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Williams v Riviera Marine (Int) Ptd Ltd[2013] QDC 306

Williams v Riviera Marine (Int) Ptd Ltd[2013] QDC 306

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Riviera Marine (Int) Ptd Ltd [2013] QDC 306

PARTIES:

PAUL RICHARD WILLIAMS
(Plaintiff)

V

RIVIERA MARINE (INT) PTY LTD

ACN 058 009 215

(Defendant)

FILE NO/S:

No D386 of 2012

PROCEEDING:

Trial

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

4 December 2013

DELIVERED AT:

District Court Southport

HEARING DATE:

28 May 2013 – 29 May 2013

JUDGE:

McGinness DCJ

ORDER:

Judgment for the defendant with costs

LEGISLATION:

Civil Liabilities Act 2003, s 9

Workers’ Compensation and Rehabilitation and other Legislation Amendment Act 2010, s 305B

Workers’ Compensation and Rehabilitation Regulation 2003, Schedule 9

CASES:

Brisbane City Council v Miles [2011] QCA 250

Dasreef Pty Ltd v Hawchar [2011] HCA 21

General Cleaning Contractors Ltd v Christmas [1953] A.C. 180

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270

Lusk v Sapwell [2011] QCA 59

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Meandarra Aerial Spraying Pty Ltd v Gej & MA Gelard Pty Ltd [2013] 1 Qd R 319

Neill v NSW Fresh Food and Ice Ptd Ltd (1963) CLR 362

Pollard v Trude [2008] QSC 119

Vairy v Wyong Shire Council (2005) 223 CLR 422

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

Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86

Wyong Shire Council v Shirt (1980) 146 CLR 40

CATCHWORDS:

NEGLIGENCE – PERSONAL INJURIES – WORKPLACE ACCIDENT – where the plaintiff suffered shoulder injury while exiting a small space – where plaintiff had previously suffered dislocated shoulder – whether injury as a result of defendant’s breach of duty of care

EVIDENCE – EXPERT EVIDENCE – Admissibility - whether evidence relevant - whether witness may be considered an expert

DAMAGES – Personal Injuries – Measure of

COUNSEL:

L M Willson for the plaintiff

R C Morton for the defendant

SOLICITORS:

Parker Simmonds Lawyers for the plaintiff

Bruce Thomas Lawyers for the defendant

Introduction

  1. [1]
    On 3 February 2011, the plaintiff, who was employed by the defendant, suffered a shoulder injury while engaged in fixing wiring in the under helm locker of the marine vessel, “Rivera 43”. The plaintiff claims damages for personal injury resulting from the alleged negligence of the defendant, as well as damages for breach of contract. Both liability and quantum are in issue.

What happened

  1. [2]
    The plaintiff was born on 8 June 1957. He was aged 53 at the time of the incident. On 3 February 2011 the plaintiff was working for the defendant as a technical tradesperson. The defendant builds and repairs marine vessels. On that date, the plaintiff was fixing the C-Zone wiring in the under-helm locker of a 43-foot launch named “Riviera 43”.[1]To do this, the plaintiff was working inside a small locker underneath the dash on the boat helm (“the locker”).
  1. [3]
    The internal measurements of the locker door were 490mm (height) by 340mm (width).[2]The locker door is the largest standard size locker door used.[3]The locker entrance includes a lip from the floor surface at the bottom of the entrance approximately 100mm high. The plaintiff stated that on the morning of the incident he was in the locker wiring up some electrical modules located high on the left wall of the locker as one looks into the locker, just inside the entrance to the locker.[4]There was not enough room inside the locker for him to sit down, so in order to perform the work he was lying on his left side, with his head nearest the locker door.[5]He had entered the locker feet first at approximately 6-6.30am, just after he commenced work for the day. His feet were near where the main loom enters under the helm area.[6]The plaintiff pleads that he had been lying on his side performing the wiring for approximately one hour, however in evidence stated that he had been inside the locker on this occasion for only ten to fifteen minutes.[7]
  1. [4]
    The plaintiff gave a number of versions of how he exited the locker, and thus sustained an injury to his shoulder. The first version, as contained in his pleadings, is that in order to exit the locker, he had to get up from his hands and knees, so that he could get to his feet, and had to bend and crouch through the locker doorway to exit the area. In the plaintiff’s Further and Better Particulars dated 22 August 2012, the Plaintiff stated that, in order to exit the locker from his working position, he was required to reach out and extend his right hand through the doorway, whilst holding the locker door with his left hand, and twisting his body.
  1. [5]
    In evidence the plaintiff said he had to turn over from his left side inside the locker and onto his right side.[8]He then put his right arm, fully extended[9], out through the locker door, in order to avoid his body resting on the lip on the door and in order to lever himself out of the locker.[10]The plaintiff stated that he had to put his weight on his hand outside the locker door to lift his hip and ribs over the lip, and “shimmy”[11]himself out.[12]The plaintiff explained the locker entrance was not wide enough for him to exit on his stomach or his back so for this reason had to turn on his side to exit[13]The plaintiff said it was easier to manoeuvre his body through the entrance while on his right side because “it’s easier to come out and go left towards the stairs[14]
  1. [6]
    Ms White, an occupational therapist gave evidence that the plaintiff reported to her on 20 August 2012 he had exited the locker backwards by sliding his body on his stomach and elbows, out towards the door of the locker, with his elbows flexed at 90 degrees and touching the ground.[15]Upon reaching the door, to avoid weight-bearing of the torso over the protruding lip, the plaintiff reached out and extended the right upper limb onto the ground in front of his body and attempted to transfer his body weight onto the right shoulder.[16]Ms White recalled the defendant demonstrated to her that he exited feet first. This version is clearly inconsistent with the plaintiff’s evidence.
  1. [7]
    Dr Bartels examined the plaintiff on 1 July 2011. He gave evidence the plaintiff reported to him “fly-bridge – working under dash, crawling hands and knees, place weight onto right hand and pain immediately on the right shoulder”.[17]
  1. [8]
    The plaintiff stated that when he leant on his right hand he immediately felt the pain and he yelled out. His arm gave way and his ribs came into contact with the lip of the locker door. His supervisor was walking on the mezzanine, and he came to the plaintiff’s aid and helped him get the rest of the way out of the locker and off the boat.[18]The plaintiff was taken to the first aid room and his arm was put in a sling. The plaintiff then attended Pindara Hospital.[19]The plaintiff was diagnosed as suffering an injury to his shoulder.

Pre-existing condition

  1. [9]
    The plaintiff suffered a shoulder dislocation approximately 25 years prior to this incident, as a result of a scuffle with another man.[20]He did not get treatment at the time. He gave evidence that he had not had any problems with his shoulder until the present incident.[21]

Subsequent injury

  1. [10]
    In March 2011, the plaintiff again suffered pain in his right shoulder when he was working with wiring in the looms of the boat and stretched his arm out took quickly. He said his arm “gave out again”.[22]He received physiotherapy treatment.[23]

Credibility of the plaintiff

  1. [11]
    The defendant submits that, given the plaintiff’s inconsistent versions as to how he exited the locker, the Court cannot have any confidence in the plaintiff’s version of events, and cannot make a finding as to what the plaintiff was doing at the time.
  1. [12]
    The plaintiff has submitted that this is not fatal to his claim and that, given the passing of time and the unusual nature (from a lay person’s perspective) of the task performed by the plaintiff, that it was not surprising that the witnesses had difficulty describing the actions the plaintiff reported to them in exactly the same way.
  1. [13]
    The plaintiff’s description at trial of how he exited the locker was somewhat confusing and not immediately clear. Interestingly, Ms White’s evidence was also confusing when she described to the court what the plaintiff told her and demonstrated to her. To clarify her evidence, the court asked her to physically demonstrate her understanding of what she believed the plaintiff has reported to her. It was only at this point, well into Ms White’s evidence, that she demonstrated the plaintiff exiting feet first rather than head first.
  1. [14]
    Dr Journeaux, an orthopaedic specialist also examined the plaintiff. Parts of Dr Journeaux’s evidence provide other examples of how difficult it was for witnesses to accurately interpret and describe exactly what the plaintiff says occurred.[24]
  1. [15]
    On balance, I am satisfied the variation between the versions of how the plaintiff entered and exited the locker may well result from the plaintiff’s honest inability to precisely describe to others and to the court how he exited the locker, which resulted in the health professionals and his legal representatives misconstruing what he attempted to describe to them.
  1. [16]
    Consistent in each version of exiting, is the plaintiff’s claim that, when he put weight on his right arm in order to push himself over the lip of the door, he felt immediate pain in his shoulder.[25]I accept, on balance, the plaintiff’s evidence that when the plaintiff exited the locker, he extended his arm out over the lip of the locker and put weight on the extended arm with the intention of manoeuvring his body out of the locker. I accept that when he placed weight on his shoulder he felt pain, his shoulder gave way and he suffered an injury.

Claim

  1. [17]
    The plaintiff claims the defendant breached its duty to take reasonable care to prevent any foreseeable risk of injury to the plaintiff.
  1. [18]
    As submitted by the defendant in its outline of submissions and agreed by the plaintiff, to succeed against an employer at common law the employee must succeed on each of four distinct issues. The defendant refers to the authors of Glass, McGugh and Douglas; The Liability of Employers in Damages for Personal Injuries (2nd. Ed) at p 16 who summarise the four issues as:
  1. That there was a risk of injury which was reasonably foreseeable;
  1. that there were reasonably practicable means of obviating such risks;
  1. that the Plaintiff’s injury belonged to the class of injuries to which the risk exposed him;
  1. the defendant’s failure to eliminate the risk shows a want of reasonable care for the Plaintiff’s safety.[26]
  1. [19]
    The relevant legislation, which governs the obligations of an employer in this case, is the Worker’s Compensation and Rehabilitation Act 2003 (the Act), as amended by the Worker’s Compensation and Rehabilitation and other Legislation Amendment Act 2010 which applies to injuries suffered after 1 July 2010. The legislation slightly alters the common law.
  1. [20]
    Relevantly, s.305B the Act provides:
  1. (1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless—
  1. (a)
    the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  1. (b)
    the risk was not insignificant; and
  1. (c)
    in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
  1. (a)
    the probability that the injury would occur if care were not taken;
  1. (b)
    the likely seriousness of the injury;
  1. (c)
    the burden of taking precautions to avoid the risk of injury.

Foreseeability – Admissibility of Paragraphs 11-14 Ms White’s Report

  1. [21]
    Before considering the issue of foreseeability, it is necessary to determine whether paragraphs 11-14 of Ms White’s report and her oral evidence expanding on these paragraphs of her report are admissible.
  1. [22]
    The passages in Ms White’s report objected to by the defendant are:

“11. Based on the anatomy of the shoulder, the length of the arm presents a long lever with a large globular head within a relatively small joint within the shoulder – ball and socket joint. This allows a great range of motion with little stability. The stability of the shoulder is derived entirely from its surrounding soft tissues: capsule, muscles, and ligaments. The length of a muscle affects the ability of the muscle to create tension. The Force-Length Relationship documents indicate how muscle tension varies at different muscle lengths. The figure below illustrates the Force-Length Relationship. (diagram not included).

  1. As can be seen in Figure One, the maximum muscle force is generated when the muscle is working in a mid-range; this with the least force being generated in the very inner or outer range of muscle length. (diagram not included in this judgment)
  1. Hence Mr Williams’ description of “reaching out with the right upper limb”, and attempt to use the shoulder girdle muscles to transfer the weight of his upper body and torso over the 100mm lip and out of the underside of the helm area, biomechanically this will place high levels of strain on the shoulder girdle. It is my opinion this action, and the resultant poor biomechanics, due to the physical constraints of the combination of the following factors:

a. The confided workspace, and

b. The need to lift the upper body/torso over the 100mm lip

  1. This is deemed as the major significant factor precipitating Mr Williams diagnosed shoulder injury.”
  1. [23]
    The defendant also objects to Ms White’s opinion evidence that there was a high risk of injury to the plaintiff’s shoulder in the manner he exited the locker. Objection was taken on the basis her conclusions were beyond her expertise. It is therefore necessary to consider her evidence of expertise and her conclusions on risk of injury to the plaintiff.
  1. [24]
    Ms White is an occupational therapist. She states she is an expert in ergonomics, the study of the human body’s capacity to undertake both physical and mental tasks. Ms White stated that a large focus of ergonomics is based in the workplace.[27]
  1. [25]
    She was retained by the plaintiff to assess the mechanism of injury to the plaintiff, the causation of the injury including the role of work environment where the injury occurred, and also to comment on Dr Journeaux’s functional assessment of the plaintiff’s impairment. Ms White examined the plaintiff on 22 August 2012, (approximately 18 months after the injury). Ms White’s qualifications include graduate diplomas in ergonomics and counselling. She is a Member of the Ergonomics Society of Australia. She has delivered various papers at conferences. She has worked as a medico legal consultant since 2005. She stated that the main focus of her work as a medico legal consultant is providing functional capacity assessment reports for persons with predominantly physical injuries and, commenting on, as an occupational therapist, how the impact of the injury or illness has impacted on a person’s capacity to undertake their pre-injury tasks, whether they be in the home, the community or in the work environment.[28]
  1. [26]
    Ms White gave a presentation in 1997 at the Division of Workplace Health and Safety Queensland Conference entitled “How to prevent re-injury: the risk management approach”. Ms White stated that the presentation concerned engaging the workforce to identify hazards and risks in the workplace and then applying a risk management where, once the task has been identified, assessing what the risk factors are for potential for injury. The presentation also suggested using a collaborative approach with the employees and management, to look at appropriate and control measures that are realistic and feasible to be implemented in the workplace.[29]Ms White has given evidence in her capacity as an expert for ergonomic work on approximately 6 occasions.
  1. [27]
    The plaintiff correctly submits, the matters to be determined when considering the admissibility of an expert’s evidence are:

1. “Does the asserted field of knowledge exist?

2. If the answer to (a) is yes, is the witness sufficiently qualified in the area?”[30]

  1. [28]
    It is not disputed that the field of safety and ergonomics is a recognised field of knowledge by the Courts. The relevant question here is whether or not Ms White is sufficiently qualified to give opinion as to the relative forces involved on the shoulder joint. While Ms White may be qualified as an Occupational Therapist, it is necessary to show that the witness has some relevant expertise.
  1. [29]
    Ms White stated that her assessment of a “high risk of injury to the shoulder” in this case was based on her experience with other people who have injured shoulders doing work tasks, and her knowledge that the shoulder is an unstable joint, and that it needs to have muscles in a position of power.[31]
  1. [30]
    The defendant has submitted that Ms White’s limited study of anatomy or biomechanics does not amount to sufficient expertise to express an opinion as to what force might be required to cause injury to a shoulder. The defendant also objects to the admissibility of Ms White’s oral evidence that the plaintiff’s description of “reaching out with the right upper limb” and his attempt to use the shoulder girdle muscles to transfer the weight of his upper body and torso over the 100mm lip and out of the underside of the help area, biomechanically, would place high levels of strain on the shoulder girdle.
  1. [31]
    Ms White conceded during cross-examination that she has undertaken no study of the forces that can be applied to the shoulder joint to cause injury.[32]She agreed with the proposition that, although she could say that certain activities may increase the risk of injury, she could not say to what extent.
  1. [32]
    When cross-examined, Ms White conceded that she had made no study of the force which can be applied without causing injury.[33]She conceded that while she could say that a certain activity may increase the risk of injury, she could not say to what extent that increase may be.[34]Ms White maintained, if she were to see an activity where the arm is in a position of reduced strength, which is in the outer ranges, and there was force involved, that she would confidently say that there is a high risk of injury to the shoulder.[35]
  1. [33]
    Ms White initially disagreed with the defence proposition that an orthopaedic surgeon would be in a better position to consider such issues. She stated that she was unsure of how confident an orthopaedic surgeon would be in making comments about how the injured person performed the task during which they were injured, or what positions they were in when they sustained the injury.[36]
  1. [34]
    During further cross examination, however, Ms White conceded that she was not suggesting that she was better qualified than a specialist orthopaedic surgeon to say whether or not a given activity is likely to cause an orthopaedic injury to a human body.[37]
  1. [35]
    Ms White conceded during cross examination that an orthopaedic surgeon would be better suited to answer questions concerning the effect of the plaintiff’s previous right shoulder dislocation.[38]
  1. [36]
    Apart from the issue of the admissibility of Ms White’s evidence, is the fact that her understanding of how the plaintiff injured his shoulder was based on a scenario different from the version the plaintiff gave in court.
  1. [37]
    When Ms White demonstrated in court the method described to her by the plaintiff to exit the hull, she stated that the plaintiff exited the hull feet first, forming a bridge over the metal lip, so that when the plaintiff moved his torso, particularly his ribs, over the metal lip, he wasn’t sliding his body over the lip.[39]The plaintiff’s evidence was that he exited headfirst.
  1. [38]
    The defendant submits, relying on the principles reiterated in Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [66], per Heydon J, that any opinion expressed by Ms White is simply irrelevant because it is an opinion expressed on an assumed factual scenario which is not in fact correct (exiting the locker feet first).
  1. [39]
    Given the fact that the plaintiff himself explicitly stated that his head was facing the locker door[40], his evidence does not support the factual scenario on which Ms White based her original opinion, except to the extent that the plaintiff says he placed weight on his outstretched arm. Ms White maintained, however, when the plaintiff’s current version was explained to her, that his manoeuvre head first out of the locker would still have presented a high risk of injury to the shoulder.[41]

Conclusion on Admissibility

  1. [40]
    I am of the view that Ms White clearly has the expertise to comment on the forces applied in the manoeuvre that the plaintiff performed. She is qualified in that area of expertise; given the evidence she gave of the studies she had undertaken in the area of preventing injury and assessing what the risk factors are in potential injury, as well as her experience as an occupational therapist, and her studies in ergonomics focussing on injuries in the workplace. Her evidence is admissible as an expert. Her opinion does not stand or fall on the exact manner that the plaintiff exited the locker. Her evidence was in relation to the forces applied to the plaintiff’s shoulder when leaning on his extended arm as he exited the locker.
  1. [41]
    Although Ms White misunderstood the circumstances giving rise to the plaintiff’s injury, the thrust of her evidence with respect to the forces inflicted on the plaintiff’s shoulder and her opinions, given her expertise as to how the injury could have been prevented, have some cogency. On that basis, I am inclined to allow the evidence.
  1. [42]
    The weight of the evidence of course is another matter and in that respect the defendant submits that the evidence of an orthopaedic surgeon specialising in shoulder injuries and anatomy is of more weight in considering the issues in dispute. Where the evidence of Ms White is inconsistent with Dr Journeaux’s evidence, I prefer the evidence of Dr Journeaux.

Foreseeability

  1. [43]
    The defendant submits that there is no evidence that the defendant knew of any risk of injury to the plaintiff. The defendant submits that the risk that he might suffer injury was created by his pre-existing shoulder condition, and there is no evidence that the defendant knew about that. The defendant’s submission is misconceived on this point. The plaintiff only has to prove the risk of a certain class or injury was foreseeable, not the injury that, in fact occurred.
  1. [44]
    In the case of Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 Court of Appeal Justice Muir stated at [25]:

“In considering whether there was a breach by the respondent of its duty of care, it is necessary to identify what a reasonable employer in the position of the respondent would have done to obviate a foreseeable risk of injury to the appellant.9  This inquiry does not focus on the injury, which in fact occurred, but on the range of activities in which employees, such as the appellant, were engaged and potentially at risk. 10 Relevant to this inquiry are:11

“…the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of alleviating action, and other competing demands upon a potential defendant.”[42]

  1. [45]
    The defendant therefore did not have to foresee a risk the plaintiff would dislocate his shoulder, only that some injury to the plaintiff’s arm or shoulder could occur.
  1. [46]
    The defendant next submits the risk of any injury to the plaintiff was insignificant. The defendant relies on the evidence of Dr Journeaux, orthopaedic surgeon and specialist. The defendant submits the effect of Dr Journeaux’s evidence is that a person with a “normal” shoulder, performing work in the position that the plaintiff did, would be unlikely to suffer injury.[43]
  1. [47]
    Dr Journeaux, was asked to provide an opinion on whether a person with a normal shoulder, (without any pre-existing injury), would have sustained an injury as a result of the mechanism of incident described of exiting from under a helm as particularised in the report of Dr Geoffrey Miller (general surgeon who examined the plaintiff on 3 October 2011). Relevantly, Dr Miller recorded the plaintiff “put his right arm out to take his weight and his right arm gave way.”[44]Dr Journeaux, in his medico legal reported dated 6 March 2012 states: “in my view it is possible for a person with a normal shoulder to injure himself or herself in an incident as described (to Dr Miller) but clearly one is much more likely to injure oneself with a pre-existing injury or with constitutional abnormalities”.[45](My underlining)
  1. [48]
    The defendant also relies on Dr Journeaux’s written notes from a conference dated 18 April 2013. Dr Journeaux states:

“4. The exercise that his man was engaged in at the time he felt the onset of symptomatology was similar to a position adopted when doing push-ups. That activity does not normally cause any significant injury to people. It might cause a strain if a person over-exerted themselves, but I would not expect any injury of any significance at all in a person with a normal shoulder.

  1. Because this man had a significantly abnormal shoulder and experienced pain the shoulder gave way. Whilst it was possible that a person with a normal shoulder may suffer a strain injury in respect of the said mechanism of injury, absent the plaintiff’s particular susceptibility, the risk of an injury would be insignificant.” (My underlining)
  1. [49]
    Paragraph 5 of Dr Journeaux’s note appears to me to be inconsistent with paragraph 4 of the same note, and is also inconsistent with what he said in his medico legal report (see above) when specifically asked to comment on whether a person with a normal shoulder would have sustained an injury. Paragraph 5 of Dr Journeaux’s note, no doubt led by the defendant in an attempt to conform to s 305 B of the Act discloses that a person with a normal shoulder may sustain an injury (albeit a strain injury). This is in effect what he had said in his medico-legal report. It is not necessary for the plaintiff to prove that the specific injury, which the plaintiff suffered, was foreseeable.
  1. [50]
    The defendant also relies on Dr Journeaux’s oral evidence. However, the effect of Dr Journeaux’s evidence at T2.46 appears to be that he interpreted Mr Morton’s question as referring to the defendant pushing up from the floor with his hand rather than the accepted version that the defendant reached over the lip in an arc, stretched out his arm and placed his hand down on the floor, which then gave way. Dr Journeaux’s answer that such a risk would be unlikely appears to be based on the wrong scenario because his answer assumes the defendant was pushing his body upwards from a prone position.[46]
  1. [51]
    Dr Journeaux agreed, during cross-examination, that lifting oneself over the lip of the locker exit possibly presents a higher risk than a standard push-up, depending how awkward the manoeuvre was.[47]

Was the risk of injury “not insignificant”?

  1. [52]
    The defendant refers to Pollard v Trude [2008] QSC 119 at [39] where Chesterman J, considered the s.9 Civil Liability Act 2003(CLA). S305B the Act replicates s 9 CLA. Chesterman J held that the “farfetched or fanciful” common law test has been replaced by the “not insignificant” test.
  1. [53]
    Section 9 CLA has more recently been considered by the Court of Appeal in Meandarra Aerial Spraying Pty Ltd v Gej & MA Geldard PTY LTD [2013] 1 QdR 319. Fraser J at [26] considered the words of the section did produce some slight increase in the necessary degree of probability. He stated:

“The respondent referred to Chesterman J’s statement in Pollard v Trude[48] that the replacement in s 9(1)(b) of “not insignificant” for the common law formulation of “not far fetched or fanciful” added little in clarity. Nevertheless, the provision was designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable. I think that it did produce some slight increase in the necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly improbable as to be insignificant, but the obverse proposition may not necessarily be true. The generality of these descriptions makes it difficult to be dogmatic about this, but the statutory language does seem to convey a different shade of meaning. The difference is a subtle one. The increase in the necessary degree of probability is not quantifiable and it might be so minor as to make no difference to the result in most cases. Nevertheless, in deciding claims to which the Act applies the “not insignificant” test must be applied instead of the somewhat less demanding test of “not far-fetched or fanciful”. 

  1. [54]
    The plaintiff was required to crawl into a narrow space, perform his tasks and then exit the locker over a lip. I am satisfied having regard to Dr Journeaux’s evidence, the evidence of the dimensions and layout of the locker, and the photographic exhibits, there was at least a risk of some sort of muscle strain occurring and the risk of an injury to the shoulder was foreseeable and not insignificant.
  1. [55]
    It seems to me a reasonable employer would contemplate some awkwardness, particularly in posture and movement, as a worker is entering and exiting that narrow locker opening. I am of the view that there arises from that awkwardness a risk that a worker may suffer a strain type injury in performing the task of either entering or exiting the space. It then becomes a question of what the reasonable response to that risk is.

Preventability

The next issue is whether or not the exercise of reasonable care on the part of the employer could have avoided or reduced the risk of injury.[49]

  1. [56]
    In accordance with the Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47-48, the court must take into account the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action.
  1. [57]
    Here the risk is only a risk of strain to a normal shoulder. There is no evidence that the plaintiff or any other employee injured themselves when entering or exiting the locker. This has to be factored into what should have been done by a reasonable employer.
  1. [58]
    The plaintiff submits that there were a number of precautions that a reasonable person in the position of the defendant could have implemented, including:
  1. Provision of a safe entry/exit procedure;
  1. Training in a manoeuvre/procedure;
  1. Use of a towel or some other material to ensure that the lift is not as hazardous;
  1. Supervision.

Use of a towel or other cushioning

  1. [59]
    The only expert evidence in relation to any preventative measures was given by Ms White who stated that a towel or piece of foam placed on the fibreglass lip could be used so that the worker would not have to bridge completely over the lip.
  1. [60]
    Ms White suggested a softening layer of foam or cushion over the bottom of the opening so that a worker did not have to overextend his arm whilst exiting the doorway so as to avoid the lip, which is raised by about 100mm from the floor surface. She stated that such a precaution would significantly reduce the risk of injury because the movement of the body could be in segments, rather than one attempt at lifting the torso over the lip.[50]
  1. [61]
    The problem with this is that, even with the cushioning on the bottom lip, the worker would still have to place weight on his arms if he proceeded in the manner the plaintiff exited the locker. The placement of a soft cover may make it more comfortable for a worker as they entered or exited the locker, but I am not satisfied cushioning the lip would remove any risk if not accompanied by some further instruction of how to avoid putting undue weight on a hyper-extended arm.
  1. [62]
    Dr Journeaux gave evidence that the provision of cushioning would have made no difference to the risk of an injury occurring. He stated that cushioning of the lip would not be relevant at all to the force exerted on the plaintiff’s shoulder. The defendant submits that, given the plaintiff’s shoulder gave way as soon as he put weight on it, it would not have mattered whether he was going to employ smaller movements to get over the lip (as suggested by Ms White to avoid the injury). As soon as he stressed his shoulder, it gave way.[51]
  1. [63]
    The plaintiff did not give evidence to say that, if a piece of cushioning covered the lip of the entrance, he would have used it to avoid leaning on his hand to exit the locker. There is no evidence that the plaintiff would have followed any instruction to use cushioning. To the contrary, there was evidence the plaintiff was someone who did not always follow instructions in respect of safety, for example he refused on occasions to wear safety glasses in spite of numerous directions to do so.
  1. [64]
    The evidence in relation to the cushioning only satisfies me that it would make the entering and exiting of the locker more comfortable. It does not satisfy me that it would materially reduce the risk of a strain injury.

Instruction and training

  1. [65]
    The plaintiff gave evidence he worked for Riviera for approximately three and a half years. He said he received no instructions or training prior to the injury about the type of risk associated with working in the locker, or about how to enter and exit the locker.[52]He said the only time he received instruction was after the incident when he attended a “toolbox meeting”[53]at which a supervisor told staff to do warm up exercises before entering confined areas.[54]
  1. [66]
    The only other evidence of some relevance to the issue of preventability is to be found in an “Incident Investigation Report” compiled by the defendant’s employees Nathan Mara and Mr Schmid after the incident.[55]
  1. [67]
    Mr Mara, in his report, noted the entry locker door was quite small, and restricted access into and out of the locker, but was the largest available on the market. He noted possible contributing factors to the injury were the restricted work area and lack of warm up exercise. He recommended repeating the “toolbox” session on stretching and warming up. His report noted that a training session on stretching and warming up had most recently been conducted at a toolbox session on 15 August 2010 (less than five months before this incident). He recommended a review of the process of installation of wires within the locker to determine whether the wiring process could be undertaken outside the locker. The plaintiff called no medical evidence that warming up the shoulder prior to undertaking that particular task would have materially reduced the risk of injury.
  1. [68]
    Mr Mara worked under Mr Schmid, who was the Health and Safety Advisor for the defendant at the time of the injury. Mr Schmid gave evidence he undertook a risk assessment after the incident. He conceded he was not specifically aware of any risk assessment of the locker area undertaken prior to the plaintiff’s injury. The plaintiff submits an inference can be drawn that no prior risk assessment occurred.
  1. [69]
    Mr Schmid gave evidence that, after the incident, he oversaw an investigation into whether the work that the plaintiff was undertaking could be conducted in a different way.[56]Specifically, the investigation reviewed the work environment, namely, the locker, to see if the modular C-Zone units could fit onto one board outside the locker.[57]He concluded that it would be a greater risk to staff if the current system was modified. The plaintiff did not challenge his evidence on this point.[58]
  1. [70]
    The defendant submits that, given there was no suggestion that anyone else had previously been injured carrying out the task, it was highly likely that the subsequent risk assessment was a valid one. As such, even if any risk assessment or standard operating procedure had been conducted prior to the plaintiff’s accident, there would not have been any changes to the system or work recommended.
  1. [71]
    Mr Schmid stated in evidence that the defendant regularly conducted “verbal toolbox talks” and issued safe work method statements. He stated that managers, team leaders and all other staff members regularly conducted reviews of their environments to make sure that they were safe.[59]
  1. [72]
    The defendant submits that, given that there was no evidence about what a risk assessment should have revealed, there was no causal connection between the defendant’s failure to conduct a risk assessment and the injury sustained by the plaintiff.
  1. [73]
    Wilson AJA in Lusk v Sapwell [2011] QCA 59 at [76] discussed the importance of establishing causation:

“…in order to succeed in an action for damages for breach of [an employer’s duty] the employee must establish both the breach and that the employer’s conduct materially caused the injury. Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.”

  1. [74]
    In my view a reasonable employer would engage some risk assessment to devise the safest means of performing that task, including the safest, most efficient way of entering and exiting the entrance to the locker. The difficulty is, one doesn’t know what the result of that risk assessment would have been. For instance, it may be the case that the plaintiff was utilizing the safest most efficient way of entering and exiting the entrance to the locker. To embark further on this would be engaging in speculation.
  1. [75]
    The plaintiff can point to no evidence that either the provision of a safe entry or exit procedure, training in entering and exiting the locker or supervision would have avoided or reduced the risk of injury. Unfortunately, the plaintiff did not call any expert evidence, to testify as to the safest means of performing that task (apart from Ms White’s evidence of cushioning). There wasn’t any evidence directed at what training should have occurred. For example, how the employees should crawl in or out of the exit to avoid or minimise the risk of injury.
  1. [76]
    Ms White, the occupational therapist, who I would expect would give such evidence was silent on the issue of any instruction or training that should be given to employees in that circumstance. I note the pleadings raise the issue of lack of instruction, however, the plaintiff, in the presentation of his case, led no evidence as to the instruction which should be given, or of what a risk assessment, if undertaken, should have concluded.
  1. [77]
    The plaintiff has to prove:
  1. What reasonable steps by an employer weren’t taken that ought to have been take by a reasonable employer that weren’t taken; and
  1. That those steps, had they been taken, would on the balance of probabilities, have avoided the injury.
  1. [78]
    The plaintiff submits, in reliance on the case of Brisbane City Council v Miles [2011] QCA 250, that not all recommendations require the support of expert evidence. In some cases the plaintiff may be able to prove breach of duty, not only by direct evidence but also by reasonable inference from the evidence that the defendant failed to take measures or adopt means reasonably open to it in all the circumstances.[60]
  1. [79]
    This is certainly true in cases where some risks of injury are obvious. An employee who uses an unguarded chainsaw or an employee who is not given instruction about the importance of wearing protective gear and why it is important to wear it are examples where the plaintiff’s case might succeed without expert evidence. Another example is the factual scenario in Mile’s Case where an employee had to walk through a poorly lit area at night to outside staff toilets when he had work money in his possession.[61]Where it is not clear, however, what a reasonable employer should have done to avoid risk of injury, it is not appropriate for a court to speculate on what an employer should or could have done.
  1. [80]
    I consider the present case is one where direct evidence or expert evidence was necessary to prove what steps ought to have been taken by a reasonable employer that weren’t taken and that those steps, had they been taken would have avoided the injury.

Conclusion

  1. [81]
    The plaintiff has not proved on balance, that a reasonable person in the position of the defendant would have taken precautions to avoid the injury. The plaintiff has also failed to prove, on balance that, even if such a breach had occurred, the breach was a necessary condition of the occurrence of the injury.[62]The plaintiff has not proved, on balance, that the employer has breached its duty of care to the plaintiff. The plaintiff has failed to prove what precautions should have been taken. I give judgment for the defendant.

QUANTUM

  1. [82]
    I will now assess quantum.

Pre-existing condition

  1. [83]
    As referred to above, the plaintiff suffered a shoulder dislocation approximately 25 years prior to this incident.[63]He did not receive treatment at the time. He stated that he had not had any problems with his shoulder until the present incident.[64]

The witness Anthony Schmid gave evidence that he spoke to the plaintiff on the day that the present injury occurred, after the plaintiff returned from the hospital. Mr Schmid stated that the plaintiff told him that his shoulder had dislocated roughly six to seven occasions prior to this, and that he had an unstable shoulder.[65]The plaintiff denied this conversation occurred. On balance, in the absence of other evidence that the plaintiff had previously suffered multiple dislocations, I proceed on the basis that he had only suffered the one previous dislocation, 25 years earlier.

Subsequent injury

  1. [84]
    As referred to above, on 21 March 2011, the plaintiff again suffered pain in his right shoulder when he was working and stretched his arm out too quickly. He said his arm “gave out again” (the second incident).[66]He continued to receive physiotherapy treatment.[67]

Events after 3 February 2011 injury

The plaintiff’s evidence

  1. [85]
    After the injury on 3 February 2011, the plaintiff made a worker’s compensation claim. He received physiotherapy treatment and returned to work the following week on light duties. The plaintiff said he performed work that did not involve repetition or overhead work. The plaintiff attended regular physiotherapy sessions commencing 13 February 2011.
  1. [86]
    The plaintiff agreed in evidence he had told the physiotherapist on 10 March 2011, (five weeks after the incident) that his shoulder felt great and he had a full active range of movement. The plaintiff agreed he went back to work on 15 March 2011 on full duties consistent with Dr Bilios’ medical certificate but stated he was not actually performing normal duties; rather he selected tasks he could perform properly so he did not lose his job.[68]
  1. [87]
    He agreed he returned to the physiotherapist on 23 March 2011, a day or two after the second incident where he felt pain in his shoulder from lifting a loom. The plaintiff attended a further nine physiotherapy sessions until 12 May 2011. The plaintiff agreed that, when he attended the physiotherapist on 5 and 12 May 2011 he may have reported he had a full active range of movement at that stage and he may not have complained of any pain. He maintained however that he was still having trouble with his shoulder pain- wise but that the gym was working well to assist his injury.[69]
  1. [88]
    WorkCover terminated the plaintiff’s physiotherapy treatment soon after 12 May 2011.[70]The plaintiff gave evidence that the injury had been improving with physiotherapy but that, once the physiotherapy was terminated, his shoulder stopped improving and has never been right since then.
  1. [89]
    The plaintiff later returned to full duties. He believed if he didn’t return to full duties he would lose his job. The plaintiff found that, due to his injury, he physically could not lift things on and off the boat, hold heavy objects while fastening them to the boats or do overhead work such as fitting lights into ceilings. He could not undertake any tasks that required sustained upward extension of his right arm.
  1. [90]
    The plaintiff gave evidence that Human Resources (“HR”) informed him they would not provide any more physiotherapy sessions for him, even though he told them his shoulder was still not right. The plaintiff accepted his medical certificate stated he should be fully fit by that stage but he nevertheless believed that HR should have sent him back to the doctor to get a further certificate stating that he was not fully fit so he could continue with his physiotherapy.[71]
  1. [91]
    Under cross-examination, the plaintiff denied the suggestion that the last time he discussed his shoulder problem with his general practitioner was 27 March 2011.[72]The plaintiff conceded that he never attended his medical practitioner after that date specifically for his shoulder problem, but he maintained he had spoken to his general practitioner about his shoulder injury during consultations since that date.[73]
  1. [92]
    The plaintiff gave evidence that he had not been able to do any overhead work since the incident. He stated “anything I try in these days, in the way of work, is always getting in some way impacted because of my shoulder injury”.[74]The plaintiff ceased work at Riviera on 1 December 2011. His employment was terminated.

Why the plaintiff ceased employment at Riviera

  1. [93]
    The plaintiff gave evidence that his employment was terminated as he was being targeted because “I had a run in with HR concerning my shoulder”. The plaintiff said Ms Lugton, who worked in HR, accused him of not attending his physiotherapy appointments. He denied this to be the case and questioned why HR required him to provide documentation to prove he had been attending. He admitted he confronted a female staff member (Ms Lugton) in HR in an abusive manner about this issue. The plaintiff said that it was from the time of this incident that his relationship with HR and his superiors began to deteriorate.
  1. [94]
    The plaintiff believed his superiors commenced disciplining him for insignificant breaches such as going outside to smoke, while they turned a blind eye to other staff breaching the same rules. On 28 March 2011, HR sent the plaintiff a written first and final warning in relation to an incident with a work colleague, Mr Thacker, which occurred on 21 March 2011. Under cross-examination, the plaintiff denied he had threatened violence against Mr Thacker. He stated all he did was tell Mr Thacker he was twice his age and knew better than he did.[75]The plaintiff agreed in cross-examination he raised his voice at Mr Thacker. He acknowledged his outburst may have led to the written warning he received on 28 March 2011.[76]
  1. [95]
    Under cross-examination, the plaintiff agreed that on 19 May 2011 he went to see Ms Lugton in HR about his physiotherapy treatment. He agreed he was angry and swore on a number of occasions during the meeting and that he shouted at Ms Lugton. He explained to the court the organisation had stopped paying for his physiotherapy sessions and had not paid him overtime. He said he was angry about the way he had been treated. The plaintiff said he apologised to Ms Lugton the following day for his outburst.[77]
  1. [96]
    The plaintiff accepted that on 20 May 2011 he received a letter from Ms Lugton, which noted his aggressive behaviour and which informed him that further unacceptable behaviour would lead to Riviera commencing a disciplinary process, which may result in his termination.[78]
  1. [97]
    On 6 September 2011 the plaintiff attended a meeting with Mr Thacker, Ms Lugton and another employee Mr Lihou who was there at his request. The meeting was convened to discuss a complaint from Mr Thacker to the effect that the plaintiff had not been wearing safety glasses as required. The plaintiff agreed under cross-examination that he had attended a toolbox meeting on 18 July 2011 concerning the company’s policy of wearing safety glasses. He agreed he had not been wearing his safety glasses on some occasions. He explained this was for good reason because when working in certain areas the safety glasses fogged up, they did not fit over his reading glasses and he believed they were unsafe to wear on occasions when performing certain jobs where he could not see properly while wearing them. He stated in re-examination that the company had failed to provide him with “overglasses” to wear over his reading glasses. He was then supplied with “overglasses” at the meeting. The plaintiff denied he was intentionally being difficult with Mr Thacker in retaliation to Mr Thacker’s earlier complaint of 21 March 2011. He accepted that the policy of wearing protective safety glasses was a state-wide rule. The plaintiff was issued with a written warning on 12 September 2011.[79]
  1. [98]
    On 24 November 2011 Mr Schmid, an employee, made a complaint to HR about a heated argument during which the plaintiff swore at him and threatened him to watch his back.[80]On the same date the plaintiff received a letter from HR. The letter requested the plaintiff show cause why his employment should not be terminated and to attend a meeting on 1 December 2011.
  1. [99]
    On 28 November 2011 the plaintiff attended a meeting as requested to discuss Mr Schmid’s allegations of abuse. Under cross-examination, the plaintiff agreed the file note of the meeting mostly accurate.[81]The file note records that, at the meeting, the plaintiff admitted he was out of line with his behaviour however believed he had been provoked by Mr Schmid, who demanded he perform a task in an unrealistic timeframe.
  1. [100]
    The plaintiff admitted to yelling and screaming at Mr Schmid but couldn’t remember what he said or if he threatened him. During the meeting the plaintiff raised concerns that he was being targeted by Mr Thacker who he claimed constantly disciplined him, but not other employees for smoking outside allocated breaks and not wearing his safety glasses. The plaintiff also admitted to those at the meeting he had some anger management problems, he was taking medication, and had an appointment with the doctor on the following Friday to obtain a prescription for stronger medication. At the end of the meeting the plaintiff was temporarily suspended whilst further investigations continued.[82]
  1. [101]
    On 1 December 2011 the plaintiff provided HR with a letter showing cause as to why his employment should not be terminated. In the letter he apologised to those he had offended. He stated the incident would not have occurred if he had been on stronger medication. He had sought medical help to curb his anger management. He was stressed due to moving house and giving up smoking which had contributed to his latest outrage. He claimed that, since being prescribed new medication he felt more in control of his feelings. He stated he believed he could still be an asset to the company and once again apologised to all staff for his behaviour.[83]At the meeting that day the plaintiff was handed a letter terminating his employment effective 1 December 2011.
  1. [102]
    On the evidence, I am not satisfied that the plaintiff was dismissed because he was physically unable to perform his duties due to his shoulder injury. Although the plaintiff may honestly believe his employer was treating him unfairly, it is clear on the evidence that he was terminated for other reasons. However, the consequence of his dismissal was that he found himself on the open labour market looking for work as a middle aged man, with a damaged shoulder.

Medical Evidence

Dr Bartels

  1. [103]
    The plaintiff called Dr Bartels, an independent medical examiner for WorkCover to give evidence on his behalf.[84]On 1 July 2011 Workcover retained his services to assess the plaintiff and determine the nature and degree of any permanent impairment. Dr Bartels examined the plaintiff on 19 July 2011.[85]
  1. [104]
    The plaintiff complained of pain in the right shoulder particularly working above shoulder height; difficulty with shoulder abduction and rolling onto the shoulder at night; pain driving an automatic vehicle; static positioning pain.
  1. [105]
    Dr Bartels examined the plaintiff. He observed no sign of muscle wastage to the right shoulder; good musculature around the shoulder; some elevation to the right shoulder consistent with previous trauma; marked restriction to range of motion in the right shoulder.
  1. [106]
    Dr Bartels diagnosed the plaintiff suffered “calcific tendinitis right shoulder and associated subacromial bursitis on a background of a previously subluxed acromioclavicular joint”[86](“AC joint”).
  1. [107]
    Dr Bartels concluded:
  • There was a clear causal relationship between the work related injury and the subsequent injury, and that the plaintiff’s work was a significant contributing factor, bearing in mind the pre-existing injury[87];
  • Given the nature of the plaintiff’s duties, the restriction to the plaintiff’s range of movement was significant and would cause the plaintiff to have some ongoing issues with regard to full mobility conducting his work duties;
  • The plaintiff had suffered permanent impairment to the right shoulder as 4%, factoring in the 5% loss that would have been caused by the long term pre-existing injury and the subsequent injury of 21 March 2011.[88]
  1. [108]
    Under cross-examination, Dr Bartels agreed the plaintiff had returned to full duties at the time he examined him;[89]that there was some inconsistency between the physiotherapy reports which recorded the plaintiff having full range of movement by 12 May 2011 and what the plaintiff had reported to him.[90]He agreed that, if the physiotherapist reports were accurate, this would give him cause to doubt the veracity of the plaintiff’s presentation to him;[91]that the plaintiff’s return to full duties was inconsistent with a restriction in the range of motion.[92]

Dr Miller

  1. [109]
    The plaintiff called Dr Miller to give evidence. He is a WorkCover preferred independent medical examiner and specialist surgeon. Dr Miller examined the plaintiff on 3 October 2011. He also reviewed relevant Pindara Hospital records, the Workers Compensation Medical Certificate (14.2.11) and the report of South Coast Radiology (3.2.11).[93]
  1. [110]
    Dr Miller reported the plaintiff claimed he had no problems with his right shoulder before the 3 February 2011 incident despite his pre-existing shoulder injury. The plaintiff complained to Dr Miller of constant pain in his right shoulder posteriorly in the supraspinatus region and to the lateral aspects of his shoulder; his right upper extremity was weaker; he had difficulty doing overhead work; pushing and pulling exacerbated his symptoms.
  1. [111]
    The plaintiff also claimed he was unable to sleep on his right side due to pain; he had difficulty putting on shirts, hanging out washing, making beds, carrying heavy shopping and washing his car. The plaintiff reported he had ceased playing golf and riding his pushbike.
  1. [112]
    Dr Miller examined the plaintiff. He noted the plaintiff’s shoulder movement appeared quite restricted; he had wasting of his right shoulder musculature; he had a dislocated right AC joint; he was tender to palpitation of his shoulder joint;  he had limited flexion, power and extension in his right arm.
  1. [113]
    Dr Miller reviewed an X-ray and Ultrasound performed on the plaintiff on 3 February 2011 and reviewed the report prepared by Dr Ioannou, specialist radiologist. Dr Miller gave evidence his observations coincided with those of Dr Ioannou. Dr Miller reported the test results showed calcification in the plaintiff’s supraspinatus tendon (a tendon located in the upper part of the scapula which is part of the rotator cuff which is important for lifting the shoulder); a dislocation of his AC joint (the joint between the scapula and the clavicle which is important in maintaining shoulder integrity); calcification in the ligament under the clavicle (which tends to hold the clavicle down when the shoulder moves).[94]Dr Miller concluded that these injuries were likely the result of old trauma.[95]
  1. [114]
    Dr Miller gave evidence the X-ray and Ultrasound showed evidence of recent acute trauma, namely subacromial bursitis (inflammation of the bursa) and impingement from a thickened tendon to the shoulder which caused limitation of abduction of the plaintiff’s right arm. He said these results were consistent with injury on 3 February 2011.[96]
  1. [115]
    Dr Miller concluded that the plaintiff aggravated a previously degenerative change in his right shoulder as a direct result of work related activity. He assessed the plaintiff suffers a 6% permanent impairment, having regard to the pre-existing shoulder injury. He recommended the plaintiff undergo an MRI scan of his right shoulder, consult a specialist shoulder surgeon, undergo a course of intensive physiotherapy with possible steroid injection into his sub-acromial bursa, and that if this failed to improve his condition, the plaintiff might be a candidate for arthroscopic examination with possible acromioplasty.[97]
  1. [116]
    Dr Miller considered the plaintiff would be unable to return to his occupation as an electrician or automotive engineer, except on restricted duties, and that the plaintiff’s restricted ability to perform domestic activities would continue into the future. Dr Miller concluded, based on the plaintiff’s claim that he had no recurring problems with his shoulder until his recent injury, that if the plaintiff had not had the injury on the boat, he might not ever have had any further symptoms. Dr Miller considered that the plaintiff might have continued to work as he had for most of his life, without any problems.[98]
  1. [117]
    Under cross-examination, Dr Miller conceded his opinion was dependant upon the truthfulness of the plaintiff’s claim that he had no problems with his shoulder prior to the incident.[99]
  1. [118]
    Under cross-examination Mr Morton put to Dr Miller the following scenario:

“Assume that there was an incident on about the 21st or 22nd of March 2011 which caused him to complain of pain again to the physiotherapist, but on the 20th of April he had a full active range of movement again. On the 24th of April 2011 he was reported as attending the gym. No complaints with the shoulder, and one of the exercises he undertook were three ten second planks, which I understand to be him resting on either his elbows or his hands and his toes and holding that position, and was apparently able to do that without a problem. On the 5th of May 2011, he again had a full active range of movement. On the 12th of May 2011 at the physiotherapist, he felt good after the gym and had a full active range of movement. No complaints of pain. He made no complaint to his GP after the 27th of March 2011 of any problem with the shoulder. That really – that history I’ve just given you, Doctor, looks like this man  had a pain-free full active range of motion of his shoulder by no later than 12 May 2011, doesn’t it?”

Dr Miller responded, “Yes it does”.[100]

Ms White

  1. [119]
    The plaintiff called Ms White, an occupational therapist to give evidence. She examined the plaintiff on 22 August 2012 and provided a report.[101]The plaintiff reported to her that, although he had returned to work normal hours, he was not able to return to all his pre-injury work tasks, due to ongoing pain in the right shoulder for tasks requiring:
  • Prolonged or static holding postures with the right upper limb
  • Extended use of power tools where vibration is experienced
  • Highly repetitive use of the right upper limb, where force or precision work is required
  • Repetitive lifting/pushing/pulling when the body is not in a posture of strength (that is, upright and forward facing, elbows positioned alongside the trunk).[102]
  1. [120]
    Ms White maintained, in cross examination, that the plaintiff’s reported inability to perform these tasks would not necessarily have existed prior to the 3 February 2011 incident despite the plaintiff’s old shoulder injury.[103]
  1. [121]
    Ms White assessed the plaintiff’s functional range of movement in his right shoulder. She considered the plaintiff demonstrated full active functional range at the right shoulder joint. The plaintiff reported pain or discomfort when holding end range flexion for periods of more than 30 seconds; discomfort when undertaking more than 90 degrees of abduction; discomfort or pain at more than 50% of internal and external rotation. Ms White opined the plaintiff would have reduced capacity when lifting to an overhead position.
  1. [122]
    Ms White recommended, based on her clinical experience with similar shoulder conditions, the plaintiff avoid tasks that require application of force through his right upper limb, in positions where the right elbow is in an extended/reaching posture; prolonged use of vibration tools with this right hand; repetitive use of the right upper limb, particularly where jarring is experienced.
  1. [123]
    Ms White conceded that her opinion concerning the restrictions on the plaintiff for his employment in the future was based upon the plaintiff’s claims of continuing pain and restriction rather than objective evidence.[104]

Dr Journeaux

  1. [124]
    The defendant called Dr Journeaux to give evidence. Dr Journeaux, orthopaedic specialist, examined the plaintiff on 6 March 2012.[105]The plaintiff reported to Dr Journeaux that, although he had returned to normal duties in the workplace during his physiotherapy treatment, he had to modify his work activities because of his injury. The plaintiff reported that after WorkCover terminated his physiotherapy his symptoms grew worse and remained so at the date of Dr Journeaux’s examination.
  1. [125]
    The plaintiff reported constant pain in the AC joint area of his right shoulder on a pain scale of 4 - 8/10; the pain was aggravated by prolonged postures after several minutes, for example driving a car, by any overhead activity and by any repetitive use of the arm. The plaintiff reported he was unable to lift any significant weight; he had moderate difficulty showering, dressing and performing housework; he required assistance to perform house maintenance, shopping and driving; he was unable to perform gardening tasks, play golf, ride his bike, fish, swim, or play pool. The plaintiff denied suffering any symptoms prior to the incident from his pre-existing shoulder injury.
  1. [126]
    Dr Journeaux examined the plaintiff’s right shoulder. He observed no muscle wasting on the right shoulder. He observed obvious deformity to the AC joint, consistent with a longstanding dislocation; some tenderness in the shoulder joints.
  1. [127]
    Dr Journeaux reviewed Dr Ioannou’s report, the report by Dr Gary Sheppard, who did a further X-ray on 6 March 2012, the Medical Report by Dr G Gillett, dated 16 February 2010, the Pindara Emergency Centre Records, the Permanent Impairment Assessment Report by Dr Bartels, Dr Miller’s report, and reviewed the plaintiff’s physiotherapy records and GP records.
  1. [128]
    Dr Journeaux gave evidence that, in his opinion, a careful study of the plaintiff’s physiotherapy records suggests the plaintiff had made a full recovery in relation to any injury that occurred in February 201l.[106]
  1. [129]
    In his opinion the injury to the plaintiff’s shoulder was caused by the fact that the plaintiff had an abnormal shoulder resulting from his earlier shoulder injury. He stated that the forces that would have been applied to the shoulder on the day of the incident compromised it, in that they were too much for his abnormal shoulder to cope with.[107]
  1. [130]
    Dr Journeaux considered the subacromial bursitis present in the plaintiff may or may not be consistent with either the injury in February or the injury that occurred 25 years ago.
  1. [131]
    Dr Journeaux concluded:
  • the plaintiff sustained an injury to his right shoulder at work on 3 February 2011;
  • the incident caused “a symptomatic exacerbation of constitutional pathology, and more likely than not, the pre-existing injury to the dislocated AC joint/area of that joint”;[108]
  • the injury sustained in the incident did not cause any permanent incapacity
  • the plaintiff made a complete recovery within six to eight weeks (by 12 May 2011 at the latest based on the physiotherapy records and general practitioner records.[109]
  • any symptomology after 12 May 2011 is related to his pre-existing condition and not attributable to any activity in the course of his employment.[110]
  • the plaintiff has no restriction working in the future that could be reasonably attributed to the injury.
  • given his pre-existing shoulder condition, the activities the plaintiff reported to Ms White which still caused him pain or weakness in his shoulder could be expected to occur even without the 3 February injury, certainly as he aged: subsequent symptomology would be related to his constitutional aging process.[111]

Quantum General

  1. [132]
    The parties submit the plaintiff’s damages are to be assessed in accordance with Schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2003 (reprint 4).[112]
  1. [133]
    The defendant submits that I should accept Dr Journeaux’s evidence, in conjunction with the physiotherapy records,[113]and the general practitioner records[114]that the plaintiff suffered an aggravation of his pre-existing injury and made a complete recovery within six to eight weeks.
  1. [134]
    The defendant submits Dr Miller, when made aware of the content of the physiotherapy records and the general practitioner records, agreed with Dr Journeaux’s view.[115]The defendant submits Ms Wilson for the plaintiff did not challenge Dr Journeaux’s conclusion.
  1. [135]
    The defendant submits the plaintiff’s complaints of continuing symptomatology, if true, are attributable to his pre-existing condition and not to any breach of obligation by the employer.
  1. [136]
    The plaintiff, on the other hand, submits that the physiotherapy records, absent oral evidence from the physiotherapists as to the nature and frequency of exercises the plaintiff was able to perform, should be given little or no weight. The plaintiff submits they should not be considered evidence of full recovery in light of the plaintiff’s evidence at trial that he still suffered pain in his shoulder, he was unable to perform sustained overhead work and his evidence of other tasks he was unable to perform. The plaintiff relied on Dr Journeaux’s evidence under cross-examination that, if it were true that the plaintiff was unable to return to his pre-injury work tasks, then it would, in legal terms, be considered a permanent aggravation.[116]

Consideration

  1. [137]
    The physiotherapy records were admitted into evidence without objection by the plaintiff. The contents are therefore evidence that the plaintiff had full active range of movement as at 12 May 2012 and made no complaint of pain. The plaintiff in evidence admitted as much,[117]although he maintained that once the physiotherapy ceased, his condition deteriorated. The medical and physiotherapy records support Dr Journeaux’s opinion. Dr Miller’s concurrence with Dr Journeaux’s opinion does not assist the plaintiff’s case.
  1. [138]
    Whilst accepting the force of the defendant’s argument with respect to the ranges of motion noted in the physiotherapy records, I am not inclined to accept that the plaintiff made a full and complete recovery within 6 – 8 weeks of the injury. I am inclined to accept that he had ongoing difficulties that prevailed for longer than that.
  1. [139]
    However, I generally accept the evidence of Dr Journeaux, that the plaintiff’s shoulder condition, exacerbated by the incident, had largely recovered within months of the subject incident. In those circumstances, it is difficult to accept any current ongoing complaint the plaintiff makes in respect of his shoulder as related to the subject incident. I am more inclined to the view that Dr Journeaux promotes, that it is referable to the plaintiff’s pre-existing condition.

General Damages

  1. [140]
    I assess general damages under Item 97 and an ISV of 4, which is an allowance for general damages in the sum of $4,720.00.

Special Damages

  1. [141]
    I assess special damages in accordance with the plaintiff’s submissions.

Past economic loss

  1. [142]
    The plaintiff ceased employment with the defendant on 1 December 2011. He was unemployed until 12 June 2012. The plaintiff worked for a water truck business from 12 June – 3 September 2012 as a driver. He was unable to carry out certain tasks such as lifting. He suffered pain while he was working. His employment ceased because the business was unable to keep him on through no fault of his.[118]
  1. [143]
    On 17 September 2012, the plaintiff commenced employment with Coastwide Metals. He undertook general tasks including driving trucks and an excavator, repairing equipment, lifting steel. He was unable to perform some tasks due to his shoulder injury. His employer was unable to afford keep him on because of the falling price of steel. The plaintiff next began working as a painter with H&D Superior Painting. He commenced on 22 April 2013 and finished on 21 May 2013. The plaintiff took the job despite his qualifications because he had difficulty finding other work. Due to his shoulder injury he was unable to paint walls and ceilings efficiently and so was let go.
  1. [144]
    At the time of trial the plaintiff had applied for a position for which he was due to undergo a medical examination. He was worried he would fail. The position involves driving a shuttle bus in the Mackay area.
  1. [145]
    The plaintiff submits that once out of employment, the plaintiff had difficulty obtaining and maintaining employment. The plaintiff is unable to perform a range of physical activities that are required to be performed in manual work. In particular, the plaintiff refers to recent attempts at painting. The plaintiff claims the following damages discounted by a further 50% for the fact that the plaintiff may have been out of work anyway:
  • Damages for past economic loss being a 28 week period from 1 December 2011 to 12 June 2012 (27 weeks), calculated at $800 net per week, equalling $21,600.00 discounted to $10,800.00;
  • From 3 September to 22 17 September 2012 (2 weeks) at $800 per week equalling $1,600.00 discounted to $800.00;
  • From 5 April 2013 to 22 April 2013 (2.5 weeks) at $800 per week equalling $2,000.00 discounted to $1,000.00;
  • Interest on damages awarded for past economic loss calculated at the appropriate rate being the rate for 10 year Treasury bonds published by the Reserve Bank of Australia under ‘Interest rates and yields – capital market’ as at the beginning of the quarter in which the award of the interest is made i.e. April 2013 of 3.25%;
  • $1,134.00 damages for loss of past employer funded superannuation contributions to be calculated at the rate of 9% pursuant to the Superannuation (Administration) Guarantee Act (Commonwealth) 1992 on the amount awarded for past economic loss;
  1. [146]
    The defendant submits that there is no evidence at all that the plaintiff suffered any economic loss by reason of the injury.
  1. [147]
    In relation to the past, the defendant submits that the plaintiff remained at work and his own case does not suggest that he suffered any loss. The defendant submits the plaintiff did not lose his employment because of his injury, but rather, because of his misbehaviour.[119]The defendant submits there is no evidence (and the plaintiff did not attempt to prove) that, after the plaintiff ceased employment with the defendant, he was unable to take up available employment because of his shoulder problem.
  1. [148]
    The plaintiff obtained employment subsequent to his dismissal. The evidence is that his employment was terminated on each occasion (except for his work as a painter) for reasons unrelated to his injury, but rather, due to poor economic conditions. There may well have been some positions he was unable to apply for because of his shoulder condition. This was at least in part due to the ongoing symptoms which prevailed for some time due to the aggravation caused by the subject incident.
  1. [149]
    I would allow a global figure of $5,000, for past economic loss, interest calculated from 1 December 2011 to date at the rate of 1.9% (one half of the current 10 year bank rate) and past superannuation loss of $450.00 calculated at 9%.

Future Economic loss

  1. [150]
    Because any problem the plaintiff has currently is referable to his pre-existing condition, in accordance with the opinion of Dr Journeaux, I make no award for future economic loss or future expenses.
  1. [151]
    In summary, the assessment of damages is as follows:
  1. [152]

Head of Damage

Amount

General damages

$4,720.00

Past economic loss

$5,000.00

Interest on past economic loss

$190.00

Past superannuation loss

$450.00

Future economic loss

$0

Future superannuation

$0

Special damages

$295.70

Medicare refund

$150.95

Workcover expenses

$5,110.01

Interest on special damages

$11.53

Future expenses

$0

Subtotal

$15,928.19

Less Workcover refund

$5110.01

Total

$10,818.18

Footnotes

[1] T1.36.28

[2] T1.33.28; Exhibits 1A-C, 10-12

[3] T2.30.31-35

[4] Exhibit 12

[5] T1.10.22

[6] T1.36.35

[7] T1.10.45

[8] T1.11.2-6

[9] T1.11.16

[10] T1.11.3-5

[11] T1.11.3

[12] T1.11.26-28

[13] T1.37.40-45

[14] T1.38.8

[15] T1.39.43 and T1.40.1-7

[16] T1.40.10-15

[17] T1.25.1-10

[18] T1.11.30-33

[19] T1.11.42-45

[20] T1.13. 29-35

[21] T1.13.41-42

[22] T1.14.34

[23] Exhibit 3

[24] T2.51.36-45 is one such example.

[25] T1.11.10-11; T1.75.39-36; Exhibit 4 page 2; Exhibit 15 paragraph 7

[26] Accepted by McMeekin J in Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86 at [3].

[27] T1.52.11-15

[28] T1.53.23-30

[29] T1.53.39-46

[30] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR705 at [85]

[31] T1.56.16-19

[32] T1.55.35-42

[33] T1.55.34-38

[34] T1.56.4-6

[35] T1.56.8-14

[36] T1.56.32-39

[37] T1.57.15-25

[38] T1.69.13-15

[39] T1.63.3-12

[40] T1.10.1-5

[41] T1.63.22

[42] Footnotes 9,10 and 11 in the judgment of Muir J refer to the case of Vairy v Wyong Shire Council (2005) 223 CLR 422, and the judgments of Hayne J, and Callinan and Heydon JJ.

[43] T2.46.26-28

[44] Exhibit 33.2

[45] Exhibit 13.13

[46] T2.46.20-34

[47] T2.48.25-30

[48] [2008] QSC 119 [39]

[49] General Cleaning Contractors Ltd v Christmas [1953] A.C. 180 per Lord Oaksey at p. 190; Neill v NSW Fresh Food and Ice Pty Ltd (1963) CLR 362 at 370

[50] T1.65.1-9

[51] T1.75.1-45

[52] T1.17.27-37

[53] The defendant described the toolbox meeting as a meeting where the staff are gathered to discuss concerns about certain areas of the boat.

[54] T1.17.40

[55] Exhibit 32

[56] T2.25.14

[57] T2.25.24

[58] T2.25.14-46

[59] T2.28.37-39

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

[61] As was the case in BCC v Miles [2011] QCA 250

[62] Section 305D the Act

[63] T1.13. 29-35

[64] T1.13.41-42

[65] T2.25.8-12

[66] T1.14.34

[67] Exhibit 3

[68] T1.83.5 cf. Dr Bartel’s report, to whom he reported he was back to full normal duties; T1.84.25

[69] T1.80.15-30

[70] Exhibits 2 and 3

[71] T1.81.5-20

[72] Exhibit 34; medical records from the Carrara Medical Practice where the plaintiff attended show the  plaintiff never complained to his general practitioners of problems with his shoulder after 27 March 2011.

[73] T1.84.20

[74] T1.16.1-5

[75] T1.86.1-10; Exhibit 19

[76] T2.3.5-15

[77] Exhibit 20; T1.87.5-20; Exhibit 31

[78] Exhibit 21

[79] Exhibit 23

[80] T2.10.10-12

[81] Exhibit 27

[82] T2,12.10

[83] Exhibit 29

[84] T1.19.20

[85] Exhibit 4 

[86] Exhibit 4 page 5

[87] Exhibit 4 page 4

[88] Exhibit 4 page 6; T1.21.25-35

[89] Exhibit 4 page 3

[90] T1.23.28-38

[91] T1.23.4-45

[92] T1.24.21-22; 33-36

[93] Exhibit 33

[94] T2.34.35-47 and 35.1-19

[95] Ibid.

[96] T2.35.24-29

[97] Exhibit 33 page 3

[98] T2.37.45-47

[99] T2.38.13-14

[100] T2.39.25-45

[101] Exhibit 15

[102] Ibid [26]

[103] T1.68.18-27

[104] T1.72.8-10

[105] Exhibit 13

[106] T2.49.15-20; Exhibit 13 page 11

[107] T2.47.12-15

[108] Exhibit 13 page 11

[109] Exhibit 14 [6]

[110] Exhibit 14 [7]

[111] T.2.50.1-5

[112] Workers’ Compensation and Rehabilitation Act 2003 as amended on 1 July 2010.

[113] Exhibit 35

[114] Exhibit 34

[115] T.2.39.25-45

[116] T.2.50.1-10

[117] T1.80.15-30

[118] T1.31.20

[119] Exhibits 19-31

Close

Editorial Notes

  • Published Case Name:

    Williams v Riviera Marine (Int) Ptd Ltd

  • Shortened Case Name:

    Williams v Riviera Marine (Int) Ptd Ltd

  • MNC:

    [2013] QDC 306

  • Court:

    QDC

  • Judge(s):

    McGinness DCJ

  • Date:

    04 Dec 2013

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brisbane City Council v Miles [2011] QCA 250
3 citations
Jump To
Cite 1 - [2011] QCA 250
Cite 2 - [2011] QCA 250
Cite 3 - [2011] QCA 250
Dasreef Pty Ltd v Hawchar [2011] HCA 21
2 citations
Jump To
Cite 1 - [2011] HCA 21
Cite 2 - [2011] HCA 21
General Cleaning Contractors v Christmas (1953) AC 180
2 citations
Jump To
Cite 1 - (1953) AC 180
Cite 2 - (1953) AC 180
Heywood v Commercial Electrical Pty Ltd [2013] QCA 270
2 citations
Jump To
Cite 1 - [2013] QCA 270
Cite 2 - [2013] QCA 270
Lusk v Sapwell[2012] 1 Qd R 507; [2011] QCA 59
2 citations
Jump To
Cite 1 - [2011] QCA 59
Cite 2 - [2011] QCA 59
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd[2013] 1 Qd R 319; [2012] QCA 315
2 citations
Jump To
Cite 1 - [2013] 1 Qd R 319
Cite 2 - [2013] 1 Qd R 319
Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362
2 citations
Jump To
Cite 1 - (1963) 108 CLR 362
Cite 2 - (1963) 108 CLR 362
Pollard v Trude [2008] QSC 119
3 citations
Jump To
Cite 1 - [2008] QSC 119
Cite 2 - [2008] QSC 119
Cite 3 - [2008] QSC 119
Vairy v Wyong Shire Council (2005) 223 CLR 422
2 citations
Jump To
Cite 1 - (2005) 223 CLR 422
Cite 2 - (2005) 223 CLR 422
Vozza v Tooth & Co Ltd (1964) 112 C.L.R 316
2 citations
Jump To
Cite 1 - (1964) 112 C.L.R 316
Cite 2 - (1964) 112 C.L.R 316
Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86
2 citations
Jump To
Cite 1 - [2008] QSC 86
Cite 2 - [2008] QSC 86
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
2 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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