Fisher v Qantas Airways Ltd[2014] QDC 117

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this proceeding the plaintiff claims damages for personal injury and consequential loss.

2. [2]
   On 7 February 2011 in the course of his employment as a baggage handler with the defendant at Cairns Airport, the plaintiff was unloading containers from a Boeing 767 aircraft. One of the containers became stuck on the mechanical floor of the hold of the aircraft and in an attempt to free it the plaintiff pulled forcefully on a strap attached to the container. The strap broke and the plaintiff fell backwards on to the unloading platform injuring his neck (“the incident”). The defendant admits liability for the incident. The quantum of the plaintiff’s claim remains to be assessed.

The plaintiff

3. [3]
   The plaintiff was born on 25 June 1961. He was therefore 49 years of age at the date of the incident and he is currently 52 years of age. After leaving school at the end of year 10 with unimpressive academic results, the plaintiff has been in virtually continuous employment in numerous unskilled and semi-skilled capacities including as a deckhand, a labourer and as a Telecom linesman. Ultimately he found employment as a baggage handler commencing with the defendant in April 1993. His employment with the defendant moving luggage involved physical, heavy work, requiring repetitive lifting and twisting which had to be performed quickly to ensure that aircraft departed on time. The plaintiff worked a 38 hour week consisting of four nine and a half hour shifts. The roster was usually arranged so that he would work for four to six days and then have a four to five day break. Had it not been for the incident, the plaintiff asserts that he intended to continue working as a baggage handler with the defendant until retirement age.^[1]

4. [4]
   At the time of the incident the plaintiff was a physically fit person who jogged three to four times per week, swam regularly and played competition touch football. He also enjoyed off-road motorbike riding approximately once a month. Prior to the incident he would engage in gold prospecting four to five times a year which involved camping out in the bush, negotiating rough terrain with a metal detector and regularly digging small holes. Since the incident the plaintiff has ceased jogging, playing touch football and trail riding on his motorbike. He also finds that prospecting causes severe pain in his neck and he has seriously curtailed this activity since the incident.^[2]

5. [5]
   The plaintiff alleges that prior to the incident he is certain that he can “never remember having any significant or lasting neck problem at any time”.^[3] The medical evidence to which I will turn shortly suggests that the true state of affairs is somewhat different.

6. [6]
   Following the incident the plaintiff experienced the onset of significant pain and discomfort in his neck. He alleges that he currently experiences a dull ache in his neck which is more acute on some days than others and which is aggravated by activity including heavy lifting.^[4] He has difficulty sleeping, his social life has declined and his marriage is under strain because of his irritable demeanour.^[5]

7. [7]
   In or about 2005 the plaintiff started running a business in addition to his work as a baggage handler with the defendant.^[6] He provides a cartage service called Need a Ute, which involves attending upon people to deliver and remove furniture and taking rubbish to the dump for a fee. The labour component of the service is provided by the plaintiff alone and the services he provides include delivering mattresses and removing fridges and washing machines.^[7] Following the incident the plaintiff continued to operate the Need a Ute business and after he took the voluntary redundancy offered by the defendant he endeavoured to build up the business to make it more profitable. Despite advertising and canvassing for work he was unable to do so and sought other employment. He acknowledges that he suffers a severe aggravation of neck pain when performing the activities associated with this business but that this is not relevant to its lack of profitability.^[8] Ultimately the plaintiff obtained employment as a bus driver with Coral Reef Coaches commencing on 2 December 2013. He works three days a week principally undertaking transfers of passengers to and from Cairns Airport.

8. [8]
   Currently the plaintiff takes an Endep tablet per day to alleviate the pain he experiences in his neck. He also consults his general practitioner about once every three months as a consequence of his neck pain and he has physiotherapy treatment approximately once per month.^[9]

9. [9]
   The plaintiff alleges that he found his work with the defendant much harder than it had been prior to the incident. He alleges that if he found himself in the wrong position when attempting manual handling tasks he experienced pain “like a hot poker” going through his neck.^[10] The plaintiff completed his shift following the incident and then had two rostered days off.^[11] He continued with his ordinary duties as a baggage handler until he saw a doctor on 24 February 2011, 17 days after the incident. He was then treated by a physiotherapist until 16 March 2011 when he was cleared to go back to work on full duties.^[12]

10. [10]
    The plaintiff alleges that he misled his general practitioner and treating physiotherapist into believing that he was capable of returning to full duties when he was not so that he was eligible to take a holiday which had already been arranged, during which he intended to spread his deceased father’s ashes.^[13] Except for occasions involving minor unrelated injuries the plaintiff remained on full duties following his return to work on 16 March 2011 until he took a voluntary redundancy package and ceased work with the defendant on 28 May 2013.^[14]

11. [11]
    The heavy repetitive work required of the plaintiff in the course of his employment with the defendant was confirmed by former work colleagues, Mr Radcliffe^[15] and Mr Hanley.^[16] Both Mr Radcliffe and Mr Hanley corroborated the plaintiff’s evidence that he had difficulty coping with his responsibilities at work and appeared increasingly uncomfortable following the incident.^[17] Both witnesses also corroborated the plaintiff’s pre-incident levels of activity compared with those after the incident had occurred. The plaintiff’s wife corroborated his apparent discomfort and change in mood following the incident. Although I have some reservations about the plaintiff’s candour in his assertions that he was unable to remember previous attendances seeking treatment for symptomatology in his neck, I accept his evidence that he was coping with his work and active leisure activities without experiencing adverse symptomatology in his neck at the time of the incident and that following the incident he experienced the onset of symptomatology which he described, causing him difficulties at work and forcing him to curtail his leisure activities.

The medical evidence

12. [12]
    Extensive medical records concerning the plaintiff were tendered in the course of the trial. The plaintiff suffered a vertebral crush fracture at T12 in 1984 after being struck by a car.^[18] X-rays of the plaintiff’s cervical and thoracic spine taken on 17 July 2006 revealed the presence of significant degenerative changes. Although, as noted above, the plaintiff claimed that he could not remember having any significant or lasting problems with his neck, an examination of the medical records placed before the court reveals a number of complaints of neck pain aggravated by work activities for which the plaintiff sought medical and physiotherapy treatment between 2000 and 2003. These are summarised in the report of Dr Goode, occupational physician dated 4 June 2013.^[19]

13. [13]
    The dispute between the plaintiff and the defendant essentially boiled down to the extent to which the incident resulted in the degenerative changes present within the plaintiff’s spine becoming symptomatic earlier than they otherwise would have been.

14. [14]
    The plaintiff called Dr Cook, orthopaedic surgeon who initially provided a report dated 29 May 2012. Regrettably the history given to Dr Cook was incomplete and he did not have before him a complete picture of the extent of the plaintiff’s pre-existing symptomatology at the date of the incident. In this report Dr Cook concluded:-

“Provided this man’s history is accurate and correct in that he was able to perform all his normal duties at work, at home and socially, was not requiring any periods of light or modified duties, there was no absenteeism from work and he was not attending for medical or paramedical treatment or advice in relation to persisting or recurring episodes of neck pain if confirmed to be correct would indicate that the pre-existing degenerative changes referred to above were completely silent or asymptomatic and may well have continued to be silent or asymptomatic over the years ahead provided he was able to enjoy a healthy and safe work environment. It is felt therefore that if this man had not sustained his injury on 07.02.2011 that he more likely than not would have been able to continue working as a Baggage Handler or some similar type position over the years ahead this being in the range of four years to 10 years from February 2011 before his degenerative changes would have become symptomatic and in due course make it necessary for him to try to obtain work of a lighter nature.”^[20]

15. [15]
    Dr Cook further concluded that the plaintiff had suffered a 5% whole person impairment as a consequence of the incident.^[21]

16. [16]
    Upon becoming appraised of the plaintiff’s relevant medical history Dr Cook stated in a subsequent report dated 7 February 2013:-

“It is felt therefore that these injuries in the early 2000s settled fully and that he was able to continue with his normal duties as a Baggage Handler from 2004 to February 2011, and this is more than adequate or sufficient time for this man’s pre-existing injuries and pre-existing degenerative changes to be considered to be completely silent or asymptomatic prior to 07.02.2011, and that the whole of the assessment given above therefore is attributed to the incident that occurred on that date. …”^[22]

17. [17]
    Under cross-examination despite conceding that the plaintiff was more at risk because of his established pre-existing degeneration,^[23] Dr Cook maintained that his initial estimate that the plaintiff would have been able to continue working as a baggage handler for between four and 10 years had it not been for the incident was an accurate estimate.^[24]

18. [18]
    The defendant called Dr Winstanley another orthopaedic surgeon. In his report dated 22 September 2011 Dr Winstanley assessed the plaintiff as suffering from a permanent 5% whole person impairment as a consequence of aggravation of previously asymptomatic degenerative spondylosis of the cervical spine.^[25] Curiously Dr Winstanley went on to state “I would apportion Mr Fisher’s permanent impairment associated with the work related event of 7 February 2011 as 2.5% and the remaining 2.5% relates to pre-existing spondylosis”.^[26] Whilst I accept the opinion of Dr Winstanley in terms of the cause of the plaintiff’s impairment and the level of it, I find that the acceleration of the asymptomatic degenerative spondylosis is entirely attributable to the incident.

19. [19]
    In a subsequent report dated 10 May 2012 Dr Winstanley stated that the plaintiff “would benefit from performing light work activities as soon as possible”^[27] and expressed the view that had the plaintiff not sustained the injury in the incident “it is likely that he would have developed symptomatology associated with his degenerative spinal condition with the continuation of work activity in a period of five years” from the date of the incident.^[28] In a further report dated 9 October 2012 in response to a specific question enquiring as to the extent to which the incident brought forward the need for the plaintiff to seek alternative employment, Dr Winstanley stated that in his opinion “it would have been a period of five years before Mr Fisher would have been required to seek alternative employment”.^[29]

20. [20]
    Under cross-examination Dr Winstanley maintained that provided the plaintiff did not have any symptomatology emanating from his neck in the seven year period prior to the incident, his conclusions having particular regard to his initial report dated 5 September 2011,^[30] were correct. In this report Dr Winstanley had diagnosed the plaintiff’s condition as being aggravation of previously asymptomatic degenerative spondylosis of the cervical spine and stated that it was his opinion that the plaintiff should be able to return to full duties but in the long term it would be beneficial for him to look for lighter type work activities.

21. [21]
    There was a particular focus during the trial on whether or not the plaintiff had experienced symptomatology emanating from his neck in the seven years leading up to the incident. Of particular relevance was a file note by Dr D’Hotman, general practitioner who recorded an attendance on the plaintiff on 15 July 2006.^[31] Dr D’Hotman noted that the plaintiff was suffering from paresthesia in his left or right hand, thumb and certain fingers, that his thoracic spine hump aches at times, that he has scoliosis and was tender at C7 in his dorsal spine and in the mid thoracic spine area. Dr D’Hotman referred the plaintiff for x-rays which revealed the extensive degeneration referred to above. Dr D’Hotman also referred the plaintiff to the hand clinic at Cairns Hospital where he was provisionally diagnosed by Dr Pozzi, orthopaedic surgeon as suffering from carpal tunnel syndrome.^[32] Under cross-examination Dr Pozzi maintained his diagnosis  in circumstances where he conceded that the “number one differential diagnosis” would be paresthesia caused by cervical spine degeneration.^[33] Of particular relevance to Dr Pozzi in the absence of definitive nerve conduction tests being undertaken, was the presence of a positive Tinel’s test which was noted by Dr D’Hotman in his notes dated 15 July 2006.^[34]

22. [22]
    Dr Pozzi is an experienced practising orthopaedic surgeon with a particular interest in treating upper limb and hand pathology.^[35] I accept the provisional diagnosis of Dr Pozzi and find that it is more likely than not that the plaintiff was suffering from carpal tunnel syndrome when he presented to Dr D’Hotman in 2006 and that this continued, progressively settling by the time Dr Pozzi examined the plaintiff in May 2008. So far as the entry of Dr D’Hotman that the plaintiff was tender at C7 is concerned, I note that this observation constituted one entry of many made at the time of the consultation and that when taken to it Dr Winstanley expressed the view that it was “not a major component” when considering the plaintiff’s relevant symptomatology.^[36] In the circumstances I find that it is more probable than not the plaintiff remained essentially asymptomatic in terms of neck pain in the seven years leading up to the incident.

23. [23]
    The defendant also led evidence from Dr Goode, a consultant occupational physician. I found his evidence to be somewhat partisan. He readily conceded that he does not treat patients for orthopaedic complaints and in the circumstances I prefer the opinions of Dr Cook and Dr Winstanley as to the assessment of the plaintiff’s injuries as a consequence of the incident and of his likely prognosis had the incident not occurred.

24. [24]
    I have also received evidence from two psychiatrists, Dr Flanagan and Dr Whiteford. Dr Flanagan diagnosed the plaintiff as suffering from an Adjustment Disorder with Anxiety and Depressed Mood which was attributable to symptomatology brought on by the incident.^[37] Dr Flanagan expressed the view that the plaintiff was likely to continue to experience depressed mood while he continues to suffer pain and that the pain was likely to remain while he continued his employment with the defendant.^[38] When Dr Whiteford examined the plaintiff he had just ceased employment with the defendant. At the time he examined him on 29 May 2015 he could find no clinically significant abnormality. He noted that it was likely that the plaintiff’s adjustment disorder symptoms will continue to fluctuate.^[39] Neither psychiatrist was of the view that the plaintiff’s psychiatric symptomatology would prevent him from engaging in employment.

25. [25]
    The plaintiff also called evidence from Mr Hoey, an occupational therapist, however he merely confirmed the evidence of the orthopaedic surgeons that the plaintiff was not suited heavy work, such as that required of a baggage handler and was better suited to employment such as that of a part-time bus driver^[40]

Assessment

26. [26]
    I find that the plaintiff is suffering from a 5% whole person impairment in accordance with the opinions expressed by both Dr Cook and Dr Winstanley, as a consequence of the aggravation of previously asymptomatic degenerative spondylosis of his cervical spine. I find that had the plaintiff continued in his occupation as a baggage handler with the defendant the degenerative spondylosis of his cervical spine would have become symptomatic within five years in any event. In accepting a figure at the lower end of the range postulated by Dr Cook and as postulated by Dr Winstanley I am of the view that Dr Cook did not sufficiently take into account the extent of the degenerative changes present in the plaintiff’s cervical spine in contending for a range extending to ten years before the degenerative changes became symptomatic. I attribute the whole of the plaintiff’s impairment to the consequences of the incident.

General damages

27. [27]
    Pursuant to Schedule 9, item 87 of the Workers’ Compensation and Rehabilitation Regulation 2003 (“WCRR”) I assess an ISV at 7 taking into account the plaintiff’s fluctuating psychiatric injury, which equates to $8,720.00.^[41]

Past special damages

28. [28]
    Past special damages are agreed in the sum of $1,500.00 including a Medicare refund of $274.65.

Interest on special damages

29. [29]
    Applying s 306N of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) I will allow interest on the balance after deducting a Medicare refund in the sum of $1,225.00 at 4.03% over one year resulting in an amount of $49.00.

Past economic loss

30. [30]
    For the purposes of calculating past economic loss it is agreed between the parties that the redundancy payment which the plaintiff accepted on 28 May 2013 should be ignored.^[42]

31. [31]
    As at the date of the redundancy the plaintiff was earning $1,063.00 net per week. I accept that the plaintiff would have continued working for the defendant, but for the symptomatology brought on by the incident, for five years longer. This represents the extent to which the symptomatology brought to light by the incident curtailed his working life as a baggage handler in the employ of the defendant. I accept that the plaintiff was a stoic and committed long term employee who was physically fit and, but for the degeneration present within his spine, able to continue discharge of the responsibilities of a baggage handler.

32. [32]
    In calculating damages for both past and future economic loss I will ignore income generated from the Need a Ute business as it appears unaffected by the consequences of the incident and largely insignificant in any event.

33. [33]
    When he ceased working for the defendant the plaintiff was earning net income of $1,063.00 per week. Had he not been injured I find that he would have continued working for the defendant in his former capacity and would have earned $49,958.00 net to date in this regard. This represents his earning capacity but for the consequences of the incident. To 5 May 2014 the plaintiff earned $4,459.00 as a bus driver with Coral Reef Coaches and he continues to earn an average of $203.00 net per week. His total notional income from Coral Reef Coaches therefore equates to $4,459.00 plus four weeks at $203.00 or $5,271.00 to date. I am satisfied that the plaintiff has appropriately mitigated his loss by obtaining the necessary licence to pursue employment as a bus driver and then obtaining employment three days a week in this capacity. I therefore find that the plaintiff has a total claim for past economic loss of $49,958.00 less $5,271.00 leaving an amount of $44,687.00.

Interest on past economic loss

34. [34]
    Applying s 306N of the WCRA results in a calculation of $44,687.00 at 4.03% over one year x 0.5 which equates to $900.00.

Past loss of superannuation benefits

35. [35]
    $44,687.00 at 9.25% over one year results in $4,134.00 for past loss of superannuation benefits.

Future economic loss

36. [36]
    Applying the plaintiff’s net weekly income when he ceased employment with the defendant of $1,063.00, deducting the $202.00 net per week he currently earns as a bus driver results in a loss of $861.00 net per week. I will allow a period of five years from when the plaintiff ceased employment with the defendant on 28 May 2013 before his symptomatology was such as to preclude him from further employment with the defendant in any event. He was stoic enough to persevere in his employment with the defendant for two years following the incident and this is reflected in the approach I have adopted. This results in a calculation of $861.00 per week over four years as a starting point for future economic loss. Applying the 5% table of multipliers this results in an amount of $163,245.00. I will discount this sum for contingencies given the fragile state of the plaintiff’s spine which exhibits extensive degenerative changes. In my view an appropriate discounting of damages for future economic loss results in an award of $150,000.00.

Future loss of superannuation benefits

37. [37]
    The rate for the relevant period is 9.5%. $150,000.00 at 9.5% results in an award of $14,250.00.

Future special damages

38. [38]
    I will allow future special damages for a period of 5 years from the date of the incident. This leaves a balance of 1.7 years. As a starting point I note that future physiotherapy is claimed at the rate of $6.92 per week and future medication is claimed at the rate of $2.00 per week. I am of the view that it is also appropriate to make a small allowance for the unrecoverable costs of attending upon a general practitioner resulting in a starting point of $10.00 per week. I will round this down to $8.00 per week to permit a calculation to be made over two years on the 5% table of multipliers resulting in an amount of $795.00 for future special damages.

Conclusion

39. [39]
    I award damages to the plaintiff in the sum of $225,035.00 calculated as follows:-

General damages$8,720.00

Past special damages$1,500.00

Interest past special damages$49.00

Past economic loss$44,687.00

Interest past economic loss$900.00

Past loss of occupational superannuation$4,134.00

Future economic loss $150,000.00

Future loss of occupational superannuation$14,250.00

Future special damages$795.00

TOTAL$225,035.00

40. [40]
    I order that the defendant pay the plaintiff the sum of $225,035.00.