Berhane v Woolworths[2016] QDC 142

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff claims damages for personal injury caused by the negligence and/or breach of contract of the defendant. He suffered a shoulder injury while working at the defendant’s distribution centre at Larapinta. The work activities aggravated a pre-existing injury.

2. [2]
   The plaintiff was born on 24 April 1962 in Asmara, Eritrea. After completing school there, he trained as an electrician and worked for the German based company, Siemens. His other employment, before coming to Australia, included working as a ‘community mobiliser’ for an American based entity called International Rescue Committee and as an electrician for the United Nations mission in Ethiopia and he drove a taxi in Sudan. He came to Australia in 2008 to join his wife and children, who came in 2007.

3. [3]
   He could not get accreditation as an electrician because, he said, he could not obtain certain documents and could not pay a fee.

4. [4]
   In Australia, the plaintiff worked as a cleaner in a hotel; obtained a forklift operating licence and completed a warehouse logistics training course. He started working for the defendant in August 2010 as an order selector.

5. [5]
   The plaintiff complained of his shoulder injury on 22 June 2011. He said it might have occurred when selecting his second order. It was agreed by the parties the plaintiff suffered sub-acromial bursitis and impingement of the left shoulder. It was not contested that the work tasks contributed to the development of that condition.

6. [6]
   English is not the plaintiff’s first language. Over objection by Counsel for the defendant, the plaintiff gave evidence via an interpreter, the language interpreted being Tigrinya.

7. [7]
   For the purposes of his job with the defendant, the plaintiff was examined on 17 August 2010 by a physiotherapist who conducted a ‘Standard Musculoskeletal Assessment and Step test’. The reporter, in effect, ticked all of the boxes relating to the plaintiff’s musculoskeletal condition and gave him an ‘average’ assessment for the cardiovascular screening, declaring him suitable for the role of order picker.

Issues

8. [8]
   There is no contest that the plaintiff was injured as a result of his work activities. It will be necessary to consider the nature of the workplace; whether the conditions the plaintiff was required to work under breached a duty owed by the defendant; whether his injury was caused by a breach of duty; and quantum.

The Plaintiff’s Credibility

9. [9]
   First, it is necessary to address the weight which may be put on the plaintiff’s evidence. A number of matters undermine his credibility, particularly with respect to the extent of his injury but also with respect to the activities he was required to perform and the weights he had to lift. He is clearly shown, on video,^[1]to be capable of greater movement and use of his shoulder than he exhibited to the examining doctors and claimed in his testimony. Dr Macgroarty, orthopaedic surgeon called by the plaintiff, first examined the plaintiff on 30 January 2013. The video was made on 19 March 2013, about four months before Dr Blenkin, orthopaedic surgeon called by the defendant, examined him.

10. [10]
    The following are some of the details of the matters going to credit, without asserting that I cover here every piece of information which has informed my view of the plaintiff.

11. [11]
    At the start of the trial, counsel for the plaintiff, Mr Morgan, ‘amended’ the plaintiff’s claim that he was required to lift loads up to 24 kilograms, limiting the plaintiff’s case to being required to lift boxes weighing between 16 and 18 kilograms. Mr Morgan told me the pleading was based on ‘some hearsay that Mr Berhane says he was told by someone’.^[2]Little might turn on it, but the claim was pleaded and was part of the material taken into account by the engineers and doctors who reported and gave evidence. In his report, Mr McDougall, of the firm Intersafe, engineers commissioned by the plaintiff, said the plaintiff claimed to prepare 16 to 20 orders per shift. The evidence, on which Counsel’s submissions were based, was that he prepared, on average, 15 orders per shift.

12. [12]
    Dr Blenkin considered the plaintiff was not demonstrating a true range of motion when he examined him on 16 July 2013. Dr Blenkin said he manually moved the plaintiff’s arm to assess the true range of motion.^[3]He considered there was a marked contrast between the plaintiff’s demonstration of the function of the shoulder and what is observable on the video.^[4]

13. [13]
    Occupational Therapist, Ms Noble, who provided a detailed vocational assessment of the plaintiff, was of the view that he ‘was applying submaximal effort’ - he was overprotective of the arm both times she assessed him. Because he was inconsistent, Ms Noble did not base her opinion on the plaintiff’s demonstration of physical capacity, relying instead of the orthopaedic opinion of his physical capacity.^[5]

14. [14]
    Even if Ms Noble’s evidence leaves open the possibility that the plaintiff was overly cautious but not dishonest in his demonstration of range of movement, it is difficult to find other than that he was untruthful in testimony about what he could do with his left arm.

15. [15]
    The plaintiff gave evidence that he did not now carry heavy things. He had constant pain in his shoulder. Even an empty plate would be too heavy. He could carry something in his left hand supporting it with his right hand. Asked whether he used his left hand in cooking at a barbecue, he said he always used his right hand to do anything. Any movement of the left hand caused pain. As at the early part of 2013 he would feel a lot of pain if he used his left arm for overhead activities. Even sitting in court he had to support his arm because he felt pain.^[6]

16. [16]
    On the video, the plaintiff can be seen receiving a small child with two hands and then holding it alternately on his right and left side; putting both hands, apparently with equal ease, behind his back as if to tuck in his shirt; lifting the child with both arms; putting an esky into the boot of a ‘hatch’ model car with his left arm; raising the arm well above shoulder height to close the hatch door; standing at a barbecue, cooking for a significant period of time using both hands to hold utensils and, as Dr Blenkin described in his supplementary report,^[7]‘leaning forward loading the left arm and shoulder’; wading into the surf.

17. [17]
    The plaintiff’s movements as seen on the video appear smooth and comfortable, showing ordinary rhythm. While in the water the plaintiff occasionally raises both arms together with free, apparently painless and reasonably symmetrical movement. He occasionally uses the left hand to point and gesticulate.

18. [18]
    The video does not show that the plaintiff had no restriction of movement or pain, but it plainly shows a greater range of movement than he was prepared to demonstrate to those who examined him before trial and to admit in evidence. In the sort of daily activities shown on the video, the plaintiff shows no restriction of activity.

19. [19]
    I do not accept the plaintiff as a reliable witness with respect to the extent of his injury. That finding affects my assessment of his reliability with respect to all of his evidence.

The Workplace

20. [20]
    The plaintiff worked as an order selector at the defendant’s distribution centre at Larapinta. There is not quite agreement, on the pleadings, on the precise nature of the job and the equipment used but based on the pleadings and the evidence, including several reports in evidence, I am satisfied the following is uncontroversial.

21. [21]
    The plaintiff operated a machine that the defendant called an electronic pallet jack. It held two pallets on its tines. The plaintiff was required to pick stock from shelves and place it onto the pallets. He took instructions through a headset. A programmed voice told him where to take the machine and how many cartons or crates of the various produce to stack onto the pallets. When the order was complete, the order selector was required to drive the machine to a despatch area where he was to set the pallets off the tines onto the floor of the warehouse and wrap the completed orders in plastic.

22. [22]
    Mr McDougall visited and inspected the site on 25 June 2014. He went there with Dr Grigg, Forensic Engineer commissioned by the defendant. Their reports include the following.^[8]The plaintiff was one of about 10 to 15 order assemblers in the temperature controlled section. The temperature in the produce section was 5 degrees and in the chilled products section, 0.7 degrees. The workers’ clothing was multi-layered and included gloves and cap. The two pallets are each about 1,165 mm square. The height of the stacks from which the selector picked was observed to be generally less than 1500 mm. The pallets stacked by the selector would be up to 1800 mm, for ease of operation with a forklift.

23. [23]
    There was a machine called a layer stacker, and some of the photographs show pallets stacked using that machine. No claim arises from the use of that machine.

24. [24]
    The heaviest carton Dr Grigg saw weighed 17 kg. Most of the cartons weighed 16 kg or less. Mr McDougall observed that a significant percentage of the crates or cartons weighed in the range of 13 to 17 kilograms.

25. [25]
    Mr McDougall also observed that assemblers lifted cartons of that weight from beyond the centre line of a pallet by stepping onto the pallet with one foot, the other remaining on the concrete floor. That is, the assembler would lift excessive weight at a reach away from the body. Similarly, he observed an assembler reach forward to place a crate of produce at the centre of the pallet being loaded.

26. [26]
    Because of the concerns I have already expressed about the plaintiff’s reliability I do not act on the basis of his apparent statement to Mr McDougall that he would regularly lift two 17 kilogram cartons at once. But Mr McDougall’s observations give some support to the plaintiff’s case that the system involved frequent lifting away from the body of weights in excess of recommendations, for example, the Worksafe Victoria Guide to Manual Order Picking.

27. [27]
    The plaintiff would, on average, prepare 15 orders per day. This would involve stacking two pallets according to the instructions received over the headset.

28. [28]
    Apart from the observations of Mr McDougall and Dr Grigg, some idea of the work system can be gained from a document headed Kinnect – Job Dictionary, which also has the Woolworths insignia on it. The document describes three areas in the temperature control department of the distribution centre at Larapinta. One is “temperature control selections”. In this area employees work shifts up to eight hours during which they have one 10 minute breach and one 30 minute break. If the shift is up to ten hours the employee will have two 10 minute breaks and a 30 minute break.

29. [29]
    The document notes that several staff roles require repetitive forward, upward and downward reaching. The roles require repetitive lifting of weights between 0.5kg to 16kg throughout the shift. In the temperature control section, the order selection role involves “driving the auto select machine to the allocated area and repetitively picking selected grocery items to place onto their pallet for the store order”.

30. [30]
    Repetitive forward reaching was required in all roles. Repetitive lifting of 0.5kg to 16kg was required in the order selection role. There was some confusion during submissions at the end of the trial but, in my view, a plain reading of the document indicates that employees in the order selection role were required to perform floor lifts, waist lifts and shoulder lifts frequently, that is, 34 to 66 percent of the time. Again, the lifts were of weights between 0.5kg and 16kg. Those figures come from a table headed “weights and forces”. Another table headed “static demands” includes the information that constant forward reaching was required in all roles. Occasional shoulder reaching was required in some roles including the order selection role. ‘Occasional’ was defined as between 6 and 33 percent of the time. ‘Constant’ was described as greater than 67 percent.

31. [31]
    In the task analysis section of the document the order selection task was described as requiring repetitive lifting of cartons to place on the pallet for the store order. The two areas were the main chiller area and the produce area. The produce area stocks mostly vegetables and fruit in crates and is predominately heavier lifting. Order selection required standing/walking, repetitive squatting, repetitive forward, upward and downward reaching, repetitive gripping and occasional twisting of the spine to reverse the machine.

32. [32]
    Mr Morgan, for the plaintiff, made detailed submissions about the number of manual transfers the plaintiff was required to perform during a shift. The possibilities range widely but, having regard to the evidence of the observations of the two engineers, the photographs taken at the inspection, the evidence of the plaintiff’s timesheets and diary records and the evidence of witnesses called by the defendant, I accept as a reasonable position Mr Morgan’s averaging method which led to 2,160 manual transfers a day. This was reached by assuming 9 items per layer stacked 8 layers high on each pallet, there being two pallets per order and 15 orders per day.

33. [33]
    It must be accepted that some of these transfers required lifting to above shoulder height but it is not possible to measure it. Some photographs show pallets stacked to 1.8 metres but some of those were obviously stacked using the pallet stacking machine. Mr Morgan, for the plaintiff, submits that if only half of the orders were stacked to 1.8 metres that would require 360 above-shoulder lifts per 8 hour day. I am not prepared to proceed on that basis. Upon the engineers’ inspection, most of the pallets were stacked at 1500 mm or less, below Mr McDougall’s shoulder height. Dr Grigg said there were some considerably higher which, he was told, were stacked by machines. That is consistent with the photographs in evidence. Dr Grigg referred to one photo included in his report, showing pallets of produce shrink-wrapped and ready for dispatch, and commented that the photo showed it was ‘pretty much the exception’ for the pallets to be stacked to 1800 mm high. Witnesses called by the defendant, Mr Woods, the trainer and Mr Gorski, a former team leader, both spoke of 1.8 metre pallets but gave no estimate of the proportion of pallets so stacked. Mr Gorski said, ‘It can either be 1.8 or 1.4…. main store’s 1.8’. If one in ten pallets were stacked to 1.8m, Mr Morgan’s method would result in there being 72 lifts above shoulder height per day. If one in five, 144. In the result it is possible only to state as I did at the commencement of this paragraph.

34. [34]
    One aspect of the system which concerned the plaintiff was the assessment of order selectors. The computer system which directed, through the headset, the process of selection, also produced an assessment of each completed order and, it seems, of the daily average. As Mr McDougall expressed it in his first report, “in general terms, if a worker was to complete each job at the job’s expected completion time throughout the work day, the worker would achieve a performance rating of 100 per cent”. The assessment system is explained in detail in the Labour Standards Information Pack, exhibited by the plaintiff, although there is no evidence that the document was given to the plaintiff or that it formed the basis of employee training.

35. [35]
    It is clear from his evidence that the plaintiff became very concerned about achieving 100 per cent. He was unable to achieve it for some time. Because he was a casual worker he feared that should he not achieve 100 per cent he would lose his job. That was not an unreasonable fear. Mr De Silva, a manager at the centre, called by the defendant, explained that an independent company had conducted a time and motion study and established the assessment system. He agreed that the moment in the day would come when the manager had to decide whether there was enough work for the employees present. If not, the casual workers would be sent home, those with less impressive percentage performances would be sent home first.

36. [36]
    Mr Gorski, retired team leader at the distribution centre, said much the same as Mr De Silva. He explained that new employees would take three or four months before being able to reach the 100 per cent target. This was expected and employees were encouraged to stack their pallets “nice and neat” after which speed would come along. He agreed that once a certain proportion of the work for the day was complete, casual workers would go home.

37. [37]
    The measuring system included the time that an order selector would take to remove the pallets from the vehicle and wrap them in plastic. Mr Gorski explained that the system took into account delay time, travelling time and wrapping time.

38. [38]
    The plaintiff said that, fearing he would lose his job by failing to reach 100 per cent performance, he felt compelled to work faster. He missed breaks.

39. [39]
    His impression of a review on 4 October 2010 was that his employment was threatened. Mr De Silva gave evidence of conducting that review. The comment with respect to work outcomes on the performance review document read, “Performance needs to improve – looking at around 85 per cent for next review.” Another comment on the review document was, “pallet stacking is fine”. Mr De Silva explained that the appellant’s work outcome achievement was understandable and not an issue at that stage.

40. [40]
    MrGorski was of the view that it was very easy to achieve 100 per cent at the Larapinta Centre. He said that many staff were picking over 100 per cent.

41. [41]
    The plaintiff’s concern about the system and his job security, which is supported by his own detailed diary entries, makes it likely he took short cuts such as leaning across a pallet rather than walk around it, or carry more than one item. The engineers saw workers doing these actions at the inspection.

42. [42]
    Although the plaintiff gave a significant amount of evidence about the assessment system, accepting, as I do, the evidence of Mr De Silva and Mr Gorski, I am not satisfied it contributed to or caused an unsafe system of work. Mr McDougall made no serious criticism of the assessment system. The real issue is whether the defendant’s system of work was unsafe having regard to the number and style of manual transfers required during the shift.

The engineers’ opinions

43. [43]
    Mr McDougall referred to Queensland documents such as the Manual Tasks Code of Practice 2010 as authority for the proposition that musculoskeletal disorders can result from repetitive exposure or through sudden single traumatic exposures. The first is the relevant cause in this case. Musculoskeletal disorders can occur from gradual wear and tear caused by frequent or prolonged periods of muscular effort associated with repeated or continuous use of the same body parts including static body positions. Both Mr McDougall and Dr Griggs referred to a work by Putz-Anderson for details of the mechanics of shoulder injuries such as the plaintiff has suffered. There is no contest in this case that the plaintiff suffered a shoulder injury.

44. [44]
    Mr McDougall referred to the Victorian and United States of America guidelines to reach the opinion, based on his observations of the work system and the plaintiff’s instructions to him, that many of the tasks undertaken by the plaintiff involved handling crates and cartons significantly in excess of recommended maximums and required the arms to be lifted away from the chest repetitively. Performing such tasks created an increased risk of experiencing musculoskeletal injury including injury to the shoulder as a consequence of cumulative trauma. The Victorian guide to manual order picking states that high volume picking and packing should be done predominantly by mechanical means. Mr McDougall then referred to various machines which can mechanically raise the height of pallets and thereby reduce the need for picking and lifting from below the waist level. He also referred to the use of carton hooks to push and pull cartons to the front of a pallet. He also suggested that pallets should be stacked only two deep thereby eliminating the necessary reaching to the middle of a pallet.

45. [45]
    Dr Grigg, forensic consulting engineer called by the defendant, attacked MrMcDougall’s opinion primarily on the basis that the documents that MrMcDougall referred to related to musculoskeletal injury of the lower back and did not relate specifically to shoulder injuries. So, Dr Grigg rejects Mr McDougall’s premise that there is a range of guidelines available relevant to the present injuries. Specifically, the Guide to Manual Order Picking from Work Safe, Victoria, which MrMcDougall relies on, is based on the NIOSH Lifting Equation^[9]and it, accordingly, relates to the risk of back injury. Dr Grigg considered much of the material relied on by Mr McDougall was of no relevance to the risk of shoulder injury. He gives as an example, the risk of injury to the back from floor level to waist level lifting compared with knee level to waist level lifting. Also, having to twist while carrying a weight was unlikely to be relevant, in Dr Grigg’s opinion, to a risk of shoulder injury as opposed to back injury. Lifts above shoulder height would involve a risk of shoulder injury, but not if the boxes were not heavy and only, obviously, when lifting the top few layers onto a tall stack. Dr Grigg considered the cold temperatures were of limited relevance to the risk of injury because of the clothing and gloves the plaintiff and his co-workers wore. Dr Grigg considered that although repetitive abduction and flexion of the arms away from the chest would carry some risk of cumulative trauma and musculoskeletal injury to the shoulders, pallet stacking was highly variable and the lifting and stacking activities were broken up by periods of driving the vehicle, shrink wrapping and rest breaks.

46. [46]
    Dr Grigg opined that due to the variable nature of the tasks, assessment of the risk of shoulder injury was not straightforward and should commence with an analysis of work place injury records. No records were in evidence. Neither party adduced evidence of work place injuries or lack of them at the distribution centre.

47. [47]
    Under cross-examination, Dr Grigg agreed that manually handling weights of 16 to 18 kilograms, several hundred times a day, at shoulder level or above, would put the shoulder under load. Holding such weights at shoulder level with arms extended would put significant load on the rotator cuff complex. Dr Grigg said, speaking as an engineer, the risk of musculoskeletal injury to the shoulders would be increased by repetitive lifting of weights exceeding 16 kilograms “in relatively extended arm situations.” The risk is greater when the lifting was above shoulder height. These concessions are of limited use to the plaintiff because the evidence does not support my proceeding on the basis that the system of work required the lifting of weights between 16 and 18 kilograms hundreds of times each day at shoulder height or above. I have already referred to the evidence that most of the crates and cartons weighed 16 kg or less and the engineers observed that a significant percentage weighed in the range of 13 to 17 kilograms. And most of the pallets were stacked to 1.5 metres or lower.

48. [48]
    Mr Morgan referred Dr Grigg to guideline diagrams which suggested maximum weights to be handled close to and away from the body at various heights. While agreeing the diagrams showed recommended safe lifting limits, Dr Grigg said the literature was based on experience of back injury and said nothing, one way or the other, about the risk of shoulder injury. He agreed that to lift 16 kilograms above shoulder height with arms extended would exceed the guidelines. Such lifts at a rate of more than 60 per hour would create a high risk of back injury.

49. [49]
    When referred Dr Grigg to an extract from the Putz-Anderson publication, Dr Grigg agreed repetitive gripping, reaching, twisting and moving were associated with the onset of cumulative trauma disorders and that risk ‘was associated with [the defendant’s] system of work.

50. [50]
    In summary, Dr Grigg attacked Mr McDougall’s report because it relied on literature concerning back injury, not shoulder injury. Because of the varied tasks involved the risk from the repetitive lifting was mitigated. Dr Grigg knew of no criteria that could be used to evaluate the risk of shoulder injury such as are available to evaluate the risk of back injury. However, he said the existence of an asymptomatic degenerative condition probably increased the risk of developing accumulative trauma disorder. Dr Grigg also noted that the plaintiff appeared to have acted outside the Move 4 Life training program used at the commencement of employment at the centre.

51. [51]
    Among the guidelines the plaintiff relies on is the Manual Tasks Advisory Standard 2000, published under the Workplace Health and Safety Act 1995. The risk factors dealt with include forceful exertions and working postures – bending forward, lifting above shoulder height, working ‘beyond forearm length in front of the body’. The Standard emphasises the relevance of repetition to musculoskeletal disorders – more so when combined with awkward postures, forceful exertions, fast movements and cold conditions. While I accept Dr Grigg’s evidence that the literature referred to by the plaintiff may have been devised primarily to reduce the risk of back injury, Mr McDougall has pointed out that the statistical data also identify that manual handling can result in a variety of musculoskeletal injuries to any bodily structure in the transfer path, including the shoulder. Lifting weights between 13 and 17 kilograms away from the body with great repetition is likely to exceed any standard.

Evidence about response to risk

52. [52]
    All of this evidence reduces to the conclusion that the system, requiring so many manual transfers – picking crates and cartons weighing from perhaps three up to 17 kilograms from a range of heights that included ground level and above shoulder height and stacking them in a similar range of positions – included the risk of musculoskeletal, including shoulder, injury.

53. [53]
    The defendant’s response to the risk included the pre-employment examination I have referred to, policies about weights and heights of stacking, training and on the job supervision.

54. [54]
    The defendant called Mr Woods, the trainer at the Larapinta distribution centre. He recalled the plaintiff as one of his students. The program he taught was called ‘Move 4 Life’. It consisted of a 1½ hour seminar, delivered during three days of introductory training that new employees underwent. After that program new employees were allocated an on-job trainer – that is one-on-one, for three days. Woolworths ran a refresher training program every 12 or 18 months. Apart from conducting the training module, Mr Woods might be called upon when a worker felt pain. He would review the technique and provide feedback to improve the worker’s manual handling techniques.

55. [55]
    The defendant exhibited documents concerning the plaintiff’s training and induction. These include the ‘Move 4 Life’ attendance form and the ‘order selector checklist’ which appears to be signed by both the plaintiff and a workplace coach ticking off the requirements of the three days of on-job training. These documents show workers were advised to keep elbows low and near the body when lifting (the “fish wing” movement); suggest the plaintiff satisfied various criteria, for example, placing “large solid boxes to corners, use edges as a guide then fill to centre”, “interlocks on each layer (avoids column stacking)”, “does not stack heavy cartons on top of light cartons”.

56. [56]
    With respect to stacking at or above shoulder height Mr Woods said the instruction given was that the lifter should keep the elbows pointing down. This movement was practised during the session. Mr Woods said workers were instructed, in terms of reaching to put things on a pallet, to make sure it was put down directly in front of the worker, that is, not to overreach. Where the item was to be placed on the far side of the pallet, the direction was to walk around, keeping the load close to the body. The policy was that only one box was to be lifted at a time.

57. [57]
    Mr Woods was cross-examined about the term “cube break”. This, he explained, was the term the order selector could speak into the headpiece when it was considered unsafe to stack the pallet to 1.8m. The machine would then “automatically chop the order off there and reassign the rest of that order to somebody else”.^[10]Mr Woods said the expression, “cube break”, was dealt with during training. He considered every employee would know of it because it was one of the expressions spoken by the new employee when creating the voice template.

58. [58]
    With respect to reaching forward while carrying a load, Mr Woods referred to that part of the ‘Move 4 Life’ program which explained the 70/30 weight balance. The instruction was to keep 70% of the weight on the worker’s heels and 30% on the toes. If one held a box at arm’s length the weight would all be on the toes. That way, as I understand Mr Woods’ evidence, employees were directed not to lean forward while carrying a heavy weight.

59. [59]
    As to placing boxes in the middle part of the pallet, Mr Woods said light, small objects were to go in the middle. When shown a particular photograph in which crates of produce were stacked three deep and wide across a pallet, Mr Woods said “once you get them on there, you can slide them around”. He said that was covered in on-job training. In this sense, he said, the order selector did not have to reach into the middle of the pallet.

60. [60]
    I have already mentioned the evidence of Mr Gorski and Mr Desilva. Mr Gorski said that workers picked up more than one carton at a time on numerous occasions. But he said each carton would weigh only 3kg. Mr Gorski, under cross-examination, asserted that an employee would not have to lift over shoulder height, ‘only to 1.8m’. If the worker’s height meant that such a lift was necessarily above the shoulder, Mr Gorski said the worker would not lift over shoulder but could start the next pallet. This, Mr Gorski believed, would have been explained in training. Although part of Mr Gorski’s job was to supervise the lifting techniques of workers, he explained there were roughly 100 workers and three supervisors including him. At one time there could be two team coordinators and one team leader on the floor. Mr Gorski was unaware of a maximum lift weight.

61. [61]
    As to lifting more than one crate at a time, he thought there was no fast rule but it was a matter of each worker’s common sense. Although he recommended walking around a pallet to place produce on the far side, in essence Mr Gorski considered it was up to each worker individually how to stack the pallet. These answers were consistent with the plaintiff’s evidence that he would carry more than one item at a time and would reach across a pallet rather than walk around it, in his attempts to meet the 100 per cent target.

62. [62]
    Mr Gorski said that most of the pallets were stacked with a combination of many different products.

63. [63]
    Mr Desilva was of the view that the maximum lift of weight should be 16kg. Anything above that, he said, had to be a two-man lift. Overweight stock would be identified by the “systems team” which would alert those in the distribution centre. As to order pickers carrying more than one box at a time, Mr Desilva gave evidence of having intervened when a worker lifted two boxes of tomatoes that weighed 10kg each. He had a name for the system – LEAD – look, engage, action, direct. He also said that safe lifting procedures were promoted throughout the centre, for example on notice board and at team talks.

64. [64]
    He explained that there were probably ten aisles in the produce section and about the same number in the chiller section. He and the other leaders therefore had limited opportunity to keep a close eye on 90 or 100 workers.

65. [65]
    With respect to placing boxes on the other side of a pallet Mr Desilva allowed that a worker could reach across or walk around, whichever the worker felt safest to do. He also referred to placing the product on the pallet and sliding it across, stacking it that way.

66. [66]
    Mr Desilva explained that calling a “cube break” did not affect the assessment process because the machine released “a certain amount of percentage for that particular line of cartons”.^[11]

67. [67]
    The evidence shows the defendant’s response to the risk of musculoskeletal shoulder injury relied on employees understanding advice given during training and, importantly, using discretion as to how certain tasks should be performed. As Mr Morgan submits, an employer’s non-delegable duty extends to ensuring the safe system of work is implemented.^[12]The evidence of Mr Woods on the one hand, and Messrs Gorski and Desilva on the other, was not always consistent. To some degree, the policies were not known by the supervisors and so not enforced. The plaintiff said he had never heard of the term ‘cube break’. I think that unlikely because I accept Mr Woods’ evidence that the term was spoken by the new employee when creating the voice template. But it is likely the plaintiff did not understand the term and so did not know the strategy was available to him, if he were concerned about excessive above-shoulder lifting. This is of limited decisive consequence, however, because I am unable to form any conclusion about the number of above-shoulder lifts required.

68. [68]
    Mr McDougall referred to mechanical aids which, in his opinion, would have reduced the risk of injury, including an automatic pallet positioner with a turntable. Although Mr McDougall could not give evidence of the cost of automatic pallet positioners, he recommended the device because it was in the Work Safe Australia guidance. Mr Morgan did not include the use of such devices in his written submission as to the appropriate response to the risk.

69. [69]
    Mr McDougall suggested limiting stacked pallets to a height of 1400 mm, reducing cartons to a maximum weight of 10 kilograms, more rest pauses because increased risk of injury is associated with manual handling fatigue and the use of carton picking hooks to pull cartons to the front of a pallet.

70. [70]
    In written submissions, Mr Morgan submits the weights should have been reduced, above shoulder transfers reduced if not eliminated by reducing the maximum stacking height, the policy against multiple item transfers should have been enforced, sliding multiple items should have been prohibited, specific instructions should have been given not to reach across pallets. Generally, he submits the system was not maintained and supervised with proper vigilance.

71. [71]
    As to changes proposed by Mr McDougall, Dr Grigg agreed the key factors in reducing risk concerned the frequency, weight, height and reach distance of the lifts required. He agreed risks could be reduced by procedural control – minimise reach distances, walk around pallets rather than reach across, step onto pallets with both feet, turn rather than twist, slide cartons where possible, limit picking and stacking heights, stack lighter weights higher. He thought that raising the floor level would possibly reduce risk of back injury but considered it to be unlikely of significant benefit to the risk of shoulder injury. Dr Grigg allowed that a pallet rotator could reduce the risk of shoulder injury by reducing the reach distance. This would have consequences for the design and shape of pallets or at least the utility of the corners. Dr Grigg agreed that reducing the weight of all cartons to 10 kilograms would obviously reduce risk of injury but increase the number of boxes to be handled. Overall this was not thought an effective way of reducing risk. Dr Grigg considered there were already inbuilt provision for rest breaks. Reaching to pick stock involved, in Dr Grigg’s opinion, about a 5 mm lift to disengage a crate. Once that was achieved the crate could be dragged across the top with the aid of a hook if necessary.

72. [72]
    I will deal with the question of the sufficiency of the response to any risk after referring to the medical evidence.

Medical opinion

73. [73]
    On 22 June 2011 the plaintiff complained of pain in his left shoulder while lifting at work. Dr Macgroarty, orthopaedic surgeon, reports that the plaintiff was reviewed by orthopaedic surgeon, Dr Jhamb. Dr Jhamb diagnosed left shoulder subacromial bursitis with an aggravation of an underlying degenerate rotator cuff pathology. Dr Macgroarty’s own diagnosis in his report dated 30 January 2014 is “left shoulder subacromial bursitis with secondary impingement – stable and stationary”.

74. [74]
    In Dr Macgroarty’s opinion, the plaintiff suffered a significant aggravation of his degenerate pathology in reference to the soft tissues about the left shoulder. Surgery was conducted in early 2012 but has not assisted. Taking into account what other practitioners had recognised earlier, Dr Macgroarty thought it reasonable to assume that the degenerate soft tissue changes were age related and constitutional. He believed that the repetitive heavy lifting and overhead activities in the workplace would cause the significant aggravation of pre-existing degenerate pathology in the left shoulder.

75. [75]
    Dr Blenkin, called by the defendant, assessed a different range of movement in the plaintiff. I will deal with that later. Dr Blenkin agreed that the plaintiff’s rotator cuff condition had been aggravated by workplace practices. Dr Blenkin gave evidence that the plaintiff’s condition came about for two reasons – the underlying degenerate rotator cuff disease and the work activities that he undertook. Dr Blenkin agreed that repetitive manual handling of weights between 5 and 18 kilograms, more than 1600 times a day, from low to high or reaching out with the arms in front of the body, would place significant load on the rotator cuff complex.

76. [76]
    The difference, if it is that, between the experts is demonstrated by the following evidence. Counsel for the plaintiff put to Dr Blenkin Dr Macgroarty’s opinion that the plaintiff’s degenerative rotator cuff condition was typical for a man of his age. Dr Blenkin replied that he did not agree with that: “not everybody has degenerate rotator cuff disease. This is a more accelerated version”.

77. [77]
    When asked whether the system of work the plaintiff endured would cause a rotator cuff injury even in an able-bodied person, Dr Blenkin replied: “No. They’ve got to have the predisposing degenerate change going on in the tendon for that to happen”.

78. [78]
    Dr Blenkin had given a similar opinion in a supplementary report dated 16 June 2015, where he said the likelihood that a person of the plaintiff’s age, who did not have the plaintiff’s degenerate shoulder condition, would suffer from the pathology located by Dr Jhamb at surgery if that person was performing work as set out in the Intersafe report approached zero.

79. [79]
    In the same supplementary report, in response to the question how common was the development of subacromial bursitis in people with the plaintiff’s degenerate shoulder condition, he replied that the approximate frequency of development of subacromial bursitis in individuals who have degenerate rotator cuff disease in the age group is in the order of 10% to 15%. Dr Blenkin referred to an article which he annexed to the supplementary report. The authors conducted a literature survey to establish the prevalence of abnormalities of the rotator cuff and to determine whether the prevalence increases with older age in 10 year age intervals. The authors concluded that the prevalence of rotator cuff abnormalities in asymptomatic people was high enough for degeneration of the rotator cuff to be considered a common aspect of normal human aging. Dr Blenkin’s opinion comes, I gather, from a graph which shows overall presence of abnormalities ranged from 9.7% in patients aged 20 years and younger to 62% in patients 80 years and older. The graph supports a conclusion that abnormalities may occur in 10 to 15% of patients aged 40 to 49 years and about 20% of patients aged 50 to 59 years.

80. [80]
    The third, and crucial, point made in the supplementary report was that, in Dr Blenkin’s opinion, the measures recommended in the Intersafe reports would not have altered the progress of the plaintiff’s injury.

81. [81]
    In answer to a question about the positions of the elbows during lifting, Dr Macgroarty’s answer included this:

“When the shoulder is raised from about the horizontal or above, either in the forward plane, in the abducted plane or in between, anything at that level or above on a repetitive basis, particularly with load, will put significant stress across the rotator cuff, which, if it’s degenerate and tendinopathic, can cause pain in the tendinopathic tendon but can also lead to bursitis and impingement.” 

At least as far as that answer goes, the doctors seem to be of a consistent view. In fact, Mr Morton, for the defendant, relied on Dr Macgroarty’s answers, submitting that, ‘properly understood against the background of the work activity, it was not enough to conclude that there was some breach of obligation which caused the injury.’

82. [82]
    In the result, the difference between the doctors seems to be in the probability of a person of the plaintiff’s age having a degenerate rotator cuff complex. There may be no conflict. Dr Macgroarty, in his report dated 30 January 2013, says only that it would be reasonable to assume that the degenerate soft tissue changes were age related and constitutional. In a later report, Dr Macgroarty stated he was ‘aware of investigations suggesting age related degenerative changes which would be typical for someone in this age bracket and are considered constitutional. In evidence, he said, ‘eventually, and in about one third of people over the age of 60, they can have full thickness tears … for no reason.’

83. [83]
    If there is a difference between the doctors’ opinion, I prefer to proceed on the basis that abnormalities of the rotator cuff may occur in 10 to 15% of patients aged 40 to 49 years and about 20% of patients aged 50 to 59 years.

84. [84]
    What is the significance of the fact that the plaintiff suffered a pre-existing degenerate condition which, combined with the workplace activities, caused his injury, subacromial bursitis? Particularly, what flows from Dr Blenkin’s opinion that even if the measures recommended by Mr McDougall were in place the plaintiff would still suffer his injury? This requires an examination of the defendant’s duty and the issue of causation.

Duty. Foreseeability. Risk. Response.

85. [85]
    The defendant, as employer, owed a non-delegable a duty to take reasonable care to avoid exposing its employees to unnecessary risks of injury.^[13]

86. [86]
    The employer’s duty is to provide, maintain and enforce a safe system of work.^[14]

87. [87]
    In the language of s. 305B of the Workers’ Compensation and Rehabilitation Act 2003, the duty might be expressed as a duty to take precautions a reasonable employer in the circumstances would have taken against a risk of foreseeable, not insignificant, injury to the employee. A foreseeable risk is one of which the person knew or ought reasonably to have known.^[15]

88. [88]
    The first question is whether the evidence of the occurrence of degenerate rotator cuff pathology in persons of the plaintiff’s age bracket raises a question of foreseeability of the injury. What ought an employer in the defendant’s position reasonably know about the likelihood of such pathology in the population? I am satisfied, on the medical evidence of both doctors, that the plaintiff would not have suffered his injury but for his degenerate pathology. Is the employer required to go beyond the pre-employment examination conducted by a physiotherapist?

89. [89]
    The defendant did not expressly plead that the plaintiff’s pre-existing condition, of which the defendant had no knowledge, made unforeseeable the plaintiff’s injury but did plead the plaintiff’s failure to disclose the condition, ‘which would have put the defendant on notice’ of the vulnerability, in support of the allegation of contributory negligence.^[16]Perhaps the issue is raised in the defendant’s denial that it owed ‘a duty of care in the terms alleged’ in the statement of claim.^[17]Mr Morton, for the defendant, referred in written submissions to Waugh v Kippen^[18]and Stitz v Manpower Services Australia Pty Ltd and Anor.^[19]He submitted, and I accept, that the effect of the evidence of Dr Blenkin and Dr Macgroarty is that the work activities did not present an appreciable risk to a person who did not have the plaintiff’s condition. But that opinion is sustainable even if the plaintiff’s condition were typical for his age.

90. [90]
    An employer is not required to enquire into the question as to whether each worker employed by him may be unfit for the work involved by reason of some constitutional defect or weakness.^[20]

91. [91]
    On the other hand, it is arguable that an employer such as the defendant, with large national operations, employing many order pickers in very large distribution centres, and which would likely seek expert guidance with respect to workplace practices, ought to be aware of the incidence of degenerate shoulder conditions in the community of its workers. This case is different from, for example, Finn because, as I have found, the workplace activities gave rise to the risk of the type of injury which the plaintiff suffered. Because of the view I take of other matters, it is unnecessary to decide whether no duty arose because the plaintiff’s injury was not foreseeable.

92. [92]
    Was the defendant’s response to the risk reasonable? WCRA subsection 305B (2) provides that in deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider, among other relevant things—

a.the probability that the injury would occur if care were not taken;

b.the likely seriousness of the injury;

c.the burden of taking precautions to avoid the risk of injury;

d.the social utility of the activity that creates the risk of injury.

93. [93]
    The term ‘risk of injury’ is repeatedly used in the legislation. Articulating the risk in any particular case is essential. In Roads and Traffic Authority of NSW v Dederer,^[21]Gummow J. said at [59], “It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.”^[22]

94. [94]
    It seems to me that in the present case the risk of injury was the risk that by carrying out the duties of an order picker in the system of work implemented by the defendant an employee would suffer from musculoskeletal injury.

95. [95]
    What is the response that the defendant ought to have made to the foreseeable risk of injury looked at prospectively? The defendant was, it would seem, aware of the risk of harm – it put in place the regime I have referred to in detail above, which included pre-employment examination, training, policies and supervision. The role required repetitive lifting of significant weights including possibly hundreds each day away from the body or above shoulder height. I have already noted Mr McDougall was unable to speak of the cost of the changes in equipment he recommended, and that Mr Morgan emphasises procedural responses. The training and induction program was comprehensive and not the subject of criticism by Mr McDougall, although Mr Woods’ evidence as to how the instructions given in training to prevent reaching across a pallet was barely persuasive. I am persuaded by the engineering and medical opinion that the system was an adequate response to the risk of musculoskeletal injury, in theory. In particular I take into account Dr Grigg’s reference to the variations in weights and sizes and the time spent doing other aspects of the job. And I particularly take into account Dr Blenkin’s opinion that the system – as described by Mr McDougall in the Intersafe Report, which includes assertions by the plaintiff excessive to the plaintiff’s ultimate case – did not create a significant risk to employees without the plaintiff’s pre-existing condition.

96. [96]
    As to Mr Morgan’s submitted list of what should have been done: I am not satisfied a safe system of work required above shoulder transfers to be eliminated altogether; I am not satisfied a confident finding can be made about the number of above-shoulder transfers were required but repeat I accept the opinion that the system, including this aspect of it, did not create an unreasonable risk of injury; I will deal with multiple transfers below; I have referred to the aspect of training concerning reaching across pallets; I notice Dr Grigg suggested the use of a hook to drag crates that require reaching to pick; as to whether pallet height should be reduced to 1.4 – 1.5 metres, I am not satisfied the use of higher stacking in this system constituted a breach of duty.

97. [97]
    However, in view of the risk, it was imperative that a response founded primarily on training and supervision be diligently implemented. Certain policies or practices were not followed. The evidence of observations by the engineers supports the plaintiff’s evidence that as the system was administered, order pickers were allowed, possibly required, to reach, holding significant weights away from the body in breach of the defendant’s own training instruction and standards and guidelines designed to reduce musculoskeletal injury. Multiple lifts were allowed in breach of instruction. It may not be negligent of an employer to allow a worker to carry three cartons each weighing three kilograms rather than perform three transfers of three kilograms each, but a supervisor’s confidence that the worker would not lift multiple heavy items, or would use common sense in deciding whether to reach across a pallet to save time or walk around it, more carefully to place the weight, was insufficient implementation of a system involving such highly repetitive manual transfers. The essentially time-based assessment system, with its 100 per cent target, although not itself unreasonable, was likely to encourage the taking of short-cuts and highlights the need for careful enforcement of practices designed to ensure safety of employees.

98. [98]
    In this sense, I find the plaintiff has shown the defendant breached its duty by ‘failing to … implement and enforce a safe system of work for picking stock’.^[23]As to other particulars of negligence alleged, I am not satisfied the plaintiff has proved: failure to provide adequate instruction and training;^[24]that the plaintiff was required to work under pressure or at excessive speed;^[25]requiring or permitting the plaintiff to lift between 16 and 18 (amended from 24) kilograms repetitively from ground level to above shoulder height;^[26]failure to provide adequate rest breaks;^[27]failure to provide assistance for lifting two person boxes.^[28]

Causation

99. [99]
    Section 305D of the WCRA relevantly provides:

1)A decision that a breach of duty caused particular injury comprises the following elements –

a.The breach of the duty was a necessary condition of the occurrence of the injury (factual causation);

b.It is appropriate for the scope of liability of the person to extend to the injury so caused (scope of liability).

2)…..

3)If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach –

a.The matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

b.Any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

4)For the purposes of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.

100. [100]
     Section 305E expressly provides that, “[i]n deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation”.

101. [101]
     In Woolworths v Perrins [2015] QCA 207, McMeekin J. said at [173]:

‘In order to establish the necessary causal link between any arguable negligence on the part of the employer and the injury suffered by the employee, it is necessary to show that the measures that it is said the employer failed to adopt would protect the employee from injury, not “could” or “might”: Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [26] – [27] per de Jersey CJ citing Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 319; Turner v South Australia (1982) 56 ALJR 839, 840 per Gibbs CJ. In that latter case Gibbs CJ said:

“When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 416-417, 419.”’

102. [102]
     The defendant’s argument, and I accept it, is that to prove the plaintiff’s injury was caused by his degenerate rotator cuff condition and the workplace activities, is not to the point. The plaintiff must prove that a breach of duty, not the workplace activities, caused the injury. Dr Blenkin’s opinion, which I accept, and I have referred also to Dr Macgroarty’s relevant evidence, is that the measures recommended in the Intersafe reports would not have altered the progress of the plaintiff’s injury. That is, given the plaintiff’s starting condition, performing the repetitive manual transfers involved in the order picking role, would inevitably cause the injury the plaintiff suffered.

103. [103]
     In the terms of s 305D(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003, the plaintiff has not established that the failure to take the precautions – that is, any breach of duty – caused his injury. Considering Dr Blenkin’s evidence, and even so much of Dr Macgroarty’s evidence as I understand is directed to the point, the plaintiff has not proved that any breach of duty was a necessary condition of the occurrence of the injury.

104. [104]
     Accordingly, the plaintiff’s claim fails, and there will be judgment for the defendant.

Quantum

105. [105]
     The plaintiff was aged 49 years when, on 22 June 2011, he reported his injury. It was pleaded he felt a burning pain in his left shoulder but the plaintiff did not give evidence of this. He said that in the weeks leading up to that date he was getting overtired after shifts. He went to hospital and was x-rayed. He underwent physiotherapy.

106. [106]
     The plaintiff was put on light duties for two months and then returned to normal duties but the pain became worse.

107. [107]
     The plaintiff was referred to Dr Alok Jhamb, Consultant Orthopaedic Surgeon, to whom he gave a four-month history of shoulder pain and complained of neck pain. Dr Jhamb investigated the shoulder with an MRI scan and diagnosed subacromial bursitis. A course of cortisone injections in December 2011 did not give lasting relief. The plaintiff underwent surgery on 24 February 2012. Dr Jhamb believed the plaintiff would have no permanent restrictions. Seven weeks after surgery the plaintiff showed a reasonable range of motion. Dr Jhamb thought the pain had reduced. The plaintiff complained of neck pain.

108. [108]
     Dr Blenkin notes a normal x-ray of the left shoulder on 15 May 2012.

109. [109]
     In May 2012 the plaintiff complained of increasing shoulder pain after having performed light duties at work. Because the surgical findings were relatively normal, Dr Jhamb could not explain the continuing pain. He referred the plaintiff for independent review.

110. [110]
     Dr Glenn Davies, Orthopaedic Surgeon, examined the plaintiff in June 2012. The plaintiff showed a good range of movement but with pain. Dr Davies arranged a follow-up cortisone injection and advised that any pain felt three weeks after that would be attributable to the pre-existing condition. The plaintiff saw Dr Jhamb on 12 September 2012 and complained of continuing pain.

111. [111]
     Dr Macgroarty first examined the plaintiff on 30 January 2013. The plaintiff complained of constant left shoulder pain. Dr Macgroarty also noted a MRI dated 8 June 2012 showed some generalised degenerative cervical spondylopathy. The plaintiff showed a limited range of motion, less than Dr Jhamb had observed. Dr Macgroarty assessed a 19% upper extremity impairment which, he said, equated to 11% whole person impairment. Adding 2% impairment due to surgical scarring, Dr Macgroarty assessed combined whole person impairment at 13%. At a later examination in May 2015, Dr Macgroarty assessed whole person impairment at 10%.

112. [112]
     The plaintiff told Dr Blenkin, in July 2013 that he experienced constant pain in the left shoulder. He also complained of ‘considerable amounts of cervical and lumbar pain.’ Dr Blenkin observed slightly greater ‘active’ movement than Dr Macgroarty had but believed the plaintiff was making a poor effort at showing his true range. So, Dr Blenkin measured ‘passive’ movement, which was greater. Dr Blenkin assessed 10% permanent impairment of the upper extremity, equating to 6% of the whole person.

113. [113]
     Dr Blenkin considered the plaintiff would have developed symptoms in the shoulder within 5 years in the absence of the workplace aggravation.

114. [114]
     Occupational Therapist, Marcia Noble, also felt the plaintiff was not showing his true range of movement. Her impression was not that he was malingering but that he was overprotective of his left arm. Ms Noble relied on the range of movement observed by the orthopaedic surgeons.

115. [115]
     The video, Exhibit 8, referred to above was made on 13 March 2013. It shows the plaintiff exercising apparently free movement of the left arm, including some weight bearing, although the movement was also consistent with guarding the arm, particularly while in the surf. One cannot say he experienced no pain but it was not obvious.

116. [116]
     Taking into account all of the above, I am not prepared to act on the basis of Dr Macgroarty’s assessment of whole person impairment. I do accept the plaintiff continued to experience pain, consistently with an aggravation of the degenerative rotator cuff, as opposed to an exacerbation, as Dr Macgroarty has described the difference. So, I consider Dr Blenkin’s assessment to have been under the mark. Having regard to items 96 and 97 of the Workers’ Compensation and Rehabilitation Regulation 2003, I consider the plaintiff’s injury to sit in the middle of the moderate shoulder injury range and ascribe an injury scale value of 10. This equates to an award of $12,950.

117. [117]
     As to past economic loss, Mr Morgan submits the appropriate award would be in the range of $163,000 after deduction of income received from the Multicultural Development Association. Mr Morton submits the plaintiff suffered other ailments which would likely have prevented him from working and should no more than the statutory benefits, about $31,000.

118. [118]
     In assessing past loss of earning capacity, the periods the plaintiff did not work can be ascertained. The chances that he would lose earning capacity, temporarily or permanently, for reasons unconnected to any negligence of the defendant must be estimated and reflected in any amount of compensation awarded.^[29]

119. [119]
     The plaintiff’s average earnings working for the defendant were about $840.00 per week (I lean towards Mr Morton’s more precisely calculated average). Mr Morton submits no compensation should be awarded for lost income after September 2012 because of Dr Davies’ opinion that by then any pain would be referrable only to the pre-existing condition. I have already rejected that method, when considering general damages, because the medical evidence leads me to find that the plaintiff’s continued pain is properly understood as the result of the aggravation of the pre-existing condition by the workplace activity. Nonetheless, I accept there is a significant chance the plaintiff would not have worked during certain periods between the date of injury and trial because of various physical complaints:

• neck pain (May 2012; August 2013 and May 2014 Centrelink reports record debilitating neck pain; ‘due to narrowing of C4-5 foramen with nerve impingement);

• backache (August 2011);

• lumbar spine pain radiating down the left leg (October 2011) – a CT scan showed disc bulges at L3, 4 and 5 – in March 2012, the plaintiff was referred to a neurosurgeon reportedly because the back condition prevented him from working;

• ankle fracture in July 2012.

120. [120]
     I do not accept the defendant’s submission that it is most unlikely the plaintiff would have worked after 30 September 2012 because of the neck, lower back, ankle and toe problems. The last two were temporary but the plaintiff continues to complain of the first which both have medical foundations: November 2015 Centrelink updated report. The plaintiff has obtained occasional casual employment with the Multicultural Development Association. Despite his setbacks, the plaintiff impresses as a man who would rather work for his living.

121. [121]
     Subject to these remarks, Mr Morgan’s method of calculating past economic loss seems reasonable, but taking into account the chance that the plaintiff would not have been able to work for substantial periods because of his other ailments, I consider the award for loss of past earning capacity would be reduced by one third.

122. [122]
     The evidence that the plaintiff’s left shoulder would become symptomatic in any case and the evidence of his other physical complaints, complicated by the difficulty one has acting on the evidence of Occupational Therapist Noble’s opinions because they are based on the surgeons’ opinions of the plaintiff’s disability which are not consistent with what one sees on the video, Exhibit 8, make the exercise of assessing future loss of earning capacity very problematic.

123. [123]
     The plaintiff is and will remain unfit to be an order picker in the future. It is also likely he is and will be unable to carry out the heavier lifting duties that might be involved in being an electrician, were he to complete his Australian qualification. He has a Certificate II in Transport and Logistics and a Certificate III in aged care work. He has a forklift licence. He is at a disadvantage in the job market and in obtaining further qualifications through study because English is his second language. Ms Noble suggests his capacity in English has reduced since he has not been in constant employment. Ms Noble considers the plaintiff would not be able to perform certain administrative roles because of the ergonomic demands and the English language skills.

124. [124]
     The plaintiff was in the witness box for some or all of four days. Although an interpreter was available, I formed the impression he is an intelligent person capable of improving his English language skills and achieving further education. He is not unemployable and an assessment of future loss of earning capacity must take into account the chance that he will gain employment. Ms Noble’s opinions about the unlikelihood of the plaintiff being able to perform certain occupations strike me as pessimistic. Of course, insofar as they are based on the disability he suffers because of the shoulder injury the opinion is compromised, as I have said above. Also, although Ms Noble usually identifies the unsuitability of an occupation by reference to the shoulder injury, the neck and lower back injuries play a significant role in excluding possible occupations.

125. [125]
     In any case, given the medical evidence as to the prospect of left shoulder symptoms by the age of 55 years, there is a strong chance that the loss of earning capacity attributable to any left shoulder injury resulting from negligence by the defendant would be overtaken by now. Dr Macgroarty said that had the plaintiff not been injured at work he would probably have become symptomatic between 55 and 60. He said a lot of patients, even without a history of heavy manual labour or repetitive work have symptoms at 55 or 60 years. Dr Blenkin would have expected symptoms in the shoulder about 5½ years from, as I understand his evidence, June 2011. That period was said to be ‘generous’.

126. [126]
     Taking into account all of the above, an assessment which begins with the proposition that the plaintiff would have worked to age 67 (another 13 years) earning about $840.00 per week must bear a very significant reduction. I consider a reasonable award for future loss of earning capacity would be $105,000 (25% of $840 per week for 13 years discounted on the 5% tables).

127. [127]
     There should be a similar reduction in the plaintiff’s claim for future special damages. If, as suggested, the plaintiff might need $10.00 per week until the age of 70 for medications, an amount for travel to and from doctors and pharmacies and an amount ($5,000 sought) for the likely costs of vocational courses, the need would mostly be due to injuries not the result of any negligence by the defendant. I would allow $2,500 for future special damages.

128. [128]
     I thank counsel for assistance in preparing the following quantum table.