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  • Unreported Judgment

Verney v The Mac Services Group Pty Ltd

 

[2014] QSC 57

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Trial

PROCEEDING:

Civil

ORIGINATING COURT:

Mackay

DELIVERED ON:

6 March 2014

DELIVERED AT:

Mackay

HEARING DATE:

3, 4, 5, 6 March 2014

JUDGE:

North J

ORDER:

  1. Judgment for the plaintiff against the defendant in the sum of $585,767.78.
  2. The defendant pay the plaintiff’s costs of an incidental to the action from 26 June 2013.  Such costs to be assessed on the District Court scale.

CATCHWORDS:

Negligence – Master and Servant – Scope of Duty – Duty of Care – Safe System of work – Employer’s duty to provide safe system – Failure to take reasonable care for employee's safety – Burden of Proof – Quantum – Assessment of Damages

LEGISLATION:

CASES:

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

Hamilton v Nuroof (W.A.) Pty Ltd (1956) 96 CLR 18

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

McLean v Tedman & Brambles Holdings Ltd (1984) 155 CLR 306

Schellenberg v Tunnel Holdings Pty Ltd [2000] 200 CLR 211

COUNSEL:

C Heyworth Smith for the plaintiff (3 March 2014)

G Crow, QC for the plaintiff (5 and 6 March 2014)

G O’Driscoll for the defendant

SOLICITORS:

Macrossan & Amiet Solicitors for the plaintiff

BT Lawyers for the defendant

NORTH J:   The plaintiff alleges he suffered personal injury in a workplace accident that occurred on 3 May 2011, whilst in the employ of the defendant.  At the time of the accident the plaintiff was 29 years of age, his date of birth was 19 September 1981.  Some two years and 10 months have elapsed since the incident.

The plaintiff was employed by the defendant as a boilermaker and labourer at the defendant’s camp at Coppabella.  The defendant carried on the business of providing construction and other services to mines and other industries in Central Queensland.  At the time in question, the defendant was constructing accommodation facilities at the “Mac Coppabella Village” which accommodation facilities were to be used by the defendant’s own employees.

The plaintiff alleges that on the day in question he was using a wheelbarrow to move blue metal crusher dust from a stockpile to pathways and areas adjacent to a pathway under construction, where the dust was to be deposited, spread out and used as a base.  In evidence, with the assistance of a sketch plan (exhibit 4), the plaintiff described the route he took from the stockpile of the crusher dust to the boxed section of the concrete path and adjacent area where the crusher dust was to be placed.  In general, the route was following a clockwise direction from the stockpile, following a pathway between demountables and the concrete path under construction, where, after travelling some distance, he pushed the wheelbarrow across a plank that had been laid across a newly poured concrete path onto another walkway whereupon he made a right hand turn and proceeded to push the wheelbarrow up a dust walkway area, with the concrete path under construction to his right, in the direction to where it was to be deposited.

In evidence-in-chief, the plaintiff said that the wheelbarrow was full to the top and when asked how the wheelbarrow was operating, he said “it was quite good”.  He mentioned a little bit of a woggle, but he said, “you get that every time you have a full load” and it was nothing he was concerned about (transcript, day one, page 11, line 36 to page 12, line 2).  His evidence was that after crossing the concrete path and making a right-hand turn with the wheelbarrow, after he had proceeded that distance, the wheelbarrow suddenly tipped to his left, that he tried to compensate by pushing down on the right handle, but that he lost his balance and fell down an embankment landing below.  His evidence was that when he landed, he landed on his right heel and jarred his back (transcript, day one, page 12, line 4 to line 26).

In evidence he demonstrated the height of the embankment by indicating high on his chest, around about the level of his armpits or shoulders, which was agreed by counsel to be about five feet.  When cross-examined, the plaintiff said that although he was not sure of the weight of the wheelbarrow when loaded with the crusher dust, he’d filled it full but not overloaded it and he was not struggling to use it.  He said that he’d handled full wheelbarrows before and that he knew he could handle a wheelbarrow loaded in the way he’d done (transcript, day one, page 14, lines 17 to 35).

On the day in question, he’d used the wheelbarrow before the incident.  He said the tyres were a little flat, but that was to be expected and he was used to that.  He said that he’d taken 20 loads before the incident, though, perhaps, using the particular wheelbarrow only five to 10 times (see, generally, the evidence, transcript, day one, page 43, lines 13 to 15).

He described that the wheelbarrow, when it moved to the left, just snapped.  His evidence was that “something broke” but he was not exactly sure what.  When pressed in cross-examination he conceded that this was an assumption (transcript, day one, page 43, lines 30 to 44) and ultimately he said that he did not know what caused the wheelbarrow to tip (transcript, day one, page 45, line 40 to page 46, line 1 and page 47, line 28, in context).  In evidence, the plaintiff said that there had been complaints by workers to the employer about tools, including wheelbarrows, before his incident.  In particular, he said that approximately three weeks prior to the incident, a complaint was made by Matthew Wicht at a toolbox meeting that the wheelbarrows were in bad condition (transcript, day one, page 18, line 31 to page 19, line 2).

He was not able to be more specific about the subject matter of the complaint (transcript, day one, page 20, line 45), but the gist of it was that there were only a small number of wheelbarrows, that they were not in good condition and that they were in need of repairing and that some frames were bent and had actually snapped in some places (transcript, day one, page 21, lines 5 to 10).  The plaintiff’s evidence was that the incident happened in the afternoon, about an hour before knock-off time;  that he noticed pain in his low back but that he went about his duties, but that the next morning he awoke in pain and he reported the incident.  Soon after that day, he left the site. 

No better description of the wheelbarrows was placed in evidence before me than I have indicated.  No photographs of the wheelbarrow in question or of any of the wheelbarrows used at the site were tendered, nor were photographs of like wheelbarrows.  From the evidence of the plaintiff and from other witnesses, to whom I will refer, I infer that the frames of the wheelbarrows were metal and that the wheels were pneumatic, as the evidence indicates that the tyres needed pumping up – if not daily, regularly. 

When giving evidence, the plaintiff’s demeanour was not particularly impressive.  He was nervous and he fidgeted whilst giving evidence.  In fairness, some of that may have been because of pain and nervousness as he did, on occasions, ask for leave to stand when giving evidence.  His complexion was not healthy and he dark rings around his eyes.  He impressed as being a person of average intelligence, consistent with one whose education was to about grade 10.  His evidence concerning his personal life and work history before and since the accident were somewhat disjointed.  I gained the impression that he was not a particularly reliable historian. 

The plaintiff gave evidence of a history of illness, including depression and bipolar affective disorder and of breakdowns and treatment.  The plaintiff also admitted to a long history of illicit drug taking, involving consumption of considerable quantities of cannabis at different times and also of some use of methylamphetamine.  His evidence suggested he continues to use cannabis, not necessarily as heavily as at some times in the past.  The combined effect of the plaintiff’s demeanour but also the impression he made as a historian and the way in which he gave his evidence and the uncertainty or ambiguities in his account, from time to time, have led me to regard him as a witness whose reliability as a historian should be approached cautiously.  In important respects, the evidence of his mother and also of Mr Wicht corroborates some parts of his evidence, so I do not regard his evidence as being wholly unreliable.  In what I have said, I should emphasise that I am not calling into question the creditworthiness of the plaintiff, that is, his honesty;  more the reliability of his evidence. 

Matthew Wicht was employed by the defendant as a machine operator at Coppabella at the time in question. In evidence, he said that he witnessed the incident described by the plaintiff.  Mr Wicht was operating a Manitou machine, moving pavers and blocks for the purpose of the construction of the accommodation complex and paths.  His evidence was that he was moving the machine towards the plaintiff and that he could see the plaintiff approaching him, from some distance, pushing the wheelbarrow.  He saw the plaintiff “walking down with a wheelbarrow and all of a sudden he started to fumble and then the wheelbarrow [went] over” (transcript, day one, page 55, line 23).  He saw the plaintiff land on the side of his stomach and he estimated the plaintiff fell down an embankment, about a one metre in height (transcript, day one, page 55, line 35 to page 56, line 10).

Mr Wicht said that some days after the incident he assisted in throwing out and disposing of a number of broken wheelbarrows that had been on the site.  He says that he inspected the wheelbarrow used by the plaintiff and noticed that a bracket holding the wheel had broken (transcript, day one, page 55, line 12) and there had been a weld at the bracket where (I infer) the wheelbarrow and been repaired and that the weld had broken (transcript, day one, page 61, line 15).  In evidence, Mr Wicht described a history of failures and repairs to the wheelbarrows supplied by the defendant and said that there had been complaints about the condition of the wheelbarrows and other equipment at toolbox meetings.

His evidence (recorded, at transcript, day one, page 58 from about lines 10 to 35­) is instructive.  I’ll refer, particularly, to one answer to a question that was directed to him about the wheelbarrows – “A lot of them were snapped.  The handles on the wheelbarrows kept sliding or twisting.  A lot of them – their bolts were welded to the brackets on the front of the tyres and a lot of them kept snapping and we kept asking for wheelbarrows, but nothing ever eventuated from it”. 

Mr Gareth Jones gave evidence.  He was employed for about four months from March 2011 as the safety officer on the defendant’s site.  He knew the plaintiff and described him before the incident as fit and one who would get on with his work.  He recalls that one morning, apparently the day after the incident, the plaintiff appeared to be in pain and reported the incident to him.  For reasons not fully explained, a written incident report was not prepared that day.  His evidence was that it was his duty to arrange the toolbox meetings every two to three weeks which were to be attended by all onsite, including supervisors.  However, he could not recall receiving any complaints with respect to wheelbarrows at toolbox meetings (transcript day 1, page 63, line 40) although he could recall that from time to time machinery that was faulty would be used (for example, a bobcat, see his evidence at transcript day 1, page 63, line 21) and he gave evidence of an attitude on the site at the time which was to use equipment available notwithstanding it might be faulty and to get on with the job.  (See transcript day 1, page 64, line 43).  Mr Jones’ evidence was that he did not know what became of the wheelbarrow the plaintiff said he was using at the time of the incident, nor did he inspect the wheelbarrow. 

The plaintiff’s mother gave evidence.  She is the accounts manager for the business enterprises conducted by herself and her husband.  One business is styled Verntek Industries.  That business conducts electrical contracting work.  The other is a painting business, both commercial and domestic, conducted by one of her sons.  She gave evidence that presently the plaintiff works three days a week for Verntek Industries.  He is paid $23 per hour and nets approximately $497 per week.  He started work with Verntek about three months ago in early January 2014.  By her observation, she said that the plaintiff was able to conduct his duties well enough, although he appeared to have periods of pain. 

Through Mrs Verney’s evidence, a better chronology of the plaintiff’s health and work history emerged.  In about 2004, the plaintiff was in a relationship with a woman with whom he had fathered a son.  The plaintiff worked for a period in Western Australia, but that he returned from Western Australia, and over a period between 2004 and approximately 2006, the relationship deteriorated and ultimately, in 2006, the pair separated.  The plaintiff had a significant breakdown and illness in about 2008 when he lost custody of his son.  That resulted in a period when the plaintiff voluntarily entered a rehabilitation facility in Cairns for treatment for his mental condition and drug problems.  Afterwards, he worked on and off for periods for one or other of the family businesses.  The plaintiff, after some time, was able to re-enter the workforce and was, at the time of the incident, working full-time.  Mrs Verney’s evidence was that after the incident, with the combination of pain and other matters, his relationship with his then partner, Kaylene, deteriorated. 

Her evidence was that the plaintiff became depressed again as a consequence of the combination of pain, the breakdown of his relationship and being unable to work.  Recently, she said that his mood has improved.  Mrs Verney gave evidence under cross-examination that there had been a long business association between the Verntek group of companies and the defendant.  The family companies had provided services to the defendant business in connection with the construction of work sites or other projects.  Her evidence was, that at the present times, the family companies were doing work on projects for other businesses and that there were no new major contracts with the defendant, although there was some ongoing maintenance work on old projects.  In evidence, Mrs Verney said that her expectation or hope was that the plaintiff would continue to work in the business as he does and that he would gradually work up to being able to perform full-time duties which, if he did, would earn him approximately $700 net a week.  I should note or emphasise that the account of the plaintiff’s history given by Mrs Verney more or less coincides with the plaintiff’s evidence, albeit his evidence was given in a rather disjointed way. 

There was further evidence from witnesses at the work site that is significant and important to bear in mind.  Exhibit 9 is a statement from Mr John Maloney that was tendered into evidence by consent.  At the relevant time, Mr Maloney was employed by the defendant as the regional construction supervisor.  At the time of Mr Verney’s accident, he was involved in supervising the completion of temporary accommodation for the defendant’s construction workers which involved temporary dongas being positioned in a line, together with the construction of a concrete pathway running parallel to and in front of the dongas.  In this statement, Mr Maloney said that at the time there was some urgency to have the work completed quickly so that the workers could move into the accommodation. 

A statement from Mr Jack White was tendered into evidence.  He was, at the relevant time, employed as a labourer by the defendant.  Mr White says that he was present on the construction site when the plaintiff apparently suffered his injury but that he did not see the incident.  He did, however, see the plaintiff at the bottom of the drop-off, apparently after the incident.  Mr White estimated the height of the drop-off at about point eight of a metre.  Mr White’s statement contains an observation that, prior to the incident, the plaintiff appeared fit and well.  There were other contractors on the site, and in his statement (exhibit 10), he said:

If we had any good wheelbarrows, they [the other contractors] would borrow them, and when they left, they would throw them on their truck and the wheelbarrows that we were left to work with were rubbish.

In cross-examination of the plaintiff and in submissions, the defendant pointed to the circumstance that the plaintiff was unable to give a precise account of what caused the wheelbarrow to become unstable.  It was also pointed out that, at different times, the plaintiff seems to have given different accounts of the incident, particularly an account in which the wheelbarrow was loaded with concrete rather than crusher dust.  The evidence does suggest that at different times the plaintiff has given contradictory accounts or, precisely, accounts at variance with the evidence that he gave at trial.  In submissions, my attention was also drawn to the amended statement of claim and the changes in the pleadings.  In fairness, the defendant did not make any submission that the plaintiff’s evidence at trial was so inconsistent with the pleading that the pleaded case had not been made out.  Counsel conceded that the pleading as it stood at the time of trial was broad enough to contemplate an account substantially as given by the plaintiff.

The foregoing observations or submissions are another aspect of the reasons why I have indicated earlier I take the view that one should be cautious about accepting the plaintiff as a reliable historian.  However, that an incident occurred in which the plaintiff suffered injury finds significant support from the direct evidence of Mr Wicht, the evidence of Mr White and the evidence from Messrs Jones and Maloney to whom reports were made and who had an opportunity to investigate matters.  That the plaintiff lost control of the wheelbarrow as a result of the failure of the bracing or bracket supporting the tyre which occurred when a repaired weld broke comes from the direct evidence of Mr Wicht and, inferentially, from the evidence of the plaintiff of the sudden movement of the wheelbarrow.  I should record that I accept the evidence of Mr Wicht and Mr Jones who gave evidence before me.  It should be noted that the evidence in the statements of Messrs White and Maloney also supports some of these findings, and others which I will make.

Before turning to the findings or inferences with respect to the allegations of breach of duty of care and causation of loss and damage, I will refer to, if only out of excessive caution, some leading authorities that I consider not only inform the task that I have to perform but also bind me.  The High Court has, on many occasions, had to state and restate the law concerning the duty owed by an employer to an employee.  A convenient summary or statement of principles can be found in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.  In that case in the joint judgment of Justices Mason, Wilson and Dawson, their Honours by reference to a statement of principle in Hamilton v Nuroof said:

What must be asserted is that the law has not changed.  It is as accurate today as it was 30 years ago to say that the duty is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing employees to unnecessary risks of injury.

Their Honours went on to quote with approval a passage in Vozza v Tooth Co Ltd:

For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.

Their Honours went on to remind us that the reasonable standard of care for an employee’s safety is not a low one and further that accident prevention is unquestionably one of the modern responsibilities of an employer.

That last statement was a quote from the judgment of the majority of the High Court in McLean v Tedman & Ors (1984) 155 CLR 306 at page 313.  It will be remembered that in McLean v Tedman (at paragraph 8) their Honours noted that whether the obligation to provide a safe system of work is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or whether it is expressed as one which requires an employer to take reasonable care in providing such a system is moot.  It is plain from what their Honours said that both statements expressed the same duty.

In the foregoing I was at pains to quote from Bankstown Foundry v Braistina and the approved statement in Vozza v Tooth that for a plaintiff to succeed it must appear by direct evidence or by reasonable inference that the duty has been breached.  That issue loomed large in addresses before me.  The judgment of the High Court in Schellenberg v Tunnel Holdings Pty Ltd [2000] 200 CLR 211 is instructive.  That case concerned the role that inferences can play in the consideration of whether a breach of duty of care could be proven in the context of litigation involving an injury caused by a failure in machinery supplied by the employer to an employee.

With respect to the content of the duty of care concerning equipment or tools, Gaudron J (at [77] said, “In the present case the content of that duty involved the taking of reasonable steps to ensure that the tools with which the appellant was required to work and the system supplying air to those tools were safe.  Those steps included the maintenance and inspection of the tools and the air supply system.  Moreover it included a duty to instruct the appellant and other employees as to the steps they should take before using the tools to ensure their safety and, also, a duty to implement procedures to ensure that those steps were followed.” 

To like effect (at [149]) Hayne J said, “An employer’s duty of care to an employee is a duty that will ordinarily require attention to a number of very different matters.  An employer must take reasonable care to provide a safe system of work and a safe place of work.  An employer must provide ‘proper and adequate means of carrying out the employee’s work without unnecessary risks’.  The fact that a piece of equipment fails while being used by an employee will ordinarily invite consideration of many features of the employer’s duty which I have mentioned.  Did the equipment fail because it was unsuited to the task? …  Or did the equipment fail because no sufficient system for maintaining and checking the equipment was implemented by the employer?  Or, and this is of crucial importance, did the equipment fail for some reason beyond the control of the employer.” 

In a lengthy but instructive judgment, Kirby J made some significant observations in the consideration of what he described as basic principles of liability (commencing at [101].  At [102] His Honour said, “So far as equipment such as the grinder used by the appellant here was concerned, the employer was not an insurer for its safety.  An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm.  But the employer does have a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration.” His Honour went on to remind (at [103] and [104] that the duty remains that of reasonable care and that the burden of establishing the claim in negligence rests on the plaintiff throughout the proceedings. 

The first matter that I have to consider is whether the plaintiff can establish, on the balance of probabilities, that the defendant breached the duty of care it owed to him by supplying to him the wheelbarrow in question.  The evidence that I have accepted from Mr Wicht is, that the wheelbarrow failed near the bracing supporting the wheel at a site where there had evidently been a repair by way of a weld.

The circumstance that equipment such as a wheelbarrow may be repaired by way of a weld does not necessarily lead to the conclusion that such a repair was inappropriate or unsuited in a particular circumstance, but it is suggestive that there had been a prior fault in the equipment.  Such is almost self-evident because of an apparent repair by weld. 

The view I take I can safely infer that the evidence supports conclusion that the employer breached his duty of care to the plaintiff.  The evidence which supports this, in my view, includes that of Mr Wicht of the conditions of some tools and the wheelbarrow in question and other wheelbarrows, the evidence of the plaintiff of the condition of some wheelbarrows that were defective and of complaints made about them.  This evidence is supported inferentially by the evidence of Mr White and his observations about the wheelbarrows left for use by employees after the depredations caused by the plunder of other contractors. 

Further, the evidence of the safety officer, Mr Jones, is instructive (particularly transcript (page 64, lines 40 to 45 and page 63, lines 10 to 36). Mr Jones’ evidence is that there was pressure on all at the site to get the job done and that there was a permissive culture, if I use that unfortunate term, at the worksite to allow men to use faulty equipment to meet the deadlines, notwithstanding what I might term were pious warnings at toolbox meetings by supervisors to remind employees to check equipment daily before starting work.  Further, the evidence of Mr Wicht that the broken wheelbarrows including the one used by the plaintiff was disposed soon after the plaintiff made a complaint of his injury, suggests that it was a relatively easy matter for the employer to have disposed of faulty wheelbarrows and replace them with new wheelbarrows.  Similar evidence to that given by Mr Jones and Mr Maloney that there was urgency associated with the completion of the project should not be forgotten.

The evidence of Mr Wicht and Mr White and of the plaintiff includes complaints about wheelbarrows and complaints they were faulty.  The evidence does not demonstrate there was any response by the employer following these complaints to check wheelbarrows or to replace them.  There is an absence of any evidence in the context of complaints by employees that the damaged wheelbarrows, when repaired by welds at handles or near wheel bracing, was done by a qualified tradesman or to a standard making the wheelbarrow safe for use in connection with construction work on a construction site.  There was no evidence that the defendant had in place a programme for checking or monitoring the tools and equipment such as wheelbarrows.  And there is an absence of any response by the employer to complaints made about the equipment. 

In connection with the evidence of Mr Wicht, which I have accepted, I would remind the evidence that I quoted earlier, that the wheelbarrows would continue to snap, notwithstanding welding to the brackets or near the brackets.  In those circumstances, I infer a breach of the duty of care, and I find that the allegations in paragraphs 12, subparagraphs (a), (b) and (c) of the amended statement of claim are made out.

Further, I consider that the evidence permits me to safely infer that the breach of the duty of care caused the plaintiff’s injury and subsequent loss and damage.  This can be stated briefly – the evidence of Mr Wicht, who witnessed the incident, and the absence of any suggestion that the plaintiff was using the wheelbarrow in an unsafe manner, for example, that it had been overloaded or that he was performing unusual manoeuvres.  The evidence of Mr Wicht of the failure of the wheelbarrow and that it failed at the site of the weld and the evidence of the plaintiff of the circumstances of the accident comfortably establish that.

I move to the question of the quantum of damages.  Notwithstanding my reservations concerning the plaintiff’s reliability as a historian, I accept his evidence that, as a result of the accident, he has suffered low back and associated pain and discomfort since.  The evidence of Mr Jones and Mr White supports the plaintiff’s account that, before the accident, he was coping with his work at Coppabella and that he was fit and well.  The evidence of Mrs Verney supports the plaintiff’s evidence of pain and restrictions since.  But there is an aspect of the plaintiff’s evidence that, in my view, bears upon the assessment of damages.  The evidence he gave demonstrates that, in the years before the incident, he was affected by his psychiatric disorder and his illicit drug usage.  The view I take is that his drug usage was heavier than may have been understood by either Dr Whiteford or the orthopaedic specialists who gave evidence.  The plaintiff’s evidence was that he still uses cannabis on occasions. 

In submissions, Mr O’Driscoll, for the defendant, emphasised the plaintiff’s intermittent work history from 2008 to the accident in 2011.  He placed before me calculations of the average of earnings and submitted that it was not impressive.  The response by Mr Crow of Queen’s Counsel who assisted by taking over the conduct of the plaintiff’s case late in the trial – was to point to the evidence that the plaintiff was working well and coping at the time of the accident and to the substantial income he was earning then and to the potential earnings as a boilermaker.  In my view, neither the very low average contended for by Mr O’Driscoll, nor the very high potential pointed to by Mr Crow are decisive guides to the assessment of the lost earning capacity, past or future, but in my view, the past average is an important piece of evidence.  Reason guides, that one’s past is an indication of behaviour into the future. 

The plaintiff had three adverse health or medical issues at the time of the incident:  a psychiatric disorder, a history of drug abuse and a multi-level spinal disc disease.  In addition, the plaintiff had limited education and trade training.  He is qualified as a sheet metal worker, but not a boilermaker.  The plaintiff did not  say that before the accident he was planning to obtain any further trade qualifications.  It seems he was content to remain as a sheet metal worker who could do some boilermaker tasks and labouring work.  There was also the plaintiff’s evidence that his pattern of work and life in the past was to work for a period, accumulate some savings and then have some time off. 

The plaintiff was 29 when injured.  He was a maturing man.  The pattern and habits of life had sufficient time to take hold.  I consider I should approach the assessment of damages with the past history in mind as a guide, but not as a determinant.  The reason for the last qualification or caveat is that the plaintiff’s pain and disability caused by the incident has caused a loss of his capacity to earn income, one that is permanent.  As a proportion of his pre-injury potential, it is significant.  It is the potential, uninjured, that is more modest that the plaintiff has contended in submissions.  There is a difference of opinion between Dr Cook and Dr Labrom with respect to the percentage assessment of the degree of permanent impairment caused by the incident (compare exhibit 2 with exhibit 8 and exhibit 14).

In evidence, it also emerged that they differed upon the significance of the pre-existing spinal pathology shown in the MRI report (exhibit 11) and the CT scan (exhibit 12).  I accept the evidence of Dr Labrom that the MRI evidence demonstrates that, at the time of the incident, the plaintiff was suffering from a pre-existing developmental condition known as Scheuermann’s disease, which is evidenced by the observation of Schmorl’s nodes at levels T11, T12, L2 and L3.  As well as that, I accept that the radiological reports demonstrate bilateral pars defects at L5 and a small spondylolisthesis at L5/S1 and evidence of disc degeneration.  I also accept that these conditions suggest the existence of degenerate disc disease in the plaintiff’s spine at the time of the incident.  The evidence of Dr Labrom suggests that the disc where the prolapse occurred was degenerating at the time of the accident.

Both doctors agree that the plaintiff is likely to have sustained the disc prolapse that is reported by the radiologists at L5/S1 as a result of the incident described by the plaintiff.  I accept that the plaintiff suffered that disc prolapse as a result of the subject accident and that it is a result of that prolapse that the plaintiff began to suffer from the pain and discomfort that he has described.  In general, I prefer the evidence of Dr Labrom to Dr Cook.  While both doctors gave their evidence as one would expect from experienced specialists familiar with giving evidence in court, that is, with aplomb and also with the benefit of an understanding and knowledge of their specialty, I gained the firm impression from Dr Cook’s evidence that he tended to downplay or minimise the significance of the pre-existing (albeit asymptomatic pathology), with the consequence that his opinion with respect to the plaintiff’s potential to live and work without disability, had he not been injured in the subject incident, was overly optimistic.  For that reason, I prefer Dr Labrom’s evidence, and in particular, his evidence with respect to the hypothetical likelihoods, in light of the radiological evidence.

Turning to the question of general damages, I accept the evidence of Dr Labrom, of his assessment of the nature and extent of the plaintiff’s impairment, or permanent impairment, caused by the subject incident.  I accept his evidence that the plaintiff’s current level of suffering and disability can be attributed, in part, to the effects of the injury sustained in the accident, but also, in part, to the other pre-existing spinal conditions that he was suffering from at the time of the accident, particularly in relation to that disc.  The evidence that I have accepted persuades me to accept the submission from the defendant that, insofar as the issue of ISV and the calculation of general damages is controlled by the schedules to the Regulation to the WorkCover legislation, that item in 91 is appropriate (indeed, there was a common ground upon that) and that and ISV of 10 was appropriate to the calculation of the award for pain and suffering.  Accordingly, I will assess that component at $12,950.

There are some small items that I might mention before turning to the substantial issues of past and future economic loss.  Firstly, in connection with the calculations that I will describe and the assessments I make, I note a number of things.  I have already mentioned the plaintiff’s age.  To age 67, which is the notional retirement age, there is a further 32.5 years to elapse.  The discount figure for calculation on the five per cent tables for a future earning period of 32 and a half years is 870.8.  I will use that multiplier in the calculations that I will mention.  It was agreed between the parties that the interest rate applicable on items of lost earnings was 1.93 per cent.  I will use that interest rate in performing the calculations.  Some matters of special damage and claim were agreed or the subject of common submissions.  It was agreed that the refund to WorkCover from any award of damages was $98,422.65.  The tax paid on weekly compensation payments by the employer, that is, the Fox v Wood component, was agreed at $22,491. 

I accept the plaintiff’s submission that he has proven out of pocket special damages, including medical expenses and travel costs, at $2023.85.  By my calculation, some 2.83 years have elapsed since the date of the accident.  Using that figure for the purposes of calculation of interest and the like, I assess the interest on out of pocket special damages at $110.54.  There were some special damages recoverable by the plaintiff that were incurred by WorkCover.  That value was agreed at $12,710.25.  With respect to the calculations of past and future loss of superannuation, in submissions it was noted that under the relevant legislation the percentage payable by employers is to increase over time. 

Because of the period that had elapsed since the injury, I’ve determined that it is reasonable to calculate and award a past loss of superannuation earnings at nine per cent, notwithstanding that for some period of the past until trial the percentage has been a little higher.  With respect to the future, I have performed a calculation based upon a percentage at 11.3 per cent.  At the time of the incident the plaintiff was earning just a little over $1700 net per week.  He has claimed damages for past economic loss, using his earnings with the defendant as a guide.  The evidence before me suggests that the project the defendant was employing the workers upon finished some time ago. 

I noted that some of the witnesses who were called who were employed by the defendant no longer work for the defendant.  The evidence of Mrs Verney demonstrates that it is some time since her family businesses have had subcontract work with the defendant.  In the assessment of past economic loss, bearing in mind the observations I have made but also bearing in mind that the plaintiff had a potential of earning substantial income if he had not been injured, I have determined that a reasonable allowance for past economic loss would include a sum calculated at $1700 per week for one year, which is $85,000 net. 

For the remaining 1.8 years, taking into account the plaintiff’s past history as I have summarised above, and taking into account the relative availability of work and the earnings potential, I consider that an allowance of $95,160 is appropriate, which reflects a loss as an average of $1000 net per week for 1.83 years.  Therefore, after deducting the $5240 net that the plaintiff has earned in the employ with his parents’ businesses, the assessment I make for past economic loss is $174,920.  The plaintiff received workers compensation benefits by way of weekly payments at $63,522 and also some Centrelink benefits of $22,291.70. 

After making allowance for the receipt of those benefits, I calculated an award of interest at the rate indicated before for the 2.83 years at $4866.99.  I assess the past loss of superannuation payments as indicated at $14,458.14.  With respect to future economic loss, I said earlier that I was pressed with the evidence of the high potential into the future, demonstrated from the earnings that other boilermakers received in employment in or around Mackay or Central Queensland.  I note that the plaintiff does not have formal qualifications as a boilermaker and also note the circumstance of the three conditions from which he suffered before the accident. 

Nevertheless, as I have indicated, I consider the plaintiff has suffered a significant loss to his earning capacity.  I should make it plain that in what I have said earlier by way of assessments of loss, I have not overlooked the evidence of Dr Whiteford contained in the report, that the plaintiff’s bipolar effect, whilst well-managed, should not adversely affect his capacity to earn income.  It, however, is a discounting factor to be taken into account in combination with the other two matters that I have mentioned. 

One way that I consider the assessment of future economic loss might be approached was to posit (not unreasonably in my view) that the plaintiff’s pre-accident earning capacity, demonstrated by the history before the accident, was on average at around about $900 net per week.  In light of his current earnings, a loss of approximately $350 net per week until age 67 would, after appropriate discount on the five per cent tables, reveal a figure of $304,780.  Another scenario that is not altogether unreasonable by which the assessment of future economic loss might be considered was to adopt the evidence of Dr Labrom that the plaintiff might have begun to suffer from symptoms, or significant symptoms, in his back at about age 45, that is, in a further 12 and a half years time. 

To then consider that in light of an even more generous pre-accident work capacity average earning of $1200 net and then in light of earnings in the recent past and the employment prospects in the future Mrs Verney spoke of to perform a calculation of a loss of $500 net per week for 12 and a half years, which arrives at a figure of $244,150.  And then for the balance of the working life to age 67, that is, the further 20 years starting in 12 and a half years time, to perform a calculation based upon a loss of $250 net per week gives a further figure of 95,625.  The total of those two calculations arrives at a notional 339,775.

Both the calculations that I have described, reach in my view, not altogether unreasonable figures to consider assessing for the future loss of earning capacity but for one matter (and to make things clear, I’m referring to the calculation of $304,780 and that $339,775).  Firstly, I might say that calculations of this nature tend to be artificial and a little unsatisfactory.  But it is necessary that an award of damages be reasoned and that the reasoning be explained.  Secondly, it has to be borne in mind that, notwithstanding, I have performed calculations that I regard as reasonable based upon assumed earning capacities at $900 and $1200 net per week there is the potential that the plaintiff might have, from time to time, been able to secure employment for significant periods at higher rates. 

There is the evidence before me of the high earnings potentially available to qualified boiler makers and others in central Queensland.  There should, in my view, be some allowance made for the hypothetical that the plaintiff might have enjoyed earnings at a higher wage than those used in my calculations.  In other words, the vicissitudes are not all adverse for a working man in central Queensland.  Accordingly, I propose to include in my award of damages, an allowance for future loss of earning capacity at $375,000.  The calculation of lost superannuation payments at 11.3 per cent gives a figure of $42,375. 

The plaintiff claims damages because of lost subsidised meals that he would have derived an economic benefit from working on remote sites had he not been injured.  I propose to include an assessment for the past loss of subsidised meals at $6000 based upon notional period of one year that the plaintiff might have worked in a remote site between accident and now, however, noting that he wouldn’t have been onsite for every day of that year.  So allowing $200 a week at approximately 30 weeks is an indication of how I have assessed that figure.  With respect to future subsidised meals, a precise calculation is in my view not achievable. 

I propose to assess and include in that the damaged amount at $10,000 to take account of the contingencies.  Further, with respect to the costs of future painkilling medication and or medical expenses, I propose to allow and include an amount of $5000.  To summarise the assessments I have made, therefore, by my calculations:  general damages at $12,950, past economic loss at $174,920, interest in past economic loss at $4866.99, past loss of superannuation at $14,458.14, future economic loss at $375,000, loss of superannuation payments at $42,375, Fox v Wood at $22,491, out of pocket specials $2023.85, interest $110.54, WorkCover specials  $12,710.25, past subsidised meals $6000, future subsidised meals $10,000, future drugs and medical expenses $5000.  Now, by my calculation, a total of those would be $682,905.77.  But it wouldn’t be the first time – if there’s an error – that I’ve hit the wrong key.  After deduction of the refund to WorkCover, the figure I have calculated is $584,483.12.  I will give the parties an opportunity to check the calculations before I make any order.

HIS HONOUR:   All right.  Well, therefore there will be judgment for the plaintiff against the defendant in the sum of $585,767.78.  I will invite submissions about costs. 

MR CROW:   Your Honour, now is the time, should your Honour wish to

HIS HONOUR:   There be a further order that the defendant pay the plaintiff’s costs of an incidental to the action from 26 June 2013.  Such costs to be assessed on the District Court scale.

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Editorial Notes

  • Published Case Name:

    Verney v The Mac Services Group Pty Ltd

  • Shortened Case Name:

    Verney v The Mac Services Group Pty Ltd

  • MNC:

    [2014] QSC 57

  • Court:

    QSC

  • Judge(s):

    North J

  • Date:

    06 Mar 2014

Litigation History

No Litigation History

Appeal Status

No Status