DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was employed in the defendant’s warehouse from 8 February 2010. He had found out about the job from Stephen Gell, a person he met at the local RSL Club. Gell worked for the company. They worked side by side as packers. On 17 March 2010, about 5 weeks after the plaintiff started work with the defendant, Gell assaulted the plaintiff, causing some physical injury and, eventually, a significant psychiatric injury. The plaintiff seeks damages for the injuries, claiming breaches of the employment contract and negligence.

2. [2]
   It is not in dispute that Gell assaulted the plaintiff. The issue is whether the defendant should have foreseen, and taken steps to protect the plaintiff from, the risk of injury constituted by Gell’s presence in the workplace. The extent of injury caused by any breach by the defendant is also in issue.

The defendant company and its premises

3. [3]
   Bruce Mendham, his wife Wilma and their son, Warwick, were the owners and directors of the defendant. They all worked at the premises, which were at Brendale. A reception area and the receiving/dispatch bay were on the ground floor of the warehouse. There were offices upstairs. Peter McKewen was the general manager of the company. The plaintiff did not agree that Mr McKewen was regularly on the warehouse floor. Paul Simpson was the Brisbane branch manager. He was regularly in the plaintiff’s working area. Bruce Mendham suffered a stroke in April 2012.^[1]

4. [4]
   Documents tendered by consent in the trial include the employment agreement between the defendant and the plaintiff. Upon commencing employment, the plaintiff was shown and signed documents setting out the defendant company’s policy on workplace bullying, grievance procedures and equity policies.

5. [5]
   The documents include the letter of appointment – dated 20 November 2008 – of Steven Gell and the policy documents apparently signed by him. Gell’s employment was terminated on 1 September 2009, in circumstances I will discuss below. The tendered documents include the letter of termination and the letter of (re)appointment with, again, signed contract and policy documents, dated 24 November 2009.

The plaintiff’s evidence

6. [6]
   The plaintiff gave the following evidence. He was born on 5 October 1990. He left school at 18 years of age. He was 19 and living with his father and brother when he started working for the defendant on 8 February 2010. He found out about the job from Gell, whom he met at a local RSL club. Gell told him there were positions available. He took his resume to the workplace and applied. He did not mention Gell as a referee or otherwise in his application. He worked as a storeman and packer at the warehouse. With several others, he packed items, that had been collected from the stores, into boxes for dispatch.

7. [7]
   Shortly after the plaintiff started working for the defendant, Paul Simpson led a discussion about the need to improve processes. After that, the plaintiff made some suggestions for changing the system. These were adopted, although Gell was less willing than others. He ‘had a very specific order in the way he liked to do things and it was little things, he liked things to be in certain places like courier's tickets and tape guns. He would mark and label them and expect them to be in the exact spot and he worked from his station and didn't like things out of place.’^[2]

8. [8]
   Gell was appointed to show the plaintiff how to do things. The plaintiff found him aggressive, very loud and intimidating of others. Gell’s behaviour was ‘quite aggressive, very loud, very very intimidating.’^[3]For example, Gell pushed a co-worker, Shane Young, in the plaintiff’s presence at the packing area. To Young’s objection, Gell ‘angrily replied that he was in his way and he needed to get to the courier stickers, from which Shane tried to get on with his job.’^[4]

9. [9]
   Gell would lose his temper at seeing an incorrectly packed box. He would swear at others and kick boxes around.

10. [10]
    On one occasion, because the plaintiff incorrectly packed a box, a headlight broke in transit. As a result, the customer was unhappy. Because Gell had overseen the plaintiff’s work, ‘his initials went on the delivery dockets out so he was questioned about it.’ The plaintiff was alone, ‘out the back having a smoke and he come out, pushed the door open, and then he hit the door, he - he said, "Why the fuck did you do that?  You just fucked everything up. The headlight's broken. What the fuck are you doing?"’^[5]

11. [11]
    Gell would regularly demand that others move from the bench they were using because Gell considered it his area. He would say things like, “So what the fuck are you doing, cunt?  You know I work there. Get on another bench."’^[6]

12. [12]
    On another occasion Gell refused to help a colleague, Don Loose, and abused him. Shane Young was present for this.

13. [13]
    Another time, Gell became angry at Shane Young for using the last of the tape in his tape gun. Gell threw the roll at Young, hitting him in the back of the shoulder. Another worker, Joey Cozzie was present for that.

14. [14]
    The plaintiff felt uncomfortable and unsafe working with Gell. He spoke to Paul Simpson about the incident where Gell had pushed Shane and about feeling uncomfortable. Simpson’s first response was to suggest the plaintiff try to deal with it.^[7]

15. [15]
    The plaintiff spoke to Simpson again about a week later, after Gell had confronted him about the incorrectly packed carton. He told Simpson he was having a hard time dealing with Gell and did not know what to do. He told Simpson Gell had ‘had a go at me for incorrectly packing an order.’ Simpson said, ‘“You are still new. Mistakes will happen. Steve's like that. Just try and deal with it."’^[8]

16. [16]
    The next conversation between the plaintiff and Simpson was two weeks later. Simpson approached the plaintiff, told him he had spoken to Gell and said, ‘We’ll see how it goes.’^[9]

17. [17]
    After this, Gell abused the plaintiff for speaking to Simpson. This occurred as they came off the train on the way to work one day. The plaintiff did not tell anyone at work about that incident.

18. [18]
    One morning, a few days before the assault which led to this claim, Gell came ‘walking down the driveway towards work and he was just yelling and screaming and - it was like he was talking to someone else. He'd stop halfway and just start swearing and I didn't know what the hell he was doing. I don't know who he was talking to. He - he just - by the time he got to the office, he got dragged into the office.’^[10]

19. [19]
    The plaintiff saw this from the dispatch area. People from surrounding businesses came out to see what was going on.^[11]Soon after, Simpson told the plaintiff Gell had been sent home for the day.

20. [20]
    On the day of the assault, the plaintiff arrived at work at 6am. Gell arrived, unusually, at about 2pm. Soon after arriving, Gell was yelling at someone on a telephone near the dispatch computer. The plaintiff went to help a salesperson load his car. Gell came out and yelled at him, swearing and telling him to go back inside. The plaintiff said he would be in when finished helping. Back inside, while the plaintiff was packing an order, Gell approached him, took what the plaintiff was holding and threw it to the floor, saying, ‘That's not how we fucking do it.’  The plaintiff ‘went down to pick it up and he hit me in the back of the head as I was bending down. I stood up and said, "What the fuck are you doing?"  He just continued to punch me in the face, he punched me three or four times in the face.’^[12]

21. [21]
    Other employees, Joey Cozzie, Don Loose and Shane Young were around. Joey Cozzie grabbed Gell and pulled him away from the plaintiff.

22. [22]
    The plaintiff was taken home. He went to a hospital that night. He later consulted his doctor, who prescribed anti-depressant medication. These made the plaintiff feel sick. Although the doctor then prescribed a different drug, the plaintiff did not take it. He had nightmares, felt scared and did not want to leave the house.

23. [23]
    Eventually he returned to work but felt dizzy and unwell. He was unable to do the job. He collapsed.^[13]Simpson asked how he was feeling. The plaintiff felt he could not work, so he left.

24. [24]
    The plaintiff did not take anti-depressant medication, but said at trial he was ready to try it, accepting now, on advice from professionals, that the medication would help.

25. [25]
    At trial, the plaintiff was still suffering from nightmares but these were less frequent.

26. [26]
    He has held several jobs since the incident. The first was at Yates Powder Coating. He applied for and obtained the job although he was not feeling well. He left because he felt unsafe. After being unemployed for about six months, he was employed at Bureau Veritas as a coal sampling technician. He lasted three or four months but left because he ‘couldn’t be around people’.^[14]  His next job was cleaning ducting systems. He became Queensland manager of that business – Kleenduct - but there were complaints about him. He was told he was incompetent. He could not communicate because he was ‘scared that I would fall back and keep falling back from where I had gotten to’.^[15]The plaintiff consulted his doctor, who issued a certificate, which the plaintiff took to Kleenduct and stopped working. That was in about October 2012.

27. [27]
    The plaintiff applied for and obtained a job, apparently driving a steamroller. That job would have started on the day the plaintiff gave evidence.

28. [28]
    While at school, the plaintiff started a plumbing apprenticeship. He was unable to complete it, apparently because the employer struggled to maintain business. After that, the plaintiff found odd jobs in catering or service industries.

29. [29]
    While at school and soon after, the plaintiff had enjoyed being a rugby union referee. He had not played rugby nor pursued refereeing since the assault.

30. [30]
    Since the assault, the plaintiff continues to have trouble sleeping, is nervous and has difficulty speaking to people. Certainly he presented in the witness box with a seriously distressed disposition.

Some inconsistencies in the plaintiff’s evidence

31. [31]
    The plaintiff was cross-examined about asserted inconsistencies between his testimony and statements he made to the police and to the reporting doctors. For example, the police statement includes the assertion that, just before the assault, Gell took items the plaintiff was preparing to pack from the bench (not from the plaintiff’s hands) and put them on the floor. Another asserted inconsistency concerned the number and sequence of blows Gell struck the plaintiff. These inconsistencies do not persuade me, as it was put to the plaintiff, that he was dishonestly trying to improve his position when giving his account to Dr Byth.^[16]

32. [32]
    It seems the plaintiff overstated several things to Dr Reddan – how frequently he consulted his general practitioner,^[17]how inactive he was for about a year after the assault^[18]– but whereas these discrepancies tell something of the plaintiff’s reliability, they do not make him untruthful.

33. [33]
    I am satisfied the plaintiff explained the apparent discrepancy between what he told doctors McGrath and Reddan about playing rugby – he reported a rugby injury to Dr McGrath but told Dr Reddan he had not played since 2007 or 2008. He explained the injury came from ‘playing with a couple of mates that managed to drag me out of my bed, get me out of the house, just to go kick the ball around to try and help me take my mind off things.’^[19]

34. [34]
    The plaintiff agreed that he told Dr Reddan that at Bureau Veritas his concentration at work was quite satisfactory and that he had no difficulties with workplace relationships. But in evidence he denied the truth of these statements to Dr Reddan. In fact, he said, he received three written warnings while in that employment.^[20]The plaintiff gave some explanation for the difference in history given to Dr Reddan and Dr Byth. When asked, ‘why is it that you could tell Dr Byth all of these problems that you were having but not tell Dr Reddan?’ he replied, ‘Because I believe now talking about it is helping me. I convinced myself - well, talking to people, it wasn't helping but it was making it a lot worse for me.’^[21]

35. [35]
    The plaintiff told the defendant’s counsel he abandoned his job at Kleenduct.^[22]

36. [36]
    There is strong evidence the plaintiff suffered substantially as a result of the assault. In my view, the evidence of his employment history since the assault is consistent with suffering a substantial injury and his underlying personality, a matter I will return to later. The inconsistencies between statements made to the reporting psychiatrists, to Dr McGrath and in evidence do not necessarily affect the assessment of the reliability and credibility of the plaintiff’s account of the assault and the events which preceded it.

37. [37]
    What must be faced is the contradiction of the plaintiff’s evidence by others. Under cross-examination, the plaintiff agreed the behaviour of Gell, as he had described it, would have been obvious to co-workers Cozzie, Young, Jones and the manager, Simpson.^[23]Each of these gave evidence for the defendant. The defendant also called its senior management.

Other witnesses - Evidence concerning Gell’s conduct generally

38. [38]
    A number of other witnesses gave evidence contradicting general and specific parts of the plaintiff’s evidence.

39. [39]
    I have referred to director Bruce Mendham having suffered a stroke before the trial. The defendant tendered two documents which contained statements by him. These were the transcript of a recorded interview between him and counsel and a file note. The effect of his recorded interview statements was: he remembered Gell; he denied Gell ever conducted himself aggressively towards other people or property; he said such behaviour would not be tolerated; it would result in the employee being dismissed.^[24]

40. [40]
    The file note, which became Exhibit 6, evidently relates to events immediately after the assault. According to the note, Mr Mendham was on the mezzanine floor when he heard commotion at 3.50pm. The dogs were barking at loud yelling. He went and saw the aftermath of the incident. The file note also includes the following, ‘Don said Steve abused someone over the phone when he came into work at 2pm, Don said loud swearing at the customer? Over the phone!! Very cranky last few days and late arrivals.’

41. [41]
    I understand that ‘Don’ was Don Loose, whom the plaintiff referred to in evidence and ‘Steve’ was Gell.

42. [42]
    Peter McKewen, the general manager, worked from an upstairs office, with a window over the receiving/dispatch area.^[25]From there he could hear any boisterous laughing or yelling and shouting in the warehouse.^[26]He never heard Gell use aggressive language or verbally attack another employee.^[27]He never saw him physically aggressive.^[28]No-one complained to him about Gell.^[29]Perhaps Gell was a loud story and joke teller, but McKewen saw nothing suggesting the likelihood of violence.^[30]Gell was a ‘passionate’ employee who liked customer service and aimed for perfection.^[31]

43. [43]
    McKewen relied on Simpson to run the Brisbane branch of the company.^[32]McKewen was interstate on the day of the assault, but returned immediately, spoke to Gell the next morning and dismissed him.^[33]

44. [44]
    Mario Jones, a warehouse picker still employed with the defendant, remembered Gell as a normal young fellow and did not see him behave aggressively to other employees.^[34]Gell would ‘push’ away with his foot a tub that was in his way but Jones had not seen him use abusive language towards another employee.^[35]He was at work on the day of the assault but did not see it. Jones’ evidence was in general terms. For example, he could not recall that Gell arrived at work on the day of the assault at 2.00 pm.^[36]He had no particular memory of anything outstanding about Gell.

45. [45]
    Paul Simpson, in 2010, was the Brisbane branch manager. At the time of giving evidence, his position was ‘major accounts manager’.^[37]He could not remember very much at all. He could not remember Gell being violent or abusive. He could not remember the plaintiff talking to him about Gell, nor, in evidence in chief, discussion of the incident concerning the broken headlight;^[38]nor Gell’s absence from the workplace in the period leading up to the assault,^[39]although he accepted that the records indicating that absence were likely to be correct,^[40]nor circumstances relevant to Gell’s temporary unemployment with the defendant.^[41]

46. [46]
    Simpson recalled Gell as boisterous:

‘I don't actually remember Steve being aggressive. He was loud, yes; and he liked to be the centre of attention, and that was okay. He was a young fellow, wanting to get his way in life. I don't have an issue with somebody being a little bit boisterous and a bit loud.’^[42]

47. [47]
    Joseph Cozzi, who still works for the defendant, had only vague memories of both Gell and the plaintiff. He seemed to recall the day of the assault but not witnessing the event.^[43]He did not pick up on any aggression from Gell or any other worker. He said:

‘You know, they're always swearing and carrying on and mucking around with each other and stuff but, yeah, I've never noticed anything malicious.’^[44]

48. [48]
    He thought, of both Gell and the plaintiff:

‘both of them seem young, you know, need to grow up a lot but, basically, seem to have good hearts and if you'd have asked me before this whether any of them were, you know, going to hit one another or whatever I would have said, no.’ ^[45]

49. [49]
    Asked whether he ever saw Gell being aggressive, Cozzi said only that Gell was loud, boisterous.^[46]

Other witnesses – specific matters

Evidence about the relationship between the plaintiff and Gell

50. [50]
    McKewen understood from Simpson and Gell that Gell and the plaintiff were friends; that Gell had spoken in favour of the plaintiff and so helped him get his job.^[47]

51. [51]
    As far as Jones knew, Gell and the plaintiff were friends.^[48]They used to go home in the afternoon together and Jones understood Gell helped the plaintiff get his job.

52. [52]
    From all I have heard about Gell I think it reasonable to infer that he did represent the plaintiff as an acquaintance, perhaps taking credit for introducing the new employee. I doubt neither the plaintiff nor the defendant’s employees on this point. That is, the plaintiff might not have counted Gell as a friend nor relied on his support to get the job, but it remains likely Gell mentioned him to Simpson and others and endorsed him. It does not determine the issues to be decided except in a marginal way – from the point of view of the management of the defendant, it might make less likely a physical attack by Gell on the plaintiff..

Throwing things

53. [53]
    As to whether Gell threw things, Mario Jones said, ‘we all throw the inners[sic] of the tapes because we have a couple of dogs there that chase them’.^[49]  Shane Young did not remember Gell throwing a tape roll at him.^[50]

Pushing people

54. [54]
    Shane Young was, at the time of giving evidence, still employed by the defendant. He had recently been promoted to a sales position. He did not recall, when asked in chief, being pushed by Gell while they were working, protesting with Gell and being told Gell wanted to get the courier tickets.^[51]He denied any physical altercation with Gell. He agreed, under cross-examination, that he had told a lawyer for WorkCover that Gell had pushed him, but that it was ‘just mucking around’. He said, in evidence, ‘we were playing around in our lunch break.’^[52] In answer to various propositions put in cross examination, he said he never had problems with Gell and Gell was no louder than anyone else.^[53]

55. [55]
    While Young’s evidence is to be regarded as that of a current, loyal employee of the defendant, he was not generally an evasive or un-remembering witness. He confirmed, during cross-examination, that system changes were put in place in early 2010 after Simpson raised customer complaints with the workers, and that the plaintiff had suggested some of the changes.^[54]He recalled the matter of the broken head light which was apparently the fault of the plaintiff’s packing.^[55]His evidence that he was not present at the time of the assault is, at least, consistent with Warwick Mendham’s evidence (considered below) that he did not believe Young was present when he spoke to employees after the event.

56. [56]
    Whether Gell pushed Young as the plaintiff says he did is of some importance – because as the plaintiff describes it the conduct was more likely to have been seen by others, including managers, and so the conduct may inform the defendant of a propensity in Gell for physical violence. On the other hand, it seems to me the more relevant matter is what the plaintiff told the defendant about Gell’s behaviour. Young’s evidence causes me to doubt whether Gell pushed Young in the manner the plaintiff described, as opposed to during a lunch break. But it is clear enough that the plaintiff saw Gell push Young in some fashion, and so it is likely he included that in his complaint to Simpson.

Whether Gell came to work unruly

57. [57]
    Wilma Mendham, wife of Bruce, mother of Warwick and director of the defendant, gave evidence for the defendant. What she saw of Gell’s conduct was generally consistent with the evidence of other managers but of no particular weight because of her location in the premises – at the front desk in the office.^[56]

58. [58]
    As to whether Gell came to work in an unruly fashion and was sent home, the following exchange occurred during cross-examination:

Just thinking back to March 2010, the earlier part of March, do you remember a day when Steve Gell was brought into the office and then was sent home?‑‑ No.

I'll just describe the event to you and see if you can recall it. He was coming down the driveway and starting a bit later, everyone else was already at work and in the warehouse. Steven Gell was coming down the driveway and waving his arms, shouting at no one in particular, as if he was talking to the person next to him but shouting. A number of people from the complex around came out and were having a look and then someone brought him into the front office. Do you remember that?‑‑ No, sure don't.^[57]

HIS HONOUR: Sorry, what did you say after saying no?

MR MORTON: "Sure don't."

WITNESS: Sure don't. Sure don't, sorry.

HIS HONOUR: "Sure don't."  Okay.

Whether the plaintiff was denied head ache tablet

59. [59]
    Dr Reddan reports the plaintiff telling her that, after returning to work for the defendant, he felt unwell. He asked, at the office, for aspirin or paracetamol but was simply told to get back to work. This incident may be thought relevant to the plaintiff’s pleaded case that the defendant ostracised him upon his return to work thereby aggravating his injuries.^[58]The plaintiff was asked about this in cross-examination. Counsel for the defendant put to the plaintiff that if he did ask Wilma Mendham for aspirin or paracetamol she never replied with anything like, ‘get back to work’. The plaintiff insisted she did.^[59]

60. [60]
    As to dispensing pain medication to staff, Wilma Mendham said:

‘Yes, I gave them to people that wanted them, yes, and if he came and asked me for one I probably gave him one. I don't remember that. I don't remember actually giving him panadol, that part of it I don't remember.

All right. And Mr Pols doesn't suggest that you were in any way rude or mean about telling him to go back to work, but recalls ‑‑‑‑‑?‑‑ I didn't tell him to go back to work. No way would I tell him to go back to work; no way, sorry.’^[60]

Gell’s sacking and reinstatement

61. [61]
    Some hint of the management task Gell presented comes from the evidence of his temporary absence from the defendant’s work force. Mr McKewen’s evidence was that he was approached by Simpson, whom Gell had asked at short notice for the following Monday and Tuesday off work so that Gell could attend court. They spoke to Gell -

He told us of an incident where he had been summoned to appear on a matter of - from memory, his hometown of - I keep saying Bundaberg, but I'm sure it's Maryborough, where he had apparently gone out on the turps with some of his mates and got himself in a little bit of trouble with the police.

Did he tell you what that trouble was?‑‑ I believe it was resisting arrest.^[61]

62. [62]
    Gell suggested he could be jailed. McKewen said the position could not be kept open indefinitely. So,

being a family company we try to, you know, offer or afford a little bit of slack wherever we can, so I thought it was in the best interests of Steve that he be terminated‑‑‑‑‑

Why was that?‑‑ Well he'd be able to apply for Centrelink assistance.^[62]

63. [63]
    The letter of termination, dated 11 September 2009,^[63]cited the economic climate and lack of work as reasons for the termination and expressed the hope that Gell would keep in contact.

64. [64]
    McKewen said Gell presented to Simpson ‘about three to four weeks later, from memory’,^[64]said ‘he had nothing to answer, so it was effectively thrown out’ and was re-employed.^[65]In fact, according to his criminal history, which counsel for the defendant tendered, Gell was sentenced to one month’s imprisonment on 15 October 2009 for several offences including four charges of assaulting or obstructing police. He committed those offences in July 2009 while on a suspended sentence for property offences. The defendant was not, apparently, aware of the criminal history or the sentence imposed on 15 October 2009. Gell was re-employed on 25 November 2009.^[66]

65. [65]
    McKewen was cross-examined on the issue. He said that, having been told Gell faced a charge of resisting arrest, he did not apprehend he had been significantly violent. He said, ‘Well, I wouldn't think he was taking huge swings at the police officers, but I would presume that he was pushing back and things like that and that would be deemed as violence, I would think, with the police.’^[67]

Gell’s absence in the period just before the assault - the worksheets

66. [66]
    Exhibit 9 is the first page of a letter from the defendant to Gell dated 18 March 2010, the day McKewen dismissed Gell. It sets out days and hours worked by Gell and the balance of pay he is owed to 18 March 2010.

67. [67]
    According to the letter, Gell did not attend work the week commencing 1 March 2010, although he did not have sufficient annual leave or sick leave to cover the period. He was paid wages for 17.8 hours of work he did not perform and 5 hours were recorded as unpaid sick leave. Nor did he attend work on Monday 8 March. He left at 1pm on Thursday 11 March. He seems to have attended work on the Friday, 12 March. It seems the defendant recovered the wages paid for the previous week by not paying Gell for hours worked during the week commencing 8 March.

68. [68]
    Gell apparently attended work on Monday and Tuesday, 15 and 16 March. He then came to work at 2 pm on the Wednesday, 17 March, the day of the assault.

69. [69]
    Neither McKewen nor Simpson could comment on the letter. Simpson had no recall of Gell contacting him to say he would not be at work. Simpson accepted the correctness of the latter as a record of what had occurred but had no memory of it.^[68]

Warwick Mendham’s notes

70. [70]
    Warwick Mendham’s role in the company included he acquisition of products from overseas and the ‘IT side’ of operations.^[69]He was not directly involved with the warehouse floor.

71. [71]
    On 17 March 2010, after the incident in which the plaintiff was assaulted, Warwick Mendham spoke to Gell, Mario (Jones), Joey (Cozzi) and Don Loose. He did not believe Shane Young was present.^[70]He made notes of these discussions. During cross examination, Warwick Mendham agreed Gell told him there had been changes in the way things operated and he was not happy with the plaintiff for not ‘taking this direction’;^[71]the plaintiff had been outside ‘helping Gary pack his van’.^[72]Mr Mendham agreed his note then included the following: ‘Steve told him to get ‘f’ and back inside and to do some work’.^[73]The note contained asterisks which indicated expletives used by Gell.

72. [72]
    Warwick Mendham’s note of his discussion with Jones and Cozzi included the observation that Gell had been more agitated on the day, more than usual.^[74]The note also included the observation that Gell arrived at work that day at about 2 pm.^[75]

73. [73]
    Asked about this discussion in cross examination, Cozzi allowed the possibility that he had spoken to Warwick Mendham after the incident but could not remember saying these things.^[76]

74. [74]
    Jones could not recall talking to Warwick Mendham after the incident. In particular, he did not recall saying: that Gell arrived at 2 pm; that Gell was having an intense discussion on the telephone; that Gell was more agitated than normal.^[77]

McKewen’s credit

75. [75]
    The plaintiff attacked McKewen’s credit by reference to Exhibit 8, a letter he wrote to Q-Comp on 15 June 2010. The letter queries the validity of the plaintiff’s claim for a psychological injury. McKewen writes, among other things, that the complaint arose only after a workplace meeting on 12 May 2010, at which ‘some minor attendance issues and workplaces errors’ were discussed. Relevantly, the letter asserts, ‘These issues predated the initial workplace fight of 17 March 2010.’ I notice his use of the term, ‘fight’, which is not a proper description of what occurred on 17 March when Gell assaulted the plaintiff. And, under cross-examination, McKewen plainly said the issues discussed on 12 May were recent, not issues that pre-dated the assault.^[78]The plaintiff argues that McKewen has thereby demonstrated a willingness to provide a false document for the benefit of the defendant. I think McKewen remained loyal to his employer but do not think he deliberately wrote a false document. The only specific workplace error he had in mind was the packaging that led to a broken light.^[79]Simpson told him about this. He thought this was discussed on 12 May.^[80]This occurred before the assault. McKewen has been inconsistent – perhaps confused - but I do not draw the inference sought by the plaintiff.

76. [76]
    The plaintiff submits I should infer McKewen was aware of the charge Gell faced and that he had gone to jail. The criminal history describes the charges as ‘Assault or obstruct police’. I do not infer McKewen knew more about the nature of the charges than he expressed – I have referred to the evidence above. It may be that McKewen was less than candid about his knowledge of the outcome of the court appearance. Gell was absent for more like six weeks, not the three or four weeks McKewen remembered. Gell had told McKewen he might be sent to prison. It might be that despite Gell’s account of the hearing McKewen inferred Gell had been in jail but I cannot confidently conclude so. And it matters little, because I accept as genuine and reasonable McKewen’s evaluation of the court case.

The employer’s duty

77. [77]
    The duty of an employer towards employees is to take reasonable care for their safety.^[81]In Hudson v Ridge Manufacturing,^[82] where an employee repeatedly engaged in horseplay over years despite being reprimanded, Streatfield J. described the case as one where, ‘there existed, as it were in the system of work, a source of danger, through the conduct of one of the defendant’s employees, of which they knew..’. The defendant breached the duty by failing to take proper steps to stop the conduct.

78. [78]
    In Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville,^[83] where the employer could not reasonably know the employee was susceptible to a particular infection, the employer’s duty did not extend to causing the employee to provide a medical history. Thomas J.,^[84]with whom McPherson JA agreed, described the employer’s duty as ‘the duty to take reasonable care to avoid exposing its employees to unnecessary risk of injury.’^[85]His honour later said, ‘The employer’s duty is limited to the area of reasonably foreseeable risk, and to establish negligence there has to be some element of unreasonableness in the defendant’s conduct.’^[86]

79. [79]
    Williams J.,^[87]added,

‘Where a relevant duty is imposed upon a person, the obligation is still to take reasonable care, and the scope of the duty is limited to the area of foreseeable risk. If at the material time a reasonable employer, taking all reasonable care for the safety of his employees, would not have foreseen the particular injury to the employee which gives rise to the action, negligence cannot be proved.’^[88]

80. [80]
    In Antoniak v The Commonwealth (1962) 4 FLR 454, Dunphy J. referred to Hudson v Ridge Maufacturing Co. Ltd. and the cases referred to in it. Whether the conduct of an employee is likely to prove a danger to others, thereby giving rise to a duty to remove the danger, is a matter of degree. Dunphy J. said,

‘It was conceded in Hudson’s Case that if an employer has reason to anticipate misconduct by an employee dangerous to other employees, the employer would be under a duty to the other employees to take reasonable steps to prevent harm arising from it, and that, if reprimands are disregarded the duty ultimately involves dismissal of the vicious or mischievous.’^[89]

81. [81]
    As Douglas J. remarked in Serra v Couran Cove Management Pty Ltd [2012] QSC 130 at [93],

‘Much, as is often the case, will depend upon the factual circumstances. It is clear, however, that a duty of care arises. The other matters to consider are whether the injury suffered by the plaintiff was foreseeable, whether there was a breach of duty by the defendant and whether any breach caused the injuries complained of.’

The injury was not foreseeable, there was no breach of duty

82. [82]
    Whether the defendant breached the duty it owed the plaintiff depends first on what it must be taken to have known of Gell’s conduct from the plaintiff’s reports to Simpson and what the defendant should have observed through its managers, primarily Simpson and McKewen.

83. [83]
    I do not conclude that the defendant should be taken as being aware of the general conduct of Gell as described by the plaintiff. Although, as a general proposition, I am satisfied the plaintiff was a truthful witness, I am driven to the conclusion that his experience of certain events – and so his account of them - was magnified. He struck me as one who saw a catastrophe in every rumble of thunder. It may be that Gell made the plaintiff feel uncomfortable but it does not follow – and the evidence does not support the conclusion that – others felt the same way. There is some support for this view of the plaintiff’s reliability in the evidence of Dr Reddan, psychiatrist. She perceived a degree of hyperbole in the plaintiff’s report to her. She considered the plaintiff’s reaction to the event was, though genuine, unusually significant without clear evidence of previous vulnerability.^[90]Dr Reddan went on to wonder whether the plaintiff’s very premature birth resulted in some degree of vulnerability.^[91]

84. [84]
    I am satisfied Gell was a loud, assertive and demonstrative individual with firm views about how things should be done and the capacity to tell others what he thought. He liked attention. He probably used expletives freely, but I doubt he was alone in that regard. These attributes must have been obvious to the defendant through its managers, particularly Simpson.

85. [85]
    Gell’s was probably a difficult personality to manage and Simpson appeared to have been barely up to the task, but if Gell was given a certain latitude no doubt that was also because he was a valued employee. Gell’s employment was terminated, for his as well as the defendant’s convenience, in September 2009 and he was re-employed in late November. He apparently missed many days of work in early March without sanction. And on the day of the assault he arrived at 2 pm. He was engaged in a heated telephone conversation. He was, it seems, in a more agitated state than usual.

86. [86]
    The events immediately preceding the assault are not, it seems, in real dispute. The plaintiff went outside to help a sales person pack a car. Gell took exception to this and ordered the plaintiff back inside. Upon the plaintiff resuming the packing of a carton Gell loss his temper and struck the plaintiff.

87. [87]
    I am satisfied the plaintiff, at some time earlier in his employment, observed Gell push Young but, taking into account Young’s evidence, I am not satisfied the push was aggressive. But it is likely the plaintiff considered it so.

88. [88]
    I accept the plaintiff’s evidence that Gell confronted him in strong terms regarding the packing error which led to the broken headlight. That is consistent with other evidence of Gell’s character. But it is not open to infer that that castigation by Gell was observed by others.

89. [89]
    I am satisfied the plaintiff reported to Simpson that Gell had pushed Young and that the plaintiff was feeling uncomfortable in Gell’s presence. No steps were taken by Simpson before the plaintiff spoke to him again. This time the plaintiff reported that Gell had confronted him over the broken headlight packing incident and told Simpson he was having difficulty dealing with Gell. I accept the plaintiff’s evidence of Simpson’s reply.^[92]

90. [90]
    I infer Simpson spoke to Gell about the plaintiff’s concerns because Gell confronted the plaintiff about having spoken to Simpson. This did not occur at the workplace and the plaintiff did not tell anyone about it.

91. [91]
    It is difficult, in the face of Wilma Mendham’s evidence, to be satisfied that Gell arrived at the work place in the fashion the plaintiff described. While Wilma Mendham could not remember certain matters which were established by other evidence, such as Gell having a break in his employment,^[93]that was not her concern. She impressed me as a firm witness with respect to the matters she should reasonably be expected to have observed.

92. [92]
    Given Wilma Mendham’s firm contradiction of the plaintiff’s evidence of a substantial display of erratic behaviour by Gell, I find it impossible to accept on the balance of probabilities the plaintiff’s evidence that the incident occurred – or at least that it occurred as dramatically as he asserts – while she was present in the office.

93. [93]
    If the incident did occur, according to the plaintiff’s evidence, Gell was, appropriately, sent home. It may be, as the plaintiff submits, that the absences demonstrated in Exhibit 9 are consistent with the incident having occurred as the plaintiff describes. The plaintiff relies on the incident to demonstrate Gell was observably a troubled employee but the defendant, through its officers, failed to take steps to correct his conduct. If it be thought to matter greatly, on balance, I am prepared to accept that Gell arrived in an unruly fashion and was sent home because I do not think the plaintiff would invent such a scene even though his experience and memory of it might be more dramatic than others’ perception. This requires that someone within the defendant’s management hierarchy was aware of Gell that day and sent him home. This might have been Simpson, whose lack of memory for such an event^[94]would be consistent with how little he remembers of the time. But I think it matters little because such an event, although it might give rise to some concern about Gell, would not in my view have given rise, alone or in combination with other facts, to a perception of a risk of danger to other employees.

94. [94]
    The plaintiff argues that the defendant’s failure to counsel Gell or terminate him for behaviour before he struck the plaintiff on 17 March 2010 was a breach of its duty to the plaintiff. I cannot accept the argument. I am not satisfied that Gell’s conduct – so much of it as the defendant must be taken to have been aware of – and the plaintiff’s complaints to Simpson require the conclusion that the defendant should be held to have been put on notice that Gell’s presence in the workplace constituted a foreseeable risk of injury to the plaintiff. That is, to borrow the language of Dunphy J. in Antoniak, I am not satisfied the defendant had ‘reason to anticipate misconduct by an employee dangerous to other employees’.

95. [95]
    Simpson, one must infer from the plaintiff’s evidence, did take up with Gell the plaintiff’s complaint. The plaintiff relies on Simpson’s advice: “You are still new. Mistakes will happen. Steve’s like that. Just try and deal with it.” to support the inference that Simpson, and so the defendant, was aware that Gell constituted a risk of physical injury to a co-worker. An equally open inference is that Simpson meant no more than Gell was pedantic, insistent upon things being done a certain way and likely to speak strongly if something is done wrongly.

96. [96]
    The plaintiff pleaded fifteen particulars of negligence and/or breach of contract. I need not set them all out, nor address them individually. I think it is sufficient to say, using the terms of some of the allegations, that the plaintiff has not proven that the defendant failed to provide and enforce a safe system of work and exposed the plaintiff to a risk of injury of which it knew or ought to have known.

Causation

97. [97]
    The plaintiff submits ‘it is sufficient to establish causation that a defendant’s breach of duty materially increased the risk of injury to the plaintiff’, referring to Founders v Miller [2007] NSWCA 238. The defendant takes issue with that proposition, arguing the plaintiff must prove that the performance of the duty would have averted the harm, referring to Wolters v the University of the Sunshine Coast [2012] QSC 298.

98. [98]
    It is not clear to me that Founders v Miller is authority for the proposition the plaintiff refers to it for. It is unnecessary for me to decide a matter of law. It is sufficient to notice the statements of McHugh J. in Chappel v Hart (1998) 195 CLR 232, quoted by Hoeben J. in Founders v Millar at [91], which include the following:

‘The existence of the relevant causal connection is determined according to common sense and not according to philosophical or scientific theories of causation’ …

‘Before a defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person.’

99. [99]
    The real argument in the present case is whether if, contrary to my conclusions, the defendant had breached a duty to take reasonable care to prevent a foreseeable injury to the plaintiff by failing to counsel Gell, the breach caused the injury. The defendant submits, among other things, that Gell’s attack on the plaintiff was irrational and violent; and taking into account that Gell had been jailed before, the plaintiff has not demonstrated any further counselling than was given by Simpson would have affected his behaviour and thereby prevented the injury. The plaintiff submits there is nothing to suggest Gell, whatever his criminal history, would not have reacted well to counselling. I am not persuaded the question, had it arisen, could have been dealt in the way the plaintiff suggests. The question would be whether, it being accepted that the defendant was or should have been aware Gell was a risk of reasonably foreseeable injury to the plaintiff, failure to counsel Gell materially contributed to the realisation of the risk.

100. [100]
     The plaintiff gave particulars of the terms of the warning he says the defendant should have given, as follows:

‘Mr Gell ought to have been warned that threatening and aggressive behaviour would not be tolerated in the workplace and depending upon the nature of the incident either that a further act of such a nature could or would result in termination of his employment or that his employment was terminated.’

101. [101]
     I have drawn certain inferences about Gell, based on the evidence and trusting I have not floated into speculation, and made findings about his conduct, inconsistent with the plaintiff’s evidence. That character and conduct, I have found, did not give rise to a foreseeable risk of injury to the plaintiff. I think it likely that Gell valued his job and a solemnly delivered warning would have settled his behaviour down. But I cannot conclude on the balance of probabilities that, on 17 March 2010, having arrived late and engaged in a difficult phone call with a customer and then observed what he seems to have considered the ill-advised actions of the plaintiff, a warning would have affected what followed. In any case, to embark on the exercise of judging causation seems to require that I proceed on assertions of conduct and character inconsistent with the findings. That is, to assess whether failure to counsel Gell materially contributed to the plaintiff’s injury requires speculation.

102. [102]
     I am satisfied Gell’s dismissal would have reduced any risk of injury to the plaintiff.

A Jones v Dunkel point

103. [103]
     The plaintiff submits that I should infer from absence of Gell and Don Loose as witnesses for the defendant that their evidence would not have been helpful to the defendant’s case.

104. [104]
     I am satisfied from the evidence contained in the affidavit of Allison Clare Langford, sworn 11 December 2012, that reasonable attempts during October and November 2012 to locate Gell in order to serve him with a subpoena failed.

105. [105]
     Perhaps Don Loose might have given an account of the incident described by the plaintiff where Gell ‘called him a stupid old prick, he wasn't going to help him. He was sick of trying to help him.’^[95] Instead of helping Don, Gell said, "You stupid old cunt, I'm not going to help you. You can do it yourself."^[96]

106. [106]
     Except that the incident as described by the plaintiff includes expletives directed by Gell at another employee, the incident does not advance the plaintiff’s case. The plaintiff, in cross-examination, accepted he had not mentioned this incident to anyone before giving testimony.^[97]But even accepting the evidence as reliable, it is little more than an example of Gell being unpleasant and unhelpful.

107. [107]
     Of course, it might be that Don Loose could have given other evidence of Gell’s conduct. But assuming that would have been of the nature of Warwick Mendham’s note – that Gell had been very cranky lately and arriving late - I am not satisfied that would materially affect the issues to be determined. An employer should have concern for an unusually cranky employee who is attending work unevenly, but it is not easy to draw the inference that Gell’s conduct so described should have given rise to the reasonable apprehension that he was a danger to other workers.

108. [108]
     In Jones v Dunkel (1959) 101 CLR 298, Menzies J., one of the majority judges, said at 312:

‘In my opinion a proper direction should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that the evidence which might have been contradicted by the defendant can be accepted more readily if the defendant fails to give evidence; (iii) that where an inference is open from the facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.’

109. [109]
     The defendant’s failure to call Gell and Loose cannot make up for any deficiency in the plaintiff’s case. I accept the plaintiff’s evidence as to the incident just discussed but have also set out my view of its marginal relevance. Gell’s statement to Warwick Mendham is in and I have discussed it too.

Quantum

110. [110]
     The plaintiff suffered a significant psychiatric injury as a result of the assault. Although the defendant seeks to make much of the inconsistent history given to Dr Byth and Reddan, I accept, generally, the plaintiff’s evidence about the effect of the incident on him, his subsequent conduct and his reduced ability to maintain employment. The plaintiff was, apparently, born premature. His mother left the family when he was young, although he later told Dr Byth he was not pining for his mother.^[98]He grew up with his father and younger brother and achieved modestly well at school and in sport. He gained employment while still at school but it came to an early end through no apparent fault of the plaintiff. The assault by Gell, early in his employment with the defendant, has, I am satisfied, affected him strongly.

111. [111]
     Dr Byth diagnosed Post-traumatic Stress Disorder with prominent associated anxiety and depression. Dr Byth considered the plaintiff’s anxiety and depression were more severe than unusually seen in ‘uncomplicated’ PTSD and could justify the additional diagnosis of Adjustment Disorder with anxiety and depressed mood. Dr Byth also thought the plaintiff had obsessive-compulsive pre-morbid personality traits.

112. [112]
     Reporting in March 2011, Dr Byth considered the plaintiff would be left with moderately severe PTSD and doubted the plaintiff would obtain a full remission.

113. [113]
     The plaintiff had little early treatment for his condition.

114. [114]
     Reporting in November 2012, Dr Byth considered the plaintiff had not improved. He added Major Depression as a possible diagnosis. Because the symptoms had become entrenched, a longer period of treatment would be required, up to three years. Dr Byth predicted the plaintiff could be unemployed for 25% of the remainder of his working life because of exacerbations of PTSD.

115. [115]
     Dr Reddan saw the plaintiff in October 2011. Broadly put, Dr Reddan perceived a degree of hyperbole in the plaintiff’s account of things; thought he seemed capable of functioning in employment and had received some benefit from counselling; and at that stage she considered the plaintiff was unlikely to benefit from further treatment. She considered any enduring psychiatric impairment was likely to be mild.

116. [116]
     Having read the transcript of the plaintiff’s evidence at trial, Dr Reddan was of the view that he may benefit from medication. She considered the plaintiff was unlikely to require three years of treatment, as Dr Byth suggested, but thought intensive treatment over six months followed up every few months after that would address what she considered to be ‘quite a lot of avoidance behaviour’ exhibited by the plaintiff.^[99]Dr Reddan considered there were several reasons for optimism in the plaintiff’s case – the original event, the trauma, was not prolonged; there is no evidence of other severe trauma in the plaintiff’s childhood; no evidence of significant substance abuse; the plaintiff has been able to work since the incident and is capable of working; he is not poorly educated;^[100]and he is young.^[101]Despite this, he has suffered an intense reaction to the original assault^[102]and his symptoms might affect his ability to maintain employment, although this is susceptible to treatment.^[103]

117. [117]
     I tend toward Dr Byth’s assessment of the gravity of the psychiatric injury but towards Dr Reddan’s assessment of the future effect of the injury. That is, I prefer Dr Byth’s diagnosis but Dr Reddan’s prognosis.^[104]

118. [118]
     Taking into account the evidence of the plaintiff and his father (which I do not traverse here but which broadly supports his son’s history) and the opinions of the doctors, and having been referred in written submissions to the decisions in Wolters v The University of the Sunshine Coast and Phillips v MCG Group Pty Ltd [2012] QSC 149, I consider an appropriate award for the plaintiff’s general damages would be $40,000. Interest should be awarded on $25,000, which at 2% for 3.42 years would be $1,710.

119. [119]
     The plaintiff has been employed several times since the assault. He worked:

• from 6 September 2010 to 16 February 2011, as a factory hand for Yates Powdercoating;
• from 1 August 2011 to 6 May 2012 for Bureau Veritas as a coal sampling technician; and
• from 1 June 2012 to 23 October 2012 in two capacities for Kleenduct Australia Pty Ltd.

120. [120]
     I accept his evidence, corroborated by his father, that he was encouraged strongly to get back to work, but found the process difficult. I also accept that he has experienced difficulty communicating with managers, co-workers and clients as a result of his injury. Dr Byth said:

‘ ….when he's moved on and tried to work in other jobs he's found himself very easily distressed by interactions with other staff. For example, he told me in the last interview I had with him fairly recently that he thought the people in the office, or running the business, were yelling at him when he realised they weren't but he was hypersensitive to their - their tone or their manner of which they approached him, or gave him work or told him where to go to do his job and that sort of thing. So I think it's part of PTSD that he's highly sensitive to reminders in the workplace, and that's limiting his capacity to stay in work since he - since he left that position in 2010.^’[105]

121. [121]
     The plaintiff said, and I accept, that he was not feeling well when he obtained the job at Yates Powdercoating; that he effectively isolated himself and that he left because he did not feel safe.^[106]Similarly, he described feelings of insecurity, if not paranoia, at Bureau Veritas. At Kleenduct, he started as a serviceman but became Queensland service supervisor.^[107]His apparent incompetence was causing problems for others. He obtained a medical certificate and did not return to work.

122. [122]
     The defendant points to the plaintiff’s concession that he resigned from Bureau Veritas after falsely saying he needed a week off work to go to a funeral in Sydney. The plaintiff’s view of it was that he abandoned the job.^[108]He told Dr Reddan his concentration at Burea Veritas was good but said in evidence that this was not true. He explained, under cross-examination, ‘All I wanted is for things to be better. I put up this shield, this barrier to try and block it all out.’^[109] I have referred to some of these matters earlier. Ultimately, I am not satisfied, as the defendant submits I should find, that the plaintiff’s apparent dishonesty undermines the general reliability of his evidence concerning his employment after the assault.

123. [123]
     The defendant called Cheryl Anne Raw, an administrator at Kleenduct. She testified that she saw no signs of anxiety or nervousness in the plaintiff. He appeared one Friday morning on a motorbike and told her he would not be coming to work that day. After some days’ absence, the plaintiff presented a medical certificate and resigned. Under cross-examination, she agreed she did not see the plaintiff ‘all day, every day’ and would not have expected him to confide in her. They did not enjoy a close relationship. On occasion he would travel in his capacity as service manager. She felt he was inadequate at his job. She was bearing the brunt of complaints from customers and head office staff.

124. [124]
     The defendant submits that, in effect, the plaintiff voluntarily resigned from Kleenduct. There is a certain consistency between the evidence of Ms Raw and the plaintiff. I accept his evidence about his experiences in the various jobs he obtained since leaving the defendant and accept that he suffers a loss of earning capacity which has given rise to loss of income.

125. [125]
     I have great difficulty quantifying this loss. The plaintiff’s starting point is that but for the assault he would have remained in the defendant’s employment. The defendant calculates that, to the time of trial, the plaintiff had earned slightly more in his various jobs than he would have had he continued in the same capacity for the defendant. The hourly rates at each job were progressively higher. The plaintiff submits past economic loss should be calculated by multiplying the increasing rates of pay by the weeks between jobs, less an amount for possible periods of unemployment not solely attributable to his injury. So, the 24.4 weeks from 19 March 2010, when he was incapacitated from working with the defendant, to 6 September 2010, when he commenced with Yates, multiplied by his weekly income with the defendant, $428.80, produces the loss for that period of $10,432.72. The period of 24 weeks between Bureau Veritas and Kleenduct would be multiplied by the weekly loss of $698.17. On the other hand, the defendant argues that the plaintiff has proven no loss and should be awarded the net workers’ compensation benefit .

126. [126]
     I do not accept the plaintiff’s basis for calculating past economic loss but it would be reasonable to proceed on the basis that the plaintiff would have been promoted within the defendant’s employ, as other employee/witnesses have been, or left and obtained other more remunerative work, as he has done despite his lost capacity. On this basis, despite the cogency of the defendant’s submission, I would award $21,000, a round figure based on an estimated loss of 10 weeks employment per year at $600 per week for 3½ years. There would be an award of interest on this amount for the period from the assault to date. There would also be an award for loss of superannuation at 9% of $21,000: $1,890.

127. [127]
     The plaintiff’s loss of capacity will continue but I adopt Dr Reddan’s optimism for the purposes of calculating future loss of earning capacity. With little treatment, in the 33 or so months between March 2010 and trial in late 2012, the plaintiff held employment for a total of about 18 months. I do not accept the plaintiff’s submission that Dr Byth’s assessment of 25-50% work-related permanent psychiatric impairment should result in future loss calculated at 25% of earning. Based on the plaintiff’s past capacity to work, allowing for a two year period of treatment and in the expectation of significant improvement in the plaintiff’s condition, I think it proper to calculate the plaintiff’s future loss as 15% of his working life at $650.00 per week (roughly the rate earned at Kleenduct). Adopting the plaintiff’s suggested 950 multiplier with a 15% discount for the vicissitudes of life, there would be an award of $78,731. There would be an award for loss of future superannuation at 9% of that amount: $7,086.

128. [128]
     The defendant has made no submission against the plaintiff’s assessment of $5,522.59 for past special damages and interest thereon of $748.31, and I would award those damages accordingly.

129. [129]
     Given my adoption of Dr Reddan’s relative optimism for the plaintiff’s recovery and improvement over time, I do not accept the plaintiff’s claim of $16,000 for future special damages. I would, however, allow for substantial treatment – a period of up to two years – with pharmaceuticals and travel and also allow for relapses and award $10,000 for future special damages.

130. [130]
     There would be Fox v Wood damages at $474.28. And the award would be less the Workcover refund of $5,160.63.