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  4. Nguyen v Swift Australia Pty Ltd - [2009] QDC 219

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Nguyen v Swift Australia Pty Ltd[2009] QDC 219

Nguyen v Swift Australia Pty Ltd[2009] QDC 219

DISTRICT COURT OF QUEENSLAND

CITATION:

Nguyen v Swift Australia Pty Ltd [2009] QDC 219

PARTIES:

TUYEN NGUYEN

(Plaintiff)

v

SWIFT AUSTRALIA PTY LIMITED (ACN 011 062 338)

(Defendant)

FILE NO/S:

BD3325 of 2002

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

31 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15 & 16 October 2008. Written submissions 23 & 28 October and 12 & 13 November 2008

JUDGE:

Andrews SC DCJ

ORDER:

Judgment for the plaintiff against the defendant for $225,293.52 inclusive of interest. Costs reserved for submissions.

CATCHWORDS:

TORTS – NEGLIGENCE – BREACH OF DUTY – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – DUTY OF CARE – where the plaintiff was employed by the defendant – where the plaintiff was involved in a slip and fall whilst carrying out duties as an employee – whether the defendant breached its duty of care to the plaintiff.

EMPLOYMENT LAW – NEGLIGENCE – BREACH OF STATUTORY DUTY – LIABILITY OF EMPLOYER – DUTY OF CARE – FORESEEABILITY OF INJURY – whether there was a failure to provide a safe walkway – whether the defendant’s breach caused the injury to the plaintiff – whether the defendant discharged an obligation to ensure the workplace health and safety of the plaintiff at work – whether the defendant took reasonable precautions and exercised proper diligence to ensure the obligation was discharged – whether the risk to the plaintiff was more than a trivial risk – whether the injury caused to the plaintiff was one which could by some means have been prevented – whether the plaintiff relied exclusively on a failure by the employer to provide a safe system of work – whether the plaintiff established matters referred to in s 312(1)(c) to (i) of the WorkCover (Qld) Act 1996.

DAMAGES – personal injuries – measure of – injury to knee – economic loss.

Bankstown Foundry Pty Ltd v Braistina (1985-1986) 160 CLR 301

Bourk v Powerserve P/L [2008] QCA 225

Calvert v Mayne Nickless Ltd (No. 1) [2005] QCA 263

Schiliro v Peppercorn Childcare Centres Pty Ltd (No. 2) [2000] QCA 18; [2001] 1 Qd R 518

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

Wyong Shire Council v Shirt (1980) 146 CLR 40

Pascoe v Coolum Resort Pty Ltd [2005] QDC 039

Fuller v Logan City Council [2006] QDC 305

Henley v State of Queensland [2002] QDC 256

Delacore v Australia Meat Holdings P/L [2005] QDC 109

Cook v Allianz [2007] QDC 108

Lee v Richards and The Transport Accident Commission [2008] QDC 257

Workplace Health and Safety Act 1995 (Qld) ss 22, 23 ,27, 28, 37

WorkCover Act 1996 (Qld) s 312

Uniform Civil Procedure Rules 1999 r 149(1)(c)and(e)

COUNSEL:

J Kimmins for the plaintiff

Cross for the defendant

SOLICITORS:

Maurice Blackburn Lawyers for the plaintiff

A K Compensation Lawyers for the defendant

  1. [1]
    The plaintiff was employed by the defendant (the employer) as a packer at the employer’s premises at 173 Riverview Road, Dinmore in Queensland. On or about 6 October 1999, the plaintiff was at those premises in the course of her employment. When walking to the female toilets at a point close to where animal tongues were hung on hooks, the plaintiff slipped and fell. She suffered a fracture of the left patella. So much is admitted in the pleadings.
  1. [2]
    The parties are in dispute as to whether the employer is liable for the plaintiff’s injuries and as to the quantum of the plaintiff’s loss. The employer did not raise contributory negligence in its pleadings or submissions.

Breaches alleged against the employer

  1. [3]
    The plaintiff alleged[1] that her fall:

“…was caused by the negligence and/or breach of contract and/or breach of statutory duty of and by the (employer), its servants or agents, particulars of which are as follows:

  1. (a)
    failing to provide a pathway which was in a safe condition which led to the female toilet;
  1. (b)
    failing to maintain an adequate system of inspection and/or cleaning of the area where the plaintiff slipped and fell;
  1. (c)
    failing to provide a floor surface which was of a non-slip quality;
  1. (d)
    failing to take all reasonable precautions for the safety of the plaintiff whilst the plaintiff was engaged in work for the (employer);
  1. (e)
    failing to ensure the workplace, health and safety of the plaintiff in breach of s 28 of (the Act);
  1. (f)
    failing to have in place a system and/or barrier which prevented blood and fat from entering the area where the plaintiff slipped and fell.”
  1. [4]
    The allegation that the employer failed to provide a floor surface which was of a non-slip quality expanded into other parts of the pleadings. The plaintiff alleged[2] that:

“…the floor where the plaintiff fell:

  1. (a)
    was comprised of a concrete surface;
  1. (b)
    did not have any slip-resistant substance thereon.”

In response to that allegation the employer alleged[3] that at the date of the fall:

“The floor where the plaintiff slipped was comprised of a concrete surface that was coated in a non-slip substance.  The (employer) further says that the slip resistant substance was an epoxy resin which contained grit and was in good condition with no noticeable wear…”

  1. [5]
    During the trial plaintiff’s counsel made clear that the plaintiff was not “running a positive case that the floor specified was inappropriate”.[4]  I asked plaintiff’s counsel[5] “whether…there’s going to be a criticism by the plaintiff that the defendant has failed – the defendant loses because the specification; that is, a written contractual document handed at one stage to a contractor who was then to go and lay a floor, that what was specified in the contract was inadequate.” Plaintiff’s counsel answered, “No”.  Plaintiff’s counsel submitted in writing that the “…walkway was not slip-resistant…there is no cogent evidence that the surface of the walkway was, as at 6 October 1999, of an adequate slip-resistant quality…”[6]  In response to that submission, the employer’s counsel submitted “the plaintiff has conceded…that the existence of a non-slip floor was not at issue”.[7] Plaintiff’s counsel submitted in reply that “the plaintiff was not asserting that the specification was inadequate.  That is a completely different issue from whether the floor was slip-resistant as at 6 October 1999.”[8]  I accept that last submission of plaintiff’s counsel.  I regard the question of whether the floor where the plaintiff slipped was slip-resistant at the date of her slip as being in issue and I reject the submission that the plaintiff conceded that it was not an issue. That issue arose on the pleadings and no express or implied concession by plaintiff’s counsel removed it from the contest. There was another issue about the floor which also remained in contest.  The further issue is support for the finding that the slip-resistance of the floor as at 6 October 1999 remained in issue. 
  1. [6]
    That other issue was whether the employer resurfaced the floor. The plaintiff alleged[9] that “on a date subsequent to 6 October 1999, but prior to 2 July 2002…the (employer) applied a slip-resistant substance to the surface of the floor in the area where the plaintiff said the slip and fall occurred.”  To this, the employer pleaded[10] that a “non-slip substance was supplied to the floor at a date prior to opening of the plant in April 1999.  No further non-slip material was applied to the floor between the date of commencement of the kill floor and the date of accident on 6 October 1999.  The defendant denies (the plaintiff’s allegation that a slip-resistant substance was applied to the surface of the floor after 6 October 1999 but prior to 2 July 2002) as the same is wholly and factually untrue.”

Plaintiff’s pre-accident history

  1. [7]
    The plaintiff was born in Vietnam on 17 May 1960. She attended school until she was 18 years of age. She reached the equivalent of Grade 12. She worked in Vietnam as a clerk in a construction company. She held that employment until 1984. She married in about 1980. The plaintiff came to Australia in 1985. She began work as a machinist in Toowoomba 3 days after her arrival in Australia. She stayed for a few months, leaving that employment to give birth to her first child. During this period she took English lessons. From 1988 to 1993 the plaintiff worked on a seasonal casual basis at Golden Circle at Brisbane as a process worker. From 1993 to 1996 she worked full-time at Wacol as a process worker.
  1. [8]
    The plaintiff commenced work for the employer in March or April 1997. The plaintiff had her second child in about 1998. The plaintiff’s work for the employer became work as a packer in the offal room which involved her standing all day and sorting, weighing, cleaning and packing into boxes and bags, animal parts such as tongues and livers.
  1. [9]
    In about 1999 the employer moved operations to a newly built abattoir at Dinmore. The plaintiff continued at the new abattoir as a packer in the offal room.
  1. [10]
    At the time of her injury on 6 October 1999 the plaintiff’s intention was to continue to work for the employer as a packer and to work for as long as she could whether that be to 65 or 70 years of age. Her husband was then working as a process worker for a mattress manufacturer. At the time of the accident the plaintiff and her husband owned a house and owed about $100,000 which was secured by mortgage against the house. They had no other assets of substance and limited superannuation. By my calculation, the plaintiff’s children would have been aged about 13 years and 2 years at the time of the injury.
  1. [11]
    The plaintiff’s history of almost continuous work and her domestic and financial situation at the time of her injury are consistent with her evidence of an intention to continue working for the employer as a packer for as long as she could. I accept that before her fall, the plaintiff as a 39 year old intended to work for the employer to 70 years of age if health and employment opportunities allowed. She is now 49 years of age. One contingency is that the plaintiff’s intention may have changed with age.

The plaintiff’s fall

  1. [12]
    In 1999 the employer completed construction of a new slaughter floor. At the time of the plaintiff’s fall, the new building was about 9 months old. The new slaughter floor had been used from about March 1999. The walkway where the plaintiff fell was on the perimeter of the slaughter floor and was part of it. When constructed, the surface of the floor generally had a slip-resistant quality. The floor would be clean for the start of each working day. The employer provided work boots to its employees including the plaintiff. Those boots were checked regularly by supervisors and boot washers were provided by the employer. Employees were required to wash their boots both on entry to and exit from the slaughter floor.
  1. [13]
    Prior to and on the day of the fall on a typical working day on the slaughter floor, some of the employees would trim fat from meat hanging on hooks before them. They would drop or throw the trimmed fat and waste meat into red plastic tubs nearby. Blood would drip from animal parts on hooks and fall to the slaughter floor. At times, fat, trimmed meat pieces and other solid contaminants would land on the floor instead of in the tubs. Blood, fat and other contaminants would build up gradually over time.
  1. [14]
    To contend with the blood, fat and other contaminants accumulating on the slaughter floor, the employer employed floor cleaners whose responsibilities included emptying the red tubs and cleaning the floor as they did so. The cleaners would use brooms, squeegees and a scraper on a long handle. The scraper was effective for removing blood and other contaminants when it was used. The scraper would scrape water and blood away and if there was fat or other solid contaminants the cleaners would pick it up and put it in the tubs. Hosing the floor was more effective at removing blood. However, hosing can splash contaminated water and contaminate nearby meat products. Because of this, hosing would be done only when meat was out of the way. Hosing of the floor would occur at lunch time and possibly at other times but would not be done between the start of the working day and the end of the first lappo break. That was the name used for a 5 minute toilet break which occurred daily at 7:40am. Hosing was done only when there was no danger of contaminating meat products with the splash of contaminated water. It was not practical to do it before the end of the lappo break. Though hosing may have been more effective than a scraper squeegee and broom, at removing blood and other contaminants, the scraper was reasonably effective, so long as it was used.
  1. [15]
    The plaintiff commenced work at 6:00am on 6 October 1999 in the offal room. She was wearing a large white plastic apron over her clothes. At 7:40am a siren sounded to signify that it was the first lappo break. The plaintiff removed her apron and began walking to the toilet. The only route to the toilet was the walkway on the perimeter of the slaughter floor. The plaintiff walked along the walkway with Ngoc Hoang. The walkway was generally too narrow for the plaintiff and her friend, Ms Hoang, to walk side by side. Ms Hoang walked to the front of the plaintiff and to the plaintiff’s left. Any pair of employees using the walkway while talking to each other would be expected to adopt a similar walking strategy, with one to the front and one to the rear and with each taking opposite sides of the walkway. The plaintiff was walking on the right side of the walkway. I find that the employer foresaw that its employees, including the plaintiff might use the right side of the walkway to walk to the toilet during the lappo break.
  1. [16]
    In the plaintiff’s direction of travel along the walkway it was bordered on the left by a vertical wall. There was no wall on the right. To the right of walkway as the plaintiff approached the scene of her fall there were work areas of the slaughter floor. One was what is referred to as the “tongue chain”. That was a chain from which tongues were hanging on hooks. It was approximately parallel with the walkway. Blood would drip from the tongues to the floor. In the plaintiff’s direction of travel, at about the area where the tongue chain ended the head chain began. The head chain was a chain from which animal heads hung. The head chain was also approximately parallel with the walkway. Where the tongue chain ended and the head chain began there was a closed door in the wall which bordered the left side of the walkway. Blood and water would drip from the heads. The blood dripping from tongues and heads to the right of the walkway would accumulate on the right side of the walkway and on the working floor to the right of the walkway. There was no barrier to separate the right side of the walkway from working floor to the right of the walkway. Ms Antcliff occasionally worked on the slaughter floor on the tongue chain, on or adjacent to the walkway and on 6 October 1999 was working on the tongue chain only a short distance from where the plaintiff fell. When she was working on the tongue chain she was working so close to the walkway that she classed it as working on the walkway. I accept her assessment as accurate to the extent that, like other workers working on the tongue chain, she would be so close to the right hand side of the walkway[11]that she would step backwards onto the right hand side of the walkway from time to time. The photographs of exhibit 22 were taken 7 years after the incident. One[12]depicts the tongue chain and red bins. The red bins shown are about 1 metre from the wall on the left of the walkway. The positions of the bins, workers and head chain were treated by the parties as being similar to the positions in 1999. Ms Antcliff said of the floor that “you still slipped and you still had to be careful when the floor was wet, even though it was supposed to be nonslip”.[13]I accept her evidence as to these matters.
  1. [17]
    The plaintiff had walked along the walkway at lappo break on prior occasions. She always wore the work boots provided by the employer. She said that, normally, when she walked on the walkway she would feel things underneath the soles of her boots. It would feel as if something was stuck underneath. Generally, prior to 6 October 1999, when the plaintiff used the walkway she said it would have blood and fat on it. The blood and fat was mostly on the right-hand side of the walkway being the side on which the plaintiff slipped. The plaintiff had never slipped before 6 October 1999. I accept this evidence.
  1. [18]
    The plaintiff fell on the right-hand side of the walkway at a point which was just past that door in the plaintiff’s line of travel. Before her fall, the plaintiff was walking and her left foot slipped and she fell to the ground. The floor suddenly was slippery and she fell. The area where she slipped had blood on it. At trial, the plaintiff gave evidence that the area where she fell also had fat and pieces of meat. The employer contests the presence of those further contaminants at the time and place of the plaintiff’s fall because they were not mentioned by the plaintiff in any written accounts from 1999 of the cause of the fall. The employer contests the presence of fat and also blood on a further basis that there was a cleaning system to prevent it. The employer relies on the plaintiff’s oral evidence that fat was present as an indication that she is improving on prior versions and is not credible. The plaintiff did not give oral evidence that she slipped on fat. I regard it as possible that she did slip on fat though I am unable to conclude that on the balance of probabilities. The plaintiff did not personally refer to that possibility. I reject the submission that the plaintiff’s oral reference to fat on the walkway should lead to a finding that the plaintiff was not credible.
  1. [19]
    A DVD[14] depicts the walkway at and near the area where the plaintiff fell. It was taken on the day of the fall but not at the time of nor immediately after the fall. The DVD is useful for understanding the scene generally. There is dispute between the plaintiff and the employer as to whether the DVD accurately portrays the amount of blood and fat which was on the walkway generally at the time when the plaintiff fell and particularly at the place where the plaintiff fell. Cleaners on the slaughter floor that day had long handled scrapers effective to remove deposits of thick blood and blood clots.  The employer led opinion evidence that the contaminants shown on the walkway in the DVD would have been worse than would typically be seen at lappo break because it would take more time for that much blood and water to build up.[15] Whether that be accepted or not, the DVD is useful for showing that the blood and contaminants tended to fall so that the right side of the walkway became contaminated; that there were places where blood became thicker than in other places; that the scraper would remove most blood where it was used, leaving only a  stain where blood had been removed; that on 6 October 1999, there were places where, notwithstanding the floor cleaning staff and their equipment, sufficient time passed without scrapes for thicker blood deposits to accumulate on the right side of the walkway. The kill floor supervisor at the time of the accident was shown the DVD and opined “There is a lot of blood and that in that area. It should be cleaned.”[16]He accepted that the floor would ordinarily get to the state shown before a cleaner would clean it.
  1. [20]
    The plaintiff gave evidence that when she would walk to the toilet prior to the date of the accident the walkway normally would have blood, fat and liquid on it[17] and that was the situation on the day of the injury.[18] Ms Hoang recalled that, generally the state of the walkway at the time of the first lappo break was bloody, more on the right-hand side with a moderate amount of blood on the walkway area where the plaintiff fell and generally on the walkway there would be bits of fat. Ms Antcliff said the walkway would be all bloody at the time of the injury and with bits of fat and that it would be the same every day at the time of the first lappo break.[19] Ms Hoang recalled occasions prior to the day of the plaintiff’s injury when Ms Hoang had slipped on the walkway. She blamed tiny pieces of fat for making the floor very slippery.[20] I accept this evidence of the plaintiff and of Ms Hoang. A number of inconsistencies in the evidence of Ms Antcliff made her memory of the events relating to the fall and the positions of the plaintiff and Ms Hoang appear unreliable by the time of trial. However I regard Ms Antcliff as likely to be more reliable in her evidence as to the state of the walkway generally before 6 October 1999 at the time of the first lappo break because she occasionally worked at that place. Because of that and because her evidence is consistent with that of the plaintiff and Ms Hoang I accept her evidence as to the state of the walkway at lappo break time prior to 6 October 1999. An injury report was compiled.[21] A witness statement contained within the injury report and provided by E Schmalkuchen observed that the incident happened where “is very slippery floor between the tongue and head”. That witness was not called to explain whether the area was slippery only on the day of the injury or also generally at the time of a day’s first lappo break.
  1. [21]
    The floor cleaners’ task description[22] from 25 March 1999 until the date of the injury set out the steps which the floor cleaners were to follow on the “Beef Slaughter Floor” which was the relevant area. Their equipment included a “floor scraper”. Apart from special clothing, the floor scraper, brooms, and hoses are the only equipment referred to in the document. Steps set out in their “Task Description” relevantly included the following:

“Clean areas where people are working during their work breaks. It is essential that none of your clothing or equipment touches other workers, edible product, contacting surfaces or edible product. For this reason it is important that you have space to perform your tasks. If necessary, ask people to move so that cross contamination from your clothing/equipment does not occur. …

Empty inedible containers (red tubs) containing waste material into condemned shutes …

When cleaned, the floor must be free of all solid material which may cause a safety or hygiene hazard and has blood or other liquid waste removed as much as practical ie: the floor is operationally clean.”

  1. [22]
    On the right-hand side of the walkway in the plaintiff’s direction of travel, and prior to the lappo break, there would ordinarily be workers standing and facing the product hanging on the tongue chain and head chain. If those employees stepped backwards by about a pace they would be standing on about the right hand edge of the walkway. It would be more convenient for a cleaner to scrape the area where those workers worked if the scraping was done when they were on a break rather than when they were at work. To scrape the area during a first lappo break, rather than before would also be consistent with the cleaners’ task description. An expert witness called by the employer, Dr Jenkins, inspected the premises in 2002 for the purpose of making measurements with respect to the non-slip quality of the floor. He accepted that it was likely that he was told that the walkways would be cleaned only during the breaks and that he was told this by the Workplace Health and Safety Officer who was accompanying him.[23] That is direct evidence of the timing of the walkway’s cleaning in 2002 and is consistent with evidence of the timing of the cleaning to 6 October 1999. Dr Jenkins accepted that when workers were working along the edge of the walkway it would be fairly difficult to clean without disturbing them and getting in their way.[24]
  1. [23]
    The plaintiff and Ms Hoang each gave evidence to the effect that the state of the floor shown in the DVD[25] was the same as the state of the floor at the time of the plaintiff’s fall. There is evidence to suggest that the film was not taken immediately after the fall and that because of the unavailability of a video camera photographs were taken initially. I do accept that the DVD shows generally, though not precisely, the state of the walkway at the first lappo break on 6 October 1999 and shows a reasonably foreseeable state of the floor at the time of the first lappo break.
  1. [24]
    The floor cleaner was not prohibited from cleaning the walkway before the first lappo break. Generally the cleaner would not do so because it was inconvenient and the cleaner would generally clean the walkway during the lappo break.[26] At the relevant time there was no system specifically for cleaning the walkway before the first lappo break.[27] Whether the cleaner cleaned before the lappo break or not was left to the cleaner’s discretion. At the time of the first lappo break sixty to eighty employees could be expected to use the walkway.
  1. [25]
    Mr O'Sullivan, an expert called by the plaintiff reported[28]:

“The slipperiness of a floor surface in wet or contaminated conditions will depend on the texture and finish of the floor surface as well as the type and amount of contaminant.

A common phenomenon is aquaplaning where, upon contact of the shoe’s sole with the wet surface, insufficient time is allowed for the fluid to dissipate from between the two opposing surfaces as a result of which the fluid acts as a lubricating layer and the shoe slips rapidly. Thicker fluids are a greater problem than thin fluids due to the thicker fluid taking longer and requiring more force to be dispersed from between the opposing surfaces.”

Mr O'Sullivan also opined that countermeasures likely to have prevented the incident included cleaning heavy contaminants prior to the lappo breaks and avoiding having chains running along where residue of blood can drip onto the walkway.[29] Whether those opinions be regarded as expert or not, I accept them as conforming to my own view.

  1. [26]
    An injury report[30] was compiled by various persons. The plaintiff’s immediate supervisor filled in the following answers to the form’s questions:

“23. What were the contributing factors to this incident?

  Blood on floor …

  1. What has been done to control the immediate situation and/or recurrence?

Area to be keeped clean at all times.

  1. Recommendations to management, if any, if none, why?

No slip surface to be upgraded.”

 In section C of the form the Occupational Health and Safety Officer supplied the following answers to the pro forma questions:

“10. What were the contributing factors to this incident?

  Blood on floor. …

  1. Recommendations/comments to Manager, if any if none, why?

That the area be kept clean as much as possible.”

On 8 October 1999 the Manager completed Section E writing:

“Disagree that floor where injury occurred is slippery. Floor surface itself appears okay but if soiled with blood or fat may change condition.”

  1. [27]
    Occupational Health and Safety Committee Meeting Minutes of 21 October 1999 recorded that “Reps report the general walkway slippery slaughter floor – Scheduled for Christmas”. A Mr Yarham gave evidence in respect of that document. At the time of giving evidence he was a manager for the employer. At relevant times in 1999 he was Manager of Special Projects but was responsible for occupational health and safety training for the employer. The employer’s counsel submitted that Mr Yarham’s evidence was that the “walkway” referred to in the note would refer to the general walkway to the slaughter floor being the bootwash area. That was the effect of Mr Yarham’s evidence. I reject his evidence. It was plain from his evidence that he was speculating on the interpretation of the document and was not giving evidence of his personal knowledge.[31] Reference to Exhibit 46 shows that on 21 October 1999 items 3 and 20 each referred to the slippery walkway of the slaughter floor but only one referred to the bootwash exit.
  1. [28]
    An Occupational Health and Safety Inspection Checklist dated 19 November 1999 noted the condition of the non-slip surface in the tongue hook area as slippery and the officer compiling the Checklist declined to mark it as “satisfactory” in the appropriate box on the form.[32]
  1. [29]
    On 25 August 2000 a work order was issued to “Resurface floor at tongue root trim area – very slippery”. A Mr Haslam was a member of the Safety Committee at the employer’s premises. After the plaintiff’s fall the Safety Committee looked for a better floor. He recalls that eventually the employer found a rougher surface and re-coated the area where the plaintiff fell and various other areas.[33]  Mr Haslam’s recollection is consistent with other evidence that the colour of the floor surface has changed since the initial floor from a gray one to a different yellow one present in 2002 and further evidence that re-coating is evident by looking under equipment.  I accept Mr Haslam’s evidence that the employer found a rougher surface and re-coated the area where the plaintiff fell. 
  1. [30]
    The plaintiff and the employer each called expert evidence as to the non-slip quality of the floor where the plaintiff fell. The employer’s expert, Dr D M Jenkins, attended the site on 22 July 2002 and took friction test measurements of the pale yellow floor then laid in the area where the plaintiff fell. I find that the floor had been re-coated in that area before the test and that it had been re-coated by the rougher surface to which Mr Haslam referred. Tests were conducted by the plaintiff’s expert, Mr O'Sullivan, on 23 August 2006. His friction tests were unhelpful for the same reason. Neither expert’s evidence of floor tests conducted by them was useful for determining whether the floor on 6 October 1999 was slippery.
  1. [31]
    I am satisfied that:
  1. (a)
    The place where the plaintiff fell was an area which would become slippery if blood or blood and animal products accumulated on it;
  1. (b)
    Blood had accumulated there when the plaintiff slipped;
  1. (c)
    The plaintiff slipped in the accumulated blood or blood and fat;
  1. (d)
    The cleaning system used at the relevant date would allow parts of the surface of the right side of the walkway,[34] including the place of the plaintiff’s fall, to become coated by accumulations of blood or blood and animal product by the first lappo break;
  1. (e)
    The plaintiff’s slip would have been prevented if that place had been cleaned with a scraper immediately or sufficiently shortly before the first lappo break to prevent blood or blood and animal product, including fat, to accumulate;
  1. (f)
    It is reasonable to infer that the cleaners tended to defer scraping accumulated blood from the right side of the walkway if  the first lappo break was pending, preferring either for convenience or to comply with their task description to scrape during the first lappo break;
  1. (g)
    It was reasonably practical for cleaners to scrape the right side of the walkway before the first lappo break, despite the inconvenience that may have caused to them or to the workers working at the edge of the walkway;
  1. (h)
    The walkway was too close to the tongue chain and head chain if it was not to be cleaned before the first lappo break;
  1. (i)
    If the walkway was not to be cleaned before the first lappo break, the chains should have been further away from the walkway;
  1. (j)
    The plaintiff’s slip would have been prevented if the chains had been further away from the walkway.
  1. [32]
    I have insufficient evidence to determine whether the surface of the floor at the place of the plaintiff’s fall complied on 6 October 1999 with any appropriate standard for friction. The facts that the employer scheduled it for resurfacing at Christmas in 2000 and that the surface was replaced with a rougher surface by 2002 each independently corroborate evidence I have accepted that the surface became slippery when coated with accumulated blood or blood and animal product, including fat.

Principles relating to liability

  1. [33]
    The plaintiff alleges that her fall was caused by the defendant by its negligence and or its breach of a contract of employment or its breach of s 28(1) of the Workplace Health and Safety Act 1995 (“the Act”).  The employer conceded in its submissions that it owed the plaintiff a duty at common law and under statute.  The employer accepted that the duty of care it owed at common law was “that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury.”[35]
  1. [34]
    To determine whether the employer’s common law duty may have been breached the first step is to determine whether a reasonable person in the employer’s position would have foreseen that the employer’s conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.[36]
  1. [35]
    It is reasonable to infer from the employer’s submissions that it accepts that a slip and fall injury by employees including the plaintiff who used the walkway upon which the plaintiff fell was foreseeable by a reasonable person in the employer’s position. In any event, I find that on that walkway a slip and fall accident to employees such as the plaintiff was foreseeable by a reasonable person in the employer’s position.
  1. [36]
    Having established a duty of care and a foreseeable risk of injury it has been authoritatively held that in cases dealing with common law duties:

“…it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”[37]

  1. [37]
    For the plaintiff to prove breach of the duty owed to her at common law she must establish on the balance of probabilities:

“by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to (it) in all the circumstances, which would have protected the plaintiff from the dangers of (her) task without unduly impeding its accomplishment.”[38]

  1. [38]
    It was reasonably open to the employer at the relevant time to have directed its cleaners in the slaughter room to schedule the cleaning so that accumulated blood and animal product was scraped from the right side of the walkway[39] before the first lappo break began.
  1. [39]
    I am satisfied that the plaintiff has established her case against the employer on common law principles.
  1. [40]
    At the relevant time, a statutory duty was imposed on the employer by the Workplace Health and Safety Act 1995.  That Act[40](the Act) provided, so far as is relevant to the issues in this proceeding [41]that:

“Ensuring workplace health and safety

22(1) Workplace health and safety is ensured when persons are free from -

 (a)  … injury … caused by any workplace, work activities …; and

 (b) risk of … injury or … created by any workplace, workplace activity … .

                       Division 1 – Preliminary

Obligations for workplace health and safety

23(1)    The following persons have obligations under division 2 for workplace health and safety-

            - employers …

How obligations can be discharged if no regulation etc. made

27(1) This section applies …

    (2)  The person may choose any appropriate way to discharge the person’s workplace health and safety obligation for exposure to risk.

    (3) However, the person discharges the workplace health and safety obligation for exposure to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.

Division 2 - Obligations of employers …

28(1) An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work.

Defences for div 2 …

37(1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 … for the person to prove -

 …

(c)… that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.”

  1. [41]
    Under s 28(1) of the Act the employer’s duty to ensure the plaintiff’s safety was absolute as opposed to a duty to supply conditions of a particular type.[42] That sub-section provides a right of civil action to the plaintiff. Once the plaintiff has proved that the employer has breached the statutory obligation to ensure her workplace, health and safety thereby causing injury to her the onus is placed on the employer to prove, on the balance of probabilities, that it has discharged its obligation under s 27 of the Act or that it has established a defence under s 37 of the Act.[43] Before the onus is placed on the employer the plaintiff must prove that the employer has breached the statutory obligation to ensure her workplace, health and safety and thereby caused injury to her. The employer’s obligation pursuant to s 28(1) is not defined by s 27 of the Act, which merely states a means by which the obligation may be discharged.[44]
  1. [42]
    There is some tension between two decisions of the Court of Appeal relating to s 2 of the Act. It has been observed that the duty to ensure an employee’s safety is absolute.[45] The employer accepted this in its submissions. An earlier decision suggested that before a duty arises the risk of injury must be greater than a trivial risk:

“In Schiliro the joint judgment made clear that s 28 of the 1995 Act did not … provide a right of civil action, when an employer failed to formally identify and manage, or assess, trivial risks.[46] That conclusion could be rephrased by saying an employer is not obliged to ensure the employer’s workers are not exposed to trivial risks, or by saying the employer is obliged to ensure that the employer’s workers are not exposed to risks that are more than trivial.”[47]

  1. [43]
    I find that the risk of a slip and fall in accumulated blood or in accumulated blood and animal product on the right side of the walkway was more than a trivial risk.
  1. [44]
    A further precondition for the duty imposed by s 28 appears in Bourk v Power Serve P/L [2008] QSC 29 where it was written:

“The statutory obligation is to ensure the employee’s safety at work. If any injury is caused to an employee at work which could by some means have been prevented by the employer, s 28 will have been contravened and the employer will be liable in damages for the injury, unless it can make good one of the defences provided by s 27 or s 37 of the Act.”[48]

  1. [45]
    That passage tends to suggest that before a duty is found to have bound an employer to ensure an employee’s safety the court should first be satisfied that the injury caused to an employee at work is one which could by some means have been prevented by the employer. As it was reasonably open to the employer to have directed its cleaners to clean the right side of the walkway before the first lappo break I am satisfied that the injury to the plaintiff caused by her slip and fall was one which could have been prevented by the employer. In that circumstance, there is an onus upon the employer to prove, on the balance of probabilities, that it has discharged its obligation under s 27 of the Act or that it has established a defence under s 37 of the Act.
  1. [46]
    The employer accepts by its submissions[49] that it is “incumbent upon the defendant to show it took reasonable precautions and exercised proper diligence to ensure the plaintiff’s safety”. It failed to discharge that onus as I am not satisfied that the system of cleaning the right side of the walkway before the first lappo break was adequate to ensure the plaintiff’s safety from a slip and fall. The plaintiff has established that the employer is liable to her for breach of s 28 of the Act.

Section 312 of the WorkCover Act 1996

  1. [47]
    The employer’s pleading alleged[50], in effect, that if it owed contractual obligations to the plaintiff any injury suffered by the plaintiff was due to her own negligence or inadvertence. There is no obvious explanation for why the employer would raise the plaintiff’s negligence only if it was held that the employer owed contractual duties. Contributory negligence was not expressly pleaded by the employer. The employer did not submit that the plaintiff caused or contributed to her injuries by her own negligence. The employer did not plead or submit that s 312 of the WorkCover Queensland Act 1996 (“WorkCover Act”) applied to the employer’s advantage in this case.    
  1. [48]
    Plaintiff’s counsel raised the WorkCover Act in written submissions. Employer’s counsel did not respond on this issue in submissions in reply. Because of the concern shown by plaintiff’s counsel I propose to consider the matter.
  1. [49]
    Section 312 of the WorkCover Act 1996 provided (as at 6 October 1999) as follows:

“Liability of employers and workers

312.(1) In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim—

 (a) that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable;

 (b) that the actual and direct event giving rise to the worker’s injury was actually foreseen or reasonably readily foreseeable by the employer;

 (c) that the worker did not know and had no reasonable means of knowing that the actual and direct event giving rise to the injury might happen;

 (d) that the injury sustained by the worker did not arise out of a relevant failure of the worker to inform the employer of the possibility of the event giving rise to the injury happening, in circumstances in which the employer neither knew nor reasonably had the means of knowing of the possibility;

 (e) that the worker did everything reasonably possible to avoid sustaining the injury;

 (f) that the event giving rise to the worker’s injury was not solely as a result of inattention, momentary or otherwise, on the worker’s part;

 (g) that the injury sustained by the worker did not arise out of a relevant failure of the worker to use all the protective clothing and equipment provided, or provided for, by the employer and in the way instructed by the employer;

 (h) that the worker did not relevantly fail to inform the employer of any unsafe plant or equipment as soon as practicable after the worker’s discovery and relevant knowledge of the unsafe nature of the plant or equipment;

 (i) that the worker did not inappropriately interfere with or misuse or fail to use anything provided that was designed to reduce the worker’s exposure to risk of injury.

 (2) If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove the matter mentioned in subsection (1)(a), the court must dismiss the claim.

 (3) If the claimant fails to prove the matter mentioned in subsection (1)(b), the court must dismiss the claim.

 (4) If the claimant fails to prove any of the matters mentioned in subsection (1)(c) to (i), the court must –

  (a) dismiss the claim; or

  (b)  reduce the claimant’s damages on the basis that the worker substantially contributed to the worker’s injury.

 (5) In deciding whether a worker has been guilty of completely causative or contributory negligence, the court is not confined to a consideration of and reliance on the matters mentioned in subsection (1)(c) to (i).”

  1. [50]
    The plaintiff submitted that the employer did not submit that the plaintiff should not succeed because of s 312 of the WorkCover Act and that the employer did not submit that the plaintiff was contributorily negligent. That is correct. It is significant that the employer did not submit that subsections 312(2) or (3) applied on the facts of this case to compel the court to dismiss the plaintiff’s claim or to reduce damages for contributory negligence. It suggests that the employer did not seek to contest this aspect. The absence of a clear reference to these issues in the employer’s pleading, despite the requirement of the Uniform Civil Procedure Rules rule 149(1)(c) and (e) also suggests that the employer did not seek to contest this aspect.
  1. [51]
    Section 312 arguably places an onus upon the plaintiff to establish several matters referred to in the section. Whether the employer’s apparent election not to contest this aspect relieves the plaintiff of her arguable onus has not been made the subject of submissions. Because of this lacuna I will deal with the issue cognisant that, if the plaintiff has an onus, the employer has not submitted that the plaintiff failed to discharge it.
  1. [52]
    The duties of an employer are usually subdivided into obligations to provide safe plant, safe premises and a safe system of work and those subdivisions are useful to consider if classification issues arise under s 312 (2) of the WorkCover Act.[51]If the employer’s failure to contest these issues was a deliberate decision, it was a reasonable one. The plaintiff’s pleadings and the evidence and the plaintiff’s counsel’s submissions in this case show that the plaintiff has, in substance, not relied exclusively on a failure to provide a safe system of work. The plaintiff has relied also upon a failure to provide a safe place of work being a safe walkway for the use of those employees who would walk to the toilets at break time.  
  1. [53]
    The plaintiff submitted that the employer “made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable.” Such a finding would be necessary only if the plaintiff relies exclusively on a failure by the employer to provide a safe system of work. It appears that the employer does not raise this issue against the plaintiff. The court must dismiss the claim if the plaintiff relies exclusively on a failure by the employer to provide a safe system of work if the plaintiff then fails to prove that the employer “made no genuine and reasonable attempt to put in place an appropriate system of work to guard (the plaintiff) against injury arising out of events that were reasonably readily foreseeable”. The employer’s attempt must be both genuine and reasonable. A genuine attempt may fail the test of reasonableness.[52] I do not find that the employer made no genuine attempt. Such a finding would be inconsistent with evidence of efforts to establish and monitor the safety of the workplace. I find that the employer made no reasonable attempt to put in place an appropriate system of cleaning the right side of the walkway in time for the first lappo break to guard the plaintiff against injury arising out of events that were reasonably readily foreseeable.
  1. [54]
    I find that a slip and fall injury was reasonably readily foreseeable by the employer having regard to the findings already made. The plaintiff had never slipped before. She was doing no more than walking on the appropriate walkway at the time of her slip and wearing the appropriate boots. The walkway had become slippery through an inappropriate cleaning system which the employer could reasonably have rectified. I find that the plaintiff has established the matters referred to in section 312(1) (c) to (i) of WorkCover Act.

Pain Suffering and Loss of Amenities

  1. [55]
    The plaintiff sustained a fracture of the patella of her left leg with capsular breaks on both sides of the fracture. She was taken to the Ipswich Hospital where she underwent open reduction and internal fixation of the fracture using a tension band figure of eight technique over two K wires. The plaintiff suffered a 10 percent impairment of her left lower limb which is assessed as a 4 percent impairment of the whole person. The plaintiff’s condition will not deteriorate and she will not develop degenerative osteoarthritis.
  1. [56]
    The plaintiff was on crutches for about six and a half painful weeks. After about three or four years her pain had stabilised so that it gets neither better nor worse. When the injury occurred, one of the plaintiff’s children was a toddler. The plaintiff regards her biggest loss from the injury as her inability to pick up and carry and cuddle her child. The plaintiff did not explain how her injury prevented this. I infer that it was because of the difficulties she had with bending her knee and squatting which each inhibited her ability to pick her child up or play with her at a low level. I infer that it was also caused by the feeling of insecurity the plaintiff had when carrying heavy items. Initially squatting and kneeling both caused her problems. The knee pain affected her sexual relationship with her husband.
  1. [57]
    After the knee stabilised it remains sore associated with walking. Stairs give her trouble. She cannot run. Kneeling hurts the plaintiff and that interferes with her enjoyment of temple. She cannot kneel as other worshippers do at temple or at funerals. She still can feel discomfort with sleep. She uses an exercise bike but that causes her pain. Pushing a trolley causes her trouble. She still complained of pain at night in 2007 and when she walked quickly.
  1. [58]
    The plaintiff would be disadvantaged in occupations where either lifting or squatting or kneeling or walking and working on uneven terrain or climbing up and down stairs was required. She will continue to require analgesics and assistance in daily living. The range of motion of her knee is full. She has a 2 cm loss of thigh circumference and a healed anterior knee scar measuring 10 cms with some adjacent numbness of the scar. While there was no crepitation on examination in 2007, when examined again in 2008 she had patello femoral crepitus on squatting. Her squatting is limited to about half. Any activities where load is applied to the knee will increase pain and discomfort. There is a possibility that the plaintiff understates the frequency of pain and numbness she feels.
  1. [59]
    Between 23October 2004 and the 23 August 2008 the plaintiff attended a physiotherapist about 58 times.[53] An Occupational Therapist, Mr Hoey, opined in October 2008 that the plaintiff would require hydrotherapy at an annual cost for the therapist as well as the pool pass in excess of $450 and that it would not materially change her condition but would be essential to maintain her in the workforce. The plaintiff gave evidence that she obtained benefit from the physiotherapy which she obtained.[54] The employer’s counsel submitted that Dr Gillett does not recommend further physiotherapy treatment. The submission is unhelpful. Dr Gillett was silent on the topic. I accept that the plaintiff intends to continue to receive physiotherapy treatment, that it has benefited her, that hydrotherapy is recommended by an occupational therapist and that the recommendation is reasonable. An allowance for regular physical or hydro therapy is warranted.
  1. [60]
    Dr Gillett recommended that the internal fixation device should be removed at a cost of $3,000. By the time of trial the plaintiff had discussed the matter with her family but was not sure whether to have the removal. She was concerned that after the removal her knee would not be strong enough. Dr Gillett’s recommendation for the removal was so as to reduce some local discomfort at the front of the plaintiff’s knee. I accept that the plaintiff has a need for the surgery. In the assessment of her damages, it seems reasonable either to allow a further $3,000 in respect of her future further discomfort as a component of the plaintiff’s pain, suffering and loss of amenities or alternatively to include $3,000 for the cost of surgery as a component of the plaintiff’s future special damages. I am satisfied that the plaintiff is sufficiently concerned about her employability that she is unlikely to have future surgery because of her fear that it will weaken her knee. For that reason, this aspect will be reflected in my assessment of general damages for pain suffering and loss of amenities.
  1. [61]
    The plaintiff submitted that $50,000 may be a reasonable sum for general damages and the employer submitted a range of $25,000 to $32,500. I assess damages for pain suffering and loss of amenities at $43,000. From the decisions referred to by counsel for the parties I have had regard particularly to Pascoe v Coolum Resort Pty Ltd [2005] QDC 039; Fuller v Logan City Council [2006] QDC 305; Henley v State of Queensland [2002] QDC 256 and Delacore v Australia Meat Holdings Pty Ltd [2005] QDC 109.
  1. [62]
    The parties accept that no interest on this amount is allowed.[55]

Past Economic Loss

  1. [63]
    Before her injury, the plaintiff was working as a packer and intended to so continue. Because of her injury she was unable to work from 7 October to 10 December 1999. For this period the employer submits and I accept that the plaintiff lost $5,010 net.
  1. [64]
    Upon recommencing work on 11 December 1999 the plaintiff began as a rotational packer continuing for a few months. She suffered left knee symptoms aggravated by long periods of standing and any bending of the knee or squatting. Before and after her injury the plaintiff had been packing in coordination with other workers on a nine station roster. Inefficiency by the plaintiff would have had the capacity to slow the work done by other workers on the nine station rotation. The plaintiff was slower than the others on the rotation. After a few months she was moved from packing on the nine station rotation to another job which involved lifting animal tongues from hooks, washing the tongues, placing them on hooks, bagging them and placing them on a tray. It was lighter work for the plaintiff. The job of packing tongues involved four 10 hour shifts per week. She continued it from within the year 2000 until 24 January 2008. When moved from her work as a rotational packer to her work packing tongues the plaintiff was paid at a lower hourly rate. She initially received about 50¢ per hour less. The plaintiff has been paid at the lower rate appropriate for washing and bagging tongues from 2000 until trial. The plaintiff would initially have retained work with the higher paid rotational packers if she had not been injured. The employer did not submit otherwise.
  1. [65]
    The plaintiff was offered higher paid rotational packing work in 2008. She tried it for two weeks. She was not as fast as the other workers because of her leg. When the conveyor was full she was required to carry laden boxes to an empty bench and then return them to the conveyor. While this did not happen often she was aware that it caused a strain on her leg. She was also aware of her knee if she would bend it slightly to push a box onto the conveyor belt. She was unable to keep up with the other workers. She believed some workers were unhappy with her. She was upset that she could not perform well. She lasted about two weeks and returned to her lighter, lesser paid work. I am satisfied that the plaintiff is unable to earn at the higher rate paid to rotational packers and that her inability is caused by her injury.
  1. [66]
    The plaintiff also had the opportunity to work extra days in addition to those of the regular working week. Records show that the plaintiff worked 13 extra days in 1999 and 45 extra days in 2000. There are no records relating to 2001. She worked no extra days in 2002, 2003 or 2005. She worked 7 extra days in 2004, 10 in 2006, 2 in 2007 and 3 in 2008 which was a year in which she had been allowed to work less than 3 months to the date of trial, because she had been laid off by the employer. Thus, in 2008, after being laid off for a time, the plaintiff worked extra days at the rate of one per month. I note that notwithstanding her knee problems the plaintiff worked an average of a little more than 5 extra days per year in the 51 months of work available to her since the start of 2004. Her knee problems had improved as much as they will by about 2004.
  1. [67]
    On 6 December 2007 the plaintiff was interviewed at work and the employer recorded that she advised that her knee was sore all the time; that her pain rate was 10/10 when she first got out of bed and she would take a couple of Panadol; that by the time she started work her pain rate was 3/10, at lunch 3/10 and by day’s end 7-8/10 and at bedtime 7-8/10; that she had two Panadol daily with breakfast and physiotherapy monthly; that she was not interested in moving from her current job if it meant moving to a job with a lower pay rate.
  1. [68]
    Seven weeks later, on the plaintiff’s first day back on 24 January 2008 and after a vacation from work, her employer interviewed her and recorded the plaintiff as saying that she had been to the physiotherapist on 21 January and that her knee was not sore at the time. The plaintiff was recorded as saying her knee gets sore after work or if she stands for long. She said that it had been sore over the holidays but not too much at home. She was asked if she thought that going to work that day would make her knee sore and the employer recorded:

“I don’t think so I think I can go back and do my job, she said I hope I don’t get the sack. (But you said it gets sore after work) everyone gets tied [sic] after work (but does your knee hurt after work) a little bit (Are you still taking tablets for your knee) sometimes when I feel pain (how often would that be) I have Panadol (how many times do you take Panadol) not every day when I feel pain three times a week. (Did you have to take Panadol in the holidays) Yes 2 – 3 times a week. (So your knee is still giving you problems) Yes.”

The reference to getting the sack suggests that the plaintiff regarded her continued employment as possibly dependent upon how she replied to questions about whether her work produced knee pain. After the interview the plaintiff was stood down, told to take holidays and told that she could not re-commence work until after she had attended a specialist. She remained away from work until 9 May 2008. That forced break would discourage reporting of significant work related symptoms. The employer accepts that the plaintiff would otherwise have been paid as a packer of tongues $8,556.81 net during that period and that it is a component of past economic loss.

  1. [69]
    When the plaintiff returned to work in May 2008 she was instructed to fill out daily reporting sheets. The reporting sheets, written in English, required that any pain, swelling, restriction or difficulty was to be reported. For the period from 8 May 2008 to 6 October 2008 the plaintiff reported that she had no pain. The plaintiff speaks Vietnamese and questions to her were translated from English to Vietnamese and her answers translated from Vietnamese. When cross-examined by employer’s counsel about her report of no pain for five months in 2008 the plaintiff’s translated answer was:

“My answer to the question of the documents in terms of the pain I suffer – I would only put “Yes” when the pain was bad to the stage I could not go to work – then I would say “Yes”. Otherwise, I would not say.”

The employer submitted that the plaintiff was not credible on the basis of this inconsistency, among others. I accept that between May and October 2008 the plaintiff suffered pain and restricted movement at work despite her failure to report it. That view is consistent with medical evidence and the plaintiff’s prior history and her persistence with physiotherapy. The fact that she was stood down for 14 weeks after describing symptoms in January 2008 is a probable basis for the plaintiff’s lack of complaint about pain. I find that it is the explanation.

  1. [70]
    For the periods where the plaintiff worked since her injury the employer submitted that the appropriate measure of the plaintiff’s net economic loss was $15.00 per week. The basis for the submission was that the plaintiff lost a gross 50 cents per hour for a standard 4 day, 40 hour week which represented, approximately, a net $15.00 per week for 52 weeks per year. That approach assumes that the additional days worked by the plaintiff would have ceased. It assumes that the gross difference remained at 50 cents per hour for the intervening years and that income tax rates remained similar. It is consistent with some evidence, in particular evidence of the employer’s Human Resources coordinator, Ms Melrose. It is inconsistent with other evidence.
  1. [71]
    The plaintiff pleaded her past economic loss on that basis as one alternative but also claimed an alternative which was higher. The particulars of past economic loss on the higher basis included:

“The net annual wage difference of a comparative employee for the years 2002-2008, ($30,138.00).”[56]

Plaintiff’s counsel, in his opening observed:

“… there will be evidence tendered by way of comparative employee’s wages.  The defendant’s solicitors have recently provided my instructing solicitors with a letter referring to – enclosing certain group certificates, and I think they’re called “employee payee summaries” and the documents will be produced and it’s referred to by the defendant’s solicitors as being the comparative employee’s earnings and that’s the document which has been provided recently which has necessitated an amendment to the statement of claim and the increase in the past economic loss.”

The plaintiff relied upon at least three matters for submitting that a loss of a net $15.00 per week for eight years was too low.  One basis was that in 2008 the plaintiff worked for two weeks as a rotational packer before returning to washing and bagging tongues.  The weekly difference to her net pay was submitted to be $23.85.[57] I find instead that the weekly difference was a gross $23.35 which I calculate to be a $16.34 net of income tax levied at a rate of 30 cents in the dollar. A second basis was that Ms Hoang, as a rotational packer earned in 2008 about $1.35 more per hour gross than the plaintiff and I find that to be correct as it is consistent with pay slips.[58]By my calculation that would amount to a difference of about $37.80 net of tax per 40 hour week or about $1,966.00 annually. A third basis is that the difference in hourly rates between a rotational packer and a bagger and washer of tongues was about 50 cents net per hour in 2000 when rates of income tax were higher than in later years. The submission is to the effect that, even if gross pay lost remained identical from year to year net pay lost would have become greater with reduction in income tax. The effect on earnings from extra days is a fourth matter which should be considered.

  1. [72]
    There is a possibility that the plaintiff’s willingness to work extra days, if they were available, would lessen with age. There was no exploration with the plaintiff about why the plaintiff worked 58 extra days in 1999 and 2000 but only a total of 22 extra days were recorded in the next 8 years. Nor was there evidence about the availability of extra days for a person such as the plaintiff. An explanation for not exploring these matters may be that the plaintiff’s case was to include proof of a net annual wage difference of a “comparative” employee by means of a letter from the employer’s solicitors. It is sensible to interpret the letter as if “comparative” was intended to mean “comparable”.
  1. [73]
    The employer’s solicitors wrote to the plaintiff’s solicitors[59]:

“We refer to previous correspondence and now enclose:

…

  1.  Comparative Employee Records…”

They enclosed PAYG Payment Summaries for an unidentified employee for the financial years ending 2001 to 2008 inclusive.  There was no objection to the tender and no directly contradictory evidence was led by the defendant.  The payment summaries do not show whether the comparable employee worked extra days in any year. Except for the year ended 30 June 2001, the figures show that the comparable employee earned more than the plaintiff each year. The comparable employee earned in total an extra $30,138 net in the 7 years from 30 June 2002 to 2008.  There is no explanation for why the comparable employee earned less than the plaintiff in the year ended 30 June 2001 by an amount of $4,331.00 net.  It may be that it was because the plaintiff worked 45 additional days in 2000.  The employer’s counsel while submitting for a past economic loss of $15.00 per week, made no submissions with respect to the “comparative employee” evidence supplied by the employer to the plaintiff and relied upon by her.

  1. [74]
    I am not satisfied that the plaintiff earned at a lower annual rate than the comparable employee in the year ended 30 June 2001, even if she was earning for some of the year at a lower hourly rate. In that year the plaintiff earned significantly more than the comparable employee. The basis for that anomalous financial year is unexplained. It is explicable if the extra days worked by the plaintiff in calendar year 2000 were worked substantially in the first half of the financial year ending 30 June 2001. I am satisfied that for the following financial years ended 30 June 2002 to 2008 inclusive the plaintiff suffered a net loss of $30,138.00 or about $80 per week net. Those figures represent a greater net weekly difference than is obtained by multiplying the difference in the hourly rate of earnings of the plaintiff and Ms Hoang in 2008 by 40 hours per 4 day week for 52 weeks per year or by similarly multiplying the hourly difference between the plaintiff’s earnings for bagging tongues and for rotational packing for two weeks in 2008. There is no explanation for the employer’s choice of comparable employee. A plausible explanation may be that the figures were supplied as comparable because they were for an uninjured employee of similar age who worked numbers of extra days similar to those numbers which the employer estimated the plaintiff would have worked if uninjured and who otherwise performed rotational packing of the type which the employer estimated the plaintiff would have done. I need not find that the figures were supplied on this basis. It is enough that the employer offered plausible figures, without qualification, for a comparable employee and that they are unchallenged by the employer as acceptable evidence of the earnings of a comparable employee. They are unchallenged as acceptable evidence notwithstanding that the employer’s counsel submitted I should find a lesser amount.
  1. [75]
    For the three years prior to 30 June 2008 the plaintiff’s average net weekly earnings were $87.47 less than those of the comparable employee. For the period from 1 July 2008 until the present I find that the plaintiff has lost $80.00 per week net. I make that finding on the basis that it is consistent with the difference between the plaintiff’s earnings and those of the comparable employee in recent years, that the plaintiff has had a history of working extra days and that Ms Hoang, as a rotational packer, could earn more than the plaintiff by $37.80 net weekly without working extra days and could, by my calculations, have increased that by the equivalent of $50.00 net weekly in 2008 by working an extra day every fourth week or 13 days per year. For the 56.43 weeks since 1 July 2008 at $80.00 per week I allow $4,514.00. The total of the four components[60] of past economic loss is $48,218.81.

Loss of Past Superannuation Benefits

  1. [76]
    For loss of past superannuation benefits the parties accept in submissions that 9% of the assessment for past economic loss is proper. I allow $4,339.69.

Interest on Past Economic Loss

  1. [77]
    WorkCover paid $4,208.05 in benefits. I propose to allow interest on only $44010.76 of the past economic loss. The employer submitted that interest should be allowed at six percent per annum for four years. The bases of the submission were that the claim should have been brought earlier (than August 2002); a four year period reflects more accurately when the loss was suffered, loss suffered six months before judgment should attract interest for only six months; to allow interest on the full economic loss for nine years would result in a windfall gain to the plaintiff. To allow for the gradual accrual of interest over the approximately nine years and 10 months since the injury it would be appropriate either to halve the interest rate of 10 percent or to halve the number of years for which the interest rate was allowed. I reject the submission that it would be appropriate to allow interest at six percent for less than half the years. I propose to allow interest at five percent for nine years and 10 months being $21,638.62.

Future Economic Loss

  1. [78]
    With respect to the future, there is no direct evidence as to the plaintiff’s intentions to work extra days or as to the employer’s capacity to offer extra days’ work. With age, the plaintiff may have chosen to reduce the extra days she worked even if she had been uninjured. Plaintiff’s counsel submits that future economic loss should include a component of $88.79 per week net being the difference between the amount earned by the plaintiff and the comparable employee in the year ended 30 June 2008. Plaintiff’s counsel does not by submission explain inconsistent evidence of a smaller difference. There is no plausible explanation given in evidence as a basis for the difference being $88.79 weekly when the difference in pay rates between the plaintiff and Ms Hoang, working as a rotational worker for a 40 hour week in 2008 was only $37.80. The employer’s solicitor’s letter showing a comparable employee’s earnings to 30 June 2008 did not include any express representation about the usefulness of the comparison for the future. The plaintiff did not expressly plead reliance on the comparable employee when alleging future economic loss. The letter has less persuasive force about future differences between the plaintiff’s earnings and those of a rotational packer. For example, both the plaintiff and the comparable employee would be aging and likely to be less attracted to working extra days as they aged.
  1. [79]
    The employer’s counsel submitted that future economic loss was calculable by a continuing difference of $15.00 per week net. The figure of $15.00 per week is supportable by an estimate from Ms Melrose, who maintains personnel records, of a pay difference of 50 cents per hour. Her estimate was not explained by a comparison with another particular employee. It is roughly consistent with figures in the plaintiff’s pay slips of August 2008 showing an increase in earnings from one week to the next of a gross 59.63 cents per hour. Employer’s counsel made no submission to deal with inconsistent evidence of the comparable employee or the inconsistent evidence of the earnings of Ms Hoang in 2008. Because of those inconsistencies I am not satisfied that a gross 59.63 cents per hour was the limit of the weekly pay increase available to the plaintiff in 2008 if she had worked as a rotational packer qualified for each place in an 11 station rotation. I reject the submissions of the employer’s counsel as too low for that reason. I do not accept that the extra net 59.63 cents per hour ($16.34 net or $23.35 gross per 40 hour week) which the plaintiff’s pay records[61] reveal she earned for 50 hours in August 2008 was the measure of her loss for a 40 hour week. One possible explanation for the difference between the 59.63 cent increment and the larger increment paid to Ms Hoang may lie in the evidence of Mr Rose who was the plaintiff’s supervisor when she returned after her layoff in 2008. He gave evidence of her being initially given work on one of the stations on the 11 person rotation. The job was called the “bibles”. On this job the plaintiff earned at a higher rate of pay than a person bagging tongues. It may not have been at the rate paid to persons qualified to work on all 11 stations. The plaintiff was then given a trial on the 11 station rotation possibly at a higher rate than for a person on “bibles”. The differences in pay rates remained unsatisfactorily explained.
  1. [80]
    To earn an extra $88 per week net, the plaintiff would, in 2008, need to have earned the rate of pay received by Ms Hoang doing rotational work for a 40 hour week (an extra net $37.80) and the plaintiff would need to have earned from extra days a further net $50.00 weekly. The amount of $50.00 weekly at Ms Hoang’s pay rate in 2008 would require 2.5 hours extra work per week, approximately. That was achievable if Ms Hoang had worked 13 extra days per year. That is the number of extra days worked by the plaintiff in the year before her injury. The plaintiff gave no evidence as to the effects of her injury on her capacity to work extra days. I find that it would generally have reduced her capacity to work extra days in the long term, despite the anomalous 45 extra days she worked in 2000. That reduced capacity will partially explain the reduction in extra days worked since 2000. I find that there is a continuing availability of extra work with the employer. For this finding I rely on the employer’s history of providing extra work and on the absence of evidence from the employer that extra days will cease to be available or are less available. I have insufficient evidence to find that the plaintiff would have continued indefinitely to work an average of 13 extra days per year if she had been uninjured. More importantly, for the plaintiff to lose that further $50.00 net per week it would be necessary for the extra days which the uninjured plaintiff would have worked to be reduced by 13 per year because of the injury and not because of aging or another cause. Accordingly, I find that the plaintiff would have continued to work extra days but generally reducing with increasing age. A continuing impairment in capacity to work causing the plaintiff to annually lose 13 extra days work until retirement is not supported by evidence.
  1. [81]
    An appropriate basis for calculating one component of future economic loss is to award the plaintiff an amount representing the difference between the net pay rates of the plaintiff and Ms Hoang with the addition of an amount to represent an annual reduction in the number of extra days which the plaintiff would have worked until her retirement. In the year before the injury the plaintiff worked an extra 13 days. Since 2004 her average is about 5 extra days per year, a fall of 8 days annually. To add an extra $21.20 net weekly to the loss would compensate for the loss of a little more than 3 extra days annually for all future years. I estimate the plaintiff’s future loss of earnings while employed by the employer as $60.00 per week for 20.75 years discounted to 17 years for contingencies, including the contingency that the plaintiff may have changed her mind about working to age 70. That amounts to $36,180.[62]
  1. [82]
    The plaintiff submitted that a further component for future economic loss should be allowed in the sum of $60,000 being a global figure to represent approximately $100.00 per week for 19 years on the 5 percent table less 10 percent for contingencies. It was submitted that the figure is justified to compensate for the risk of future interference in employment should her employment with the employer end for some reason.
  1. [83]
    The plaintiff is at a general disadvantage in the workforce because she does not speak English, because she has a history of compensable injury and because her injury has restricted her occupational opportunities to lighter work. I accept the occupational therapist’s evidence of Mr Hoey that it would be very difficult to redeploy the plaintiff to the light occupations for which she is now suited. The plaintiff’s continuous work history with the employer suggests that her employment is reasonably secure. However, there was no direct evidence from the employer as to this. The plaintiff was stood down without pay in 2008 for 15 weeks as a result of the employer’s concern that it might breach its duty of care by continuing to employ her without a specialist’s report that she could cope with her work. The plaintiff is able to cope with the work she currently does for the employer and could cope with it until the end of her working life. However, I accept that she should be compensated by a further amount for the risk that her employment with the employer will end and that, if it does end, she is at significant risk of spending much longer periods unemployed than would be the case for her if she had been able to accept heavier manual work and without a history of a claim for her injury. She is at some risk of not finding alternative continuous lighter work. She would be obliged to disclose her incapacity to a prospective employer.
  1. [84]
    The plaintiff’s average net earnings for the years ended 30 June 2006, 2007 and 2008 were $29,200.00. Plaintiff’s counsel referred to Cook v Allianz [2007] QDC 108 at [33] and Lee v Richards and the Transport Accident Commission [2008] QDC 257 as showing various calculations of global awards for a similar component of future economic loss. I propose to follow the approach taken in Lee.[63] Two years’ unemployment for a future working life of 20.75 years seems a reasonable global award for this aspect of the plaintiff’s future economic loss. That figure is derived after considering a discounting for contingencies. That would involve a net loss of about $58,400.00 based on recent average net earnings by the plaintiff. I allow $58,400.00 for this aspect of future economic loss. The total allowance for future economic loss is $94,580.00.

Loss of Future Superannuation Entitlements

  1. [85]
    For loss of future superannuation benefits the parties accept in their submissions that nine percent of the assessment for future economic loss is proper. I allow $8,512.20.

     Past Special Damages 

  1. [86]
    Assessment of special damages past and future is partly dependent upon the plaintiff’s credibility and the reliability of answers she has given. Some of the matters which raise concerns about the plaintiff’s reliability relate to the quantity or type of medication she reports that she has taken and whether it was taken as a consequence of the injury and relate to the number of visits she made to her general practitioner and whether the visits have been caused by her injury. The employer made submissions that the plaintiff was not credible for the following reasons and also for the reasons dealt with in paragraphs 18 and 69 above.
  1. [87]
    The plaintiff must make a refund to Medicare Australia. She is not entitled to recover from the employer the full amount listed on a Refund Letter from Medicare Australia. For the eight attendances identified by Dr Hoa Nguyen as relating to her knee, the plaintiff will be required to refund $204.45. That is a proper component of her Special Damages.[64]
  1. [88]
    The plaintiff is obliged to refund to MBF in respect of physiotherapy expenses to trial the amount of $1,712.25. It is contested by the employer. I am satisfied for reasons expressed above[65] that the expenses were necessary. Since trial the plaintiff had a need for and has probably incurred further physiotherapy expenses in the sum of about $450.00 bringing the total to $2162.25. I find from her past history that the plaintiff is likely to have been reimbursed for these payments by MBF. That will affect the interest to which she is entitled. The $450.00 is allowed either as an expense or an amount to be refunded to MBF.
  1. [89]
    The parties are in contest over travel expenses. The plaintiff gave evidence that she incurred expenses of 64 visits to Dr Nguyen. Dr Nguyen is otherwise referred to in evidence as Dr Hoa Nguyen. Only eight of the visits to Dr Hoa Nguyen relate to the knee. Those eight visits each pre-dated June 2005. The distance travelled per return trip was 26 kms.[66] The cost was .50¢ per kilometre. I reject the submissions of  plaintiff’s counsel and employer’s counsel on this issue as each being unsupported by the evidence. I allow $104.00 for the cost of travelling to the doctor. There is no evidence as to the cost of travel to and from the physiotherapist.[67]

I allow $312.00 for pharmaceuticals being Panadol at $3.00 per fortnight for four years.[68]

  1. [90]
    Items of expenditure met by WorkCover are also the subject of contest. Excluding payments made for legal and investigation costs and weekly compensation payments other items of expenditure total $548.88. I allow it.[69]

Total Special Damages to date are $3,331.58.

  1. [91]
    I allow interest on $414.00 of those special damages. I reject the submission of the employer that interest should be allowed at 6% for four years. I allow interest at 5% for nine years and 10 months on $414.00 which amounts to $203.55.
  1. [92]
    The plaintiff denied talking to Keith Haslam about the quantity of medication she was taking. It seems likely that there was a conversation between them about whether the level of medication she reported taking was excessive. I am not satisfied that the plaintiff’s failure to acknowledge that there was such a conversation is a sign that she is generally unreliable. On a related topic, the plaintiff denied taking Panadeine, claiming that she used only Panadol. She was proven to be incorrect by ten year old employment records. I regard this error as unlikely to have arisen from a deliberate deception. I regard the plaintiff’s error as an unhelpful matter when assessing the plaintiff’s reliability and credibility. The plaintiff gave evidence that she attended her general practitioner 63 times in nine years to be treated for her knee injury. She was insistent that the visits were related to her knee during cross-examination on the point. She gave evidence that she confirmed the attendances with her general practitioner. The doctor’s signed statement was admitted into evidence advising that only eight of the 63 attendances were related to the knee and that the last was on 27 November 2003. The plaintiff explained in evidence that she had sought the doctor’s assistance in filling out a document[70] setting out the numerous visits made to the GP as relating to the compensable injury. She was not challenged in cross-examination as to her contention that the doctor had assisted her to conclude it had been 63 relevant attendances and the doctor was not called to give contrary evidence. I do not find that the plaintiff was deliberately untruthful in giving evidence that 63 visits to the general practitioner were related to the injury. Having regard to the evidence of the general practitioner, I find that only 8 attendances were related to the knee.

Future Expenses

For removal of the internal fixation device I make no award for reasons given above.

For future physiotherapy I accept that there is a need. The plaintiff submits it is appropriate to allow $45.00 per month per visit for 40 years. I accept that the plaintiff intends to continue with physiotherapy. The evidence is to the effect that the plaintiff has been receiving physiotherapy at about that monthly cost. However, the expert evidence as to her needs is the evidence of Mr Hoey that she has a need for hydrotherapy in excess of $450.00 per year and that hydrotherapy is essential to maintain her in the workforce. I have insufficient evidence to allow me to find that the plaintiff has a need for such an expense after leaving the workforce. For future physiotherapy or hydrotherapy and any associated travel expenses I assess the plaintiff’s loss at $9.00 per week for 20 years (factor 666) being $5,994.00. I otherwise make no further allowance for future travel expenses.

  1. [93]
    The employer concedes a need for future medication at a cost of $250.00. The plaintiff claims $500.00. The employer’s allowance is more consistent with the plaintiff’s past needs.[71]

The total for future expenses is $6,244.00

Fox v Wood

  1. [94]
    The Fox v Wood component is $1,243.95.

Conclusion

  1. [95]
    Damages are assessed at:
  1. (a)
    General damages    $ 43,000.00
  1. (b)
    Past special damages    $   3,313.58             
  1. (c)
    Interest on past special damages  $      203.55             
  1. (d)
    Future expenses     $   6,244.00            
  1. (e)
    Past economic loss    $ 48,218.81               
  1. (f)
    Interest on past economic loss   $ 21,638.62               
  1. (g)
    Past loss of superannuation entitlement $   4,339.69             
  1. (h)
    Fox v Wood component   $   1,243.95
  1. (i)
    Future economic loss    $ 94,580.00               
  1. (j)
    Future loss of superannuation entitlements $   8,512.20    

$231,294.40

Less compensation paid by the employer                    $   6,000.88

TOTAL      $225,293.52.

  1. [96]
    I give judgment for the plaintiff against the defendant in the sum of $225,293.52 inclusive of interest. I will reserve costs until I receive the parties submissions as to costs.

Footnotes

[1]Further Amended Statement of Claim filed by leave, 14 October 2008 at paragraph 5

[2]Further Amended Statement of Claim op cit par 4A

[3]Second Further Amended Defence of the Defendant, paragraph 7A

[4]T4-23, L35

[5]T4-30

[6]Written Submissions, paragraph 46 & 47

[7]           Written submissions of counsel for the defendant dated 11 November 2008 entitled “reply to the submissions of the plaintiff”. 

[8]Plaintiff’s counsel’s written submission, 12 November 2008, entitled “Objections to Paragraph 1 of the Defendant’s Submissions in Reply.”

[9]Further Amended Statement of Claim op. cit par 4B

[10]Second Further Amended Defence par 7B

[11]          Right hand if travelling in the direction taken by the plaintiff.

[12]          The photograph matching photo’ 3 of exhibit 21.

[13]          T3 – 62/L35.

[14]Exhibit 2.

[15]         T2 – 41/L 58 to T2 - 42/L1.

[16]          T4 – 9 L45.

[17]T1 – 28/L 40 – 50.

[18]T1 – 28/L 50 – 55.

[19]T 3 – 43.

[20]T 2 – 60 and T 2 – 61.

[21]Exhibit 15.

[22]Exhibit 36.

[23]T 3 – 83.

[24]T 3 – 984 L 40.

[25]          Exhibit 2.

[26]T 4 – 15 L 44 – 54.

[27]T 2 – 46/L 55 – 60; T 2 – 47/L 1-28.

[28]          Exhibit 21 page 8.

[29]          Exhibit 21 page 13.

[30]Exhibit 15.

[31]T 4 – 85 L 1 – 5.

[32]Part of Exhibit 47.

[33]T 2 – 44 and 45.

[34]From the plaintiff’s direction of travel to the toilets.

[35]Bankstown Foundry Pty Ltd v Braistina (1985-1986) 160 CLR 301 at 307.10 applying Hamilton v Nuroof (W.A.) Pty Ltd (1956) 96 CLR 18 at 25.

[36]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47.8.

[37]Wyong op. cit at 47.9 per Mason J.

[38]Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J, the other members of the court agreeing.

[39]From the plaintiff’s point of view when approaching the toilets.

[40]          As at 9 November 1999.

[41]          There being neither evidence nor submission that a regulation or ministerial notice or code of practice was made about exposure to the relevant slip and fall risk.

[42]           Bourk v Power Serve P/L  [2008] QCA 225 [32] per Muir JA, Keane and Fraser JJA agreeing

[43]Schiliro v Peppercorn Childcare Centres Pty Ltd (No. 2) [2000] QCA 18; [2001] 1 Qd R 518 at [49] in the joint judgment of a five member court.

[44]Bourk v Power Serve P/L [2008] QCA 225 at [33] per Muir JA with Keane and Fraser JJA agreeing.

[45]Bourk v Power Serve P/L [2008] QCA 225 at [32] op. cit.

[46]This can be seen at [46] and [69] – [72] in Schiliro.

[47]Calvert v Mayne Nickless Ltd (No. 1) [2005] QCA 263 at [83] per Jerrard JA with McPherson JA and Atkinson J agreeing and cited with approval in Bourk v Powerserve P/L [2008] QSC 29 per Chesterman J (as His Honour then was) at [70].

[48]Per Chesterman J as His Honour then was at [69].

[49]          Paragraph 7.2 on page 32 of the defendant’s written outline.

[50]          Second further amended defence at para 5 (b) ii)

[51]       See eg   Calvert v Mayne Nickless Ltd  [2004] QSC 449  at [53] per Wilson J citing Glass and McHugh The Liability of Employers 2nd ed (1979) at 4

[52]See eg Karan Filov v Inghams Enterprises Pty Ltd [2002] QSC 141 at [111] per Atkinson J.

[53]Exhibit 8.

[54]T 1 – 52 L 25.

[55]WorkCover Queensland Act s 318.

[56] Further amended Statement of Claim, para 11(e)(iii).

[57]Exhibit 10.

[58]         Comparing exhibits 10 and 24.

[59]         Exhibit 33

[60]         Paragraphs [62], [67], [73] and [74].

[61]          Exhibit 10

[62]          Luntz, “Assessment of Damages for Personal Injuries and Death” 4th ed. Table 2, 5% column.

[63]          By  McGill SC DCJ at [35] and [36].

[64]The relevant Exhibits are Exhibit 6 and 35.

[65]At [60].

[66]Exhibit 7.

[67]See Exhibit 7, [3] and exclude the visits to Dr Nguyen.

[68]Exhibit 7.

[69]See Exhibit 18.

[70]Exhibit 6.

[71]I refer to Exhibit 7.

Close

Editorial Notes

  • Published Case Name:

    Tuyen Nguyen v Swift Australia Pty Ltd

  • Shortened Case Name:

    Nguyen v Swift Australia Pty Ltd

  • MNC:

    [2009] QDC 219

  • Court:

    QDC

  • Judge(s):

    Andrews DCJ

  • Date:

    31 Jul 2009

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
2 citations
Jump To
Cite 1 - (1986) 160 CLR 301
Cite 2 - (1986) 160 CLR 301
Bourk v Power Serve Pty Ltd [2008] QSC 29
3 citations
Jump To
Cite 1 - [2008] QSC 29
Cite 2 - [2008] QSC 29
Cite 3 - [2008] QSC 29
Bourk v Power Serve Pty Ltd [2008] QCA 225
4 citations
Jump To
Cite 1 - [2008] QCA 225
Cite 2 - [2008] QCA 225
Cite 3 - [2008] QCA 225
Cite 4 - [2008] QCA 225
Calvert v Mayne Nickless Ltd [2004] QSC 449
1 citation
Jump To
Cite 1 - [2004] QSC 449
Calvert v Mayne Nickless Ltd[2006] 1 Qd R 106; [2005] QCA 263
2 citations
Jump To
Cite 1 - [2005] QCA 263
Cite 2 - [2005] QCA 263
Cook v Bowen [2007] QDC 108
2 citations
Jump To
Cite 1 - [2007] QDC 108
Cite 2 - [2007] QDC 108
Delacour v Australia Meat Holdings Pty Ltd [2005] QDC 109
2 citations
Jump To
Cite 1 - [2005] QDC 109
Cite 2 - [2005] QDC 109
Fuller v Logan City Council [2006] QDC 305
2 citations
Jump To
Cite 1 - [2006] QDC 305
Cite 2 - [2006] QDC 305
Hamilton v Nuroof (W.A.) Pty Ltd (1956) 96 C.LR. 18
1 citation
Jump To
Cite 1 - (1956) 96 C.LR. 18
Henley v State of Queensland [2002] QDC 256
2 citations
Jump To
Cite 1 - [2002] QDC 256
Cite 2 - [2002] QDC 256
Karanfilov v Inghams Enterprises Pty Limited [2002] QSC 141
1 citation
Jump To
Cite 1 - [2002] QSC 141
Lee v Richards and the Transport Accident Commission [2008] QDC 257
2 citations
Jump To
Cite 1 - [2008] QDC 257
Cite 2 - [2008] QDC 257
Pascoe v Coolum Resort Pty Ltd [2005] QDC 39
2 citations
Jump To
Cite 1 - [2005] QDC 39
Cite 2 - [2005] QDC 39
Schiliro v Peppercorn Child Care Centres Pty Ltd[2001] 1 Qd R 518; [2000] QCA 18
4 citations
Jump To
Cite 1 - [2000] QCA 18
Cite 2 - [2000] QCA 18
Cite 3 - [2001] 1 Qd R 518
Cite 4 - [2001] 1 Qd R 518
Vozza v Tooth & Co Ltd (1964) 112 C.L.R 316
2 citations
Jump To
Cite 1 - (1964) 112 C.L.R 316
Cite 2 - (1964) 112 C.L.R 316
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
3 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40
Cite 3 - (1980) 146 C.L. R. 40

Cases Citing

Case NameFull CitationFrequency
Duck v Woolworths Ltd [2011] QDC 3121 citation
1

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