade strain of the first carpometacarpal (“CMC”) joint.  Dr Joshi diagnosed a left thumb CMC strain as well as de Quervain’s tenosynovitis.  He recommended conservative treatment for the CMC strain and surgical release of the de Quervain’s tenosynovitis.
135. [135]
     On 27 August 2018, Dr Joshi operated on the plaintiff’s left wrist and found her to have tenosynovitis of the de Quervain’s tendon with a tight sheath.  He performed a de Quervain’s release with tenosynovectomy.  Post operatively, he advised gentle mobilisation as tolerated and to attend hand therapy.
136. [136]
     On 27 September 2018, the plaintiff consulted Dr Joshi again.  She had sensitivity and numbness in the radial nerve distribution, distal to the operation scar.  Examination suggested the de Quervain’s tendon had recovered well.  Dr Joshi advised continuing hand therapy.
137. [137]
     On 6 November 2018, the plaintiff consulted Dr Joshi again.  The strength in her left hand had improved significantly but she still had some sensitivity, possibly due to cutaneous nerve involvement at the de Quervain surgery site.  She had also developed a small ganglion in that region which was causing her pain.  He advised her to continue hand therapy.
138. [138]
     On 18 December 2018, the plaintiff consulted Dr Joshi again.  Her left hand was largely recovered except for some radial nerve damage which caused shooting pain in the thumb.  The plaintiff had stopped seeing the hand therapist.  He advised the plaintiff to return after three months if she had ongoing issues. 
139. [139]
     On 22 March 2019, the plaintiff consulted Associate Professor Iulian Nusem, orthopaedic surgeon, for the purposes of a medico-legal report requested by the plaintiff.
140. [140]
     Professor Nusem examined the plaintiff’s left hand. That revealed a 1.5 cm transverse scar located over the radial styloid.  Measuring with a goniometer, the plaintiff’s extension and flexion of her left wrist were the same as her right wrist, but the ulnar deviation was reduced by ten degrees and the radial deviation was reduced by ten degrees.  The range of motion of her left thumb was the same as her right thumb.  Measured with a dynamometer, her grip power on the left hand was 32 kilograms compared with 36 kilograms on the right.
141. [141]
     Professor Nusem diagnosed the plaintiff with left de Quervain’s tenosynovitis.  Using the AMA Fifth Edition Guides to the Evaluation of Permanent Impairment and the Guidelines for Evaluation of Permanent Impairment Second Edition Professor Nusem assessed a 4 per cent upper extremity impairment by adding impairments for wrist lack of radial deviation and wrist lack of ulnar deviation.  He assessed the upper extremity impairment due to sensory deficit of the radial nerve elbow with spurring of triceps at 5 per cent of the 25 per cent maximum, being a 1.25 per cent, rounded down to 1 per cent, upper extremity impairment.  Using the Combined Values Chart, he assessed the plaintiff’s upper extremity impairment at 5 per cent and equated that to impairment of the whole person of 3 per cent to which he added impairment of the whole person due to the surgical scar of 1 per cent to arrive at a whole person impairment as a result of her injury of 4 per cent.
142. [142]
     He recommended future treatment of analgesics and considered the plaintiff was unable to return to her occupation as a truck driver.  In his opinion, the injury so assessed was caused by the incident on 26 July 2018.
143. [143]
     On 5 November 2019, the plaintiff attended on Dr Chris Blenkin, orthopaedic surgeon, for the purposes of a medico-legal report requested by the first defendant. 
144. [144]
     On physical examination, Dr Blenkin noted that Finkelstein’s test was negative, indicating a successful de Quervain’s release.  His assessment of the ranges of motion of the plaintiff’s left wrist was the same as her right wrist.
145. [145]
     Dr Blenkin opined that while the clinical features of de Quervain’s disease had resolved, the plaintiff had a persisting pain evident from early in the post-operative process, consistent with a partial injury of the superficial radial nerve.  That would have occurred intra-operatively with the clinical manifestations of partial mild radial neuritis.  No treatment was outstanding.  In his view, the remaining condition should not have prevented the plaintiff from performing some aspects of the work she had undertaken previously.  He considered she might be suited to operating an automatic truck and suggested a number of other avenues of work she might be suited to.
146. [146]
     He opined that the de Quervain’s disease was an aggravation of an underlying predisposition towards the condition, noting that the disease has a preference for females who are about 40 years of age such as the plaintiff.  It was his contention that the plaintiff would have developed de Quervain’s tenosynovitis within a relatively short period of time, in any case, because that was the nature of the condition.
147. [147]
     On 21 September 2021, Professor Nusem produced a supplementary report in response to Dr Blenkin’s report.  He did not agree with the contention that the plaintiff would have developed de Quervain’s tenosynovitis within a relatively short period of time, in any case.  He did not agree that the plaintiff had recovered from de Quervain’s tenosynovitis because the plaintiff still complained of occasional pain at the base of her left thumb, reported dropping objects and felt clumsy with her left hand.  He agreed that the plaintiff also suffered partial injury to the superficial radial nerve secondary to her surgery.  He did not agree that the plaintiff could return to her former occupation as a truck driver, although I note that Dr Blenkin did not say that she could return to her occupation as a driver of a concrete delivery truck.
148. [148]
     On 12 November 2021, the plaintiff again consulted Professor Nusem for an updated medico-legal report.  On examination, Professor Nusem repeated the range of motion results of his prior examination, with one difference.  The plaintiff’s grip strength for the right hand was 32 kilograms but for the left was 14 kilograms, a significant reduction.  His diagnosis was the same except for the addition of the injury to the sensory branch of the radial nerve.  His impairment assessment was the same.  His prognosis did not change from his examination on 22 March 2019 and initial report.
149. [149]
     The respective opinions of Professor Nusem and Dr Blenkin were the subject of cross-examination at the trial.  Cross-examination of Professor Nusem was directed to the absence of a strong basis in the medical literature for a causal association between de Quervain’s tenosynovitis and a trauma-based injury.  Professor Nusem had to concede there was a limited basis for the association between the two in the medical literature but maintained his opinion that the plaintiff’s injury caused the de Quervain’s tenosynovitis.  Conversely, Dr Blenkin’s opinion that the plaintiff’s suffering of de Quervain’s tenosynovitis would have occurred in any event at or about the same time as her injury was expressed even more strongly by him in oral evidence.
150. [150]
     The contested evidence about the causal relationship between de Quervain’s tenosynovitis and trauma-based injury does not call for a decision upon the issue of causation in fact on the balance of probabilities.  If there was a breach of duty in failing to provide the plaintiff with a required instruction, the first defendant did not dispute that it constituted a necessary condition of the occurrence of the harm to the plaintiff within the meaning of s 305D(1)(a) of the WCRA and the second defendant adopted the first defendant’s submission in relation to causation of damage in respect of the common law causes of action alleged against it.
151. [151]
     However, it is a question which will require further consideration when assessing the relevant possibilities that may discount the amounts of damages to be awarded.

Quantum

152. [152]
     The plaintiff submitted that the recoverable amounts from the defendants were as follows:

153. [153]
     Because the quantum of damages recoverable by the plaintiff from the first defendant is regulated by the WCRA, whereas the quantum of the damages recoverable from the second defendant is that at common law, it is convenient to deal first with the first defendant and then to identify the different amounts payable as damages by the second defendant. 
154. [154]
     For general damages against the first defendant, the plaintiff submitted that the plaintiff’s dominant injury was a mental disorder for which the applicable item number from Schedule 9 to the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (“WCRR”) was either item 10, Extreme Mental Disorder, with a PIRS rating between 31 per cent and 100 per cent and an ISV range from 41 to 65 or item 11, Serious Mental Disorder, with a PIRS rating between 11 per cent and 30 per cent and ISV range from 11 to 40.  The plaintiff submitted that Dr Andrew Byth’s report dated 4 June 2019 supported the lower item, PIRS rating and ISV range whereas his later report, dated 29 November 2021, supported the higher item, PIRS rating and ISV range.
155. [155]
     The defendants submitted that by the time of the trial, the plaintiff’s psychiatric condition was not sufficiently severe to justify the higher item, PIRS rating and ISV range.  Further, the defendants submitted that Dr Ben Duke’s report dated 5 November 2019 assessed the plaintiff’s major depressive disorder, adjustment disorder with anxious mood and impairment at a PIRS rating of 15 per cent and that assessment, as well as Dr Duke’s opinion that with more assertive treatment, the plaintiff is likely to experience improvement in her depressive and anxiety symptoms, should be accepted.  Although Dr Duke did not expect full remission, he considered there was a likelihood of symptomatic improvement giving rise to an increased capacity to return to alternative employment, although on a part-time basis.  Accordingly, the defendant submitted that item number 11 of a Serious Mental Disorder with a PIRS rating of 15 per cent and an ISV of 20 was appropriate for the plaintiff’s dominant injury of a mental disorder.
156. [156]
     The plaintiff accepted in submissions that some psychiatric management may assist her and that her husband had perceived an improvement in the months before the trial.  Nevertheless, the plaintiff submitted that the appropriate ISV must reflect her present and ongoing debilitating psychiatric condition.
157. [157]
     In addition, the plaintiff submitted that her physical hand injury would have attracted item 118, Moderate Hand Injury, from Schedule 9, with a degree of permanent impairment or DPI rating between 5 and 12 per cent and ISV range from 6 to 15.  The plaintiff submitted that the ongoing pain in her left wrist would attract an ISV of 6 in isolation.
158. [158]
     The defendants also submitted that the plaintiff’s physical hand injury would attract item 118 and that an ISV of 6 would be appropriate for that injury alone.
159. [159]
     Under Schedule 8 rule 3 of the WCRR it is appropriate to assess the ISV for the plaintiff’s multiple injuries of her mental disorder and physical hand injury as being higher in the range for the dominant injury, namely the mental disorder, than would be assessed for the dominant injury alone.
160. [160]
     Further, in assessing an ISV, the defendants submitted that it is appropriate to have regard to the prospect that the plaintiff would have suffered or developed both of her injuries irrespective of the event caused by the defendants’ negligence.
161. [161]
     Putting aside the possibility that the plaintiff may have suffered her injuries in any event, in my view, Dr Byth’s conservative approach to the prospect of or degree of the plaintiff’s likely psychiatric improvement is to be preferred to Dr Duke’s more robust and optimistic opinion.  On the other hand, I do accept that the degree of difference between Dr Byth’s first report and Dr Duke’s report on the one hand and Dr Byth’s second report on the other hand supports the conclusion that the plaintiff’s symptoms do fluctuate and her presentation at the time of Dr Byth’s second assessment was during a more depressed episode. 
162. [162]
     Accordingly, in my view the plaintiff’s dominant injury of a mental disorder should be assessed under item 11, Serious Mental Disorder, as a 22 per cent impairment and an ISV of 26, taken alone.  Approaching the overall ISV in accordance with Schedule 8 rule 3 and acknowledging that the effects of the plaintiff’s injuries overlap, I would assess the overall ISV at 30. 

163. [163]
     What effect should be given to the possibility of the plaintiff suffering her injuries in any event in assessing the ISV?  Rule 9 of Schedule 8 of the WCRR provides:

“9 Court may have regard to other matters

In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case.

Examples of other matters—

• the injured worker’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life
• the effects of a pre-existing condition of the injured worker
• difficulties in life likely to have emerged for the injured worker whether or not the injury happened
• in assessing an ISV for multiple injuries, the range for, and other provisions of schedule 9 in relation to, an injury other than the dominant injury of the multiple injuries.”

164. [164]
     The broad scope of the text of rule 9 is informed by the context of the other items in Schedule 8 and the examples in rule 9.  Age and life expectancy are contingencies of the kind that attract a discount of damages for future economic loss at common law.  The effects of a pre-existing condition may simply indicate a vulnerable injured worker to the injuries suffered and would not usually lead to a discount at common law.  Difficulties in life likely to have emerged whether or not the injury happened would result in a reduction of damages at common law as damage that possibly would have been suffered in any event.  In my view, under item 9, the court may have regard to the risk that the plaintiff would have developed de Quervain’s tenosynovitis and consequent mental disorder in any event, which for brevity I will term the “de Quervain’s risk”. 
165. [165]
     One approach might be to proportionately reduce the ISV otherwise arrived at to reflect that possibility by a percentage amount.  To do so could more than proportionately affect the amount of the general damages calculated in accordance with Schedule 12 because of the differential weighted values given in the tables of Schedule 12, to ISV values that are in the bands above and below 20, for example.  I will defer further discussion of the final assessment of the ISV having regard to these matters until I consider the related question of whether other heads of damages should be discounted for this risk.
166. [166]
     The plaintiff’s claims for past and future economic loss or loss of earning capacity were based on her and her husband’s evidence, and the assessments of Stephen Hoey, Occupational Therapist, in his reports dated 5 August 2019 and 19 January 2022 and Jade Evans, Occupational Therapist, in her report dated 23 February 2021. 
167. [167]
     Some of the differences in the opinions expressed in those reports and in oral evidence related to the different medical opinions and different clinical assessments by the reporters relied upon, in particular, different results obtained on assessment of the plaintiff’s functional capacities, including grip tests.  Looking at the plaintiff’s performance on tests of this kind over a number of years, there must be some question as to the reliability of some of the results, or of her performance on particular occasions because of factors beyond her simple physical capability.  But in the end, those differences are not critical in the assessment of damages.
168. [168]
     Ms Evans assessed the plaintiff as capable of light employment at the time of her report but opined that she required psychological intervention to assist with her depression and driving anxiety before return to work could be a realistic option.  Ms Evans’ ultimate opinion was that the plaintiff’s prospects of future employment are limited and will depend on or require improvement in her mental condition, skills and the employment market.
169. [169]
     It is not disputed that the plaintiff requires treatment of her psychiatric condition and vocational assistance.  The defendants submit that three years for those processes from determination of this proceeding would be likely to see the plaintiff capable of undertaking substantial part-time employment with earning capacity of approximately two thirds of her earnings from the first defendant until retirement at age 67.  No particular evidence supported either the three-year period or the two thirds proportion.
170. [170]
     Apart from part-time work as a crossing guard on school days for an average of an hour or so per day, the plaintiff has not been employed since she was injured.  Over the two financial years prior to the trial, the net earnings from that employment were $4,123.37.  Subject to the deduction of that amount, the plaintiff submitted that her economic loss prior to the trial was at a net weekly rate of $900 for 185 weeks being $166,500.  The defendants submitted that those amounts and the calculation of the resultant damages should be accepted as the starting point for past economic loss. 
171. [171]
     From there, the difference between the parties on past economic loss was whether the amount should be discounted for contingencies and, if so, at what rate.  The plaintiff submitted there should be no discount of past economic loss.  The defendants submitted the discount should be 30 per cent.  The same submissions were repeated for other past losses.   It is convenient to defer the discussion of the appropriate discount, if any, until later in these reasons. 
172. [172]
     The plaintiff claims $15,551.88 as lost past superannuation at the statutory rates until the trial.  The defendants did not challenge this starting amount, but would also discount that amount at 30 per cent.
173. [173]
     The plaintiff claims interest on past economic and superannuation loss calculated against the first defendant at the prevailing ten-year bond rate as at the beginning of the quarter in which the award of interest is made.^[33]  The first defendant did not challenge that rate but would apply it to its reduced amount of past economic and past superannuation loss. Against the second defendant, I have adopted the second defendant’s proposal of simple interest at 2% per annum.
174. [174]
     From the trial, the plaintiff submitted future economic loss should be calculated as a loss of $900 per week until the plaintiff’s standard retirement age of 67, at a five per cent table discount factor (I assume for 23 years) of a multiplier of 712, resulting in $640,800.00.  The plaintiff would discount that amount by 25 per cent to account for all contingencies, including the de Quervain’s risk and the contingency that after protracted treatment she will make a substantial improvement in her psychiatric state and therefore employability.^[34]
175. [175]
     The defendants submitted that the plaintiff’s economic loss should be assessed at $900 per week less the amount of $140 per week to be received working as a supervised school crossing attendant ($760 per week) for three years from trial at the five per cent factor for three years of 146, resulting in $110,960.00 to the end of that three-year period.  From the end of the three-year period, the defendants submitted that the plaintiff’s economic loss should be assessed at $600 per week thereafter until age 67, for 20 years at the five per cent factor of 575, resulting in $172,500.00.  The total of the amounts of $110,960 and $172,500 is $283,460, which the defendants submitted should be discounted by 50 per cent, for the relevant contingencies, to arrive at a total future economic loss of $141,730.
176. [176]
     The plaintiff submitted that future superannuation loss from the trial should be calculated at 11.82 per cent on the assessed future economic loss.  The defendants submitted the same rate should be applied but to the lower amount of future economic loss for which they contended.
177. [177]
     The amounts claimed by the plaintiff for Fox v Wood damages ($3,394.000), future expenses ($17,500), Workcover special damages ($11,366), Medicare Australia refund ($671.80) and out of pocket expenses ($1,528.92) were all agreed by the defendants.
178. [178]
     Against the second defendant, the plaintiff claimed general damages at common law of $100,000, relying on Syben v Mackay TFS Pty Ltd,^[35] Cootes v Concrete Panels (Qld) Pty Ltd,^[36] and Meechan v Savco Earthmoving Pty Ltd.^[37]  Syben and Cootes are not comparable, as more serious cases.  Nor is Meechan, as a less serious case.  The second defendant relied on Heywood v Commercial Electrical Pty Ltd.^[38]
179. [179]
     The second defendant orally submitted that the award for general damages at common law should be $65,000.  I assess the amount at $65,000.  The second defendant did not specifically submit that general damages should be discounted for the de Quervain’s risk, but in principle there can be a discount of general damages for that risk,^[39] and the second defendant’s general adoption of the first defendant’s submissions on quantum is enough to warrant considering that question, given the first defendant submitted that the plaintiff’s ISV should be discounted for that risk.
180. [180]
     Against the second defendant, the plaintiff claims damages for past ($13,740) and future ($75,000) gratuitous care.  The plaintiff and her husband gave evidence as to care provided to her by him and the need for assistance. 
181. [181]
     As to past gratuitous care, it was agreed that two hours per week was the required time, at rates that result in the agreed amount of $13,740.  However, the second defendant submitted that amount should be discounted by 30 per cent for the de Quervain’s risk.
182. [182]
     As to future care, the plaintiff submitted that two hours per week at the rate of $45 per hour should be allowed, resulting in the slightly discounted submitted amount of $75,000.  The second defendant’s calculation is slightly different, because it allowed 42 years of life expectancy, but the material difference in outcome is that the second defendant submitted that the future care damages should be discounted by 50 per cent for the contingencies of the de Quervain’s risk and that the plaintiff may recover, perhaps even significantly, from her mental disorder with psychiatric treatment.

Discounting some heads of damages for contingencies

183. [183]
     The remaining area of significant difference between the parties is in whether, and to what extent, discounts should be allowed to the otherwise assessed amounts for various contingencies.  The submissions focused mostly on the risk that the plaintiff would have developed de Quervain’s tenosynovitis and the consequent mental disorder in any event, which I have termed the “de Quervain’s risk”.
184. [184]
     The plaintiff submitted that the de Quervain’s risk should result in no discount of her claims for past losses at the trial because she adopted conservative amounts for those claims and that future losses would be reasonably discounted at 10 per cent.  The plaintiff further submitted that no discount should be allowed in relation to the risk that she might have suffered the interoperative complication from the surgery, because that was a separate unlikely event.^[40]  As to the radial nerve intraoperative injury I accept Dr Blenkin’s evidence that it is a partial injury, not amounting to a neuroma, which is not to be treated as a work preventing injury.
185. [185]
     The first defendant submitted that under schedule 8 rule 9 of the WCRR, the ISV for the plaintiff’s injuries should be reduced to 20 having regard to the de Quervain’s risk.
186. [186]
     The defendants submitted that damages for the plaintiff’s past economic and superannuation losses and past and future treatment expenses should be discounted by 30 per cent for the de Quervain’s risk.  The second defendant submitted that past gratuitous care should be discounted by 30 per cent for the de Quervain’s risk.
187. [187]
     The defendants submitted that damages for the plaintiff’s future economic loss should be discounted for the de Quervain’s risk and other contingencies, being the risk of the plaintiff not being able to perform such a physically demanding job in her fifties and onwards in any event, that personal lifestyle decisions may have led to her not working in any event and the “usual” contingencies.  Combined with the de Quervain’s risk, the defendants submitted that the overall discount should be 50 per cent.
188. [188]
     Reference was made by the parties to Peebles v WorkCover Queensland,^[41] as a comparable and informative case.  The plaintiff referred to the judgment and reasons at first instance while oral submissions were made as to the orders and reasons of the Court of Appeal.  The similar aspect of Peebles was that the plaintiff truck driver who sustained a lower back injury from driving in a defective seat in a poor ergonomic position had a pre-existing degenerative condition that was likely to have resulted in him sustaining a similar incapacitating lower back injury or injuries in the future, in any event.  Applying the principle of assessing damages for past and future losses affected by past or future hypothetical events having regard to the possibilities,^[42] the trial Judge assessed that both the past losses and future losses should be discounted by 50 per cent for the contingency that the lower back injury would have been suffered in any event as well as the “usual” contingencies.
189. [189]
     The Court of Appeal found that as a finding of fact, the discount of 50 per cent for future losses should not be disturbed because it included the “usual” or other contingencies for which, taken alone, a discount of 10 to 15 per cent would have been appropriate, although a discount of 50 per cent wholly for the contingency that the lower back injury would have been suffered in any event would have been excessive.  As part of that reasoning, the Court of Appeal said:

“[18] … [as]s the appellant submits, the application of a 50 per cent discount, for this contingency alone, would aptly represent a finding that the appellant was certain to have been fully incapacitated by half way through the relevant period.”

190. [190]
     With all respect, that is not what a discount of 50 per cent for a contingency on the possibilities that an incapacitating event will be suffered at some point in time over a relevant period represents at all.  If the risk is of an event that might happen on any given day because of the forces that will or may be experienced by a physical structure,^[43] is one that is more likely to happen over a longer time period of exposure to those forces having regard to the pre-existing vulnerability of the structure, and is also affected by the likelihood of increasing degeneration in the structure that may contribute to likelihood of the event, to say that there is a 50 per cent discount for the chance of the event occurring over the whole period does not say there is a 100 per cent chance of the event occurring as at the half way point of the whole time period.  Nor does it imply that there is no chance of the event occurring before that day, which is another necessary assumption for the suggested arithmetical identity.
191. [191]
     It is necessary also to refer further to the other contingencies that might be considered, including the so-called “usual” contingencies.  That is because in Peebles, the Court of Appeal found that it was an error to have found that the discount of 50 per cent also applied to pre-trial or past losses, as follows:

“[21] However, the application of the same discount rate to the appellant’s pre-trial loss is a different matter, for at least two reasons. Firstly, in this respect the appellant’s health and circumstances over the relevant period are known, so that it is known that many of the things which might have affected the earning of income in that period did not occur. Secondly, the period in question here is about five years compared with the 29 years which was used to calculate the future economic loss. There was still a possibility that the appellant would have suffered a similar permanent disabling condition in his back, in the period until the trial. However the trial judge declined to make a finding in the terms of Dr Licina’s “best guess” that, probably, this would have occurred. As I have discussed, his Honour’s finding was instead that, as likely as not, this would have occurred during what would have been a full working life.

[22] Yet at paragraph [146], his Honour simply applied “the 50 per cent discount … previously adopted”. In my respectful opinion, that was an error. A much lower discount rate had to be applied to this component than that for future economic loss. I accept the appellant’s submissions that the component for past economic loss, and the related component for lost superannuation contributions, should be re-assessed by applying a discount rate of 10 per cent.”

192. [192]
     The implication for the present case may be that a substantially lower discount should be applied to the plaintiff’s past losses in comparison to the future losses because of a decrease in the de Quervain’s risk up to the point of trial from an assessment of that risk over the whole period of losses and a decrease in the risk of other discounting contingencies including the “usual” contingencies taken into account for discounting future economic loss.
193. [193]
     As to the plaintiff’s health and circumstances over the past period that were known as at the trial, the likelihood of the de Quervain’s risk as an incapacitating event in the past was not known – it remained a past hypothetical fact to be assessed on the   possibilities.  Looking at the time period of the loss in a backwards direction would call for a time evaluation of that risk for the past period in comparison to the future, which was not a task attempted by the parties in evidence.
194. [194]
     However, some insight may be gained as to other contingencies as at the time of the trial, mostly from cases decided before the change in principle for the assessment of damages brought about by Malec.  The earlier cases started from the consideration that many circumstances might have prevented a plaintiff from earning their previous income.^[44]  That led courts to discount awards for the so-called “vicissitudes of life”. ^[45]  Over time, some specific contingencies were considered to be identifiable as general discounting factors of an injured employee’s economic loss, in particular, death, sickness, accident, unemployment and industrial disputes.^[46]  The whole subject of the strengths and weaknesses of adopting intuitive percentage deductions for these contingencies has been well explored in one of the leading texts on the assessment of damages for personal injuries.^[47]
195. [195]
     As to the health and circumstances of a plaintiff over the past period that are known at the trial in respect of the “usual” contingencies, it can be said logically still that each of those contingencies is a past hypothetical event, but because they have not happened in the actual events that have occurred, in the absence of contrary evidence, those risks are so low as to be dismissed.   If the appropriate rate for those contingencies in a case like this were 10 per cent, or a lower percentage, that part of any discount should be put aside for past losses. 
196. [196]
     That leaves the question of how to approach the discount of past losses for the de Quervain’s risk.  Despite the treatment of the subject in the Court of Appeal in Peebles, I have not ascertained from the reasons a methodology for approaching that question.  The second reason stated in paragraph [21] of that decision indicates that past losses should be discounted at a lower rate than future losses if the period of weekly loss calculation for the past is shorter than the period of weekly loss calculation for the future.  That may be accepted as an appropriate methodology but how it is to be carried out in the absence of evidence as to the relative likelihood of the past hypothetical incapacitating event occurring across those two different periods is not clear.  If a Judge as a fact-finder, doing their best, assesses that over the whole period from the date of injury to the hypothetical end of employment, an incapacitating event was as likely as not to have occurred in any event, how is that to be broken into separate percentage assessments of the periods from the date of injury to the trial and from the trial to the hypothetical end of employment?
197. [197]
     For two reasons, I have not attempted to do that exercise in this case.  First, that is because of the methodological difficulty in doing so in the absence of evidence directed to doing so.  Second, there is evidence in this case that the vulnerability of a person to de Quervain’s tenosynovitis is higher among women aged in their forties, so the likelihood of the plaintiff experiencing an incapacitating event over the whole period of her loss of earning capacity from the de Quervain’s risk may reasonably be regarded as higher in the early years of her past economic loss than in the later years of her future economic loss.
198. [198]
     Accordingly, I have concluded that the plaintiff’s past economic loss, superannuation loss, treatment expenses and gratuitous care should be discounted for the de Quervain’s risk by 30 per cent. 
199. [199]
     As well, I have concluded that the plaintiff’s general damages against the second defendant should be discounted for the de Quervain’s risk by 30 per cent.
200. [200]
     As to the plaintiff’s ISV for general damages against the first defendant, in my view it is appropriate to reduce the ISV of 30 I arrived at earlier for the de Quervain’s risk.   Unassisted by authority on the point, in my view, it is not required that the reduction under item 9 of Schedule 8 of the WCRR must be by a proportionate percentage based on the possibilities as assessed for other heads of damages.  In the result, overall, I would assess the plaintiff’s ISV at 22.
201. [201]
     Because of the additional “usual” contingencies that remain for the future, I have concluded that the plaintiff’s future economic loss, superannuation loss, treatment expenses and gratuitous care should be discounted by a further 5 per cent.  Because of the possibility that the plaintiff’s mental disorder or psychiatric condition may improve and accordingly improve her earning capacity, those losses should be discounted a further 5 per cent.  The aggregate result is that those losses should be discounted by 40 per cent.
202. [202]
     The resultant assessment of damages, including relevant amounts of interest calculated as at the date of judgment is: