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Fofana v Inghams Enterprises Pty Ltd[2014] QDC 224

Fofana v Inghams Enterprises Pty Ltd[2014] QDC 224

DISTRICT COURT OF QUEENSLAND

CITATION:

Fofana v Inghams Enterprises Pty Ltd [2014] QDC 224

PARTIES:

ELLEN FOFANA

(plaintiff)

v

INGHAM’S ENTERPRISES PTY LTD

ACN 008 447 345

(defendant)

FILE NO:

112/14

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

HEARING DATES:

6, 7, 8, 11 and 15 August 2014

DELIVERED ON:

2 October 2014

DELIVERED AT:

Brisbane

JUDGE:

R S Jones DCJ

ORDER:

1.The plaintiff’s claim is dismissed

2.I will hear from the parties regarding any consequential orders

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – IMPLIED TERM OF CONTRACT OF EMPLOYMENT – relationship between employer and employee – where plaintiff worked at the defendant’s chicken abattoir – where alleged work practices caused injury to plaintiff’s lower back – whether defendant in breach of its common law and/or contractual duties to the plaintiff – where change in the processing system occurred during course of plaintiff’s employment – weight to be given to expert evidence – relevance of expert evidence.

TORTS – NEGLIGENCE – IMPLIED TERM OF CONTRACT OF EMPLOYMENT – QUANTUM – whether claims for general damages, past and future economic loss – paid assistance proved to appropriate standard – where evidence of economic loss imprecise – where evidence is such that resort to a global assessment of damages required

Strong v Woolworths Ltd (2012) HCA 5

Wolters v University of Sunshine Coast (2012) QSC 298: (2013) QCA 228

Curtis v Harden Shire Council (2014) NSWCA 314

Gold Ribbon Accountants Pty Ltd v Sheens & Ors (2006) QCA 335

Nucifora & Anor v AAI Limited (2013) QSC 338.

COUNSEL:

Mr R W Morgan for the plaintiff

Mr G C O'Driscoll for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

BT Lawyers for the defendant

  1. [1]
    This proceeding was concerned with a claim by the plaintiff against the defendant in negligence and/or contract for damages. For the reasons given below the orders of the court are:
  1. The plaintiff’s claim is dismissed;
  1. I will hear from the parties regarding any consequential orders.

Background

  1. [2]
    The plaintiff was born on 23 January 1973 in Liberia, West Africa. Her background is an unfortunate one. She is illiterate in both her native language and English. However, over time and after taking various courses she is now able to converse in English although it is still very clearly not her first language. The plaintiff married very young in Liberia and after her husband was executed during the armed conflict in that country she fled to Lebanon with her daughter. The plaintiff’s husband was in fact executed on the same day their daughter was born. In Lebanon, the plaintiff worked predominantly in the domestic area and met and married her second husband.
  1. [3]
    In April 2006, the plaintiff and her husband came to Australia as refugees. They separated some time in 2012. On arriving in Australia, notwithstanding her obvious language difficulties, the plaintiff began to work in 2006 again predominantly carrying out domestic type duties including cleaning for the Saville Hotel Group at Southbank. On 24 April 2007 the plaintiff commenced working at the defendant’s chicken abattoir located at Murarrie. She continued to work until taking maternity leave (when she was some eight months pregnant) in late November or early December 2009. She returned from maternity leave on 1 July 2010 and recommenced her duties. The plaintiff’s employment with the defendant ceased on 14 December 2010. According to the plaintiff she was no longer able to work at the abattoir as a consequence of severe back pain. It is alleged that the back injury was the result of negligence and/or breach of contract of employment on the part of the defendant.
  1. [4]
    At all material times the plaintiff was essentially a process worker required to frequently work at two work stations referred to as “the skinner” and “the feeder”. As I understand the process concerning the skinner, once the chickens were slaughtered they were then separated into pieces which would be conveyed along an elevated conveyor system. The pieces were then delivered to the skinner station where the plaintiff would be required to ensure that all the pieces were faced skin side down on the conveyor system so that they could be processed (ie de-skinned) by the skinner. It is clear from the evidence that persons working at the skinner station had to operate quickly and in a repetitive manner turning chicken pieces over and including reaching for chicken pieces. The operation of the skinner system was changed during the course of the plaintiff’s employment. The circumstances of when and how those changes occurred will be discussed in some detail below.
  1. [5]
    Turning then to the feeder, it required the plaintiff to stand at another workstation but again handling chicken pieces on a conveyor system. At this station the plaintiff was required to pick up to 6 to 7 chicken pieces at a time and place them in a compartment or container which was then conveyed to another workstation where the pieces were deboned. Photographs of the feeder station are set out in figures 1 and 2 in Dr Ludcke’s report.[1]As was the case with the skinner station, the plaintiff was required to work at a repetitive and constant pace. Unlike the skinner station, at all relevant times the feeder station remained materially unchanged.
  1. [6]
    What was essentially alleged against the defendant was that the constant and repetitive carrying out of those movements identified in paragraph 14 of the pleadings caused the plaintiff’s lower back injury, and that the defendant was negligent and/or in breach of its contract of employment with the plaintiff because it either did or failed to do a number of things. The allegations in this regard against the defendant are numerous.[2]But essentially they boiled down to allegations accusing the defendant of failing to carry out appropriate risk assessments, failing to provide adequate instructions and/or training, exposing and/or requiring the plaintiff to consistently carry out “awkward and sustained postures and repetitive movement” and in general, failing to provide a safe place and/or system of work. It was also alleged against the defendant that its conduct was in breach of the provisions of the Work Place Health and Safety Act 1995 (as amended). The alleged breach of statutory duty did not rate a mention in Mr Morgan’s, counsel for the plaintiff, closing submissions.
  1. [7]
    Each of those allegations of negligence and/or breach of contract and/or breach of statutory duty were denied by the defendant.

Liability and causation

  1. [8]
    The evidence establishes that the plaintiff had a back injury, the issue is then whether the defendant is legally responsible for that injury and required to compensate the plaintiff.
  1. [9]
    Of course it is not sufficient to simply point to a breach of duty of care on the part of the defendant for the plaintiff to succeed. Factual causation has to be established. That is, proof is required to establish “that the defendant’s negligence was a necessary condition of the occurrence of the particular harm.”[3]As Heydon J stated in Strong v Woolworths,[4]causation is an element of the tort of negligence on which the plaintiff bears the onus of proof.
  1. [10]
    In Wolters v University of Sunshine Coast[5]Applegarth J relevantly said:

“128.A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probabilities that the defendant’s breach caused or materially contributed to the harm actually suffered. The onus remains on a plaintiff to prove that the harm in fact resulted from the risk, or increase to the risk, created by the defendant’s breach of duty.

  1. Questions of causation depend on hypothetical considerations, but unless these issues are resolved in the plaintiff’s favour, on the balance of probabilities, the court cannot be satisfied that the conduct of the defendant caused the loss. In a case such as the present the plaintiff must prove that performance of the duty would have averted the harm, and this depends on the probabilities for and against. It is not sufficient to establish causation that the defendant’s breach of duty increased the risk of injury. All relevant circumstances, including an increase in the risk to the plaintiff from the defendant’s breach of duty and the character and sequence of events, must be considered in deciding whether a defendant’s breach of duty which is a possible cause of the plaintiff’s damage materially contributed to that damage. In some cases breach of duty coupled with an incident of a kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the incident did occur owing to the act or omission that constitutes the breach of duty. In such a case, the inference leading to liability on the part of the defendant is more probable than any other inference. But the onus always remains on the plaintiff to prove causation. The mere fact that a breach of duty has occurred, followed by injury within the area of foreseeable risk, does not necessarily mean that the evidential onus is reversed.
  1. The question of causation is not answered by pointing out that the relevant duty was to take reasonable care to prevent the very kind of injury that has transpired. A plaintiff does not succeed merely by showing that certain steps might have prevented the injury from occurring.

…

  1. The law requires that a plaintiff prove that a defendant’s conduct materially caused the injury.http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QSC/2012/298.html?query= - fn24#fn24  In law, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.  A person should not be liable for every wrongful act or omission which is a necessary condition of the occurrence of the injury. The mere fact that injury would not have occurred but for the defendant’s act or omission may not be enough to establish a causal connection for legal purposes. …
  1. If, however, the incident did cause her injury, then it need not be its sole cause. Causation will be established if the relevant act or omission contributed materially to the damage suffered. The law recognises that concurrent or successive acts may each amount to a cause of the injury suffered by the plaintiff.
  1. Questions of causation are resolved by applying common sense to the facts of each case. Value judgments are involved. …” (Footnotes omitted).
  1. [11]
    In Curtis v Harden Shire Council the New South Wales Court of Appeal was concerned with statutory provisions concerned with the concepts of “factual causation” and “scope of liability”. Relevantly Bathurst CJ stated:[6]

“Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 involved a claim against the appellant for the incorrect positioning of the stop sign which it was said led to an accident at a ‘T’ intersection. Gummow, Hayne and Heydon JJ in a joint judgment rejected reliance on Betts v Whittingslow supra. They referred to the fact that after the passage in the judgment of Dixon J cited by Beazley P, his Honour said that in the case before him ‘the facts warrant no other inference inconsistent with liability on the part of the defendant’. They pointed out at [31] that in the case before them there were other inferences available. Kiefel J at [139] referred to the same passage in the judgment of Dixon J and emphasised at [143] that it remained a requirement of the law that a plaintiff prove a defendant’s conduct materially caused the injury. So much is made clear by s 5E of the Act.

In Kuhl v Zurick Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, French CJ and Gummow J at [50] referred with approval to the remarks of Kiefel J in Roads and Traffic Authority v Royal supra. They pointed out that what was contended for by the appellant in the case before them was not the only inference that could be made. Although their Honours were in dissent as to the result, the majority placed no reliance on Betts v Whittingslowe supra...

As is apparent from the evidence summarised by each of Beazley P and Basten JA, there are logical inferences contrary to those contended for by the appellant. It was for the appellant to prove on the balance of probabilities that the inference contended for should be drawn. It cannot be inferred from the nature of the breach.”

  1. [12]
    Before going further it is necessary to deal with two of the expert witnesses called, Dr Goode and Dr Ludcke. Dr Goode was a specialist occupational physician called on behalf of the defendant. Approximately 60% to 70% of his professional work was associated with preparing medical legal reports, much of it for employers. Dr Goode described much of this work as “fitness for duty assessments”.[7]It was a part of his thesis that the plaintiff had a longstanding back history including lower back pain and sciatica going back as far as 2006. He had made no physical examination of the plaintiff nor had he spoken to her. Instead his assessment was based on an analysis of past medical records. On balance I find myself unable to give Dr Goode’s evidence much weight for the following reasons. First, as I have said he had neither examined nor interviewed the plaintiff and, in addition to that, the medical records to which he had regard were not without controversy. That controversy will be discussed in more detail below when dealing with the evidence of Dr’s Campbell and Tuffley. Second, I found the doctor’s evidence to lack the necessary degree of objectivity. He displayed a reluctance to reveal just how much of his practice was concerned with the treatment of orthopaedic injuries. He also made a number of inappropriate and/or irrelevant references to what employees might or might not have to put up with in “third world countries” and, on one occasion, rather facetiously suggested that the process work the plaintiff carried out for the defendant might have actually improved her back condition.
  1. [13]
    Turning then to Dr Ludcke called on behalf of the plaintiff, he described himself as a consulting medical engineer. His first degree was a Bachelor of Engineering (Medical). That involved not only subjects such as cell biology and functional anatomy but also bioengineering design. Dr Ludcke then went on and completed an honours degree in medical engineering and his doctorate at the Queensland University of Technology. His doctorate centred around a biomechanical analysis of surf lifesavers using inflatable rescue boats. Dr Ludcke expressly refuted that his report was intended to express any medical opinions nor was it meant to express opinions connecting the plaintiff’s injuries with any particular event. In particular, he refuted any suggestion that he was offering opinion evidence about “causation between event and injury”.[8]I must say I have some difficulty with that last assertion by Dr Ludcke. Indeed in his summary he stated:[9]

“It is the author’s opinion that the tasks conducted by Ms Fofana during her work at Inghams Enterprises Pty Ltd placed her at high risk of sustaining a back injury. The documented assessment of the work tasks conducted by Inghams Enterprises Pty Ltd did identify some of the risk factors associated with the work. It did not appear to assess them or control them. The combination of the sustained, repetitive and awkward postures while undertaking the tasks provided Ms Fofana with a significant risk of lower back damage that could have been controlled. Hence, the injury sustained by Ms Fofana are considered a predictable outcome from the tasks conducted.” (emphasis added)

  1. [14]
    That passage, among others, seems to me to be a direct attempt to link “event and injury”. Objection was taken to Dr Ludcke’s report, or at least parts of it, at an early stage during the trial. However, for various reasons the matter was not finally agitated until day 3. During argument the following exchange took place between counsel:[10]

Mr Morgan:

“Yes. He’s never purported to give a medical opinion. The thrust has always been that repetitive work for long durations in awkward postures is well known to carry a risk of injury. It’s the medical evidence that we rely on of Dr Campbell for the direct causation question, whether the risk has materialised or crystallised into causing injury. And I’ve set this out in the written submissions that I’ve handed up. He expresses no diagnosis. He doesn’t purport to give medical evidence. And he doesn’t stray beyond his very considerable area of expertise.”             

Mr Driscoll:

“I’m content with that, your Honour. And the secondary part of the objections, probably goes more to probative weight rather than admissibility. That is, the studies relied upon in some that I’ve read, or [indistinct], it edges into the [indistinct] point that he hasn’t expressed the basis upon which he reaches those conclusions. But I don’t require a ruling on that. They will be in my submissions to the court …”

  1. [15]
    In dealing with Dr Ludcke’s report, I consider that it has little probative value in establishing the cause of the plaintiff’s injury other than to identify the risk of injury occurring as a consequence of such work. In this regard it is of course highly significant that the doctors report, insofar as it addressed the skinner station, is based on wrong information about the date of change. However, I consider his report to be nonetheless also useful in its description of the type of body movements involved in the performance of those work duties and in respect of the operation of the feeder and skinner stations and other aspects of the plaintiffs work at the abattoir.
  1. [16]
    The body movements the plaintiff would have had to have made at the feeder and skinner stations up until the change of configuration of the skinner are set out in Dr Ludcke’s report.[11]I accept those descriptions to be generally accurate. They accord with the evidence given orally and by way of demonstration by both the plaintiff and Ms Leayee. In layman’s terms, at the feeder station the plaintiff would have been required to bend sideways to the left and right and to lean forward to take chicken pieces from the conveyor to deposit them in the other container which then took the pieces to the deboning station. Prior to the change to the skinner station the plaintiff would have been required to lean forward to gather and place chicken pieces and, from April 2007 through to December 2009, have also been required to bend sideways and reach upwards fairly routinely to remove chicken pieces built up in the delivery chute. In this context I note that in addition to the plaintiff and Ms Leayee giving evidence to that effect, Mr Bissett said that he also recalled, prior to the skinner station being changed, workers were from time to time required to remove built up chicken pieces from the system.[12]However, he later said that that action was performed with some form of “rake system” and by “general hands”.[13]On her return from maternity leave 1 July 2010 through to the date of the reporting of the injury September 2010, work at the feeder station would have remained the same but at the skinner station a significant change had occurred. Namely that the plaintiff would no longer have been required to reach up and to the side to remove blocked chicken pieces from the chute.
  1. [17]
    The work was repetitive and the plaintiff was required to work at pace, particularly at the skinner station. While certainly repetitive, the plaintiff’s work at the skinner and feeder stations was broken up on a rotational basis referred to as the “LAPO system”. This system revolved around 84 minute cycles or rotations. The first rotation would involve 41 minutes on then a 2 minute break then another 41 minutes on. After that 84 minute cycle there would be an 8 minute break before the next 84 minute cycle and, thereafter, following each subsequent 84 minute cycle the breaks between would increase to 15 minutes then 30 minutes.[14]

When did the skinner station change?

  1. [18]
    The current set up of the skinner station is that identified in Dr Ludcke’s report in figure 3.[15]It was changed from its original set up to the current sometime in 2010. A critical issue in dispute between the parties was whether the changes occurred before the plaintiff returned from maternity leave or after her employment had ended. According to Mr Morgan “one of the key forensic battles in the trial” was the system of work in place at the skinner station on and from 1 July 2010.[16]
  1. [19]
    The plaintiff’s evidence was that when she returned from maternity leave the skinner station had been raised from at or about her hip height to at or about her chest height. While I am able to readily accept that evidence, at just what height the conveyor system would have been relative to any worker’s torso would have depended on the height of the stand they were required to use. The evidence about this was that stands of various heights were provided to employees depending on their own particular height. According to the plaintiff, only the height of the conveyor for the skinner station had changed and the configuration of that station as shown in figure 3 of Dr Ludcke’s report was not as it was between July 2010 and September 2010. Consistent with that evidence Dr Ludcke in his report[17], reported that the plaintiff had told him that the skinner station as represented in figure 3 was not as it was when she was employed. In his report he also recorded various working postures that the plaintiff described to him:[18]

“However, Ms Fofana described that the work of the skinner operator during the time of her employment with Inghams Enterprises Pty Ltd was as follows:

  1. Chicken pieces would pile up in the slide chute (see figure 5);
  1. Ms Fofana would reach and grab an armful of chicken pieces from higher up on the slide chute to pull down in front of her for processing;
  1. Ms Fofana and her skinner colleagues would pick up every single piece of chicken from the slide chute and place it on the blue in feed conveyor skin down for processing.”
  1. [20]
    That description is broadly consistent with the evidence of the plaintiff. However, I did not understand her to be saying that “every piece” of chicken had to be placed on the conveyor but nothing really turns on that. Later in his report Dr Ludcke also reported:[19]

“Unfortunately, the skinner task that was undertaken by Ms Fofana around the time of the onset of pain could not be witnessed during the inspection of the workplace on 7 November 2012 as the system of work had changed.

Based on the description of the task by Ms Fofana the work postures of the trunk were:

  1. Lateral flexion of the trunk (ie sideways bending) to reach for additional chicken pieces built up in the chute (figure 11). The degree of flexion was estimated at (approximately) 30 degrees.
  1. Lateral flexion of the trunk (ie sideways bending) to the other side of the body to reach and place the chicken pieces onto the blue in feed conveyor. The degree of flexion was estimated at (approximately) 20 degrees.
  1. Forward flexion of the trunk to gather and place chicken pieces across half (ie approximately 250mm) of the conveyor and chute area if there were two people assigned to the skinner task. If there was only one person assigned to this task they would potentially have to reach across 500mm on the chute to access all of the available chicken built up in the area.” (Emphasis added).
  1. [21]
    After referring to a task risk analysis disclosed by the defendant Dr Ludcke then reported:[20]

“The description of the work task provided in table 9 (the disclosed document) strongly support the system of work described by Ms Fofana for the skinner. The assessment appears to have identified aspects of reaching associated with work posture as well as task frequency but does not appear to provide an assessment of the suitability of these risk factors (ie acceptable or otherwise) and does not suggest controls.”

  1. [22]
    Under the heading “risk control” Dr Ludcke reported in part:[21]

“1. Work task redesign.  The changes to the skinner task that had been conducted since Ms Fofana’s onset of pain (see figure 3) significantly reduce the risk factors associated with the work. This technology was available and could have been implemented many years prior to Ms Fofana working at Inghams Enterprises Pty Ltd. The new system of works significantly reduces the forward and lateral bending and subsequent twisting required to undertake the task as well is reducing the number of pieces of chicken that are required to be handled by up to 50%.” (Emphasis added).

  1. [23]
    The evidence of the plaintiff about the system in place for the skinner station during her term of employment was supported to an extent by the evidence of another former employee of the defendant Ms Leayee. However, the evidence of those two women did not sit comfortably with the evidence of a number of other employees called during the course of the trial and, in particular, that of Mr Bissett.
  1. [24]
    Mr Msalem[22]gave evidence that the skinner station had been as depicted in Figure 3 since “probably mid to early 2009”.[23]Earlier he said that the changes had been in place since 2010.[24]Mr Msalem was clearly uncertain about exactly when the changes occurred but he was certain that they had occurred before June 2010.[25]Ms Heather[26]gave evidence that the changed skinner station had been in place since 2010 but could not say when the change occurred.[27]Ms Heather also gave evidence in cross-examination that the changes made working at the skinner station easier. She also described the body movements of a person operating under the previous system in a way fairly consistent with the description of her work given by the plaintiff, including having to “unblock” chicken pieces.[28]Ms Hines’[29] evidence was that the changes occurred over a four day period in 2010 and there had been no changes since then.[30]The most direct evidence of when the change occurred was given by Mr Bissett. Mr Bissett was at the time he gave evidence the night shift manager but in 2010 was a supervisor in charge of the plant, among other duties.[31]His evidence was that the changes to the skinner station occurred at Easter 2010.[32]Mr Bissett thought that may have been in May 2010. Easter was in fact in April that year. However, while he may have been confused about the month, his evidence that the changes occurred at Easter was not shaken.[33]
  1. [25]
    The changes could still have theoretically occurred after the plaintiff left on 14 December 2010 but that seems highly unlikely given the evidence of Mr Bissett whose evidence about it occurring over Easter was corroborated in a significant way by the evidence of Ms Hines. The defendant was criticised by Mr Morgan for its failure to call witnesses from its engineering or maintenance staff and failing to produce plans or other documents that would confirm when the changes occurred. I do not consider this criticism to be well founded. As to the first of those criticisms there was no challenge to Mr Bissett’s evidence that in 2010 one of his duties was to be “in charge of the plant”[34]and that he was involved in the design and layout of the changes.[35]As to the second criticism, while such plans or other documents may have further corroborated Mr Bissett’s evidence, that they were not produced, if indeed such drawings did still exist, did not materially detract from the reliability of his evidence in my view. The lack of documents pinpointing when the work was carried out is not inconsistent with the fact that the works were designed and carried out by “in house” employees of the defendant.[36]
  1. [26]
    On balance, I much prefer the evidence of Mr Bissett on this matter where it conflicts with that of Ms Leayee and the plaintiff. As I have said it was corroborated to varying degrees by other witnesses and Mr Bissett had very good reasons to know when the changes occurred. It is true that Ms Leayee’s description of how the skinner station functioned was consistent in a number of respects to that given by the plaintiff. However, her evidence on this topic was not very convincing, perhaps not surprisingly given that she only worked for the defendant for two weeks from 11 August 2010 to 24 August 2010 and for at least in part of that time she was in training.[37]As for the plaintiff I am left with the clear impression that she was simply mistaken about the nature and extent of the changes to the skinner station that were in place on her return from maternity leave.
  1. [27]
    For the reasons given I have concluded that the changes to the skinner station as reflected in Figure 3 of Dr Ludcke’s report, occurred at Easter 2010 and not after the plaintiff ceased her employment with the defendant. The primary reason for the change would seem to have been to accommodate a reconfiguration of plant and equipment.[38]However, on the evidence before me I am unable to see why that would have required a change in the way chicken pieces were delivered from the hopper to the process worker. It seems a not unreasonable inference to draw that at the time the defendant also sought to address the problem of having to clear the blockages identified in the defendant’s October 2007 risk assessment.[39]In this regard there was evidence from various witnesses to the effect that changes were made to plant and equipment as the need arose. I accept that evidence as being correct however, there is nothing to suggest that, apart from the major change to the skinner station described by Mr Bissett, any other change might have relevantly affected the plaintiff. 

The plaintiff’s injury and her work

  1. [28]
    The plaintiff’s evidence was that prior to the back injury she reported in September 2010 after returning to work, she had never had any significant back problems. She recalled seeking medical advice in 2006 concerning pain in her left thigh and, during her pregnancy having problems with her feet.[40]  That the plaintiff had no back problems of significance before returning to work after maternity leave was corroborated, to an extent, by her husband.[41] 
  1. [29]
    On 23 January 2012, the plaintiff was examined by Dr J Tuffley, a specialist specialising in upper and lower limb trauma and upper and lower limb orthopaedic conditions. In addition to examining the plaintiff he was also provided with a number of medical reports. In his initial report Dr Tuffley concluded that the plaintiff’s subjective symptoms were not able to be explained by any objective physical findings or by any objective imaging study findings. The doctor also concluded that there was no objective evidence that the plaintiff had suffered any permanent musculoskeletal impairment relating to the nature of her employment on or about 1 September 2010.[42] 
  1. [30]
    On 27 January 2012 the plaintiff was interviewed and examined by Dr F Campbell, a neurosurgeon. Like Dr Tuffley, Dr Campbell was also provided with a number of medical reports dealing with the plaintiff’s medical history. Unlike Dr Tuffley however, Dr Campbell concluded that there was definitely a connection between the plaintiff’s work methodology and her back injury. Under the heading “Executive Summary” he reported:[43]

“1.Mrs Ellen Fofana developed onset of lower back pain and left sciatica as a result of repetitively standing, leaning forward and pushing to move large volumes of chicken pieces along a conveyor belt in her capacity as a process worker with onset of symptoms from 1 September 2010.

  1. It is now 16 months since the injury occurred and she suffers ongoing symptoms of lower back pain/stiffness and left leg pain.
  1. She has a chronic soft tissue musculo-ligamentious injury to the lumbar spine: 8% whole person impairment.
  1. There was no pre-existing pathology of the lumbar spine.
  1. Mrs Fofana is currently unemployed. She is now exempt from manual duties as repetitive manual work would put her at risk of aggravation of her condition. She will be limited to sedentary type work in the future but may require training in order to compete for suitable employment.”
  1. [31]
    Dr Tuffley was asked to respond to Dr Campbell’s report, and on 19 June 2012, he did so, in effect confirming his earlier opinions and stating that he disagreed with Dr Campbell’s analysis.[44]On 15 May 2014 Dr Campbell provided a further report and, among other things, stated that his diagnosis was that the plaintiff had suffered a musculo-skeletal injury to her lumbar spine and that there was a “direct causal link”.[45] 
  1. [32]
    I agree with Dr Tuffley’s oral evidence to the effect that the plaintiff’s past medical history, at least as reported, tended to imply that she did have a prior back injury. There is an entry dated 17 October 2006 which records that the plaintiff:

“… has left posterior leg pain/thigh pain:  consistent degradation in 1/52:  ache and pain and restricted movement:  restricted range of movement due to pain:  left leg raising left 70 degrees.”[46]

  1. [33]
    After reviewing that entry Dr Tuffley said, “but obviously from what he’s – the fact that he’s proceeded with a CT scan means that he’s thinking the pain’s coming from the spine.”[47]However, Dr Tuffley readily conceded that nowhere in the plaintiff’s medical history was it specifically recorded that the plaintiff had suffered or was suffering back pain. While there were clearly areas of significant disagreement between Drs Tuffley and Campbell[48]there were some areas of, if not agreement, a degree of consensus. During his cross-examination Dr Tuffley seemed to concede that if the plaintiff did have any back issues in her history they were, compared to her current symptomology, relatively minor. In his cross-examination the following exchange took place:[49]

“She goes back to work on the 1st of July 2010. There appear to be no reports of back pain during that period?-- I see. Yes. Between the birth of the baby and going back to work. Well I’ve got those notes in front of me. I’ll take your word for it that if I scan through them there’s no note of back pain.

Yes. Just trying to glean what your overall position is about the lady’s work history. Would you describe her – bearing in mind we’ve been through these GP notes and there’s no report of back pain between 2006 and 2009 other than when it’s contemporaneous with pregnancy – is it your position, your opinion, your professional opinion, that she’s had a longstanding back problem prior to reporting pain at work in September 2010?  Or is it your position that there’s never been anything wrong with it?-- I’m sorry. I’m just looking at some of the things I have here.

Please take your time?-- Well, in my report, initial report under past history, I’ve written that she denies prior musculoskeletal pain from episodic headaches. So that’s what she would have told me. So I don’t think she’s had any significant problems with back pain.  I mean as you are well aware, you can have a degenerative change in various parts of your musculoskeletal system without them being symptomatic which is the inference one could draw from the CT scan performed in 2006. But in terms of symptoms she seems not to have had too many problems prior to this episode with which we’re dealing.” (emphasis added)

  1. [34]
    Dr Campbell, consistent with his written report, was adamant that her prior medical history was not consistent with her having any significant pre-existing back issues. While acknowledging that the plaintiff had some history of episodic back pain[50]the doctor’s opinion was that her condition was normal for a woman of the plaintiff’s age.[51] 
  1. [35]
    The evidence leads me to conclude that prior to the plaintiff returning to work after maternity leave it was more likely than not that she did not have any back condition of significance. I have reached that conclusion not only based on the medical evidence to which I have referred but also by reference to the evidence of the plaintiff herself. I was impressed by the plaintiff as a witness. Her history while in many respects a tragic one, is one that also shows great resolve. She struck me as an honest and generally reliable witness and one who did not readily shirk available work. That is clear not only by her efforts to learn English and gain employment on reaching Australia but also by reference to the fact that after leaving the defendant she carried out other courses which now allow her to work in a self-employed capacity caring for children. Unfortunately, the plaintiff’s difficulties with the English language made her evidence very difficult to follow at times and the preponderance of the evidence is that her recollection of the extent of the changes to the skinner station and when those changes occurred is an inaccurate one.
  1. [36]
    On balance, I also prefer the evidence of Dr Campbell as to the extent of the plaintiff’s current back condition. Neither Dr Campbell nor Dr Tuffley were materially shaken in cross-examination. However, there is other evidence that tends to support Dr Campbell’s assessment of a more serious back condition that is not present in the case of Dr Tuffley. There is the evidence of the plaintiff’s husband and the plaintiff herself. As I have already referred to, the plaintiff was and still is a woman who does not shirk work. She worked steadily from April 2007 before taking maternity leave late in her pregnancy in December 2009. Her son was born on 17 January 2010 and she returned to work on the skinner and feeder stations on 1 July 2010 before being placed on lighter duties in early September 2010 after complaining about her back. She was then on WorkCover and after leaving the defendant in December 2010 and after completing training she is now a self employed child carer. I have already expressed my concerns about Dr Goode. However, I note that after reviewing her medical history he also expressed the view that “now” her level of impairment was in order of 5% to 8%.[52]None of this evidence either separately or in combination is determinative but it does in my view tend to support the opinion of Dr Campbell and contradict that of Dr Tuffley.
  1. [37]
    The evidence was that the work carried out by the plaintiff at the feeder station alone was an unlikely cause of the injury.[53]However, it was clear from the evidence of both Dr Tuffley and Dr Campbell that the repetitive nature of the process work carried out was a likely cause of back trauma. According to Dr Tuffley non permanent musculosketal aching.[54]According to Dr Campbell musculo-ligamentious injury to the lumbar spine.[55]According to Dr Campbell the level of back strain or loading to the back would have been increased by the plaintiff having to work from a stand with a limited surface area.[56]
  1. [38]
    In his first report Dr Tuffley recorded that [57]contrary to what is written in her Workers’ Compensation Notice for Damages, she states that her pain developed not over a period of time, but following one days work, which was on or about the 1st September 2010.”  At no time have I understood the plaintiff to have asserted to the effect that her back injury was caused by a specific event or combination of events that occurred on any one working day. I was not taken to the Workers’ Compensation document but the evidence was such to satisfy me that no one event or combination of events that occurred on or about that date were the cause of the injury. The most likely explanation is, that it was on that date that the onset of pain was reported to her supervisor.
  1. [39]
    The evidence of Dr Campbell was to the effect that the nature of the work performed by the plaintiff, at the skinner station or at that station together with the feeder station, was such as to pre-dispose her to the back injury over time to such an extent that on no particular day, and for no specific reason, the same work would cause the symptoms to present themselves.[58]At one stage Dr Campbell was asked:[59]

“So the carrying out of those tasks, are they simply predisposing her to injury or causing injury along the way?  And is there any meaningful difference?” – “I think both those statements are correct. So she’s doing repetitive reaching, twisting, bending tasks at a brisk pace over a [indistinct] period of time. And I think at some stage, two or three years down the track, she’s developed the symptoms which are a result of doing those physical tasks over that period of time.”  (Emphasis added).

  1. [40]
    At page 3 of his report Dr Campbell recorded[60]:

“Opinion:

The nature of Mrs Fofana’s work duties as a process worker at a chicken factory was consistent with causing repetitive strain to the lumbar spine as she had to bend and twist her spine and lean forwards through the course of her shift. She developed the onset of lower back pain and left leg pain from 01 September 2010. As the lower back injury came on over a period of time with no specific precipitating event, it would be reasonable to apportion some of the symptoms to activities performed prior to commencing work as a process worker and activities performed after hours and on weekends outside of work”. (Emphasis added.)

Conclusions on Liability

  1. [41]
    It was clear from Dr Ludcke’s evidence that central to his thesis that the plaintiff’s work as a processor exposed her to a significant risk of back injury, was that she had to carry out repetitive and awkward posturing.[61]At page 29, line 30 of his report Dr Ludcke stated:

“The combination of the sustained, repetitive and awkward postures while undertaking the tasks provided Ms Fofana with a significant risk of lower back damage that could have been controlled. Hence injuries sustained by Ms Fofana are considered a predictable outcome from the task conducted.”

  1. [42]
    In paragraph 19(n) of the third amended statement of claim it was specifically pleaded against the defendant:”

“Failing to introduce the modifications to the skinner workstation as identified at Figure 3 of the report of Dr Justin Ludcke of Inter Safe of 24 February 2014 which were made after the plaintiff ceased work for the defendant in September 2010 and which could follow proper assessment had been implemented earlier since accumulator machinery had been in use since the 1990’s thereby reducing the forward and lateral bending and subsequent twisting and the number of pieces of chicken required to be handled by up to 50%.”

  1. [43]
    The fundamental difficulty with those allegations was that for the reasons already given, it is more likely than not that the material changes to the skinner station occurred at or about April 2010 and, accordingly were in place when the plaintiff returned from her maternity leave on 1 July 2010. The evidence was such as to lead me to conclude that the plaintiff worked at the skinner station in its original configuration from April 2007 through to December 2009. From December 2009 to 31 June 2010 the plaintiff was on maternity leave and when she returned on 1 July 2010, when working at the skinner station she was working at the new configuration. Therefore she had been working at that new station for about two months before reporting her back pain in September 2010.
  1. [44]
    As to the other particulars of negligence and/or breach of contract set out in the amended statement of claim, while I accept that employees only received a limited degree of instruction and training, having regard to the nature of the tasks involved I am not sufficiently satisfied to conclude that the defendant had failed to properly instruct the plaintiff prior to her working on the feeder and skinner stations. The evidence led on behalf of the plaintiff, such as it was, was also insufficient to satisfy me on the balance of probabilities that there was a failure to appropriately warn the plaintiff of a possibility of injury. In my view the outcome of this case turned on whether the defendant had provided a safe system of work and, more particularly, appropriately designed, constructed and maintained plant and equipment and ensured that the plaintiff was not otherwise unreasonably exposed to risk of injury having regard to the manual tasks she was required to perform.
  1. [45]
    As alluded to earlier, notwithstanding the raft of allegations of negligence contained in the Further Amended Statement of Claim and in paragraph 1 of Mr Morgan’s written submissions, the plaintiff’s case largely centred around the work that was required to be carried out at the feeder station and the changes to the height of the conveyor belt at the skinner station. In Mr Morgan’s written submissions under the heading “Breach and Causation” the following assertions were made[62]:

“The undeniable fact is that the Plaintiff worked 40 hours per week standing up all day at a conveyor belt until she was eight months pregnant and did not have back pain prior to going on maternity leave or during it. So objectively, there is support for the proposition that her back pain was temporally related to the return to work from 1 July. The repetitive nature of that work at the Skinner or the Feeder in awkward postures with inadequate breaks, allowing for the added factors of having to stand on a stand, without the ability to move laterally, causing greater forces to be applied to the spine, with the height of the Skinner station having been raised, and adopting the postures at the Feeder shown in figure 12 of the Ludcke report and in exhibit 5 caused back injury.

The combined evidence of Dr Ludcke and Dr Campbell supports a finding of causation between work practices and the injury. Even Dr Goode and Dr Tuffley accept the possibility of causation between the workplace activity and pain symptoms. Dr Tuffley would not accept it would lead to injury, though Dr Goode accepted the reality of progression from exacerbation to aggravation resulting in permanent change (T3.15).

Dr Ludcke’s evidence is that the risk of injury could easily have been avoided by modification of the skinner station (which later happened), rotation to sedentary tasks rather than from repetitive to repetitive tasks, elimination of the Feeder task, varying the work posture to allow workers to sit, providing wider stands to allow lateral movement and thereby avoid the range and severity of forces applied to the back, encouraging early reporting of injury symptoms and management of workers returning from periods of prolonged leave. There had been a Risk Assessment in 2007 but it didn’t discuss controls and hadn’t implemented any. The defendant’s witness Horgan/Hogan said Risk Assessments and Safety Audits were done before and after new equipment was put in but no such documentation was produced which indicates any such system was more theoretical than actual, or more honoured in the breach than the observance.”

  1. [46]
    In respect to those propositions the plaintiff again faced significant problems. It is true that workers at the feeder station were required to carry out a number of movements with their torsos and to lift pieces of chicken. However, there is no medical evidence or other probative evidence to link, in any material way, work at the feeder station to the injury.[63] Further, while there was evidence that the conveyor height was raised prior to the plaintiff’s return to work on 1 July 2010, that change occurred at Easter 2010 when the whole of the skinner station was changed to the configuration Dr Ludcke largely approved of. Finally, there was insufficient evidence to establish causation due to any combination of the work at the feeder station with that at the re-configured skinner station or that the injury, was the consequence of inadequate breaks, inadequate reporting systems or failing to use wider stands. In this regard the evidence, as I understood it, was that at both the feeder and skinner stations stands of different heights had always been used depending on the height of the employee.
  1. [47]
    In both Mr O'Driscoll’s (counsel for the defendant) written submissions[64]and oral submissions[65]he contended to the effect that, unless the plaintiff could establish on the balance of probabilities that her injuries were caused by the performance of her work duties between 1 July 2010 (return date from maternity leave) and September 2010, the plaintiff’s case failed at the outset. During oral submissions Mr O'Driscoll made the following submission which was accepted by Mr Morgan, counsel for the plaintiff:[66]

“… and in that context, your Honour to bring back the primary and most important point, the pleaded case against us in the third amended statement of claim is the employer would have discharged its obligation if they had the machine in place that was in figure 3, and if your Honour finds that in that two-month period, on Bissett’s evidence and others, that the machine was in place, the employer has discharged his duty to the plaintiff because the ergonomically sound machine that Dr Ludcke talks about was in fact in place at the material time, and, therefore, any other exposure outside of that timeframe is irrelevant for your Honour’s considerations to both breach of primary duty and causation. You’re limited by those factors on the pleadings.

MR MORGAN: I accept that, your Honour

HIS HONOUR:  Do you?

MR MORGAN: Yes.”

  1. [48]
    Consistent with that concession during the oral submissions of Mr Morgan the following exchange took place:[67] 

“MR MORGAN: Your Honour, I accept what my learned friend says, that I’m bound by my pleaded case and that we are concerned with what happened between 1 July onwards.

HIS HONOUR:  So you say, though, then – but I can – Dr Campbell’s evidence is such that it doesn’t require me to have to go back in time to pre maternity leave for you to still succeed.

MR MORGAN: No. The system of work is ongoing – system of work’s ongoing from 1 July 2010. Our case – it was (a) breach of duty of care by the employer from that time onwards.  The breach of duty of care is predisposing the worker to a risk of injury. The injury occurs, (it) was foreseeable, and it occurs due to breach and the elements of the tort of negligence are satisfied…” (Emphasis added.)

  1. [49]
    The skinner station was changed at Easter 2010 to a configuration Dr Ludcke considered significantly reduced the “risk factors associated with the work.”[68]As I understood his evidence the changed configuration of the skinner station may not have been a perfect solution but it materially reduced the “postural aspects” of the workers at the station.[69] 
  1. [50]
    The plaintiff’s case against the defendant was materially dependant upon the skinner station not providing for a safe system of work and, in fact, providing for an even worse system of work from 1 July 2010 until the date of injury. In fact the contrary proved to be the case due to the plaintiff’s mistaken recollection about when and how the skinner station was reconfigured.
  1. [51]
    The highest the plaintiff’s case could be put was that she was required to carry out work which exposed her to the risk of back injury and was the material cause of her injury. Many forms of employment, particularly those involving manual labour, involve an element of risk of work related injury. The critical question was whether the employer has met its responsibility to safeguard its employees from unreasonable risks of injury. What would constitute a reasonable level of precaution would of course be influenced by the level of danger inherent in the work to be done. Of particular relevance in this case was the duty of the defendant to provide safe plant equipment and system of work.
  1. [52]
    The fact that the plaintiff probably suffered a work related injury was not enough. As the cases referred to establish, the plaintiff must be able to prove on the balance of probabilities that the defendant’s conduct involved a wrongful act or omission that caused or materially contributed to the injury suffered. In this case it was at the least equally open to infer that the injury was not the consequence of any breach of duty on the part of the defendant but was simply an unfortunate work related injury resulting from the cumulative effects of the plaintiff’s work from April 2007 to December 2009 and 1 July 2010 to September 2010 together with, as Dr Campbell reported, other non work related activities.
  1. [53]
    The evidence in this case leads me to make the following findings:
  1. The plaintiff suffered a back injury of the kind diagnosed by Dr Campbell.
  1. The plaintiff’s work was a material but not sole cause of that injury.
  1. Prior to the injury the plaintiff now suffers from, she had no back injury or pain of significance.
  1. The back pain was temporally related to the plaintiff’s return to work on 1 July 2010 but only to the extent that after that date was when her injury manifested itself and was eventually reported in September 2010.
  1. The plaintiff’s injury was probably related to a cumulative and increasing pre-disposition to injury from April 2007 to December 2009 and from 1 July 2010 to September 2010.
  1. The plaintiff has failed to prove on the balance of probabilities that the injury was due to any breach of duty on the part of the defendant as alleged.
  1. [54]
    The defendant has successfully defended itself against the case pleaded against it and accordingly the plaintiff’s claim must be dismissed.

Quantum

  1. [55]
    In paragraph 22 of the third amended statement of claim it was asserted that:

“As a consequence of the plaintiff’s injuries the plaintiff:

  1. (a)
    Required treatment from her general practitioner;
  1. (b)
    Required physiotherapy treatment;
  1. (c)
    Required an MRI which revealed:
  1. (i)
    a mild broad based disc bulge at L4/5;
  1. (ii)
    a minor disc bulge at L5/S1;
  1. (d)
    Required specialist neurosurgical treatment;
  1. (e)
    Has suffered narrowing of the left nerve root at L4/5;
  1. (f)
    On 8 October 2010, underwent a left S1 nerve root injection;
  1. (g)
    Has suffered and continues to suffer much pain, discomfort and inconvenience;

…

(l)Has been left with an 8% whole person impairment;

(m)Has suffered depressive symptoms and mood liability;

(n)Has suffered adjustment disorder symptoms;

…

(p)Has suffered “multiple injuries” within the meaning of that term as used in the WCRR;

  1. [56]
    As a consequence the plaintiff originally claimed $28,720 as general damages, past economic loss in the sum of $57,750, $500,000 for future economic loss, $30,000 for paid assistance, $10,000 out of pocket expenses, $3,200 pursuant to the principles in Fox v Wood. Interest was also claimed on various items. In final submissions these claims were dramatically reduced. Both the plaintiff and the defendant contended for a range of figures for each of the heads of damage ranging from “low” to “high”.
  1. [57]
    In the event that I am wrong about the liability of the defendant I would have awarded damages in the sum of $121,221.76 under the following heads of damage:

General Damages

  1. [58]
    In respect to the question of general damages Mr O'Driscoll contended that the appropriate range was between $5,000 to $11,000. On behalf of the plaintiff Mr Morgan contended:[70]

“The injury to be assessed is the musculo-skeletal injury to the lumbar spine in respect of which Dr Campbell has assessed a 5.8% whole person impairment pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition. The most appropriate item of the Workers’ Compensation and Rehabilitation Regulation is item 92 ‘Moderate Thoracic or Lumbar Spine Injury – Soft Tissue Injury’. The item description is as follows: …

The injury scale value range is 5-10. Accordingly here, there should be an Injury Scale Value of approximately 8. This translates to general damages of $10,130.”

On balance I prefer the approach adopted by Mr Morgan and will adopt the sum of $10,130 under this heading.

Economic Loss

  1. [59]
    In Nucifora & Anor v AAI Ltd[71]McMeekin J relevantly said:

“At least since Grahame v Baker it has been well established that a plaintiff must demonstrate that his or her earning capacity has been diminished by the accident-caused injury and that that diminution ‘is or may be productive of financial loss’. Those requirements plainly continue: McCarthy. In determining the ‘may be’ issue relevant in this case the principles explained in Malec v JC Hutton Pty Ltd apply. There is the ‘double exercise in the art of prophesying’ involved – what the future would have been if the injury had not occurred and what it is now likely to be. As usual the fact finder must state the factual findings underpinning the award and display the reasoning behind the award sufficiently at least for the parties, and the Court of Appeal if called on, to comprehend the result, although the methodology need not include an explicit statement of a formula: Reardon-Smith. An ‘experienced guess’ has been held to be a sufficient response to the facts presented: Ballesteros.”

  1. [60]
    The evidence concerning the economic affairs of the plaintiff was far from being clear and certain. It seems probable that the plaintiff ceased work with the defendant due to her back injury on or about 24 December 2010 and that she was earning approximately $720 per week net.[72]It was submitted on her behalf that she did not begin work as a self employed child carer until January 2013.[73]Unfortunately, I do not recall being directed to any evidence in support of that assertion. The plaintiff’s evidence seems to be to the following effect.[74]After leaving the defendant she was on WorkCover for some 8 months[75]and during that period was unable to gain alternate employment. However, “luckily” that situation did not last much longer before the plaintiff commenced employment at Kids First Family Day Care and from there, later began to work for the Mumtaaz Family Day Care on or about November 2013.[76] 
  1. [61]
    There are a number of assertions in the plaintiff’s updated Statement of Loss and Damage concerning dates and rates of pay. However, I am unaware of any admissions about those matters and they are largely unsupported by probative evidence. And, what evidence there is, tends to indicate that the plaintiff was only fully unemployed for a period in the order of 8 months and, thereafter, had slowly increased her income and has the capacity to earn more. On balance, I consider that the plaintiff’s reference to $1,000 to $1,200 was more likely to be a reference to her fortnightly gross income than her weekly income.[77]It would also appear that that income is derived from caring for three children but that the plaintiff has the capacity and the desire to care for up to five children[78]if not now at least sometime in the relatively near future. Also, it could not be discounted that at some time in the future the plaintiff may not in fact be able to care for up to seven children, after all she purchased a vehicle specifically designed to carry up to seven passengers.[79] 
  1. [62]
    In regard to economic loss, past and future, the difficulty for the plaintiff was that at least to me, it was impossible to determine with any precision what the real facts were. That was so not only in respect of exactly when the plaintiff started her day care work and how many children she cared for and was physically capable of caring for, but also in respect of how her remuneration was calculated by reference to the number of children or hours she worked.[80]Therefore, while I am satisfied that on the balance of probabilities the plaintiff had suffered some past economic loss it was not possible to calculate in any precise way what it was. In these circumstances I consider the only option open is to adopt a global approach.
  1. [63]
    In Mr O'Driscoll’s written submissions[81]he contended that a reasonable assessment for past economic loss would be between $20,495 and $30,000. On the evidence before me I consider that range to be too low. In my opinion the injury suffered by the plaintiff is materially more significant than Mr O'Driscoll considered it to be and that that injury had and will in the future impact on her capacity to earn income. On the other hand I consider Mr Morgan’s assessment of $104,097.65 to be excessive in that it had failed to have regard, or at least sufficient regard, to the more likely capacity of the plaintiff to earn income in excess of $600 per week gross. Also in my opinion Mr Morgan’s approach proceeded on a far too pessimistic view of when the plaintiff did in fact begin to earn income in the day care industry. Doing what I can with the state of evidence before me I consider the real past economic loss lies between the ranges contended for by the respective counsel and propose to adopt the sum of $60,000 including interest and past superannuation under the heading of past economic loss.
  1. [64]
    Turning then to the question of future economic loss, the same problems confront the plaintiff concerning the imprecision of the evidence. Notwithstanding that, it seems tolerably clear that even with her back injury the plaintiff will be able to deal with at least up to five children, if not now, then in the relatively near future. The evidence as to the plaintiff’s wages, such as it was, would suggest that an increase in the number of children from three to five would result in an increase in her gross income in the order of 50%, that is from $600 per week gross to $900 per week gross. From that there would be expenses such as fuel, car registration and insurance, and, of course, income tax. However, by the same token there would also be certain tax offsets in respect of that expenditure. Mr Morgan’s submissions go into some detail as to how his assessment of the range of $100,000 to $120,000 for future economic loss is arrived at. However, his assessment again proceeds on the basis of the plaintiff’s gross income not exceeding $600 per week. For the reasons already given I do not consider that to be a realistic view of the plaintiff’s future earning prospects. And, in this respect, I also consider that Mr Morgan’s approach fails to properly take into account the plaintiff’s strong work ethic. On the other hand, Mr O'Driscoll’s range of $20,000 to $30,000 proceeded on the basis that in reality there would not be any meaningful future economic loss. That fails to adequately recognise the extent of the plaintiff’s injury, the fact that her child care business is a growing one and that more likely than not she was earning $1,200 per fortnight and not per week, the basis upon which Mr O'Driscoll seemed to have approached things. Again, a global estimate is called for and I consider the range falls between the upper end of that of Mr O'Driscoll’s and the lower end of Mr Morgan’s but tending towards the lower end of that range. Accordingly I will adopt the amount of $60,000 as being appropriate allowance for future economic loss. That figure includes any losses for future superannuation which would have been in the order of $7,500.

Fox v Wood

  1. [65]
    Consistent with the submissions made on behalf of the defendant I will adopt the figure of $3,200 under this heading.

WorkCover Refund

  1. [66]
    I do not understand there to be any dispute that the WorkCover refund is $30,451.

Past special damages

  1. [67]
    According to Mr O'Driscoll this head of damage was agreed in the amount of $7,000. While “out of pocket” expenses were agreed[82]I did not understand the totality of past special damages to be agreed. The range contended for by counsel is between $7,000 to 11,342.76. During his oral submission it seemed to me that Mr O'Driscoll recognised and conceded that his assessment under this heading might have been too low.[83]  I do not consider any further forensic analysis of this issue is warranted and propose to adopt the methodology and figures used by Mr Morgan. Accordingly I would award $11,342.76 under this heading.

Future special damages

  1. [68]
    Mr Morgan contended for a range of between $5,000 to $10,000. Mr O'Driscoll for $2,000. In his written submissions[84]Mr Driscoll supports his figure as follows:

“Future special damages can only be claimed in a global sense. Again, there is no evidence in support of same. A global assessment is made at $25,000, not supported by the evidence or receipts. $2,000 would be appropriate.”

  1. [69]
    This sheer range contended for by Mr Morgan necessarily recognises that yet again a global approach has to be taken to this head of damage. However, I consider Mr Morgan’s approach to be a more balanced one in that consideration was at least given to the various likely imports and, yet again, it seems implicit in approach adopted by Mr O'Driscoll that he has materially underestimated the extent of the plaintiff’s injury. Acting in the robust manner advocated by counsel I would have awarded the sum of $7,000 under this head of damage.
  1. [70]
    Accordingly I would, but for my findings of liability, assess damages in the amount of $121,221.76 dollars made up as follows:

General Damages  $10,130

Past economic loss  $60,000

Fox v Wood   $3,200

Future economic loss  $60,000

Past special damages  $11,342.76

Future special damages  $7,000

Subtotal    $151, 672.76

Less WorkCover refund  $30,451.00

Total    $121,221.76.

  1. [71]
    However, for the reasons given above the claim must be dismissed

Orders:

  1. The plaintiff’s claim is dismissed;
  1. I will hear from the parties regarding any consequential orders.

Footnotes

[1]Exhibit 1A at pp 188, 189.

[2]See for example paragraphs 18 and 19.

[3]Garzo v Liverpool/ Campbeltown Christian School [2012] NSWCA 151 at para 171.

[4][2012] HCA 5 at para 43.

[5][2012] QSC 298: On appeal the decision of Applegarth J was overturned (2013 QCA 228) but not on the basis of any error in the above reasoning (see at paras 26-39).

[6](2014) NSWCA 314 at paras [24] to [27]: In my opinion the relevance of Bathurst CJ remarks are not, relevant to this case, materially lessened because it was concerned with the legislation under consideration.

[7]T 3-3 L 25.

[8]T2-7 L1.

[9]Exhibit 1A at p 212.

[10]See 3-98 L22 to 3-99 L1-12.

[11]Exhibit A1 pp 195 and 196.

[12]T 4-14.

[13]T 4-15 L 1-15.

[14]Further amended defence at para 8(c); T 5-11 L 7-25.

[15]Exhibit 1A at p 190.

[16]T 5-29 L 44-50.

[17]Ibid at p 190.

[18]Ibid at p 194.

[19]At p 196.

[20]At p 212.

[21]At p 213.

[22]A supervisor employed by the defendant.

[23]T 2-83 L 5-12.

[24]T 2-82 L 37-40.

[25]T 2-83 L 12.

[26]A leading hand/supervisor.

[27]T 3-55 L 20-45.

[28]`T 3-61.

[29]A safety and rehabilitation officer.

[30]T 3-84 L 10-25.

[31]T 4-10 L15-25.

[32]T 4-11 L 38-44.

[33]T 4-18 L 10-45.

[34]T 4-10 L22.

[35]T 4-11 L 45.

[36]See generally at T4-10 and T4-11.

[37]T 2-53 l 30-37.

[38]T 4-10 L 27-47: T 4-18 L 40-45.

[39]Exhibit 1A at p 212.

[40]T 1-40 L 20-40.

[41]T 3-94.

[42]Exhibit 1A p 145.

[43]Ibid p 151.

[44]Ibid pp 157-159.

[45]Ibid p 164.

[46]T3-26 L5-11.

[47]T3-29 L13-15.

[48]For example, Dr Campbell believed the plaintiff suffered sciatica and Dr Tuffley did not.

[49]T3-31 L5-25.

[50]T 2-63 L 33-35: T 2-64 L 30-45.

[51]T2-61; T2-62; T2-58, T2-64; T2-72.

[52]T 3-12 L 17-26.

[53]Dr Campbell T 2-71 L 1-22.

[54]Exhibit 1A p 148, “opinion” para (c).

[55]Ibid p 151, “Executive Summary”.

[56]See Exhibit 1A, p 190 Fig 3: Dr Campbell T 2-67 L 35-40; T 2-68 L 30-35.

[57]Exhibit 1A p 145 para 1.

[58]See generally at T 2-72 to T 2-75.

[59]T 2-74 L 45 to T 2-75 L 4.

[60]Exhibit 1A p 154.

[61]Eg exhibit 1A, pp 202 L 18, 207 L 10-15, 208 L 23, 211 L 28 and 216.

[62]At paras 63-65.

[63]Dr Tuffley Exhibit 1A at pp 148-149 and Dr Campbell at T 2-71 L 1-22.

[64]At para 34.

[65]T 5-3 L 1-12.

[66]T 5-6 L 2-17.

[67]T 5-28 L 35-47.

[68]Exhibit 1A, p 213.

[69]T 2-40 L 4-5.

[70]His written submissions at paras 66 and 67.

[71][2013] QSC 338 at [30].

[72]T 1-79, L 5-15.

[73]Para 69 of Mr Morgan’s written submissions.

[74]See generally at T 1-78.

[75]Between 28/9/2010 to 31/5/2011: Ex 1A, pp 838-841.

[76]Again at T 1-78.

[77]T 1-78, L 44-46.

[78]T 1-78, L 25-30, T 1-81, L 28-45, T 1-85, L 17-27.

[79]T 1-89, L 15-28.

[80]Refer generally to T1-78 to T 1-90.

[81]At para 72.

[82]T 5-22, L 17-25.

[83]T 5-22, L 12-35.

[84]At para 68.

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Editorial Notes

  • Published Case Name:

    Fofana v Inghams Enterprises Pty Ltd [2014] QDC 224

  • Shortened Case Name:

    Fofana v Inghams Enterprises Pty Ltd

  • MNC:

    [2014] QDC 224

  • Court:

    QDC

  • Judge(s):

    R S Jones DCJ

  • Date:

    02 Oct 2014

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
Curtis v Harden Shire Council (2014) NSWCA 314
2 citations
Jump To
Cite 1 - (2014) NSWCA 314
Cite 2 - (2014) NSWCA 314
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
1 citation
Jump To
Cite 1 - [2012] NSWCA 151
Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2006] QCA 335
1 citation
Jump To
Cite 1 - [2006] QCA 335
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
1 citation
Jump To
Cite 1 - [2011] HCA 11
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
1 citation
Jump To
Cite 1 - (2011) 243 CLR 361
Nucifora v AAI Limited [2013] QSC 338
2 citations
Jump To
Cite 1 - [2013] QSC 338
Cite 2 - [2013] QSC 338
Roads and Traffic Authority v Royal [2008] HCA 19
1 citation
Jump To
Cite 1 - [2008] HCA 19
Roads and Traffic Authority v Royal (2008) 82 ALJR 870
1 citation
Jump To
Cite 1 - (2008) 82 ALJR 870
Strong v Woolworths Ltd (2012) HCA 5
2 citations
Jump To
Cite 1 - (2012) HCA 5
Cite 2 - (2012) HCA 5
Wolters v The University of the Sunshine Coast [2012] QSC 298
2 citations
Jump To
Cite 1 - [2012] QSC 298
Cite 2 - [2012] QSC 298
Wolters v The University of the Sunshine Coast[2014] 1 Qd R 571; [2013] QCA 228
2 citations
Jump To
Cite 1 - [2013] QCA 228
Cite 2 - [2013] QCA 228

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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