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CITE

Unreported Judgment

Russell v Hancock Farm Company Pty Ltd[2013] QDC 129McGill DCJ
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Russell v Hancock Farm Company Pty Ltd[2013] QDC 129

DISTRICT COURT OF QUEENSLAND

CITATION:	Russell v Hancock Farm Company Pty Ltd [2013] QDC 129
PARTIES:	DAVID O'MAY RUSSELL (Plaintiff) and HANCOCK FARM COMPANY PTY LTD (Defendant)
FILE NO/S:	BD479/2010
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	14 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	3-5, 7 December 2012
JUDGE:	McGill DCJ
ORDER:	Judgment that the defendant pay the plaintiff $265,014.60 including $15,014.60 by way of interest.
CATCHWORDS	EMPLOYMENT LAW – Injury of employee – whether negligence – causation – assessment of damages
COUNSEL:	R W Trotter for the plaintiff. R A I Myers for the defendant.
SOLICITORS:	Shine Lawyers for the plaintiff. McCullough Robertson for the defendant.

[1]
The plaintiff alleges that he suffered injury while working for the defendant in September 2008 as a result of the negligence of the defendant, and claims damages for personal injuries. The defendant disputes that the plaintiff suffered an injury, whether if he did it had the consequences alleged by the plaintiff, and whether it was caused by any negligence on the part of the defendant. There is no allegation of contributory negligence. The action is also pleaded in contract; it was not suggested at the trial that there was any difference between the two causes of action, so it is convenient to refer only to the cause of action in tort.

Background

[2]
The defendant employed the plaintiff as a casual farm labourer from April 2008.^[1]The defendant operates a number of farm properties, including a macadamia nut farm at Winfield north of Brisbane. The plaintiff’s duties included driving a tractor, and up to September 2008 he had worked on a day shift, which at times included driving a tractor hauling a piece of equipment by which insecticide was sprayed on the nut trees. The trees were grown in rows with space between them for such a tractor to pass: Exhibit 2. On 7 September 2008 he was put on a night shift, and the following night he was directed to use a tractor to haul a piece of equipment designed to spread liquid fertiliser on the ground around the trees.^[2]

[3]
This device was a trailer with an old water tank on it in which the fertiliser was mixed, and a pump which squirted the liquid fertiliser out two nozzles, one mounted on each side of the trailer,^[3]which were intended to spray the fertiliser towards the trees. There are some photographs showing the trailer in evidence, but there was evidence that the trailer has undergone various modifications since this occasion, and there were no photographs available which showed the state of this piece of equipment at the time of the incident.^[4]The pump was electrically powered,^[5]but it was later replaced by one driven by the power take off on the back of the tractor.^[6]When that was installed a black return hose to the top of the tank^[7]was put in to release excess pressure from the system, as the power take off would not stall unless the tractor stalled.

[4]
The plaintiff had to drive the tractor at a reasonably slow but consistent speed up and down between the rows of trees with the pump in operation.^[8]The tractor was fitted with a system of cruise control to assist in this process.^[9]The plaintiff said that at that time the equipment was not reliable, in that the fertiliser mixture tended to clog the nozzles which were to spray it beyond the trunks of the trees: p 15, p 17. There was some support for this in other evidence,^[10]and I accept that at the time of the incident the nozzles were prone to clog. When this happened the plaintiff was expected to stop and unclog the nozzle which had clogged, something which could be done without any great difficulty: p 87. Once it was unclogged, he would proceed and restart the pump.

[5]
Because they were prone to clogging and the process was ineffective if one or both had clogged, it was necessary for him to monitor the jets of spray in order to see if they had clogged. Because this operation was performed at night, there were difficulties with this process. The tractor had an enclosed cabin: p 14. There were lights mounted on the tractor which could shine backwards towards the trailer,^[11]but the evidence cast doubt on the effectiveness of these lights in assisting to see whether the jets were spraying.^[12]Otherwise the tractor was fitted with the usual head and tail lights, the latter obviously facing the rear but of little use for illumination. There was no monitoring device fitted to this piece of equipment which would alert the tractor driver automatically if the flow from one or other nozzle were impeded. Presumably such a device is possible, but this was at the time a rudimentary piece of equipment.

[6]
There was some issue about whether at the time the tractor was fitted with a rear vision mirror, mounted inside of the cabin. The photographs show that at one time the tractor had such a mirror,^[13]but the plaintiff said that at the time of this incident the mirror was not present: p 14. There were no external mirrors because at times the branches of the nut trees would sweep against the cabin of the tractor, and knock off the mirrors: p 82. In any event, the plaintiff said and I accept that there was no rear vision mirror fitted inside or outside the cabin at the time of this incident.^[14]It occurs to me that if a rear vision mirror had been fitted inside the cabin, its effectiveness may well have been limited by the fact that anyone looking at it would see it against a background illuminated by the head lights of the tractor which would make it more difficult to pick up whether or not a nozzle was operating properly at the back of the trailer, particularly if that area were not illuminated.

[7]
The tractor was designed so that the driver would face forward. The seat could be unlocked so that it could rotate in one direction or the other, but it did not rotate very far.^[15]The plaintiff said that for practical purposes the only way he could monitor the performance of the jets was by turning his head and looking back over his shoulder. He said it was difficult to see whether the nozzles were operating, even in this position, because they were so far from the tractor, but this was the best he could do: p 15, p 17.^[16]

[8]
The plaintiff said that the rows that he had to drive the tractor along were not always smooth, and that at times there were points where erosion had produced gullies crossing the track, and there were also drainage ditches which he had to drive the tractor across when he came to a farm road: p 23, Exhibit 6. He said that this had the effect that the ride of the tractor was at times quite bumpy. He said that this was made worse by the fact that the trailer was quite heavy, and was not well sprung, and that any roughness in the ride for the trailer, or any tendency for the liquid to slosh around, was transferred to some extent to the tractor through the trailer connection.^[17]The effect of his evidence was that there was quite a bit of bouncing or jerking in the ride of the tractor, and this bothered him when he was turning his neck around to watch the jets: p 32.

[9]
At the beginning of the shift the plaintiff had to repair the trailer, but he spent most of the shift, about six hours, spraying: p 12, p 13, p 19. The plaintiff said that he started to feel uncomfortable in the neck during the shift, but finished his shift at about 3.15 am and drove the tractor back to the shed. He then went home: p 19. His pain increased and when he woke after a sleep he was in considerable pain: p 20. He went to the Bundaberg Hospital about 1.00pm on 9 September 2008, after advising that he would not be able to work that night: Exhibit 45. The neck however continued painful, the plaintiff did not return to work for the defendant, and has not done any significant work in any capacity since that time.

[10]
The defendant submitted that the evidence of the plaintiff was not reliable and should in important respects be rejected. It seemed to me however that there were no clear instances shown when the evidence of the defendant was demonstrably in error. The plaintiff was certainly a difficult witness, being unco-operative during cross-examination^[18]but he was also at times difficult during examination-in-chief and re-examination, and overall my impression of him was that he was in pain while giving his evidence.^[19]That would explain his grumpiness in the witness box, bearing in mind that on the medical evidence he is someone who is handling pain badly, that he finds his current condition very frustrating, and I expect that he is fed up with people disbelieving his complaints of pain. I would have expected that if he had been making up a story he would have been trying harder to impress me with his genuineness, whereas at times his behaviour in the witness box almost made it seem that he did not care what I thought of him.

[11]
Dr Chalk’s recollection of the plaintiff was not as someone who was more prickly than most: p 88. He went on to express the view that this may be because he is finding giving evidence, particularly being cross-examined, a very stressful experience. No doubt most, if not all, plaintiffs find the process of giving evidence stressful, but it struck me that this plaintiff stood out in his inability to cope with that stress. I expect that there were times when his evidence was unreliable because he was just not bothering to try to be accurate, and I think in other respects there was some element of exaggeration, though probably unconscious and as a result of his reaction to his condition rather than deliberate exaggeration. Subject to that, however, generally speaking I accept the plaintiff’s evidence.

[12]
Some point was made that what was recorded by the plaintiff in the incident report on 10 September did not complain about the turning around (Exhibit 5), whereas when he completed the application for workers’ compensation he complained about the turning around but not about the roughness of the ride and being jerked around by the trailer: Exhibit 49. I do not think that this matters very much; the point is that, quite soon after the incident, he was complaining about both matters. It may be that the difference in expression is explained by some change in the extent of his understanding of the cause of the problem in his neck. This does not cause me to doubt his general reliability.

[13]
Mr Mara said that he worked at the farm in 2008 until about September/October: p 65, p 70. He said that the land between the trees was generally flat and smooth: p 66. There could be a sharp rut in there from a washout but generally one was fixed promptly: p 75. He said that he had sprayed both insecticide and fertiliser at night-time, although his evidence was at times unclear about whether he was talking about spraying one or the other: p 74. He said that when he was spraying fertiliser he would check the spray at each end of the row, and perhaps a half or a quarter of the way down the row; this was something that he could do using the mirrors on the tractor, although often he would turn around: p 69. Obviously this was very much less supervision of the spray jets than the plaintiff was giving them. That may have been because he had had no experience of clogging of the fertiliser nozzles: p 74.

[14]
Mr Mara also said that to his recollection all of the tractors on the property had external mirrors: p 74. It seems clear that that was not the case. That was the evidence of other witnesses, and it is supported by such photographs of tractors as I have seen in the Exhibits.^[20]He also said that it was not necessary to change gears if the tractor was in one of the lower ranges, and when spraying fertiliser effectively he would not change gears at all: p 68. That was not the process the other witnesses described. He also said that the tanks had baffles in them (p 70) but it emerged eventually under cross-examination that this was an assumption on his part: p 71. These matters show that Mr Mara’s evidence was not reliable.

Experts’ reports

[15]
The circumstances of the incident were investigated to some extent by an engineering consultant, Mr Boyd, for the purposes of a report to the solicitors for the plaintiff: Exhibit 34. The report sets out his understanding of the circumstances of the incident, which does not entirely match the account given by the plaintiff in evidence. He spoke about an inspection of the equipment and a test of the use of it on 30 June 2011 when over a period of about 20 minutes the tractor was driven at 12.5 kilometres per hour down a series of crop rows in a simulation of spraying. During this period a vibration monitor was used to record whole body vibration in three axes. Mr Boyd set out the results of that testing, and some calculations which he performed on the basis of those results. When those calculations were compared with a 2001 Australian Standard for exposure to vibration, the relevant terms of which were also set out in the report, he concluded that the results recorded, in terms of whole-body vibration, were towards the upper limit of the “health guidance caution zone” or the “lower limit of the likely health risk zone”.

[16]
He concluded that the levels of whole body vibration detected on the text may pose a health risk or be likely to pose a health risk to those subjected to it: p 24. Mr Boyd also noted that the need to be turning around to look at something which was behind him on a regular basis put considerable stress on the musculoskeletal structures of the neck and shoulders, and that this would have been the case even if the vehicle had been stationary. He continued at p 25: “When the neck and shoulders, already preloaded by orienting the head towards the limit of neck rotation, are subjected to an external force such as the jolting, jarring and accelerations in all three axes of translation associated with whole body vibration, there is an increased likelihood of injury relative to a person in a neutral posture being exposed to the same whole body vibration.”

[17]
Mr Boyd did not think that the presence of baffles in the spray tank would have helped very much to prevent the injury to the plaintiff, and that a far stronger point of control would have been to manage the extreme posture required to obtain rearward vision, or the necessity to maintain rearward vision. I accept this evidence. He suggested that a rear vision camera could have been installed, or rear vision mirrors could have been provided. He concluded that there were relatively simple ways to remove or reduce the need for an operator of this tractor to adopt extremes of posture during the spraying task, and that the extremes of posture required in order to observe the function of spray nozzles without rear view aids, repeated over long periods of time, would be likely to cause damage to the musculoskeletal systems of the cervical spine and neighbouring parts of the body: p 29. He thought that the vibration from riding on the tractor would have contributed to the development of the damage, and therefore increase the likelihood of an injury occurring at some point in time. In the supplementary report of 8 June 2012, Mr Boyd indicated that in his view if the tractor driver had been looking over his shoulder about 60 per cent of the time, rather than the 80 to 90 per cent of time assumed for the purposes of his earlier report, this would not have significantly altered the conclusions in the earlier report.

[18]
The premises were inspected by Dr Grigg, a safety engineer, on 4 July 2012 for the purposes of a report to the solicitors for the defendant: Exhibit 37. At the time of this inspection there were several differences between the trailer unit and the unit at the time of the plaintiff’s incident. It was fitted with two booms at the back of the trailer, each approximately 1.9 metres long, replacing other booms which had previously been only 1.3 metres long. There was a strainer basket fitted into the tank under the filling lid, and the tank now had ball baffles as shown in photograph 11, which would have reduced the tendency of the liquid in the tank to slosh. The pump on the trailer had an inlet filter, identified on photo 14. The current nozzles are not very tight, having a diameter of about four millimetres: photo 7. At that time there was an internal rear vision mirror in the cabin: photo 22. There were two rearward facing lights mounted on the top corners of the back of the cabin, on adjustable swivels: photos 25 and 26. In the report Dr Grigg considered that the absence of the ball baffles in the tank would not have made much difference in circumstances where his observation was that the paths between the rows of trees in the plantation were relatively smooth. He noted that the harvesting equipment required a relatively smooth surface since the equipment retrieved nuts which had fallen to the ground: p 3.

[19]
Dr Grigg had a number of reservations regarding the vibration testing and the interpretation of the results, and he noted that according to the standard it generally takes several years for health changes caused by whole body vibration to occur. He considered that the road surfaces within the plantation were very smooth compared with those found on mine sites, where there was more information about the risk of injury from vibration transmitted to vehicle operators. He expressed the view that if the rear facing lights on the tractor had not been functioning at the time it would not have been possible to see whether the sprays were working properly or not, and in those circumstances there would have been no point in the driver looking to the rear. He noted that the vehicle check records for this tractor indicated that up to the day before this incident the field lights were shown to be working.

[20]
Dr Grigg did not consider the absence of a headrest was of any relevance, or that its provision would have been of any benefit to the plaintiff. He noted that the process of the driver’s looking behind him a lot did not involve a static posture or a static load and not a fixed or constrained body position, or forceful, repetitive movements. He thought that having to clear a blockage would have provided a break from time to time, and that the activity was not really sufficiently similar to that which had been the subject of previous studies.

[21]
In a supplementary report dated 16 November 2012 Mr Boyd responded to the comments made by Dr Grigg in Exhibit 37: Exhibit 36. Mr Boyd disagreed with the conclusion that the spray would not have been able to be seen had the rear lights not been illuminated, pointing out that there was some other sources of illumination including back scatter from the headlights. He noted however that if one were trying to spot the spray in a relatively dark environment after having previously been looking into the relatively bright environment in the form of the view in front of the tractor illuminated by the headlights, it would take the eyes one to two seconds to adjust and this would increase the time required to observe the sprays. The low level of lighting would also have reduced the ability to notice the sprays in peripheral vision, requiring a further degree of rotation. Unlocking the seat would have helped to look to the rear, but would have imposed the additional burden of the use of the legs to stabilise the seat, something which would not have been necessary if the seat were in a fixed position.

[22]
Dr Grigg had raised an issue about whether the x, y and z axes had been properly identified in the vibration measurements. Mr Boyd said that the z axis, which was perpendicular to the seat, was necessarily correctly identified, but that the x and y axes had been rotated by 90 degrees, which would seem to produce the result that the measurements should be swapped for the purpose of the application of the standards, that is that the measurement for the x axis was actually the y axis in the standard and vice versa. He did not consider however that this invalidated his later calculations or comments. What mattered was the severity of the vibration rather than the particular axis on which it occurred. The report gave a fuller exposition of the calculation of the vibration dose value referred to in the earlier report.

[23]
Mr Boyd agreed that the RMS value of the z axis was below the health guidance caution zone of the standard for a three to four hour exposure period. He noted that the standard provided that in certain circumstances it was appropriate to use the vector sum to estimate health risks, and that when that was considered the weighted RMS value was at the upper boundary of the health guidance caution zone. His report set out further calculations which he said demonstrated that all three axes exceeded the health caution zone when assessed using the vibration dose value method. He also noted that there was no guarantee that a particular operator may not develop health changes at lower magnitudes or durations based on their own physiology or the nature of other factors such as body posture, in circumstances where the standard acknowledged that there was not sufficient data to show a quantitative relationship between vibration exposure and the risk of health effects.

[24]
Dr Grigg in oral evidence said that he had not checked the calculations in Exhibit 36 in relation to the analysis of the results obtained from the whole body vibration meter, but that what was said about that and the application of the standard in relation to it was correct: p 78.

[25]
Mr Boyd discussed some research on the effect of whole body vibration on tractor driving and the associated health risks, although my general impression is that this research was of fairly general nature and not specific to the particular problem here. It did however recognise that postural factors could have a significant effect on whole body vibration issues, and that there was a general principle that the further the body is from a neutral position the greater the external load, and the longer the position is sustained the greater the likelihood of injury. He identified the major problem associated with the frequent blockages in the sprays as one where the operator had to observe their performance almost continuously in order to spray successfully, or at least to avoid the risk of missing a number of the trees, and that this continuous observation required an awkward posture to be sustained for a relatively lengthy period.

[26]
Under cross-examination it emerged that Mr Boyd had been under the misconception that on the first night of the night shift the plaintiff was also spraying the fertiliser: p 43. He agreed that that change might reduce the risk of injury, but did not agree that there would be no foreseeable risk of injury in such circumstances: p 44. He said that the incident involved a combination of vibration exposure, the posture of the operator and repetition in sustaining the posture through the shift (p 48), and that had he been asked to advise the employer he would have advised that this configuration put the employee at risk: p 49. There was no significant qualification of his opinions during cross-examination.

[27]
In oral evidence Dr Grigg expressed the opinion, with the benefit of having seen a test spraying of the unit at night, that without lights to the rear of the vehicle operating it would be virtually impossible to see whether the sprays were operating: p 82. Indeed, he said that even with the lights operating it was difficult to see the sprays looking out the back window, as he was doing during the test: p 93. Dr Grigg agreed that it was appropriate for the liquid entering the nozzles to be filtered, and that it would be helpful to have mirrors or rear vision cameras fitted to avoid the necessity of turning around, to have rest breaks built into the timetable and to have baffles in the tank: p 84. Dr Grigg was not sure that the filter was on the tractor at the time: p 85. He agreed that, if the nozzles were not mounted on the end of booms, the operator’s ability to see the spray would be reduced: p 86.

Liability

[28]
The system of work the plaintiff was required to undertake that night was obviously unsatisfactory. The trailer was a Heath Robinson device, and the fertiliser was prone to clogging the nozzles.^[21]It occurs to me that the easiest way to deal with this was to fit a filter on the inside of the tank, or between the tank and the pump if access to the tank were difficult,^[22]so that anything which was too large to pass easily through the nozzles would be caught at an early stage.

[29]
There was no practical way for the driver to monitor the performance of the spray jets other than by turning his head round to watch them.^[23]If the unit had to be operated at night, and there may well have been a good reason for this, some method ought to have been put in place to make it easier for the driver of the tractor to monitor the operation of the spray. That is obviously required; there is no point in driving the unit around if one or both of the jets are clogged, because that will not distribute the fertiliser evenly. One change which would have made it easier to monitor the jets would have been to fit the nozzles to the front rather than at the back of the trailer, so they would be much closer to the driver of the tractor, and much easier to see, particularly at night, and he would not need to turn around to the same extent in order to be able to see whether they were working.

[30]
Turning around at all could have been eliminated by fitting appropriate rear vision mirrors provided the jets were adequately lit.^[24]The idea that external mirrors could not be used because the branches of the trees would dislodge them is I think an excuse; the mirrors should simply have been made sturdy enough to withstand the action of the branches. Alternatively internal mirrors could have been fitted, though it strikes me that these would be inherently less satisfactory. If the unit was to be operated at night, small spotlights could have been set up to illuminate the jets to make it easier to see whether they were operating properly.

[31]
Whether the presence of an internal rear view mirror would have made any real difference to the system of work on the night in question, if no other changes had been made, is doubtful. The plaintiff did not think that it would have made any difference (p 83) and I suspect that the spray was so difficult to see in the conditions then prevailing that it would have been very difficult to pick it up in a rear vision mirror if one had been fitted. The problem for night work was that the sprays were so far away they were difficult to see anyway, even with the benefit of the field lights on the tractor. The real problem here was that there was a combination of a spray system which required monitoring and a system of working which made it difficult to monitor that spray system. In these circumstances, the problem with the system of work in use was not just the absence of a rear vision mirror.

[32]
Had the jets been easier to see at night, I think it likely that a system of work could have been put in place where they could have been monitored using rear vision mirrors in the tractor, so as to avoid the need for the operator to turn his head and look to the rear at all for that purpose. That is the sort of thing which ought to have been done to provide a reasonably safe system of work; the mere provision of rear vision mirrors in itself would not have been sufficient properly to discharge the employer’s obligation to the plaintiff. It follows that the resolution of the question whether there was a rear vision mirror fitted inside the tractor cabin at the time of this incident is not relevant to the determination of liability.

[33]
Requiring a driver of a tractor pulling this piece of equipment regularly to twist his head around so he can look to his rear and peer into the darkness in an attempt to see whether a jet of fertiliser is still present when the nozzle is prone to clogging is inherently and obviously an unsafe system of work. Although no doubt one is less likely to come upon an obstacle in a situation like this than on a highway, it is still desirable for someone driving a tractor to watch out in front so as to be aware of approaching obstacles or anything else that required particular attention. If nothing else, it would be desirable in order to keep the tractor on a straight course. As well, where there are irregularities, and irregularities are inevitable in a situation like that, if the driver can see them coming he can brace himself for them and in that way they will not be as much of a problem. A bump which is expected is always less of a problem than an unexpected bump.

[34]
Requiring an employee regularly to turn his head more or less to the limit of its turn is going to put additional pressure on any neck, and increase the risk of stirring up problems in the neck.^[25]Even in a healthy neck it would unsurprising if having to do several hours work under these conditions would leave one with a painful and somewhat stiff neck.^[26]The neck is part of the spine, and it is commonplace that spines can be a source of trouble to people.^[27]Having a system of work which effectively requires a person to spend a good part of the night craning over his shoulder in order to see something which needs to be monitored obviously puts additional strain on the neck and is likely to stir up any problems it may already have. These propositions are obvious enough, and were readily accepted by the defendant’s ergonomic expert.^[28]

[35]
An employer is required by statute, by the terms of the contract of employment and by duties imposed by law to exercise reasonable care for the safety and wellbeing of employees, which involves establishing and maintaining safe systems of work, and providing suitable equipment. In my opinion the system of work the plaintiff was required to undertake on this occasion was obviously not a safe system of work. Indeed, it appears to me that no consideration had been given to how the operator would fare when trying to use this piece of equipment in the way in which the plaintiff was required to use it on this occasion. The risk could have been easily eliminated. In my opinion this system of work was obviously unsafe and this was a breach of the defendant’s duties to the plaintiff.

Causation

[36]
The defendant disputed the question of causation, on the basis that, essentially, the work to which the plaintiff had been exposed, even it if involved a negligent system of work, was insufficient to cause any injury to his neck. The defendant relied on the fact that other employees had not suffered problems using this system.^[29]Mr Grills also drove this tractor for spraying fertiliser while he worked for the defendant,^[30]and said he would turn to check the sprays every 10 to 15 seconds: p 54-5.^[31]He had no neck problems (p 55) but did not work at night (p 56), so he did not face the difficulty of trying to monitor the sprays under these difficult conditions. Mr Mara had no problems, but had no recollection of a problem of the nozzles clogging (p 74) and checked the sprays only to a very limited extent: p 69.

[37]
There is however evidence from Dr Campbell that the sort of thing described to him, which I accept was a reasonable description of the work the plaintiff was in fact doing that night and the way the plaintiff was doing it, could well cause some neck injury to some employees in that situation, although in most cases the effects would not be lasting: Exhibit 15. Dr Campbell thought it not surprising that the plaintiff developed symptoms while driving a tractor over uneven terrain while repeatedly looking behind him and being jolted and jarred while adopting an awkward posture. Perhaps five to 10 per cent of employees performing such work would end up with a work injury, most of which would settle down with time. Dr Licina said that someone with a normal spine would suffer transient soft tissue pain and muscle soreness, but he did not think that this would give rise to any significant pathology: Exhibit 46. That is however consistent with the notion that even someone with a normal spine could suffer some injury, and this evidence supports my own impression, that having to drive a tractor in circumstances where it was necessary frequently to turn around and peer into darkness in order to see whether the spray jet is working properly could well make a person’s neck sore, and could cause problems particularly in a neck which had pre-existing degeneration.^[32]Such a thing is by no means unusual, and readily foreseeable by an employer.

[38]
The plaintiff complained that the ground between the rows of trees over which he had to drive the tractor was not particularly smooth, so that there was a lot of bouncing and jerking during this evening, and that also any movement of the trailer, which was quite heavy, were transmitted through the connection to the back of the tractor and that also caused some movements of it. On the other hand, the photographs that I saw seemed to me generally to show that the paths between the trees were quite smooth,^[33]and there was evidence that they were deliberately kept smooth to facilitate harvesting.^[34]Other employees of the defendant who gave evidence said that the area was smooth,^[35]and I think that by the standards of most farms it was generally smooth. Nevertheless, driving a tractor over it would not have been as smooth as driving a car over a sealed road, there were roads to be crossed, and the results of the vibration testing undertaken by Mr Boyd suggests that there was a certain amount of not insignificant vibration.

[39]
Although there was evidence, which I accept, that the connection between the trailer and the tractor was tight and in good condition, the trailer was unsprung and would have been quite heavy at the time,^[36]so any movement of the trailer, due to sloshing of the liquid in it or otherwise, would have been transmitted to the towbar of the tractor and in that way added to the movement of the tractor. I suspect that if someone was simply driving along facing the front and relaxed the drive would have seemed quite smooth and there would have been no particular risk of injury to the neck, but because the plaintiff had to spend so much time with his head twisted round, as his neck began to become uncomfortable and then sore, and his neck muscles tightened up to try to hold it steady, he became much more conscious of such irregularities in the ride as did exist. This has probably left him with a recollection that the ride was fairly rough. I think the true position was that the ride was not really very rough for driving a tractor on a farm, but that such unevenness and jarring as did occur in these circumstances would have been more difficult to cope with for someone whose neck was at or close to the limits of its turn in either direction. This was simply a factor which contributed to the general conclusion that this was an unsatisfactory and unsafe system of work. I accept that the mere absence of baffles in the spray tank itself was of no great significance.

[40]
The fact that most employees would not suffer problems does not mean the employer does not have to provide against foreseeable risk that a particular employee might suffer problems, and they might become chronic, even if that would occur only in a very small portion of cases. There is also the consideration that this was not a system which had been operated satisfactorily for years; this was a relatively new piece of equipment, it had not been used very much before the plaintiff used it on this occasion, and it was subsequently modified in various ways, no doubt with a view to making it less demanding and hence for the system of work to be less unsatisfactory.^[37]Other employees may have been less conscientious than the plaintiff in monitoring the spray, particularly if the jets were difficult to monitor, and in that way make less of a demand upon their necks.

[41]
The defendant relied on Farrell v Queensland Newspapers Pty Ltd [1998] QCA 18, but that was a very different case. In that case, the trial judge was not persuaded that the plaintiff was telling the truth when he described sustaining an injury on a particular occasion, or in the particular way that he alleged. As a result the plaintiff’s case failed, and that inclusion was not disturbed on appeal. That is not the situation in the present case, and in those circumstances the decision is not of assistance to this defendant.

[42]
The defendant also alleged that the plaintiff had in fact injured his neck in a different way. In this regard the defendant relied on the evidence of another employee, Mr Mara, which was, the defendant submitted, that in the course of a conversation about a week after the alleged injury, the plaintiff had accepted that he had injured himself pulling out tree stumps on his property using his utility. That submission in my opinion considerably overstates the effect of the evidence of Mr Mara. He said that the plaintiff had come to the farm one Sunday and was talking with the people there for some time, he could not recall the details, but while he was there he asked the plaintiff why he was back on the night shift, and the plaintiff said that he had hurt his neck or his back: p 67. He said that another person who was with them, whose name he could not remember, had a dig at the plaintiff about pulling a tree stump out at his place using his red Falcon utility. He could not recall the words used, and did not think that much had been said: p 68. The matter was not clarified in cross-examination.

[43]
The plaintiff denied both that he had been using his utility to pull out tree stumps and had injured his neck in that way (p 52, p 92) and that he had had such a conversation: p 93. It occurs to me that what was said by the other person to the plaintiff may easily have been said in a light hearted manner, and the plaintiff may have refrained from expressing dissent simply because he was going along with the joke, as one does. I do not regard this as evidence from Mr Mara that the plaintiff had admitted that he had been using his utility to pull out a tree stump or tree stumps and had hurt his neck in the process. It may be that there was some occasion when the plaintiff was using a utility for pulling something which was the original basis of this comment,^[38]but I am not persuaded that it was of any significance. It is not something which causes me to doubt the plaintiff’s evidence that his neck symptoms came on on the night in question, and subsequently.

[44]
Dr Steadman said, in his report Exhibit 43: “He said that two weeks before, he thinks, he had been pulling out trees with a utility using a chain. As the utility would drive along with the chain, the trees would hit the chain and jerk the utility about. I asked him whether that had made his neck sore, but then he said it did not.” When asked under cross-examination to read the notes on which that passage was based, Dr Steadman said (p 38) that they read: “Neck got sore driving back and forward two weeks before pulling out a lot of trees in ute with a chain back and dragged the trees to a heap. Chain hook up to a tree.” Dr Steadman said that the plaintiff was a poor historian (p 3) and said on cross-examination that the whole process of assessment was quite erratic, and that it was difficult to engage with someone who was agitated, constantly changing the story, and had had some alcohol: p 34. He mentioned during his report and in oral evidence that the plaintiff was intoxicated, and had said he had been drinking on the plane: p 35. As to the intoxication, the plaintiff said he had had two light beers while he was waiting to see Dr Steadman, on a very hot day, and that that day he had been travelling since early in the morning: p 53, p 21. I suspect that he would not have been served alcohol, or at least much alcohol, at that hour on a plane.

[45]
I do not think that Dr Steadman is making things up about the interview, and it may well be that the plaintiff was more intoxicated than he admits. The plaintiff was not particularly cooperative when giving evidence, and I imagine that some degree of intoxication would not have improved his disposition, particularly if his neck had been, or had seemed to him to have been, stirred up by the plane flights that day. In these circumstances however, the suggestion that at one point the plaintiff had associated neck pain with something he had been doing with a utility involving pulling trees (whether or not pulling them out of the ground – this may have been an assumption on the part of Dr Steadman) was I think not clearly established, in the sense that it could easily have been the product of some misunderstanding, in circumstances where there may well have been communication difficulties. I have the general impression that Dr Steadman was not particularly sympathetic to the plaintiff, and the plaintiff may have been conscious of that at the time.^[39]On the whole, I do not think that this amounts to clear evidence of an admission by the plaintiff that he had hurt his neck on an earlier occasion while doing something with his utility sufficient to persuade me to reject the plaintiff’s evidence to the contrary.

[46]
In the circumstances in my opinion the coincidence between the onset of the symptoms and his doing this work, bearing in mind the evidence as to the pre‑existing degeneration in the plaintiffs spine, in the light of the evidence that I have heard, is sufficient to establish on the balance of probabilities that the development of pain in the plaintiff’s neck was caused by the unsafe system of work to which he was subjected on this night, notwithstanding that it was for only one night. It may be an unusual event, but on the medical evidence it is possible and I find it did occur on this occasion, and with this plaintiff.

Quantum

[47]
The plaintiff said that the following day there was still pain in the neck and soreness in his arms and hands, and some tingling in the fingers, all of which are still present: p 24. He went to the hospital the following day, and subsequently consulted his general practitioner, and received physiotherapy. The attendance at the hospital is confirmed by a note provided by way of referral to the plaintiff’s general practitioner, by the doctor at the hospital, confirming that he had prescribed pain killers and provided a WorkCover certificate for two days, and suggesting physiotherapy if the symptoms did not improve: Exhibit 45.

[48]
The plaintiff said that he had limited ability to sit comfortably, or to walk or stand for prolonged periods, and that practically everything he did irritated the pain in his neck: p 25. Any work involving raising his hands above eye level aggravated it, and he was limited in what he could do around the house. There was also a change in his outlook and disposition, becoming edgier and grumpier, and difficult to live with. He said that his wife left him the following year, and that he was in a very different position from his outlook and mood before the accident when he was very happy. He now no longer socialises, cannot concentrate, has difficulties with short-term memory and lacks energy and confidence: p 26. He complains of headaches all day most of the day, and has given up most active recreations; he still does some fishing, but even that becomes uncomfortable after an hour or so. He has suffered a loss of appetite and lost about 10 kilos. He takes Tramal and Panadol, and has taken Valium to sleep but not for a while: p 27.

[49]
He is now a disability pensioner. Since the accident he has tried to earn some money making ice, for a local hotel: p 27. He produced some figures for his income from ice sales,^[40]but said that he found that his costs consumed most of the income, so that he only makes $10 or $20 per week out of it: p 28.

[50]
A number of witnesses testified to the plaintiff’s conscientious working prior to this incident, and to the change in his personality and behaviour afterwards. His mother said that he had previously been a friendly, outgoing, funny sort of guy and sociable, but he was now a bit withdrawn, and it was difficult to have much conversation with him, and he appeared very frustrated because he was not able to do the physical things that he had always done: p 26. He appeared to be in a lot of pain: p 27. Two witnesses for whom he had done work in the past spoke of him as a good worker, and as a happy and outgoing person, who since the injury had became very different.^[41]One described him as having become a grumpy, old man: p 37. The other said he was very restricted in what he could do and was frustrated because he was not able to do what he had done in the past: p 39. Another witness spoke in positive terms of his work in the past as a handyman: Grant p 40.

Medical evidence

[51]
The plaintiff when seen at the hospital had a full range of motion in the neck and was tender in neck and upper back muscles: Exhibit 45. He was given painkillers and referred to his GP for follow up, and possible referral to physiotherapy. The plaintiff underwent a CT examination of the cervical spine on 15 September 2008: Exhibit 53. This revealed multi-level disc degenerative change with indications of a degree of irritation or compromise of the left-sided C5 nerve root. At the C5/6 level there was a disc protrusion pressing on the anterior cervical cord, with other less severe changes in other levels.

[52]
The plaintiff was seen by Dr Campbell, a neurosurgeon, on 23 October 2008 for the purposes of a report to WorkCover: Exhibit 11.^[42]At that stage the plaintiff was complaining of neck pain and stiffness which was up to severe, being aggravated by almost any activity, even prolonged sitting. On examination the plaintiff had a normal posture and gait, there was decreased range of movement by 75 per cent in all directions of the cervical spine, with pain and stiffness of the extremity of movements, tenderness and guarding. The CT scan in September 2008 showed several calcified disc bulges. Dr Campbell at that stage diagnosed a soft tissue injury to the cervical spine. He considered that the conservative treatment provided to date was appropriate, and that the plaintiff was not a candidate for surgery. The current condition was said to be work related. He did not consider that the plaintiff could return to work at that stage, but said that he may be able to return to light duties if his condition improved. The condition was likely to improve with ongoing conservative management, but the ultimate prognosis was not known.

[53]
On 26 November 2008 a physiotherapist who had been treating the plaintiff advised that he was very emotional during the treatment sessions, and that his current level of pain and subsequent dysfunction were impacting his life and causing significant stress: Exhibit 31. She considered that he exhibited symptoms of a patient in a chronic pain cycle. He had from her point of view objective assessment findings of significant stiffness and spasm throughout his upper thoracic spine and associated soft tissues.^[43]Overall she was concerned about the condition of the plaintiff which she regarded as multifactorial and complicated overall.

[54]
The plaintiff was seen on 3 December 2008 by Professor Steadman at Rockhampton for the purposes of a report to WorkCover: Exhibit 43. Dr Steadman reported difficulty in obtaining a history, and noted that the plaintiff had been smoking marijuana for pain relief, and had arrived intoxicated that day.^[44]The plaintiff’s main complaint was reported as neck pain. He was said to have kept his neck stiff throughout the whole consultation, and to have barely moved his neck while testing for range of motion. There were no neurological abnormalities detected in the upper limbs, although there were complaints of symptoms in the neck with any movement. He complained of being unable to work on his own farm, or engage in scuba diving or fishing. Physiotherapy was said to have produced no improvement. Dr Steadman thought there was an issue as to the likelihood of a work related cause, with such a vague history of onset, but that it was at worse an aggravation and not a significant injury. Dr Steadman had concern regarding consistency of presentation, including weight loss which would not normally be produced by neck pain. He thought it clear that the plaintiff had some sort of non physical disorder. He suggested adjustment therapy.

[55]
The plaintiff underwent an MRI of the cervical spine on 9 December 2008: Exhibit 54. The examination showed abnormalities at four levels suggesting right-sided symptoms at the C5/6 level, with disc protrusions at two levels which would more likely be affecting the left C5 and left C6 nerve roots. There was mild to moderate spinal canal stenosis at C5/6 from a central disc protrusion, and some indication of mild cord compression. Dr Steadman noted that the MRI indicated extensive upper cervical degenerative disease.

[56]
A Supplementary report provided on 22 January 2009 by Dr Steadman confirmed that he could not substantiate that the sore neck was a work related condition: Exhibit 44. Unsurprisingly therefore he went on to state that he would not be of the opinion that the plaintiff had any significant physical impairment that can be identified from a work injury. In cross-examination Dr Steadman expressed the view that as a result of that examination he did not know what was wrong with the plaintiff: p 37. There was only the single examination. He could not say that, if the plaintiff had been sober and sensible so that he would have been able to examine him properly, he might not have found a soft tissue injury: p 40. Overall, Dr Steadman was not in a position to say anything terribly relevant to the substantive issues.

[57]
On 14 January 2009 the plaintiff underwent a CT scan of the lumbosacral spine: Exhibit 55. This was reported as revealing degenerative spondylotic changes in the spine with disc degeneration at two levels and mild degrees of disc bulge at three levels, though no significant thecal sac compression was noted. There was also facet joint arthropathy at two levels.

[58]
The plaintiff was seen by Dr Speight on 21 April 2009 at Bundaberg for the purpose of providing a report to WorkCover: Exhibit 47. At that time the plaintiff was complaining about pain in the neck and across the upper back and down both arms, pain in the lower back since he had had the neck problems, and reduced movement in the neck. He was taking Tramal twice daily, and Endep as required for sleep. Sleep was regularly disturbed due to neck pain. He was not working, and there was a restriction of household duties to those of a light nature. On examination there was almost no cervical spine movement in any direction, with no muscle spasm.

[59]
Dr Speight considered that the severe degree of physical findings indicated either longstanding, pre-existing degenerative change in the cervical spine or symptom exaggeration. He did comment that some of the results obtained on neurological examination were considered to be unreliable and non-physiological. He did not consider that the mechanism of injury would have contributed in any significant way to the current physical findings. Nevertheless he diagnosed a soft tissue injury to the cervical spine, though he thought there was a pre-existing condition of cervical spondylosis. He assessed an impairment of 0% on the basis that the plaintiff fell into DRE category 1 in the AMA guide. Although the doctor gave oral evidence, nothing of significance was elicited on cross-examination, and I consider that his attendance at court at all was a waste of his time and mine.

[60]
The plaintiff saw a psychologist, Dr Pearce, in the period June to November 2009 on referral from his general practitioner, to deal with depression and anxiety symptoms, and they also discussed pain management concerns: Exhibit 28. This treatment was. A test on the depression, anxiety and stress scale produced ratings of severe for anxiety and moderate for depression and stress in June 2009, and in November 2009 severe for anxiety, moderate for depression and normal for stress, though higher stress levels had been obtained in the interim. The psychologist noted the higher levels of depression and stress and anxiety would lead to the plaintiff’s perception of pain being greater. He diagnosed the plaintiff as suffering from an adjustment disorder. He found the plaintiff resistant to treatment due to his headstrong nature, poor coping strategies and the breakdown of his marriage.

[61]
Under cross-examination Dr Pearce expressed the view that at some stage or other the plaintiff could well have become meaningfully employed: p 43. Dr Pearce thought that if the plaintiff had been using hydroponically-grown marijuana he would have been putting himself at risk of further exacerbating his psychological problems, but if he was using bush marijuana in relatively small amounts this produced far less concern in terms of the psychological effect: p 44. Dr Pearce was aware that there are people who want to use marijuana for pain relief. He said that some people are able to cope well with an injury or the consequences of arthritic degeneration, but the people who do not accept the level of their injury end up having all sorts of psychological issues like depression and anxiety: p 44.

[62]
On 21 July 2009 the plaintiff underwent an MRI on the thoracic and lumbar spine: Exhibit 56. This was reported as showing degenerative changes in the dorsal lumbar spine with possible migrated disc at the T6/T7 level causing compression of the thecal sac and indentation on the spinal cord. There were also various other matters noted, including some other disc protrusion at other levels, and various other matters being noted.

[63]
Dr Campbell saw the plaintiff again on 14 September 2009 for the purposes of a report to the plaintiff’s solicitors: Exhibit 12. The complaints of symptoms seemed to be essentially unchanged, and again there was a substantially decreased range of movement to the cervical spine, with some pain and stiffness at the extremity of movement, tenderness and guarding. Dr Campbell considered that the plaintiff had chronic soft tissue musculo-ligamentous injury to the cervical spine. He was unlikely to return to his previous employment, and he considered that there had been maximum medical improvement so that his condition was chronic and now unlikely to resolve. There was an increased risk of arthritis. There had been a motor vehicle accident many years earlier, which was not related to this condition. He considered that the plaintiff was suffering a whole person impairment of 8 per cent, falling within DERI Category 2 in the AMI guide, rated at the top of the range due to the severity of the pain. The impairment was likely to be permanent. The plaintiff should avoid aggravating factors, and would require assistance with heavier house duties, garden work and home maintenance.

[64]
Dr Campbell provided a further report on 22 March 2010, apparently without seeing the plaintiff again: Exhibit 13. The report largely repeated information provided previously on the basis of the review in 2008, and does not really add anything to the conclusions said there. The plaintiff was seen by Dr Campbell again on 13 May 2011 for the purposes of a report to his solicitors: Exhibit 14. Dr Campbell diagnosed chronic soft tissue musculo-ligamentous injury to the cervical spine producing an eight percent whole person impairment and to the lumbar spine producing a further three percent whole person impairment. Dr Campbell did not expect the plaintiff to return to work. At that stage the plaintiff was still complaining of pain up to severe in the neck radiating down to the shoulders and the arms, associated with headaches when severe. The pain was aggravated by cold weather stress sitting in the one position for some length of time, and almost any form of activity. There was a decreased range of movement on the cervical spine in all directions by up to 75 percent with pain and stiffness the extremities of movement, tenderness in guarding over the cervical midline extending to the interscapular region. Dr Campbell thought the position had not changed since the review on 14 September 2009. He thought the condition unlikely to improve any further, and he did not expect the plaintiff to return to work in any capacity due to the severity of the symptoms.

[65]
Dr Campbell spoke to counsel for the plaintiff in conference via telephone on 5 November 2012, and subsequently agreed with the summary of what was said in that conference prepared by counsel: Exhibit 15. He had advised that he did not think the plaintiff was exaggerating his symptoms or his pain, and that he had a significant loss of movement indicating a severe injury. He had a presentation typical of a person who was suffering considerable pain. In his experience given the age, work history and period on the disability of the plaintiff, his prospects of returning to the workforce in any way were slim. At the times when he saw the plaintiff there was no sign of intoxication and no vagueness in his account of the onset of symptoms. In his experience there can be a combination of minor underlying structural abnormality and very significant restriction of range of movement in the cervical spine, and he did not consider that the range of movement demonstrated was incompatible with the underlying structural abnormality.

[66]
Dr Campbell regarded the reduction of movement, tenderness and guarding as objective findings on examination: p 65-6. Dr Campbell said he did not find any evidence whatsoever of abnormal illness behaviour: p 67. The fact that the plaintiff was willing to agree to a trial return to work did not necessarily mean that the trial would have been successful, just that he was being hopeful and giving it a go: p 69.^[45]Dr Campbell thought that developing work injury after the sort of work that the plaintiff had done, even only for one day, made sense: p 69. Dr Campbell however conceded that he could not be confident in saying that he had previously dealt with another patient who had developed symptoms after just one shift at work: p 71. There is a passage in the report, Exhibit 13 on p 2, which suggests that as 2 October 2008 Dr Campbell thought that there was little that the plaintiff could be offered with regard to management of his complaints of neck and mid back pain, suggesting that there were complaints of mid back pain at that stage: p 72. Dr Campbell thought that the CT scan on 15 September 2008 and the MRI scan on 11 December 2008 were normal age related degenerative changes: p 73. The plaintiff was not seen again for the purposes of the report, Exhibit 13, which was provided to an insurance company: p 74.

[67]
The plaintiff was seen by Dr Chalk, a psychiatrist, on 14 April 2010 for the purposes of a report to the solicitors for the defendant: Exhibit 33. Dr Chalk thought that clinically the plaintiff had very mild psychiatric symptoms indicative of an adjustment disorder with depressed mood in the setting of chronic pain. He did not consider that the mild residual symptomatology would prevent him from undertaking gainful employment. He noted that the plaintiff remained focused on his pain and limitations but considered that the psychiatric symptoms would not prevent him from undertaking some form of retraining or employment. He considered that there was no psychiatric limitation to fulltime work, his limitations being physical rather than psychiatric.

[68]
Dr Chalk in evidence said that in severe cases of depression people’s thinking and their activity slows down, they procrastinate more, they have difficulty making decisions and they are very anxious all the time, and that is when their capacity for gainful employment is more restricted: p 84. I must say, subject to the issue of anxiety, that sounds rather like the plaintiff’s description of his current condition. Dr Chalk did not think that the plaintiff’s use of marijuana was of any great consequence from a clinical point of view: p 85. He did not think the plaintiff had a substance abuse disorder: p 86.

[69]
In the witness box Dr Chalk confirmed that he thought that the plaintiff had primarily physical problems: p 86. He acknowledged that Dr Larder had some advantage in seeing the plaintiff more recently: p 87, and seeing him twice. Dr Chalk thought that the plaintiff was pretty angry about the way in which things had played out over a period of time, and about the way he had been treated, particularly by WorkCover: p 87. He was also conscious of other issues relating to the separation from his wife and conflict over access to their child. Dr Chalk’s assessment of the plaintiff was of someone who had been a physical person rather than someone who had used his brains in the course of his employment, and he said that people in that situation often had difficulty adapting if the way in which they interacted in the world had substantially altered: p 88. A change in personality before and after this incident would not be inconsistent with the diagnosis: p 89.

[70]
The plaintiff was seen by Dr Larder, a psychiatrist, on 28 April 2010 for the purposes of a report to his solicitors: Exhibit 24. Dr Larder diagnosed adjustment disorder with mixed features; although the mental state examination was marked by a depressed and anxious mood he did not consider the plaintiff was depressed to the extent that diagnosis of major depression was appropriate. The presentation was said to be complicated by cannabis use^[46], but he did not regard alcohol use as of clinical concern. Dr Larder essentially considered that the plaintiff’s symptoms were reactive to chronic physical dysfunction and chronic pain, along with treatment resistance, his experience of diagnostic confusion about the nature of his condition, the negative impact of his health problems on his personal relationship, and problems associated with the breakdown of that relationship, apparently because of his personality change or financial difficulties from his inability to work. He considered that the plaintiff’s ability to work was affected by an impairment arising from the psychiatric disorder and that this may continue in the future. He recommended a course of treatment over a period of 12 to 18 months. He considered that the plaintiff’s condition then prevented him from engaging in any area of employment for which he had been trained and in which he had experience, but it would be desirable for him to be retrained into some other area which was within his more limited physical capacity.

[71]
The plaintiff saw Dr Larder again on 19 May 2011 for the purposes of an updated report to the plaintiff’s solicitors: Exhibit 25. On a mental state examination the plaintiff was angry and depressed and Dr Larder confirmed his opinion that the plaintiff had developed a mental disorder as a result of the chronic physical conditions that arose following the incident, which he identified as chronic adjustment disorder with mixed features, though it could also be called dysthymia, a form of chronic depression. He was not sufficiently depressed to qualify for a diagnosis of major depression. The plaintiff had chronic physical dysfunction and chronic pain and had struggled with the psychological consequences of these issues. He was of the opinion that the plaintiff’s ability to work had been affected in part by impairment arising from a psychiatric disorder and that was continuing, and may continue in the future because of the ongoing impact of physical symptoms the plaintiff experiences. He was of the opinion that the plaintiff will struggle to produce the necessary degree of interpersonal and social skills, motivation, coping mechanisms, resilience and persistence needed to enter into a work relationship. Dr Larder produced a PIRS rating of 10 per cent, on the basis of Class 3 scores for activities of daily living, social functioning, and Class 2 scores for travel and concentration, persistence and pace.

[72]
The plaintiff was seen by Dr Licina, an orthopaedic surgeon on 23 November 2011 for the purposes of a report to the solicitors for the defendant: Exhibit 46. The plaintiff’s complaints at that stage to him were of constant neck pain extending into interscapular region and upper back, with pain down both arms and the left leg and pins and needles. The pain was aggravated by elevating the arms and by any physical activity. On examination the cervical range of movement was markedly limited, achieving less than a quarter of the expected range in all directions. There was good forward flexion in the lumbar spine but he could extend only to about one third of the normal range. There was no muscle wasting but there was mild weakness of muscle groups and upper limbs secondary to pain. Dr Licina considered the restriction of range of motion of the neck not to be compatible with the underlying structural abnormality. He regarded this as either an unconscious protective response or a deliberate exaggeration of limitation.

[73]
Dr Licina referred to the CT scan of 15 September 2008 as showing widespread degeneration, but with no evidence of acute bony injury or acute disc prolapse. The findings were unchanged in the CT scan on 18 November 2009. The MRI of 21 July 2009 showed evidence of wide spread degeneration, including a disc prolapse at T6/7 with no evidence of intrinsic cord signal change. An up-to-date MRI scan showed widespread advanced degenerative changes throughout the spine in excess of that expected of a man of his age, but no sign of spinal cord compression or myelopathy. Imaging showed widespread longstanding degenerative change without evidence of acute injury, which was said to be causing the neck pain. The condition was thought to be stable, and the plaintiff was unlikely to return to work, although this was not thought to be justified on objective grounds.

[74]
Dr Licina expressed the opinion in his report that the incident was not sufficient to cause the degree of symptoms reported: Exhibit 46. Even if being jarred while driving a tractor he would not suffer permanent cervical pathology from one day’s exposure. There was some evidence of the acceleration of disc degeneration from prolonged exposure to vibrations, but this did not apply for such a short period of exposure, and the act of turning would not cause permanent structural damage. He did say however that it was possible that these activities would have aggravated pre‑existing degeneration and in some cases brought symptoms to light. In someone with a normal spine this might have caused transient soft tissue pain and muscle soreness but this would not give rise to any significant pathology. The degree of degeneration present was likely to become symptomatic of its own accord without an external trigger, though this work may have served to bring forward the date of the onset of symptoms which would have occurred anyway. He did not suggest any further treatment. Dr Licina assessed the cervical impairment at zero per cent on the basis that the plaintiff corresponded with DRE Cervical Category 1. Dr Licina was of the opinion that the plaintiff had no organic barriers which would stop him from returning to some form of lighter work, though his degeneration may be easily aggravated by more physical tasks.

[75]
Dr Licina gave evidence by telephone, but that process was severely compromised by technical difficulties with the equipment, as a result of which the sound from the witness tended to cut out intermittently but more frequently after the witness had been speaking for a time.^[47]It is not entirely clear that that difficulty applied also to the recording on the basis of which the transcript was prepared, since it is not immediately apparent that there are things missing simply from reading the transcript, apart from express complaints about the matter. This was definitely a major obstacle to taking the witness’ evidence at the time.

[76]
Under cross-examination Dr Licina agreed that the extent of the aggravation suffered by the plaintiff was major for some time: p 57. He could not understand how the incident described, even allowing for the extensive pre-existing degeneration in the neck, could have caused severe and ongoing pain for more than a few months: p 57. Accordingly he had difficulty in attributing the complaints of pain to the incident, essentially on the basis that the plaintiff could not have injured himself sufficiently on that occasion: p 58. He acknowledged that one explanation for the continuation of the symptoms could be a psychological overlay: p 59. He conceded that the plaintiff may have permanently aggravated his degeneration in the incident in 2008 (p 61); however that could not have happened to the extent of explaining his current level of disability: p 62. He could not express any opinion as to when the current level of disability could have developed anyway as a result of the degeneration: p 62. Dr Licina also indicated that it was possible for people to become stiffer a few days after an injury, so that the existence of a full range of movement on examination on 9 September was not inconsistent with complaints of limitation in movement subsequently: p 62.

[77]
The plaintiff had an MRI of the cervical, dorsal and lumbar spine on 28 December 2011: Exhibit 57. This revealed a fairly significant disc disease throughout this part of the spine, with multi-level disc bulges seen, indenting the cervical cord at two levels or more, and diffuse disc herniation at the L5/S1 level. No major crush fractures were indentified.

[78]
In a supplementary opinion sent by email to counsel for the plaintiff on 12 November 2012, Exhibit 26, Dr Larder confirmed that as results of tests that he had seen the plaintiff was taking prescribed antidepressant medication and pain killing medication, but had not been using cannabis and there was no excessive alcohol consumption. He did not now consider that cannabis use was relevant to the mental health issues as mentioned in his earlier reports. Dr Larder in oral evidence expressed the view that the difference between his assessment and that of Dr Chalk was one of clinical judgment, and that although they had both diagnosed the same condition, he was impressed by the extent of the level of distress and the effect that the physical symptoms were having on the plaintiff: p 31. Dr Larder confirmed his view that the incident the subject of this proceeding was a trigger that resulted in the process of various experiences, issues and symptoms that led to the conditions that he diagnosed: p 34. He did not think that, but for this incident, the plaintiff would have developed a psychiatric condition: p 35.

Analysis of injury

[79]
With regard to the identification of the plaintiff’s physical condition, I expect that the pre-existing degeneration in the neck is of some significance. That seems to me to be quite a lot of degeneration for someone his age, and some of the reports spoke of it as being more extensive than one would expect at his age. Although arthritic degeneration can be advanced but painless, just as a neck may present an essentially normal appearance on x-rays but still be painful, I think it likely that the degeneration in the spine has become symptomatic as a result of what was probably originally a soft tissue injury to the neck. In general, I accept the evidence of Dr Campbell. Although, no doubt, in the medical sense his current physical symptoms are caused by the pre-existing degeneration in the spine, what matters in legal terms is whether the plaintiff would have been in the same position anyway now, or at some time in the future, if this incident had not occurred. There was no expert evidence providing any guidance as to when such a thing might have occurred had the plaintiff’s spine not been left painful as a result of this incident.

[80]
I should say, in case it is not already apparent, that I do accept that the plaintiff has been left with significant continuing pain in his neck, which was previously pain free: p 39. Because of his personality and psychological state, as a person who was previously very physically active, and able to do things successfully, he is finding his current situation very frustrating, and is reacting badly to that. I consider that his bad reaction to the continuing pain is aggravating the subjective experience for him, and making it more difficult for him to adjust to it, and it is this which has produced the adjustment disorder diagnosed by both psychiatrists. Essentially the difference between them is that Dr Larder regards the plaintiff’s condition as being more serious and more disabling.

[81]
Bearing in mind my own assessment of the plaintiff in the witness box, and the fact that he has not been able to find any physical work that he is able to return to, I prefer the evidence and assessment of Dr Larder in this regard. There was evidence other than from the doctors that the plaintiff is finding his present situation very frustrating, and I think that in those circumstances if he could cope with some form of employment he would be prepared to try it. The problem is that he is so pre-occupied with his pain and his frustration that this is in practical terms preventing any effective rehabilitation. Some people deal better with a condition like this than others. It is not unusual for someone who has a particularly physical background to react badly to a loss of physical ability in this way, and I consider that that is the situation the plaintiff is in. I do not think that there is any particular deliberate exaggeration; his subjective appreciation of the pain and disability, and his psychological reaction to his condition, are the products of his personality.

[82]
Because of that personality, he is going to be difficult to treat, and I think it is therefore quite likely that he will remain unemployable. I think it is of some significance that both psychiatrists appeared to accept that the plaintiff was significantly disabled by pain in the neck, and neither suggested that the pain may be just a subjective psychological reaction, which might be able to be treated successfully.

[83]
Because of the extent of the arthritic degeneration of the neck, I think that the plaintiff was likely to develop neck problems at some time in the future anyway. Unfortunately the medical evidence provides no real assistance as to when that could have occurred. Accordingly this is not a situation where I can say, for example, that the effect of this injury has been to accelerate the plaintiff’s neck problems by X years. Rather I think it is a matter for making a larger than usual deduction for the vicissitudes of life.

[84]
It was submitted that there have been other problems in the plaintiff’s life which have contributed to his adjustment disorder. The plaintiff said that his marriage breakdown was a product of his change of personality because of the pain (p 89), and there was no evidence to the contrary. There was evidence from a number of sources, which I accept, that the plaintiff’s personality is very different from what it had been before this incident, and in those circumstances it is unsurprising that the marriage might have broken down. Given his behaviour in the witness box, I would certainly expect the plaintiff to be difficult to live with. Accordingly I do not think that some of the plaintiff’s loss should be attributed to other contributing causes.^[48]There was some evidence of cannabis use on the part of the plaintiff at different times, but at the end of the day I am not persuaded that the current psychiatric problems of the plaintiff have been aggravated by cannabis use. In those circumstances it is not necessary for me to discuss this matter further.

[85]
I suspect that the very restricted level of movement of the spine displayed by the plaintiff on examination is a consequence of the plaintiff deliberately trying to hold his spine still, but I doubt if that is something put on especially for the doctor’s benefit; I suspect he always does that. He said that almost any sort of movement aggravates the spine (p 55), and someone who has had that experience is likely to be trying hard to avoid movement in the spine. I daresay that under an anaesthetic the plaintiff’s spine would have shown a great deal more movement, but do not think that matters. I think this is simply a by-product of the way this particular plaintiff is reacting to the pain in the neck.

Assessment

[86]
The plaintiff was born on 27 September 1969 and is therefore now 43 years of age: p 9. He went to school in Victoria and Tasmania, and after school worked in a wide range of physical work, accumulating qualifications entitling him to operate various forms of machinery: p 9. He appears to have moved around a lot, and not to have had a particularly settled career. He married in 2005, and the following year purchased a property close to where he was working at the time of this incident, although it required a good deal of work to put it in order: pp 9–10. While fixing the farm up he did a certain amount of casual work, ultimately coming to work for the defendant early in 2008: pp 10-11. He worked four shifts a week: p 18. He also did some work as a handyman. He had been offered permanent work by the defendant, but there was a sticking point about the terms of the contract of employment (Exhibit 1) and it was never signed. As mentioned earlier, various people spoke in positive terms of his attitude to work before his injury to his neck.

[87]
As a result of the plaintiff’s injury he has become for practical purpose unemployable. This is as a consequence of the continuing physical pain in the neck, and his psychological reaction to it. Dr Larder did not hold out any great prospect of any improvement as a result of any psychiatric treatment, but he did suggest it might help, and I suspect that the plaintiff’s condition is probably permanent, although some fairly small allowance should be made for the possibility of some improvement in the future.

[88]
Apart from economic loss, the plaintiff has been left with a painful neck with which he is coping poorly. He has developed a psychiatric condition as a result, and I suspect his whole life is now focussed on the pain in his neck and the frustration he feels because he cannot do things. He has lost the ability to participate in most of the activities which he previously enjoyed, and I think it likely that this was a cause of the breakdown of his marriage.

[89]
The plaintiff’s damages are to be assessed without regard to the provisions of the Civil Liability Act because of the date of the injury. Because of that, I do not need to be concerned about the assessment of impairment under the AMA tables. These tables have been for a long time regarded as an inadequate guide to the relevant effects of an injury on a plaintiff.^[49]Part of the problem is that the AMA guides are measuring impairment which is a different thing from disability, and at common law judges gave damages for disability, not just impairment. It does appear however that, even apart from this, the approach of the AMA tables is artificial, particularly because they fail properly to take into account the effects of pain. They appear to reflect a philosophy that if it cannot be measured objectively it just does not exist, or at least should be disregarded. Judges who operate in the real world have never been impressed by the logic of that approach. In the circumstances it does not matter for my purposes what the correct whole person impairment rating under the AMA guides is for this plaintiff, but it seems to me that if the proper application of those guides produce as impairment rating of zero percent for this plaintiff, that just demonstrates how unsatisfactory they are.

[90]
Another result is that there are relatively few up to date comparable decisions. Reference may be made to Attard v Hore [2003] QCA 536, where there were injuries in a motor vehicle accident to the neck and back of a 30 year old plaintiff, which led to a chronic adjustment disorder with depressed mood. The Court of Appeal upheld an award of general damages of $50,000. That plaintiff was younger and appears to have had more serious physical injuries, but the decision is now ten years old. In all the circumstances, I assess damages for pain and suffering and loss of amenities of life at $45,000. I will allow interest on $20,000 at two percent for four and a-half years, $1,800.

[91]
In terms of economic loss, as I mentioned the plaintiff had a mixed employment history, and it appears that in recent years he was not actually making very much money: Exhibit 10. In the 2006 financial year he had a gross income as a handyman of $9,639, and after deducting about $13,000 for various expenses, including substantial amounts for motor vehicle expenses and for materials and supplies, made a loss of $3,451. Other income during the year was $7,442.45 net. In the 2007 financial year he had an income as a handyman of $6,830 gross and $2,065 net of expenses, and a total net income from other sources of $6,543. In the 2008 financial year he had income as a handyman of $8,866 gross and $4,013 net, and a total net income from other sources including the defendant of $17,053. In the 2009 financial year he had gross income as a handyman of $870, net income of $6,560 from the defendant and $9,118 from WorkCover. Thereafter his income has been from Centrelink, apart from the small income earned from selling ice.

[92]
The plaintiff explained his low earnings in the period prior to when he came to work for the defendant as being largely attributable to the effort that he was devoting to first locating and then fixing up his farm property, which was not during that period productive of any income.^[50]The “farm” was only 60 acres (p 10), and I doubt if he would ever earn any significant income from it, but he may well have been able in time to conduct some form of hobby farming on it.

[93]
The plaintiff’s claim for economic loss is essentially based on the notion that he had settled down and he was going to be working full time as a farm hand from now on, and doing handyman work in his spare time. The plaintiff had the responsibilities of a wife and young son, and may well have been more settled and more diligent at earning income as a result of those responsibilities. That might have continued, but given his past history I would have to say that there would be a significant risk that it might not have occurred anyway.

[94]
The plaintiff’s counsel calculated past economic loss on the basis of the hourly rates paid by the defendant (Exhibit 8) for a 40 hour week on essentially a full time basis, with 16 weeks lost in 2008, and 52 weeks a year lost thereafter. The calculation was done up to 5 December 2012, on the basis of net rates paid (Exhibit 8), and came to $141,748. About another $17,000 would have to be added to bring the calculation up to date, producing a total of about $159,000. I think however that the assumptions on the basis of which this figure was calculated are unduly optimistic. Some allowance should be made for the possibility, probably fairly small at this stage, that the plaintiff might have developed neck problems anyway which might have interfered with his ability to work at this rate, and for the possibility that the plaintiff might have moved on from this employment within that period anyway, bearing in mind his history. Although I think it probable that his marriage breakdown was essentially because of the changes in his personality as a consequence of the injury to his neck, some allowance should be made for the possibility that his marriage may have failed anyway, and in those circumstances this factor would have been removed and he may well have earned a good deal less income thereafter.

[95]
On the whole, it is very difficulty to know what the size of the discount should be; doing the best I can I will reduce this figure to $90,000. An allowance for lost superannuation at nine percent on this figure comes to $8,100. A claim was also advanced for work as a handyman, but it appears that this was a somewhat limited source of net income, and if he were working essentially full time for the defendant and looking after his family as well I think there would have been relatively little time to pursue this as a useful money making activity, however good at it he was and however keen on it he was. It may have expanded if he ceased doing full time work, but even allowing for this factor I think a realistic figure for loss of work as a handyman is $10,000.

[96]
That produces a total figure of $108,100, from which the actual earnings from ice making of $1,000 should be deducting as conceded by counsel for the plaintiff, so the award of past economic loss is $107,100. For the purpose of the interest calculation I will deduct the actual income in the form of Centrelink payments, which brought up to date will be about $57,100, but disregard the payments received from WorkCover. Interest is therefore payable on $51,000 at five percent for four and a half years, a figure of $11,475.

[97]
With regard to future economic loss the plaintiff claimed loss of an earning capacity of $850 net per week to age 47, a period of 24 years, $627,300, reduced by twenty five percent for all contingencies to $470,475. It was said that this provision was made more conservative by disregarding income as a handyman beyond the age of 67 years, which I suspect, bearing in mind the prospect of the plaintiff’s neck playing up by then anyway, was not much of a concession. Indeed, it seems to me that this calculation, far from being a realistic estimate of the plaintiff’s economic prospects but for the accident, reflects very much the most optimistic view, and that the only favourable possibility overlooked was that the plaintiff might have left full time work for the defendant to take up more remunerative full time work elsewhere. Given the plaintiff’s age and the fact that he had not by then established himself in more remunerative work, I do not regard that as a significant possibility.

[98]
Again, I think that some allowance has to be made for the prospect, which becomes greater as time passes, that the plaintiff would have neck problems anyway because of the pre-existing arthritic degeneration, which would be likely to impact on his earning capacity. It seems to me that, in my understanding of the mechanism giving rise to the plaintiff’s psychiatric condition, that was quite likely to arise anyway from any pain which interfered with the plaintiff’s ability properly to undertake physical work, so that anything which stirred up the arthritis in his neck was likely to produce much the same reaction from the plaintiff, with much the same dire consequences. There is no real guidance in the medical expert’s evidence, but I think it would be realistic to expect that the plaintiff would have been lucky otherwise to get to age 67 without the neck problem coming to light anyway. The possibility of the plaintiff’s moving to a less settled pattern of employment would also increase with the passing of time. On the whole therefore I consider that a much more substantial discount is appropriate. In all of the circumstances I will make allowance on a global basis for future economic loss in the sum of $100,000.^[51]Given that this assessment is essentially on a global basis, I will not make any additional allowance for loss of future superannuation payments.

[99]
Special damages were agreed at $22,543.14: Exhibit 27. I will allow interest on the out of pocket expenses totalling $7,953.81 at five percent for four and a half years, $1,739.60. There was also a Fox v Wood component of $1,224: Exhibit 9. The plaintiff also claimed continuing expenses in the form of medication, some physiotherapy, psychiatric expenses recommended by Dr Larder and an allowance for some future medical expenses. On the whole most of these are in principal allowable, though some discounting is to be applied for the possibility, increasing as time passes, that they would have been incurred anyway because the neck became painful anyway. I will allow $3,000 for future medication, $3,000 for future physiotherapy, and a further $2,000 for future medical expenses; no doubt there will be occasions when the plaintiff will go to a doctor about this condition, even if the doctors cannot do very much for him.

[100]
Dr Larder proposed a treatment plan involving a number of visits to a psychiatrist, medication for a period and some degree of social management. In connection with the latter he suggested the involvement of rehabilitation service which he said would cost in the order of $15,000 to $20,000. It did not seem to me however that he offered any great prospects of this producing any significant improvement; Dr Larder regarded the prognosis as guarded, with there being a moderately increased lifetime risk of major depression and of substance abuse: Exhibit 24. Much the same view was expressed in his report in June 2011: Exhibit 25. The effect of his opinion seems to be that, if one is going to treat this condition, the appropriate form of treatment would be as set out in his report, with the associated costs, but, as I read his report, he does not hold out any great prospect of the plaintiff’s improving as a result of any such treatment.

[101]
There is also the consideration that the plaintiff in 2009 underwent a course of treatment with a psychologist, who concluded, among other things, that he was resistant to treatment: Exhibit 28. Bearing this in mind, I do not regard the plaintiff as a good candidate for successful psychiatric treatment, and for this reason I have assessed his other damages on the basis that his condition will very likely not improve in the future as a result of treatment, either medical treatment for his physical injuries or psychiatric treatment for his psychiatric condition. In the circumstances I will not make any allowance for the cost of psychiatric treatment. Future expenses therefore are allowed at $8,000.

[102]
The assessment of damages therefore can be summarised as follows:

(a)
Pain and suffering and loss of amenities $ 45,000

(b)
Interest on past pain and suffering etc$ 1,800

(d)
Interest on past economic loss$ 11,475

(e)
Future economic loss$ 100,000

(f)
Special damages$ 22,543.14

(g)
Interest on special damages $ 1,739.60

(h)
Future expenses$ 8,000.00

Total $297,657.74

Less WorkCover refund (Exhibit 9) $ 21,092.07

Total $276,565.67

[103]
This proceeding was commenced on 9 February 2010, so the monetary limit of jurisdiction of this court is $250,000, although that does not include amounts payable by way of interest.^[52]The amounts assessed by way of interest total $15,014.60^[53].

[104]
I therefore give judgment that the defendant pay the plaintiff $265,014.60. I will invite submissions in relation to costs when these reasons are delivered.

Footnotes

[1] Plaintiff p 11. An employment contract was never signed: Exhibit 1.

[2] Plaintiff p 12, p 31. He had been shown how to operate this, and tried it briefly, on 3 September 2008: Grills p 50, Exhibit 32; plaintiff p 12.

[3] At the time without the use of booms to carry the spray closer to the trees: Exhibit 3: Booms, initially 1.3 m long and later 1.9 m long, were fitted later: Exhibit 37.

[4] Exhibits 3 and 4 come closest but the latter shows a different depth tube: plaintiff pp 16, 17, 92 re Exhibit 19; compare Exhibit 4.

[5] Plaintiff p 13.

[6] See Exhibit 38, which shows the new pump mounted on the drawbar, and different from Exhibit 4.

[7] Visible in Exhibit 38 but not in Exhibit 4. See Grills p 74.

[8] The pump was set up so that the correct amount of fertiliser would be applied at a particular speed: Plaintiff p 14.

[9] See the control knob in Exhibit 16. I do not think any two witnesses gave me the same description of how this worked, although it appears to have been different from the system in a car: Grigg pp 88‑91; plaintiff p 56-58; p 79-80; Grills p 51-53.

[10] Grills p 54.

[11] The plaintiff denied there was any such light: p 14. I do not accept that evidence, but it suggests the light was not effective, in that the sprays were still difficult to see (Grigg p 93), or the plaintiff had not turned it on: p 86. The tractor was quite new, and a check list for it showed the field lights as working just before this occasion: Exhibit 30.

[12] Grigg p 93.

[13] The date this was installed was not shown; Snell p 3, p 5.

[14] That is consistent with the comment of the farm manager on p 2 of Exhibit 5, “install internal mirror”.

[15] Plaintiff p 12 – about 15 degrees.

[16] They were difficult to see out the back window, even with the light on: Grigg p 93, who had tried this.

[17] He complained that the connection was not tight, but allowed excessive movement: p 32, Exhibit 5. The defendant’s witness said the connection was in good condition.

[18] See p 44 when I spoke to him about this.

[19] As he claimed: p 54.

[20] See for example Exhibit 37 photo 1.

[21] Confirmed by Grills p 54, p 80.

[22] As has apparently since been done: see Exhibit 37 photo 14. The pump has been changed since September 2008 – Grills p 75 – and I find, from the fact that the nozzles blocked, that there was no effective filter in 2008.

[23] The notion that this could have been avoided by monitoring the level of liquid in the tank using the plastic tube at one end, not actually supported in submissions, was ridiculous and does not require further comment.

[24] Grigg p 94-5. There was no need to turn around when spraying insecticide: plaintiff p 31.

[25] Boyd p 44, p 49.

[26] Dr Licina Exhibit 46. One would not expect it to cause a fracture or other structural damage.

[27] This is not a case where the standard of care was modified by knowledge of a pre-existing infirmity.

[28] Grigg p 92.

[29] Citing Williams v Mt Isa Mines Ltd [2000] QSC 161 at [15].

[30] From January 2006 to October 2011 full time (p 48) and continuing on a part time basis: p 50.

[31] This evidence confirms that either there was no rear vision mirror or it was ineffective as a means of monitoring the jets.

[32] See also Grigg p 92 line 30.

[33] See Exhibit 2, Exhibit 20, and note the plaintiff’s comment at p 12.

[34] Mathers p 11.

[35] Grills p 58; Mara p 66.

[36] Grills gave a total weight of 12.3 tonnes, of which all but about 4 tonnes was in the trailer: p 59. Grigg doubted those figures: p 85.

[37] There had been a number of changes: plaintiff p 20; Grills p 74-5, Grigg p 85.

[38] See the suggestion by the plaintiff at Day 2 p 23.

[39] On an occasion like this it would be understandable for Dr Steadman not to be sympathetic to someone who turned up affected by alcohol.

[40] Exhibit 7, showing sales of $2,285.70 from 1 December 2011 to 19 October 2012.

[41] Rylander p 36, 37; Wright p 38, 39.

[42] He had apparently seen Dr Campbell in the hospital clinic on 2 October 2008, but the notes of that examination were not available: Exhibit 13 p 2; p 72.

[43] In oral evidence she confirmed that this was something she could feel during treatment: p 66. Nothing useful was elicited in cross-examination.

[44] Dr Steadman said that the plaintiff was crying at one stage during the examination (p 31) however he denied that this was a result of anything that he had done: p 33. The plaintiff denied he was intoxicated, but said he had had two light beers after a long and uncomfortable journey, on a hot day: p 47; p 53; p 21.

[45] The plaintiff declined a limited return to work on light duties arrange by WorkCover, because of childminding issues two days a week: p 18, Exhibit 22.

[46] More recently, and as a result of drug tests carried out to screen for cannabis use, Dr Larder concluded that cannabis use is no longer relevant to his prognosis: Exhibit 26.

[47] There was a similar problem with the evidence of Dr Campbell – see p 63 – but it was worse with Dr Licina.

[48] See Medlin v SGIC (1995) 182 CLR 1.

[49] See, for example, the comments of Moynihan SJA in Fail v Hutton [2003] QSC 77.

[50] Plaintiff p 43, 45. In 2004 he had been doing a course: p 42.

[51] In adopting that figure I am conscious of the monetary limit of the jurisdiction of this court.

[52]District Court of Queensland Act 1967 s 68(3)(c).

[53]Jones v Harvey and Kennedy Trading Co Pty Ltd (Full Court, App 126/90, 31 May 1991, unreported).

Editorial Notes

Published Case Name:
Russell v Hancock Farm Company Pty Ltd
Shortened Case Name:
Russell v Hancock Farm Company Pty Ltd
MNC:
[2013] QDC 129
Court:
QDC
Judge(s):
McGill DCJ
Date:
14 Jun 2013

Appeal Status

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Attard v Hore	[2003] QCA 536	1 citation Jump To Cite 1 - [2003] QCA 536
Fail v Hutton	[2003] QSC 77	1 citation Jump To Cite 1 - [2003] QSC 77
Farrell v Queensland Newspapers Pty Ltd	[1998] QCA 18	1 citation Jump To Cite 1 - [1998] QCA 18
Medlin v State Government Insurance Commission	View on:JADE(1995) 182 CLR 1	1 citation Jump To Cite 1 - (1995) 182 CLR 1
Williams v Mount Isa Mines Limited	[2000] QSC 161	1 citation Jump To Cite 1 - [2000] QSC 161

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Wallace v RSL Care Limited	[2017] QDC 161	2 citations

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Russell v Hancock Farm Company Pty Ltd[2013] QDC 129