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  • Unreported Judgment

Krobath v Thiess Pty Ltd

 

[2018] QSC 309

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Krobath v Thiess Pty Ltd [2018] QSC 309

PARTIES:

OSKAR FRANZ KROBATH

(plaintiff)

v

THIESS PTY LTD (ACN 010 221 486)

(defendant)

FILE NO/S:

SC No 916 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

20 December 2018

DELIVERED AT:

Rockhampton

HEARING DATE:

10, 11, 12 December 2018

JUDGE:

Crow J

ORDER:

  1. Judgment for the plaintiff in the sum of $719,698.15
  2. The insurer is ordered to pay the plaintiff’s costs on the standard basis from 26 October 2017.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff was employed at the Burton Downs Coal Mine as a trainee operator – where the plaintiff alleges that while driving a rear dump truck at the Burton Mine the plaintiff suffered an injury to his lumbar spine – whether the plaintiff injured his lumbar spine in the manner alleged

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff claims general and special damages – where the plaintiff claims damages for future loss of earning capacity

Workers’ Compensation and Rehabilitation Act 2003 (Qld), reprint 5E, ss 306D, 306F, 306H
Workers’ Compensation and Rehabilitation Regulation (Qld) 2014, sch 9

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270
Hopkins v WorkCover Queensland [2004] QCA 155
Phillips v MCG Group Pty Ltd [2013] QCA 83 or Phillips v MCG Group Pty Ltd [2012] QSC 149

COUNSEL:

C. Heyworth-Smith QC for the plaintiff

S. Deaves for the defendant

SOLICITORS:

Macrossan & Amiet for the plaintiff

Hall & Wilcox for the defendant

Introduction

  1. [1]
    The plaintiff, Oskar Franz Krobath, (“Mr Krobath”) was born at Tieschen in Steiermark, Austria, on 21 January 1963.
  2. [2]
    Mr Krobath left school at age 15 and at age 19 completed an apprenticeship for a chef. Mr Krobath then worked in a number of hotels in Tirol and Switzerland over five years before immigrating to Australia in 1987.
  3. [3]
    When Mr Krobath first came to Australia he followed his occupation as a chef, working at the Hilton on Park Hotel in Melbourne and the Victorian Arts Centre. Mr Krobath then moved to Brisbane where he obtained employment at Parliament House as a chef for four years. Whilst working at Parliament House, Mr Krobath took up a promotion to a position as a procurement officer, where he worked until 2004.
  4. [4]
    In 2004, Mr Krobath, his wife, Marlies, and their three children, moved from Brisbane to Eungella where Mr and Mrs Krobath operated the kitchen at the Broken River Mountain Resort. Four years later, in 2008, Mr and Mrs Krobath surrendered the lease of the kitchen because Mr Krobath was successful in obtaining a traineeship with the defendant, Thiess Pty Ltd (“Thiess”), to commence working at the Burton Downs Coal Mine as an operator. Mr Krobath was required to undergo medical tests and was passed fit.
  5. [5]
    However, the traineeship was withdrawn and Mr Krobath found work in the Eungella area as a farmhand and cane carter, where he worked between October 2008 and September 2010.
  6. [6]
    On 6 September 2010 Mr Krobath commenced employment with Thiess working at Burton Downs Coal Mine as a trainee operator, completing the traineeship on 11 September 2011. When he completed his traineeship and commenced work as a qualified operator in September 2011, Mr Krobath received an increase in wages from a trainee’s wage to an operator’s wage, which, at that stage was $134,185 gross per annum.
  7. [7]
    Exhibit 22 is the income schedule for Mr Krobath and it bears out the financial effect on Mr Krobath entering into the mining industry. That is, whilst working as a chef for the 2008 financial year Mr Krobath earned $12,148 gross. Whilst working as a farmhand and cane carter in the 2010 financial year Mr Krobath earned $46,826 gross, whereas working as an operator in the 2013 financial year Mr Krobath earned $123,061 gross.
  8. [8]
    Whilst Mr Krobath was a trainee operator, he was earning between $805.87 and $1,035 net per week (“npw”) on average. Whereas, when he qualified, Mr Krobath’s npw increased in the 2012 financial year to $1,818 npw. That is, Mr Krobath having achieved his aim of becoming a qualified operator at a mine, was able to almost double his earnings from being a trainee operator.
  9. [9]
    Whilst working as an operator driving a rear dump truck at the Burton Mine on 31 October 2011, Mr Krobath alleges he suffered an injury to his lumbar spine. Liability and quantum are in dispute.

Liability

  1. [10]
    At the commencement of the trial, the defendant filed an amended defence to the further amended statement of claim including an amendment to paragraph 11, responding to the allegations of negligence, breach of contract and/or breach of statutory duty set out in paragraphs 9 (the negligence allegations), paragraph 9A (the causation allegations) and paragraph 9B (further causation allegations with respect to scope of liability of the defendant) as follows:

“11. With respect to the allegations contained in paragraphs 9, 9A and 9B of the further amended statement of claim, the defendant:-

  1. (a)
    admits that, if the plaintiff was injured in the circumstances alleged in paragraphs 6 and 7 of the further amended statement of claim (which is denied) then the incident and any injuries sustained by the plaintiff in the incident were caused or contributed to by the negligence and/or breach of contract of the defendant, its servants or agents; and
  2. (b)
    otherwise denies the allegations and believes the allegations to be untrue for the reasons pleaded in paragraphs 6 and 7 of this pleading.”
  1. [11]
    Paragraphs 6 and 7 of the further amended statement of claim provide:

“6. On or about 31 October 2011 or 1 November 2011 (the date of the incident), in the course of his employment with the defendant, the plaintiff was working as a haul truck operator at the Burton Downs Coal Mine (the mine) operating a 793F haul truck (the haul truck).

  1.  At or about 5:50pm on the date of the incident, the plaintiff:
  1. (a)
    drove the haul truck into the loading position adjacent to Liebherr 996 Excavator EX503;
  2. (b)
    excavator EX503 was being operated by an employee or person working under the control of the defendant (the excavator operator);
  3. (c)
    the excavator operator, in the operation of the EX503, swung the digger boom and bucket loaded with approximately 75 tonnes of rock and material and dropped the load from a height into the back of the plaintiff’s truck prior to placing fines in the back of the truck resulting in the plaintiff being violently tossed about in the seat where he was restrained by a lap sash belt (the incident);
  4. (d)
    the load contained one particularly large rock (the rock) that:
    1. (i)
      was approximately 2/3 of the width of the bucket of the excavator where the bucket is 4.6m wide, so the rock was approximately, say 2.0m to 3.0m through its then horizontal axis (where the conservative 2.0m is adopted to take into account the level of approximation);
    2. (ii)
      protruded above the lip of the bucket of the excavator by a height almost equal to the depth of the bucket, where excluding the teeth the bucket is approximately 3.0m deep, so the rock was, through its then vertical axis, between:
      1. approximately 1.5m (if only a small amount was underneath the lip of the bucket and a conservative height is adopted to taken[sic] into account approximately); and
      2. over 3.0m (if it was as deep in the bucket as the amount that protruded above the lip);
    3. (iii)
      was approximately oval (ellipsoid) in shape, so while the plaintiff did not see the depth of the rock through its then horizontal cross-axis, it would have been approximately 2m through that axis; and
    4. (iv)
      had, accordingly, a mass of not less than 7.5 tonnes (based on a density of 2.4 tonnes/m3 and potentially up to 15 tonnes;
  5. (e)
    the plaintiff looked in his rear vision mirror immediately prior to the load being dropped and saw the rock; and
  6. (f)
    the plaintiff immediately braced for the jolt that the load would (and did) cause, but notwithstanding the bracing he was tossed about as described above.
  1. [12]
    In summary, the liability issue is a singular issue to be decided, namely, whether Mr Krobath injured his lumbar spine in the manner that he has alleged, at paragraph 7 of his further amended statement of claim, at 5:50pm on 1 November 2011.
  2. [13]
    Mr Krobath has provided evidence that the event did occur[1]. Exhibit 5 is a copy of Mr Krobath’s overburden tally sheet for 1 November 2011. Exhibit 7 is a downloaded copy of the same document that Mr Krobath accessed when he was on WorkCover benefits. What the document shows is that at 5:50pm on 1 November 2011 whilst working on crew shift, being loaded by excavator 503, Mr Krobath in his rear dump truck collected a load of 191 tonnes of material, all of which is unremarkable. Then there was the unusual addition to that entry at that time and on that date, as follows:

“* Big rock drop into tray.”

  1. [14]
    The document, being the overburden tally sheet, for the truck Mr Krobath was operating (RD 1763/450) was a document required to be filled out by Mr Krobath and provided to his employer. Thus, on or about 1 November 2011, whilst not complaining of an injury, Mr Krobath did complain of a “big rock drop into tray.”
  2. [15]
    Although not the subject of precise evidence, I would infer (in accordance with the usual procedure and with the documents being disclosed in the defendant’s records) that at completion of the shift, the overburden tally sheet was provided by Mr Krobath to his supervisor. Accordingly, a contemporaneous document confirms the incident occurred as alleged by Mr Krobath. Hence Mr Krobath has documentary verification for the incident.
  3. [16]
    The defendant, by paragraph 7 of its amended defence denies the incident occurred for various reasons as set out in paragraph 7 as follows:-

“7. With respect to the allegations contained in paragraph 7 of the further amended statement of claim, the defendant:

  1. (a)
    admits that on 1 November 2011 the plaintiff’s haul truck was, at various times during his shift, loaded with rock and material by a Liebherr 996 excavator with the call sign EX503 and says that the excavator was also identified as EX1263;
  2. (b)
    insofar as the events in subparagraphs 7(a) to 7(f) are alleged to have occurred on 1 November 2011 at or about 5:50pm, denies the allegations therein and believes them to be untrue and contrary to fact because:
    1. the plaintiff was not operating a dump truck between approximately 4:40pm and 6:30pm on 1 November 2011;
    2. EX503 was not loading haul trucks between approximately 4:40pm and 6:30pm on 1 November 2011;
  3. (c)
    insofar as the events in subparagraphs 7(a) to 7(f) are alleged to have occurred on 31 October 2011 at or about 5:50pm:
    1. admits the allegation in subparagraphs 7(a) and 7(b);
    2. otherwise denies the allegations contained therein and believes them to be untrue because:
      1. the plaintiff did not report any incident or injury to the defendant on or about 31 October 2011;
      2. the plaintiff did not consult a medical practitioner for back or left leg pain until 23 November 2011;
      3. on 23 November 2011 the plaintiff advised Dr Susan Hodgens of a workplace incident involving sudden jarring to his back from loading large rocks, however also reported a history of back pain for five months without any precipitating event;
      4. the plaintiff did not attribute his back pain to the incident alleged in the statement of claim until 12 December 2011;
      5. the plaintiff did not report a work related injury to the defendant until 29 February 2012;
      6. despite due enquiry the defendant has, at the date of this pleading, been unable to locate any record of:
  1. (1)
    the weight of the rock and material loaded into the tray of the plaintiff’s truck in the relevant bucket load;
  2. (2)
    the height from which the road and material was loaded;
  3. (3)
    whether the loaded material contained large rocks such as would require the excavator operator to place fines into the tray prior to loading;
  4. (4)
    any incident involving injury to the plaintiff.”
  1. [17]
    As to paragraph 7(b)(i), that is, the allegation that Mr Krobath was not operating a dump truck between 4:40pm and 6:30pm on 1 November 2011, it may be seen from perusal of exhibits 7 and 18 that the defence is correct, however both exhibit 7 and exhibit 18 confirm that the plaintiff was in fact driving the dump truck at 5:50pm, having recommenced production, that is, performing load duties for 50 minutes between approximately 5:30pm and 6:20pm.
  2. [18]
    Similarly in respect of paragraph 7(b)(ii), it is correct that excavator 503 was not loading haul trucks between 4:40pm and 6:30pm as exhibit 18 shows that the excavator was under maintenance for one hour and forty-five minutes between 3:25pm and 5:10pm. However, exhibit 7 shows that Mr Krobath’s rear dump truck was redeployed from excavator 503 to excavator 505 between 4:45pm and sometime after 5:12pm, before being redeployed back to excavator 503 between 5:32pm and 6:07pm.
  3. [19]
    The basis alleged in paragraph 7(b) of the defence for disputing the event occurred thus has not been made out. In respect of the denials set out in paragraph 7(c)(ii)(A) to (F) inclusive, it is necessary to consider each of the bases of denial.
  4. [20]
    In paragraph 7(c)(ii)(A), the defence argues that Mr Krobath did not report any incident or injury to the defendant on or about 31 October 2011. As set out in exhibits 5 and 7, Mr Krobath did report an incident, at least on his overburden tally sheet, on the day of the incident 31 October 2011. It is correct, however, that, despite being trained that he ought to report any incident or injury, Mr Krobath did not report the injury on the shift that it occurred.
  5. [21]
    Mr Krobath has given a consistent version that he did not feel the onset of pain in his lumbar spine until the next morning when he started going for his walk. Mr Krobath’s evidence[2] is as follows:

“Why didn’t you report it earlier, sir?After that day, I didn’t see a need for it.  I made a note on the load sheet but as I check myself, I was fine.  I didn’t – I didn’t feel anything about the injury until the next morning, until I start going for a walk.”

  1. [22]
    Accordingly I find that Mr Krobath did report the incident by recording it on his overburden tally sheet, but did not, at the time of the accident or near the time of the accident record an injury. Mr Krobath admits this by his evidence:[3]

“MR DEAVES: All right. Well, we’ll come back to that. What you’ve described was a very serious breach by the excavator operator of the mines procedures, wasn’t it?

MR KROBATH: That’s correct but, again, people don’t – supervisors didn’t like complaints.  My position was in jeopardy if I complained or raised my voice too often.”

  1. [23]
    Accordingly, Mr Krobath’s evidence was that although he had suffered from injury, he deliberately did not complain because he felt his job was in jeopardy if he raised his voice. Mr Krobath’s evidence in this regard garners some support from the evidence of Mr Hancock[4], an experienced operator at the mine. Mr Hancock gave evidence that he had attended at a pre-start meeting where a haul truck operator had brought up the problem “about large rocks being loaded” to which the response was that “the foreman at the time pulled all the truck drivers together and said ‘you’re not working in a sandpit, you’re working in a mine.’”
  2. [24]
    Although that expression did not require any explanation, Mr Hancock explained as follows:

“MS HEYWORTH-SMITH: And what did you take that to mean?

MR HANCOCK: Well, if you don’t like it here, you know, move on.”[5]

  1. [25]
    The defendant rightly points out that there were other occasions where excavator operators who acted inappropriately had been disciplined. Mr Krobath admitted he was aware of the disciplinary action being brought against an excavator driver following an injury sustained by Madonna McLean at the mine relating to an excavator striking Ms McLean’s rear dump truck. Nonetheless, Mr Krobath maintained his position that he did not wish to place his job in jeopardy.
  2. [26]
    I accept Mr Krobath’s evidence in this regard. It is logical that Mr Krobath, having received a vast increase in his income, having trained for and successfully obtained a position as a permanent operator at a coal mine, would not wish to place that high income earning ability in jeopardy. It is also important to note that Mr Krobath was an extremely junior employee at the time of the incident, only having completed his traineeship less than two months previously.
  3. [27]
    It is accurate, as the defendant alleged in paragraph 7(c)(ii)(B) and (C) that Mr Krobath did not consult any medical practitioner for back or left leg pain until 23 November 2011 when he consulted Dr Susan Hodgens. Dr Hodgens could not remember what was said in the consultation of 23 November 2011. Dr Hodgens relied entirely upon her typed notes.
  4. [28]
    Dr Hodgens did confirm however that her average consultation was 10 to 12 minutes.[6] Dr Hodgens presumed during that 10 to 12 minutes, she introduced herself to Mr Krobath not having previously been his general practitioner, received Mr Krobath’s presenting history, thoroughly examined Mr Krobath, formed a diagnosis and completed both a prescription for two different types of medication and imaging request, making a note of all of this[7]. Exhibit 23 contains Dr Hodgens notes, including the notes of the consultations of 23 November 2011, and the four preceding consultations with other general practitioners: the two entries of 16 June 2010 and the two entries of 21 July 2010.
  5. [29]
    The note of 23 November 2011 is curious insofar as it records “no injury” but records Mr Krobath complaining of lumbar back pain, and complaining of “an incident” where he was loading rocks and suddenly suffered “a jarring” to his back. Hence the note records that there was no injury but there was a “jarring” “incident” to Mr Krobath’s back.
  6. [30]
    I conclude that the note is only capable of being interpreted logically in a manner consistent with Mr Krobath’s evidence, namely, that there was a sudden and severe jarring to his back occasioned whilst loading a large rock (i.e. the incident he noted at 5:50pm on 1 November 2011 being the subject of exhibits 5 and 7), and that, consistent with his evidence, at the time there was not an onset of pain, however, there was an onset of pain the next day. That is, whilst there was a violent incident, Mr Krobath did not suffer from any violent pain at the time of the incident but rather no pain, with the pain occurring the next morning during his walk. To a layman such as Mr Krobath that would seem unusual, however, to an expert such as Dr Atkinson, it is a common phenomenon to experience an onset of lumbar pain up to 24 hours after an incident[8]. Furthermore, what Dr Hodgens has recorded in her entry of 23 November 2011 is completely inconsistent with what she recorded on 12 December 2011. Perhaps more important is the entry of Dr Hodgens on 12 December 2011 that Mr Krobath “does not want WorkCover at present.”
  7. [31]
    Again, it is entirely consistent with Mr Krobath’s attitude that he did not wish to complain, but wished to hold on to his high paying employment for such a version to be provided to Dr Hodgens on 23 November 2011.
  8. [32]
    A difficulty of the plaintiff does arise from Dr Hodgens’ entry “5/12 LS back pain” which Dr Hodgens interpreted as five months of lumbar back pain. Dr Hodgens, although disavowing any actual memory of what was said on 23 November 2011, considers that Mr Krobath provided her with that version of five months of lumbar back pain.
  9. [33]
    There are a number of curious features, however, in this regard. The first, is that if Mr Krobath were in fact suffering from five months of lower back pain, then he would have been suffering lumbar back pain from in or about June 2011, yet there is no recording of any consultation for back pain in exhibit 23 of the Walkerston GP Super Clinic notes, nor in any other notes. Furthermore, Dr Hodgens, in her cross-examination was extremely quick to disavow an even remote possibility that she is capable of making an error, yet as is demonstrated with respect to the entry of 12 December 2011, errors can be made in entries, even by careful medical practitioners.
  10. [34]
    Mr Krobath denies that he had suffered from five months of lumbar back pain and despite multiple medical examinations, no other practitioner has recorded such a history.
  11. [35]
    Mr Krobath denied telling Dr Hodgens on 23 November 2011 that he had suffered lumbosacral back pain for five months[9]. In resolving this contested question of fact, that is, whether Mr Krobath did on 23 November 2011 tell Dr Hodgens he had suffered from five months of lumbosacral back pain, I conclude that both Mr Krobath and Dr Hodgens are honest and credible witnesses. Dr Hodgens, however, as she freely admits, has no actual memory of what occurred and relies entirely upon her notes, and the perfect accuracy of such notes. Mr Krobath has an actual memory of the consultation, expressly saying that he did not say he had five months of lumbosacral back pain.
  12. [36]
    In Mr Krobath’s favour, he has passed a mine medical examination, examining his spine and finding him fit for employment prior to his commencement of employment on 6 September 2010. Despite the medical records of the Walkerston GP Super Clinic[10] and the Sonic Health Plus records[11] showing that Mr Krobath was not averse to attending for medical treatment as and when required, there is no suggestion of any attendances for back pain in the five month period prior to 23 November 2011.
  13. [37]
    Furthermore, it is apparent Mr Krobath performed all of his shift work, the shifts being 12 and a half hour shifts, without any recording of any low back pain or any observation  by any other worker, including the supervisor, that he had any ailment at all.
  14. [38]
    Objectively, therefore I prefer the evidence of Mr Krobath, that he did not in fact have low back pain for five months prior to 23 November 2011, and that he did not tell Dr Hodgens of this fact. I conclude that the recording of Dr Hodgens of “5/12 lumbosacral back pain” is either an error of Dr Hodgens which has crept into the medical records, similar to the error of 12 December 2011, which may be sourced to either an error of Dr Hodgens in recording the correct information, or alternatively a translation error in the sense that Mr Krobath, although his English was quite good most of the time, there were times when Mr Krobath’s accent affected his enunciation, which may lead to an error in translation.
  15. [39]
    That is, whilst I accept an error has been made in respect of the note, there are equally likely reasons as to why the note is in error, namely an error in the translation of what Mr Krobath was telling Dr Hodgens due to the effect of his accent, or alternatively an error in Dr Hodgens’ recording.
  16. [40]
    In respect of paragraph 7(c)(ii)(D), it is not clear that Mr Krobath did not attribute his back pain to the incident of 31 October 2011 until consultation with Dr Hodgens on 12 December 2011. It is not clear because, as expressed above, on his first consultation with Dr Hodgens, although the recording is of “no injury” there is express recording of the sudden jarring incident to Mr Krobath’s back.
  17. [41]
    The defence is correct in pointing out in paragraph 7(c)(ii)(E) Mr Krobath did not report a work related injury to the defendant until 29 February 2012. However, as discussed above, I accept Mr Krobath’s reasons for not reporting the injury, that is, he did not wish to place his job in jeopardy. Well prior to any contemplation of any claim being brought, it was recorded in Dr Hodgens’ note of 12 December 2011, Mr Krobath “does not want WorkCover at present.”
  18. [42]
    Mr Krobath said[12] he did not wish to challenge the excavator operator as “digger operator on the mine site, they are the kings. If you challenge them, they show you the door out. They show you the way out, the door, sorry.”
  19. [43]
    Whilst I accept that Mr Krobath is quite wrong in his impression that he would have lost his job if he made a complaint, I accept that was his impression at the time, and as an extremely junior employee, it is understandable that Mr Krobath did have the impression that it was unwise to challenge the practices of a excavator operator.
  20. [44]
    In respect of paragraph 7(c)(ii)(F), whilst it is understandable for the defendant to complain about a lack of reporting of an incident, the defendant always did have Exhibit 5, thus always had a complaint made of the incident.
  21. [45]
    In written and oral submissions, counsel for the defendant argued that Mr Krobath’s evidence in respect of the incident ought to be rejected because the event was improbable. The first submission in this regard was, that had the incident occurred, then Mr Krobath would have suffered injury to his neck, shoulders and arms and a “seatbelt” injury. It is Mr Krobath’s evidence that he braced for the impact, that is, holding the steering wheel tightly and pushing himself back into his chair, because he saw the size of the rock that was about to be placed into the rear of his truck. It is also plain, that Mr Krobath did not suffer from any injury to his neck, wrists, hands, or shoulders, but only to his lumbar spine.
  22. [46]
    Dr Atkinson’s evidence[13] is that the violent shake in the manner Mr Krobath described would be likely to also cause neck injury, but he would not necessarily expect that to have happened[14]. Dr Atkinson did consider that he would expect some type of seatbelt injury. Importantly, however, Dr Atkinson did say about the mechanism of injury, “but certainly, I repeatedly get the same story that those – those suffered the injury when the rock hit the truck.”[15]
  23. [47]
    In summary, although Dr Atkinson considered that a neck injury may have been caused by the incident as well as a back injury, or that a seatbelt injury could have been expected, Dr Atkinson, who is an extremely experienced neurosurgeon, has observed many instances of back pain caused by rocks hitting trucks in a similar manner over many years. The medical evidence accordingly does not support a submission of improbability, but to the contrary – a probability of Mr Krobath’s allegations of the nature and type of injury being true and correct.
  24. [48]
    Counsel for the defendant also argues, that there is evidence the defence had in place safe procedures to require the large rocks to be loaded into the dump trucks on a bed of fines, otherwise large rocks to be side-casted. This, it is argued, supports a conclusion that it was improbable that the incident occurred. That the defendant has an appropriate safe system of work cannot prove that incidents cannot occur, or are improbable. The nature of open-cut strip mining methods dictates that there is a lot of repetition of machinery movements, and accordingly, opportunities for errors arise. I would presume that the reason that excavator operators are changed out ordinarily after a few hours of operation is that very reason, namely, with such a large amount of machinery movement, there is a chance for errors to occur.
  25. [49]
    Indeed with respect to paragraph 8B of the further amended statement of claim, admitted by paragraph 10 of the amended defence, four prior similar incidents were recorded in the defendant’s HSE reporting system, relating to similar incidents.
  26. [50]
    On 15 June 2011, a Mr McKay reported suffering from instant pain in his lower back as a result of excavator EX1263 loading blocky material into his haul truck.
  27. [51]
    On 22 June 2011, Ms McLean complained of suffering pain in the lower back which was jolted and bounced due to the weight, size and material being loaded from an excavator into the rear of her dump truck.
  28. [52]
    On 29 June 2011, Mr Parsons complained of suffering from a muscle strain in his lower back requiring him to stop work and spend a day resting in camp, before he was taken to the Mater Hospital with a back injury when his rear dump truck was loaded by excavator EX516 with a large rock.
  29. [53]
    Finally on 25 September 2011, Mr Leon complained of suffering injury to his neck whilst his rear dump truck was loaded with large blocky material and rock by excavator EX1623.
  30. [54]
    I reject the defendant’s submission that the event occurring was improbable.
  31. [55]
    The defendant argues that the event did not occur because Exhibits 18 and 19 demonstrate that excavator 503 was being operated by Mr Hancock at the time of the alleged incident and Mr Hancock swore that he did not drop any rock into the tray of a rear dump truck. 
  32. [56]
    Mr Hancock, however, swore that he had no recollection of any event but he may not have been operating the excavator at the relevant time, suggesting he may have taken a crib break at 5:10pm. The defendant points out that the 12 and a half hour shift concluding at 6:30pm renders that unlikely as a matter of logic. Also upon the specific evidence of Mr Pritchard and Mr Bethel, it would be not unusual for Mr Hancock to take a crib break so late as 5:10PM. I accept that evidence of Mr Pritchard and Mr Bethel, and as a matter of logic, it would be unusual for a crib break to be taken so late in a shift as 5:10pm, however, that does not establish that the incident did not occur. I reject the balance of Mr Bethel’s evidence as I found him to be an unconvincing witness, who was prone to generalities. In particular, Mr Bethel was the supervisor of Mr Parsons when he was hospitalised with a back injury in July 2011 (the incident admitted in paragraph 8B(c) of the further amended statement of claim), yet he could not remember any of it.
  33. [57]
    In order for the defence submission to succeed in this regard, it must be demonstrated that the defendant’s records, in particular exhibit 18, are perfectly accurate and also that Mr Hancock has a precise memory of one machinery movement which occurred over seven years previously.
  34. [58]
    Exhibit 18 is a screenshot from the “OCDC” Open Cut Data Collection system in operation at the mine at the relevant time. The information sourced in the document at the time is taken from observations of employees (rather than the new system which is a real time data collection system). If the document is accurate, it shows that at the time of the injury (5:50pm), Mr Hancock was in fact operating excavator EX1263, and in that case Mr Hancock was the operator responsible for the incident.
  35. [59]
    The efficient management for mine equipment reasonably requires the deployment of skilled operators between different plant, depending upon the exigencies at any particular time. For example, in respect of EX1263 it is suggested that Mr Troy Stainkey operated the excavator between 6:30am and 10:45am on the day shift of 31 October 2011. However, that, also on the face of the document, is plainly incorrect.
  36. [60]
    Between approximately 6:50am and 7:30am, a period of 40 minutes, the excavator was not operated at all, as it had a “busted grease line”. The document on the face of it records Mr Stainkey operating the machinery when he in fact was not. Similarly, Mr Stainkey ceased operation of the excavator at 10:45am, there was about a 20 minute break when no person was said to be operating the machine, yet it seems by entry ‘dust’ that the machine was being operated by someone.
  37. [61]
    Although exhibit 18 on its face records Mr Hancock operating excavator EX1263 from 11:10am to 6:30pm, it is plain that is not so because no one was operating the machine at all from 11:10am until 11:45am (35 minutes) whilst the machine was again down due to mechanical fault. A similar conclusion can be made with respect to the 1 hour and 45 minutes between 3:25pm and 5:10pm when EX1263 was on maintenance, that is, it is recorded Mr Hancock was operating the machine, yet clearly he was not, as there was an electrical air conditioning fault and the machine was not operated at all.
  38. [62]
    It is highly likely therefore, during that period, if the mine is being operated efficiently, that Mr Hancock was redeployed to another piece of plant such as a dozer, as suggested by Mr Hancock. It also makes sense that after being changed out into a dozer or another piece of plant, it may not necessarily have been Mr Hancock who was placed back in control of EX1263 for the period 5:25pm until 5:45pm.
  39. [63]
    I conclude objectively, it was unlikely that Mr Hancock was the operator during the 50 minute period from 5:25pm to 6:15pm because I accept it is objectively likely that with the major breakdown commencing at 3:25pm, of 1 hour 45 minutes, that Mr Hancock was deployed to other plant as he suggested.
  40. [64]
    Whilst I accept the force of the defendant’s argument that it is unlikely that Mr Hancock had a crib break at approximately 5:10pm, I also find it is likely that Mr Hancock was redeployed to another piece of plant such as a dozer at approximately 3:25pm and did not return to the operation of EX1263 for the brief 50 minute period between 5:25pm and 6:15pm.
  41. [65]
    Accordingly, I find the likelihoods favour it was an operator other than Mr Hancock who was operating excavator EX1263 between 5:25pm and 6:15pm when the incident occurred. I further find the incident did occur as deposed to by Mr Krobath.
  42. [66]
    The defence argues that it is unlikely the incident occurred because it involved Mr Krobath deliberately placing himself in danger. I reject that submission.
  43. [67]
    As discussed above, with reference to the four prior incidents set out in paragraph 8B of the further amended statement of claim, similar incidents to those encountered by Mr Krobath can occur, and furthermore, Mr Krobath, as a most junior employee, felt he was not in a position if he wished to keep his job to challenge the excavator operator.
  44. [68]
    In conclusion, on the issue of liability, as I accept Mr Krobath’s evidence as to how the incident occurred, that is in accordance with paragraph 7 of the statement of claim, I find Mr Krobath has proved that Thiess is in breach of its duty of care to him.

Quantum

  1. [69]
    As stated above, I find Mr Krobath to be a credible witness. I find Mr Krobath is a determined and stoic individual. As noted above, Mr Krobath did not want to claim WorkCover benefits initially and opted for treatment in the public system, however, his injury was quite severe.
  2. [70]
    On 11 May 2012, Dr Licina performed the first of Mr Krobath’s three lumbar discectomies.
  3. [71]
    As is sometimes the case, patients who have undertaken a discectomy suffer from a recurrent disc protrusion and accordingly, Dr Licina performed the second discectomy on 6 July 2012.
  4. [72]
    Unfortunately for Mr Krobath he suffered a further recurrent disc protrusion on 28 August 2016 and accordingly was taken back to theatre by Dr Licina, who carried out the third lumbar discectomy at L5/S1 on 18 November 2016.
  5. [73]
    It is accepted that Mr Krobath suffers from a 28% whole person impairment and has ongoing back pain and neurological symptoms, such that he requires further treatment of an L5/S1 injection, possibly a fourth lumbar discectomy, possibly a lumbar fusion at L5/S1 or the insertion of a neuromodulation system in his lumbar spine.
  6. [74]
    Counsel for the defendant points out that the plaintiff does not give the outward appearance of someone who is suffering from much back pain. As pointed out, Mr Krobath sat for almost 4 hours on the first day of trial in the witness box, appeared to move fluidly and did not exhibit many of the pain behaviours that one ordinarily sees associated with severe back injury, that is, an ability to stand and/or shifting whilst seated. As counsel for the defendant pointed out, Mr Krobath did not even wince or moan or make any other outward indication he was suffering from discomfort or stress.  That is precisely why Mr Krobath is stoic. He has had three back operations and is being medically advised for a fourth. Mr Krobath works long hours in his current business and appears to have a most enthusiastic and cheerful disposition as shown not only in the witness box but also in exhibit 30, the video of the plaintiff taken for Queensland Weekender television programme.
  7. [75]
    After observing Mr Krobath in the witness box for over 4 hours, I take the view that he is a genuine, impressive, determined and stoic individual.
  8. [76]
    Both counsel correctly categorise Mr Krobath as an Item 90, serious thoracic or lumbar spine injury. Item 90 of Schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2014 provides:

90  Serious thoracic or lumbar spine injury

Comment

The injury will cause serious permanent impairment in the thoracic or lumbar spine.

The injury may involve—

  1. (a)
    bilateral or multilevel nerve root damage; or
  2. (b)
    a change in motion segment integrity, for example, because of surgery.

Example of the injury

A fracture involving at least 25% compression of 1 thoracic or lumbar vertebral body.

Comment about appropriate level of ISV

An ISV at or near the bottom of the range will be appropriate if—

  1. (a)
    the injured worker has had surgery and symptoms persist; or
  2. (b)
    there is a fracture involving 25% compression of 1 vertebral body.

An ISV in the middle of the range will be appropriate if there is a fracture involving 50% compression of a vertebral body, with ongoing pain.

An ISV at or near the top of the range will be appropriate if the injured worker has had a fusion of vertebral bodies that has failed—

  1. (a)
    leaving objective signs of significant residual nerve root damage and ongoing pain, affecting 1 side of the body; and
  2. (b)
    causing a DPI of 24%.

Range of injury scale values (ISVs)

16 to 35

  1. [77]
    It may be observed in the present case, with a permanent impairment of some 28%, Mr Krobath’s level of impairment exceeds the ordinary Item 90 category. However, it is a consequence of Mr Krobath being stoic that he is able to carry on with his life despite his serious condition.
  2. [78]
    In observing Item 90 it can be seen that whilst Mr Krobath has a level of permanent impairment which suggests that the ISV ought to be at or near the top of the Item 90 range, Mr Krobath may not have a fusion of the L5/S1. I would conclude that a mid-range ISV range of 26 is an appropriate assessment for Mr Krobath taking into account Dr Atkinson’s evidence and acceptance of Mr Krobath’s evidence. An ISV of 26 allows an assessment of $44,880 in general damages.
  3. [79]
    With respect to past economic loss, the parties are agreed that gross WorkCover benefits paid by WorkCover Queensland to Thiess ought to be allowed as a head of damage. It is common for mining employees who have suffered an injury in the course of their employment to receive their ordinary mining wages directly from their actual employer, with WorkCover Queensland paying benefits directly to the employer, in this case Thiess.
  4. [80]
    In the present case, as a result of his injuries, Mr Krobath was on WorkCover from 18 February 2012 until 30 September 2012. In that period, WorkCover paid $54,259.95 in benefits to Thiess, which sum will be recoverable as part of the WorkCover Queensland refund.  Accordingly, in the first period, the loss is assessed at $54,259.95.
  5. [81]
    Having undergone his second surgery on 6 July 2012, Mr Krobath returned to work for Thiess on 30 September 2012 and continued working for Thiess receiving his ordinary wages until he was retrenched, together with many other workers, on 2 September 2014. During that period Mr Krobath was earning approximately $1,900 npw.
  6. [82]
    After being retrenched on 2 September 2014, Mr Krobath returned to working at the restaurant and kiosk at Eungella. In this second period from 2 September 2014 to December 2016, Mr Krobath does not claim a loss of a mining income, but does claim 18 weeks lost income out of his kiosk because of his inability to work after the recurrent disc prolapse for the 18 weeks between 29 September 2016 and 5 December 2016.
  7. [83]
    Based upon his drawings, Mr Krobath was earning approximately $500 npw, Mr Krobath has lost a further $9,000 (18 weeks x $500) during this period which ought to be allowed in damages.
  8. [84]
    The plaintiff claims a loss for a third period identified as January 2017 to date. January 2017 is chosen as the period where, absent his injury, Mr Krobath would have returned to mining employment because there was a high demand for operators from late 2016 forward. In this regard, I do accept the evidence of David Saunders, an experienced labour hire consultant in the mining industry. The plaintiff further points out that through exhibit 31, the schedule produced by Thiess headed “Operator Roles Accepted in Queensland since August 2014 Payroll Report” has shown the defendant has also an increase in demand. Given his experience in the industry, I find it likely that had he not been injured, Mr Krobath would have returned to mining employment by January 2017.
  9. [85]
    The defendant has raised an argument that absent his injury, Mr Krobath would not have returned to mining because he was “passionate” about his small business running the kiosk at Eungella. It is true in exhibit 30 that Mr Krobath showed himself as an extremely enthusiastic business proprietor, and I accept that Mr Krobath is in fact an extremely enthusiastic business proprietor. However, as Mr Krobath had previously surrendered the lease of his business at Eungella, there is no reason to suggest that had he been offered the role as an operator in the mining industry earning almost four times what he could earn working in the kiosk at Eungella, then he would have refused that offer.
  10. [86]
    It has to be recalled that miners employed by the defendant were, at many mine sites, offered a lifestyle roster, that is, a roster requiring five days at work, then allowing four days off, before returning to work for four days, then having five days off.  This would have provided Mr Krobath with ample time to enjoy the Eungella district and assist his wife with the care of the many foster children that they have care for, whilst also providing Mr Krobath with a significant miner’s income, not only to allow him to enjoy his life, but also to allow him to plan for his retirement. It must be accepted that Mr Krobath does have limited superannuation. It is fully in keeping with his personality that Mr Krobath would not wish to be a burden on society, but rather be self-sufficient.
  11. [87]
    In exhibit 2 the statement of Mr Krobath’s wife, Marlies, at paragraph 23, Mrs Krobath explained “I enjoyed hi[m] being away and coming home” not by reference to any dislike for Mr Krobath’s company, but rather that she found that her husband was a much happier, relaxed individual when he was working at the mines, whereas when he was working for himself he was “full on all the time.” It is difficult therefore not to accept Mr Krobath’s case that he would have preferred staying in the mines where he could earn approximately four times his earnings at the restaurant and kiosk, whilst being more relaxed and much happier. The defendant’s suggestion to the contrary – rather, he would have preferred the stress and hard work of a small business with slow financial return, cannot be accepted.
  12. [88]
    With respect to the third period, I find that Mr Krobath’s loss is properly quantified as the difference between what he would have earned had he returned to the mining industry less what he has in fact earned as a result of his earning capacity from his restaurant and kiosk business at Eungella.
  13. [89]
    Although earning approximately $1,900 npw prior to being retrenched, it is the evidence that there has been a downward adjustment in coal mining worker earnings as a result of the resources downturn. Senior counsel for the plaintiff quantifies the loss in the third period as $114,545.91 on the basis of a series of calculations set out in paragraph 51 of exhibit 34. I find that in the mining industry, Mr Krobath’s current economic capacity, were he not injured, is $1,700 npw (43.7 hours per week at $55 per hour = $125,125 gross per annum which is $2,406.25 gross per week less $708 tax = $1,698.25 npw).
  14. [90]
    With respect to Mr Krobath’s current earning capacity, I do not accept that it is adequately reflected in his income tax returns which show net earnings in the 2017 financial year of $4,173 and $9,844 in the 2018 financial year. Mr Krobath operates his business through a family trust and Mrs Krobath does not assist, yet receives the benefit of trust distributions. I accept the defendant’s argument that Mr Krobath’s earning capacity is best demonstrated by his drawings made from the café and kiosk business as set out in exhibit 14, that is approximately $500 npw.
  15. [91]
    In the third period from 1 January 2017 until 18 December 2018, I find the plaintiff’s loss is 102 weeks x ($1,700 - $500) which is a sum of $122,400. I find the plaintiff’s past economic loss is the addition of the first, second and third period losses ($54,260 + $9,000 + $122,400) is a total of $185,660.
  16. [92]
    With respect to interest on past economic loss, it cannot be allowed on the first period but ought to be allowed on the second and third periods at the agreed rate of 1.34% and for essentially two years. I quantify interest on past economic loss as interest on $131,400 ($122,400 + $9,000) at 1.34% for 2 years which is $3,522.
  17. [93]
    With respect to past superannuation, the rate of 9.5% is agreed, however it ought to only be allowed on the third period loss as the second period loss is a loss of earnings from Mr Krobath’s self-employment. Accordingly, I calculate superannuation on past economic loss at $11,628 ($122,400 x 9.5%).
  18. [94]
    With respect to future economic loss there are several imponderables. The evidence demonstrates that Mr Krobath had an economic capacity as a miner at a minimum of $1,700 npw and that he had lost that capacity. Although there are examples of persons entering into the mining industry previously having suffered from disc prolapses because of surgery, e.g. Phillips v MCG[16] it will be difficult to accept that any mining employer would employ Mr Krobath having had his three lower back surgeries and potentially a fourth operation upcoming.
  19. [95]
    I am conscious that Mr Krobath has applied for a number of operator roles at mines, and has been criticised for not obtaining them, however, I would judge his prospects of obtaining such work as being extremely low. As exhibit 31 shows, Thiess has employed numerous operators throughout 2018 and have not offered Mr Krobath any work.
  20. [96]
    The fact that Mr Krobath has demonstrated, through his drawings, an income earning capacity at $500 npw does not necessarily mean that he will be able to continue to do so in the near or long term future. Mr Krobath, however, has impressed as a stoic and practical man, and I am convinced that he will do all that he possibly can to keep himself in appropriate light employment. I am satisfied therefore, that the $500 npw finding with respect to the residual income earning capacity can be applied to the future. I find therefore that Mr Krobath has lost and will continue to lose $1,200 npw as a result of the injury he sustained to his lumbar spine.
  21. [97]
    Dr Atkinson was firm in his evidence that it was unlikely that Mr Krobath would have been able to continue working to normal retirement age of 70 years as a mining operator due to Mr Krobath’s pre-existing lumbar degeneration. Dr Atkinson was, however, unable to state with any specificity when, but for the incident of 31 October 2011, Mr Krobath’s pre-existing degeneration would have caused him to be unable to work as an operator. In those circumstances as explained by the Court of Appeal in Hopkins v Workcover[17] as a matter of principle, Mr Krobath’s damages ought to be discounted to take into account a probability that at some point, Mr Krobath would have been forced out of mining work in any event due to his pre-existing lumbar degeneration.
  22. [98]
    As a more recent entrant into the mining industry, Mr Krobath faced the difficulties of being a junior employee and perhaps having less job security than more senior employees, however, he had a financial need, through lack of superannuation, and desire to continue working in the mining industry as long as possible.
  23. [99]
    As Dr Atkinson accepted, factors which are personal to a worker may impact upon the length of time that worker may be able to withstand the pain in order to continue working. Mr Krobath is currently 55 years of age, but will soon turn 56. The defendant has produced statistics showing that continuation in working as an operator in mining beyond the age of 60 is less likely, however, anecdotally there are numerous miners working beyond age 60, and indeed some even beyond age 70. In assessing Mr Krobath as I have found, he is stoic and determined, and whilst I accept that Mr Krobath would have continued working as a miner in the future even though he was suffering from a degree of back pain caused by pre-existing degeneration (had the incident of 31 October 2011 now occurred) a discount must be applied.
  24. [100]
    I accept Dr Atkinson’s evidence that Mr Krobath would not have worked through to the normal retirement age of 70 had he not been injured because of pre-existing lumbar degeneration. Dr Atkinson’s evidence is that it cannot be stated with any certainty the time when Mr Krobath’s pre-existing degeneration would have caused him to be unable to work as a miner, and accordingly a discount must be applied to the proper calculation of future economic loss in accordance with the principles set out in Hopkins v WorkCover (supra).
  25. [101]
    Assessing a loss of $1,200 npw for the next 14 years to age 70 (5% discount factor (529)) and then discounting that award by 35% quantifies future economic loss at $412,620. Alternatively, if Mr Krobath had been able to work as a miner for the next 10 years to age 66, then that quantifies a loss of $495,600 (413 x $1,200). However that must be subject to a general discount for vicissitudes of at least 10% in an ordinary case, and by another 10% in respect of Mr Krobath’s pre-existing degeneration and the fact that Mr Krobath was working in the mining industry, quantifying a loss of $396,480 ($1,200 npw x 413 x 80%). Utilising both calculations as a guide I would quantify Mr Krobath’s award for loss of economic capacity at $400,000.
  26. [102]
    I allow a loss of future superannuation benefits at 10.5%, and not the 11.33% allowed in Heywood v Commercial Electrical[18] a loss of $42,000 (10.5% x $400,000). I have limited the loss of future superannuation benefits to 10.5% because Mr Krobath is almost 56 years of age and the higher, 11.33% rate is appropriate for younger workers as demonstrated in Heywood.
  27. [103]
    With respect to special damages, the WorkCover refund for special damages at $41,348.51 is not in dispute. Similarly, the Medicare refund of $4,646.10 is not in dispute.
  28. [104]
    In exhibit 4, Mr Krobath claims $20,012.54 in special damages. The defence disputes four items. The first two items are Qantas airfares in the sum of $252.02 and an Airbnb accommodation cost in Brisbane for $496. The basis of the dispute is the defence accurately suggests that these two amounts do not correlate to any date of surgery. The amounts do, however, correlate with a visit by Mr Krobath to see Mr Stephen Boyd, physiotherapist for specialist physiotherapy treatment which was specifically referred by Dr Licina. I will therefore allow the amounts.
  29. [105]
    The third dispute relates to the RACQ membership sum claimed at $161. As Mr Krobath said, he has been a member with RACQ since 1987 and accordingly, I will not allow that sum. I am conscious that Mr Krobath gave evidence that he has to pay a higher level of RACQ roadside assistance because of his injury, however, the evidence is not specific enough for Mr Krobath to discharge the onus placed upon himself to prove each item of special damage. I therefore exclude the $161 paid to RACQ Roadside Assistance.
  30. [106]
    The fourth and most significant dispute relates to the sum of $3,900 which Mr Krobath says he has paid to Ms Sandra Muller for gardening assistance. In exhibit 4, page 18, there is an invoice from Sandra Muller. The invoice does have a reference number apparently being the same reference number as Mr Krobath’s solicitor’s reference number. Mr Krobath does not know how that number was placed upon the invoice because the invoice that he had observed was a plain invoice without those numbers[19].
  31. [107]
    Section 306D of the Workers' Compensation and Rehabilitation Act 2003 (Qld) Reprint 5E provides:

306D Definitions for sdiv 1

In this subdivision—

gratuitous services means services, other than paid services, that are provided to a worker by a member of the worker’s family or household, or by a friend of the worker.

paid services means services that are provided to a worker at commercial rates by another person in the person’s professional capacity or in the course of the person’s business.

Services means services of a domestic, nursing or caring nature.

Examples of services

•assisting with personal hygiene needs

•changing bandages

•cleaning

•cooking

•dressing wounds

•gardening

•housekeeping

•mowing the lawn

  1. [108]
    Sections 306F, 306G and 306H provides:

306F Worker performed services before injury

  1. (1)
    This section applies if, before the worker sustained the injury, the worker usually performed particular services.
  2. (2)
    A court can not award damages for the cost or value of services of substantially the same type that have been provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services.

306H Services not required by or provided to worker before injury

  1. (1)
    This section applies if the worker usually did not require or was not provided with particular services before the worker sustained the injury.
  2. (2)
    A court can not award damages for the cost or value of any services provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services.
  1. [109]
    Apart from the invoice, the detailed evidence concerning the Muller dispute is at T1-72 to T1-73. As Ms Muller was not called as a witness, there is limited evidence upon which to make any findings. The first issue to be determined is whether the amount paid to Ms Muller in respect of gardening services at $25 per hour (it was not suggested the amount was not paid) is paid services within the meaning of s 306D. Although there are limitations upon the findings which can be made because of limited evidence, it is clear that the gardening provided by Ms Muller was a service provided by another person, that is, Ms Muller.
  2. [110]
    Secondly, the services were provided to a worker while he was injured (Mr Krobath was a worker). It was suggested in cross-examination[20] that the payment of $25 per hour was not a commercial rate. Mr Krobath answered perhaps wisely “I wouldn’t have a clue what the commercial rate is.” Mr Krobath then added “where you’re referring to – if you live in Mackay – I wouldn’t have a clue” before Mr Krobath swore that he did believe Ms Muller was charging him a full commercial fee for her services with references to Eungella rates. As Mr Krobath explained “Eungella has about 300 people population. How much business you get out in Eungella if you charge the full rate like you do in the city? She is like everybody else up in the hills just trying to survive and any – the more work she does for me or for other people, it’s a big help for her.”
  3. [111]
    It is apparent that all that Mr Krobath was able to say is that Ms Muller attends at his house and does the mowing and whipper snipping and is paid $25 per hour for doing same, whereas prior to being injured Mr Krobath performed these tasks himself. I accept the evidence of Mr Krobath that Eungella, due to its small size, its position up in the hills, its lack of available employment (she is “just trying to survive”) allows the conclusion on the balance of probabilities that $25 per hour is a commercial rate for gardening services rendered in Eungella.
  4. [112]
    It cannot be suggested, that the services are rendered in any person’s “professional capacity.” Mr Krobath admitted that he had not investigated Ms Muller’s business, whether it is registered for GST or not, and accepted that he had “no idea of what she does.” I would infer that answer is that Mr Krobath has no idea what Ms Muller does elsewhere, but what Mr Krobath knows is that Ms Muller does come to his residence, does perform mowing and whipper snipping services, and does charge him $25 per hour to do that.
  5. [113]
    In determining whether those services have been rendered in the course of Ms Muller’s business, in the absence of more specific evidence, it can be inferred that the services have been provided in the course of Ms Muller’s business. I draw that inference because if Ms Muller is charging $25 per hour, it can be concluded that Ms Muller is not undertaking those services in any private type of capacity.
  6. [114]
    In essence I infer Ms Muller has a small business or perhaps a very small business, and perhaps with only one customer - Mr Krobath. However, it is still a business. Whether or not Ms Muller has or has not an ABN, does or does not declare her income to the Australian Taxation Office or any other body is not, in itself, determinative of whether that person has a business. In essence, I accept the proposition that if a person is charging for services that they have a business.
  7. [115]
    I therefore conclude that the $3,900 in fact paid by Mr Krobath to Ms Muller is paid services within s 306D of the Act. The evidence[21] of Mr Krobath relevant to s 306F is as follows:

“MR DEAVES: You didn’t always do the mowing and whipper snipping yourself, did you?

MR KROBATH: Before the injury, yes, I did.

MR DEAVES: Your wife did it from time to time?

MR KROBATH: After the injury, yes, she helps out.”

  1. [116]
    The evidence above shows that s 306F(1) is engaged.  That is, before he was injured, Mr Krobath usually (always) performed the gardening services. With respect to s 306F(2), as the mowing and whipper snipping services provided by Ms Muller are paid services within s 306D, there is no prohibition against the amount being awarded.
  2. [117]
    In respect of special damages, I would therefore deduct the $161 from the $24,012.54 to allow past special damages at $23,851. Interest is allowed at 1.34% for 7 years which is a sum of $2,237.
  3. [118]
    Mr Krobath claims a loss of $105 per week for a loss of subsidised meals. The quantum of the claim is not disputed on the pleadings. It is to be recalled that Mr Krobath worked essentially an even time roster. Accordingly, in the almost 2 years from January 2017 until present, it is reasonable to allow the $105 per week for 51 weeks, and then, as the plaintiff has done, discount that sum by a small measure to $5,000. Interest may be allowed at 1.34% for 2 years.
  4. [119]
    I would allow $10,000 for future loss of subsidised meals, adopting largely the submissions made at paragraphs 81 and 82 of exhibit 35.[22]
  5. [120]
    The proper quantification of future expenses is complicated. Mr Krobath consumes little in the way of medication but is considering, and with medical advice, a number of different options as discussed above concerning future surgery. A fourth discectomy would cost approximately $14,000; a fusion will cost almost $40,000 and may be delayed by 5 years with the present costs at approximately $33,000. Defence counsel suggests that approximately $20,000 be allowed for future expenses being an allowance of $10,000 for surgery and $15 per week for 25 years (discounted by 15% for all other requirements). The plaintiff’s senior counsel seeks an award of $66,743.
  6. [121]
    In respect of future expenses, I will award:
    1. (a)
      $10,000 for general practitioner visits, physiotherapy and liniments, gels and medications, a little more than $15 per week for 15 years;
    2. (b)
      $7,000 being half the cost of the fourth discectomy;
    3. (c)
      $15,000 being a little less than half the cost of a fusion being delayed 5 years;
    4. (d)
      Total $32,000.
  7. [122]
    The plaintiff’s trial submissions[23] from paragraphs 91 to 95 articulate and calculate a claim for future paid assistance in the sum of $28,517 particularised as a claim of $4.60 per week for the assistance provided by Ms Muller for 15 years (555) further discounted by 25% being a sum of $24,975. There are then two further claims for additional RACQ Roadside Assistance premiums totalling only $640 and an additional sum for Mr Krobath in washing his vehicle at $2,877.
  8. [123]
    I will not allow the RACQ additional expenses as the plaintiff has not proved his case in respect of additional RACQ fees. That is, whilst page 16 of exhibit 4 sets out the RACQ Roadside Assistance membership renewal, it does not allow for quantification of the difference between the ordinary membership and the upgraded membership.
  9. [124]
    Page 20 of exhibit 4 is the receipt of Mackay Car Wash showing a total premium wash costs $20. I note, in the several years since Mr Krobath was injured there is proof only of one receipt for the car wash. There is no evidence as to how frequently Mr Krobath’s car is washed or ought to be washed. I will allow $1,400 in respect of future car wash expenses, which is a little less than half the claim that is made because the plaintiff bears the onus of proof and has not provided satisfactory proof as to the frequency at which car washing is required.
  10. [125]
    Page 18 of exhibit 4 is the curious invoice of Ms Muller which records that in the period between November 2011 and September 2017, almost 6 years, Ms Muller has charged Mr Krobath $3,900 for mowing, whipper snipping and gardening at 4 Russell Cunningham Street, Eungella. In exhibit 1 paragraph 64, Mr Krobath has sworn that he pays Sandra Muller $25 per hour “when she does work for me” but he has understandably not descended into particularity as to how often the work occurs. In the almost 6 years between November 2011 and September 2017, it would appear on average, the amount actually expended is $12.50 per week ($3,900 ÷ 6 years ÷ 52 weeks). I consider that this is a sounder basis upon which to allow this head of damage. I will therefore allow $12.50 per week for the next 15 years (555) which is a sum of $6,937.50, which I will round up to $7,000.
  11. [126]
    I will not discount this head of damage any further, as it seems to me that an allowance essentially of an hour a fortnight is a minimal allowance for a man with such a severe back condition. Accordingly I allow $8,400 in future paid assistance.
  12. [127]
    I note that the claim for future paid assistance is not the subject of a claim in the further amended statement of claim and appropriately not referred to in the amended defence. The evidence has been provided, and as statements of loss and damage are not filed, I am unaware as to whether or not such a claim was included in the statement of loss and damage. However, I would presume, particularly as the defendant is represented by experienced and competent counsel that an objection would have been taken if the defendant was surprised by the claim being made. Furthermore, the claim was articulated in the quantum statement handed up at the commencement of trial.
  13. [128]
    I further note that the allowance being made in respect of this head of damage is made on the basis of the provisions of Reprint 5E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) with the provisions of Chapter 9 Part 5 then in effect. I further note that by the Workers’ Compensation and Rehabilitation and other Legislation Amendment Act 2013 (Qld) No. 52 operative from 15 October 2013, that substantive amendments were made to Chapter 9 Part 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) such that claims of the present type (hybrid claims where there was both past paid and past gratuitous services) can no longer, from 15 October 2013, be allowed as a head of damage.
  14. [129]
    I quantify damages as follows:

Head of Damage

Amount

General damages

$44,880.00

Past economic loss

$185,660.00

Interest on past economic loss

$3,522.00

Past superannuation

$11,628.00

Future loss of earning capacity

$400,000.00

Future loss of superannuation

$42,000.00

Out of pocket expenses

$23,851.00

Interest on out of pocket expenses

$2,237.00

Special damages (WorkCover)

$41,348.51

Special damages (Medicare)

$4,646.10

Past loss of subsidised meals

$5,000.00

Interest on past loss of subsidised meals

$134.00

Future loss of subsidised meals

$10,000.00

Future expenses

$32,000.00

Future paid assistance

$8,400.00

Fox v Wood

$0

Subtotal

$815,306.61

Less WorkCover Queensland refund

$95,608.46

TOTAL

$719,698.15

  1. [130]
    I give judgment for the plaintiff in the sum of $719,698.15. I order that the insurer pay the plaintiff’s costs on the standard basis from 26 October 2017.

Footnotes

[1]   T1-11 to T1-14 and more importantly Exhibit 5 and Exhibit 7.

[2]   T1-32/35 – 40.

[3]   T1-32/39 – 44.

[4]   T2-20.

[5]   T2-20/41-42.

[6]   T2-48/41.

[7]   T2-46.

[8]   T2-40 - T2-41.

[9]   T1-38/24.

[10]   Exhibit 23.

[11]   Exhibit 28.

[12]   T1-31/15.

[13]   T2-38/43.

[14]   T2-39.

[15]   T2-39/6 – 7.

[16] Phillips v MCG Group Pty Ltd [2013] QCA 83; Phillips v MCG Group Pty Ltd [2012] QSC 149.

[17] Hopkins v WorkCover Queensland [2004] QCA 155.

[18] Heywood v Commercial Electrical Pty Ltd [2013] QCA 270.

[19]   T1-72/5.

[20]   T1-72/11.

[21]   T1-73/16 – 19.

[22] Paragraph 81 and 82 of Exhibit 35 are set out as follows:

“81.A global sum would be appropriate for this head, with guidance, with respect, taken from the following calculation:

(a) $105 per week for subsidised meals;

(b) divided by 2 (due to lifestyle roster) = $50 per week;

(c) for 12 years (multiplier 474) = $23,700.00;

(d) discounted by 50% for the contingencies applicable to future loss of earning capacity and to take into account the prospect that subsidised meals might be provided = $11,850.00.

“82.On these bases, it is submitted that a rounded up figure of $12,000 is appropriate.”

[23]   Exhibit 35.

Close

Editorial Notes

  • Published Case Name:

    Krobath v Thiess Pty Ltd

  • Shortened Case Name:

    Krobath v Thiess Pty Ltd

  • MNC:

    [2018] QSC 309

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    20 Dec 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 309 20 Dec 2018 Judgment for the plaintiff in the amount of $719,698.15 for damages for negligence: Crow J.

Appeal Status

No Status