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Perkins v Woolworths Pty Ltd (ACN 000 014 675)[2017] QDC 1

Perkins v Woolworths Pty Ltd (ACN 000 014 675)[2017] QDC 1

DISTRICT COURT OF QUEENSLAND

CITATION:

Perkins v Woolworths Pty Ltd (ACN 000 014 675)  [2017] QDC 1

PARTIES:

MICHAEL JOHN PERKINS

(plaintiff)

v

WOOLWORTHS LTD (ACN 000 014 675)

(defendant)

FILE NO.:

113/2014

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Cairns

DELIVERED ON:

25 January 2017

DELIVERED AT:

Cairns

HEARING DATE:

23, 24 & 25 May 2016

JUDGE:

Morzone QC DCJ

ORDER:

  1. Judgment for the plaintiff against the defendant in the sum of $650,645.38
  2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – BREACH OF STATUTORY DUTY – breach of common law and/ or statutory duties –assessment of witness’s credit – back injury manifested by back pain radiating down leg – causation.

DAMAGES - MEASURE OF DAMAGES – PERSONAL INJURIES – back injury – pre-existing conditions – general damages – whether loss of earning capacity – assessment of economic loss on global basis supported by rationale.

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305F, s 305H, s 305I

Workers Compensation and Rehabilitation Regulation 2014 (Qld)

CASES:

Tabet v Gett (2010) 240 CLR 537

Wallace v Kam (2013) 297 ALR 383

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

COUNSEL:

G Houston for the plaintiff

R Morton for the defendant 

SOLICITORS:

Shine Lawyers for the plaintiff

Ashurst Australia Lawyers for the defendant

  1. [1]
    The plaintiff has endured a debilitating lumbar disc protrusion and related sequelae which he attributes to awkward, persistent and arduous loading dock work using a “walkie stacker” during his employment with the defendant.
  1. [2]
    The defendant denies the plaintiff incurred any injury in its employ and asserts that his problems were caused by his subsequent work as a plumber as evidenced by his presentation to a doctor on 12 December 2011.[1]

Background

  1. [3]
    The plaintiff was born on 12 November 1987 and was 28 years old at trial.
  1. [4]
    The defendant employed the plaintiff as a grocery/back dock assistant. The plaintiff was first employed on a casual basis from 13 August 2011, before his employment was made permanent part-time on or about 5 September 2011.
  1. [5]
    The plaintiff was responsible for replenishing perishables and for working on the back dock. The back dock comprised of a ramped loading dock, which was used by delivery trucks to park pending unloading by the defendant’s staff. The plaintiff’s duties on the back dock included:
  1. Unloading pallets of product from the delivery trucks using a walkie stacker;
  2. Placing the pallets of product on the floor of the back dock area;
  3. Breaking product down from the pallets into roll cages for filling by the replenishment staff; and
  4. Collecting and stacking empty pallets.
  1. [6]
    A walkie stacker is a walk behind forklift machine used for lifting and moving pallets.  The plaintiff received training in the operation of the defendant’s walkie stacker.  The plaintiff alleges that the walkie stacker had a side shift function whereby the tines could be moved sideways to lift and adjust an off-centre pallet.  The defendant disputes that the walkie stacker had a side shift function.
  1. [7]
    At various times during September, October and November 2011, the defendant’s walkie stacker was inoperable and it hired a replacement walkie stacker, being the only available alternative. The plaintiff alleges that he and other dockworkers used a steel bar to shift and manoeuvre pallets in conjunction with the operation of the hired walkie stacker. I’ll call this conjunctional use of the lever with the hired walkie stacker as “the levering task”.
  1. [8]
    The defendant disputes the plaintiff’s allegations of complaining about the need for the levering task.[2]  In that context, the defendant admits that it did not have a system of work involving the lever, and therefore, did not carry out any assessment of the risk of injury from using the lever to shift and manoeuvre loaded pallets, or any assessment of the safety, adequacy or suitability of the lever.[3]  Instead, the defendant argues that it had a safe procedure to shift and manoeuvre loaded pallets whereby the tines of the walkie stacker were properly aligned with the pallet,[4] and with due attention being paid to the position of the pallet, the pallet would not sit at an angle or on the tines of the walkie stacker.[5]  Put simply, there was no need for the levering task.
  1. [9]
    The plaintiff says that when he used the hired walkie stacker for a period before his injury he experienced low back pain daily, especially at night, which usually resolved by morning, albeit sometimes with the use of non-prescription medication. He particularly alleges that on 3 November 2011 he experienced pain in the lower back and down the back of his right thigh.[6]  He recalled feeling these symptoms when, after doing dock work using the levering the task, he stepped down from a ladder inside the store whilst assisting a customer.  The plaintiff’s use of the ladder was otherwise unremarkable.
  1. [10]
    In the meantime, the plaintiff experienced strained workplace relations and was subject of a poor performance review by November 2011. The plaintiff resigned from the defendant’s employ on 18 November 2011. He subsequently worked in a supervisory capacity for a plumber for a short period until he ceased all work due to permanent incapacity.
  1. [11]
    The plaintiff suffered and continues to suffer a right L4-5 disc protrusion and related sequelae.
  1. [12]
    The parties remain in dispute about the cause of the injury and any loss and damage.

Issues

  1. [13]
    The determinative issues in the proceeding are:
  1. The causal relationship, if any, between the levering task and the plaintiff’s alleged injuries and sequelae; and
  1. The assessment of damages (if any).

Liability

  1. [14]
    The plaintiff alleges that his back injury and related sequelae were caused by the levering task,[7] which was borne of the defendant’s negligence and/or its breach of duty as the plaintiff’s employer.[8]
  1. [15]
    In particular, he alleges in paragraph 31A of the Amended Statement of Claim that:

“(a) On or about 3rd November 2011, the Plaintiff commenced to experience pain down the back of his right thigh as well as low back pain, which did not resolve.

(b) The cause of the Plaintiff’s low back pain and pain down the back of his right thigh, was a right L4-5 disc protrusion.

(c) The Plaintiff’s right L4-5 disc protrusion was caused as a result of him using the lever to shift and manoeuvre pallets loaded with stock on the replacement walkie stacker, as pleaded above.”

  1. [16]
    The defendant denies liability and instead argues that the plaintiff’s injury was caused by an unrelated use of the stepladder or later in the course of his plumbing work after leaving the defendant’s employ on 18 November 2011.
  1. [17]
    However, on the second day of trial the defendant, through its counsel, properly conceded that if I found in accordance with paragraph 31A(c) of the Further Amended Statement of Claim, the defendant admits that the L4/5 disc protrusion was caused by breach of duty on the part of the defendant. In that event, the defendant would not contest the plaintiff’s allegations that the pallets were very heavy, up to 1200kg when loaded, and the lever task was heavy and awkward involving bending forward, reaching, twisting and straining.[9]  Further, the concession would alleviate the need for the plaintiff to prove that the levering task involved a foreseeable risk of injury against which there was a reasonably practicable alternative and that it was unreasonable on the part of the employer not to have followed that reasonably practical alternative.
  1. [18]
    Therefore, the critical question is whether it is more probable than not that there is a causal relationship between the plaintiff’s use of the walkie stacker, and the plaintiff’s alleged injuries and resulting impairment.

Causation

  1. [19]
    In Tabet v Gett,[10] Kiefel J said:

[111] The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage.  All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm.  “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty. 

[112] The “but for” test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test.  The resolution of the question of causation has been said to involve the common sense idea of one matter being the cause of another.  But it is also necessary to understand the purpose for making an inquiry about causation and that may require value judgments and policy choices.  (References excluded.)

  1. [20]
    The plaintiff always bears the onus of proof. He must prove that every loss for which he claims damages is connected to the defendant’s wrong in the sense that the wrong caused or materially contributed to that loss.[11]   It is a question of fact.[12]  The relevant question is whether the defendant’s negligence was so connected with the plaintiff’s loss or damage that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.[13]
  1. [21]
    These principles are synthesised by the Workers' Compensation and Rehabilitation Act 2003 (Qld) (“the Act”).[14]   Section 305D of the Act provides for the test for causation as follows:

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

  1. (a)
    the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
  1. (b)
    it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
  1. (2)
    In deciding in an exceptional case, in accordance with established principles, whether a breach of duty - being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) - should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
  1. (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 —
  1. (a)
    the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
  1. (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. 
  1. (4)
    For the purpose 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.
  1. [22]
    Section 305E of the Act further provides that in deciding liability the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
  1. [23]
    The analogous New South Wales provisions were considered by the High Court in Wallace v Kam,[15] where the Court said (interposing the Qld analogies):

[14]  The distinction now drawn by s [305D(1)] between factual causation and scope of liability should not be obscured by judicial glosses.  A determination in accordance with s [305D(1)(a)] that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with section [305E].  A determination in accordance with s [305D(1)(b)] that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s [305D(4)] on consideration by a court of (among other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.

Credibility

  1. [24]
    The issue largely depends on the credibility and reliability of the plaintiff, corroborative witnesses and documents.
  1. [25]
    The plaintiff submits that his evidence ought be accepted as truthful, credible and reliable, having withstood detailed, repeated and intense cross-examination about the manner and circumstances of his back injury.
  1. [26]
    The defendant submits that acceptance of the plaintiff’s evidence would be inconsistent with the uncontroverted evidence and glaringly improbable. The defendant’s counsel argues that acceptance of the plaintiff would be to “substitute the myth of judicial ability to discern the truth for objective analysis of the evidence”.[16]  He also relied upon the remarks about credibility by Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 43l as follows (with the defendant’s emphasis):[17]

“'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be.  Credibility covers the following problems.  First, is the witness a truthful or untruthful person?  Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them?  Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others?   Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist.  It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.  For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.  Therefore, contemporary documents are always of the utmost importance.  And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken?  On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness.  And motive is one aspect of probability.  All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process.  And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

  1. [27]
    Credibility is often at the heart the judicial function. It seems to me that the proper approach to fact-finding is not mythical when determined objectively having regard to the whole of the evidence, including any assessment of credibility of witnesses as described by Lord Pearce.

Evidence

  1. [28]
    The evidence about the loading dock, the levering task and the use of the hired walkie stacker leading up to the plaintiff’s injury predominantly fell from the plaintiff himself.
  1. [29]
    The plaintiff described that:

“The loading dock was on an angle and it was hard enough to get the pallets out because the truck was always sitting up on an angle and from the side, you had barely enough room to get the machine down the side of the thing, but when you were getting the ones out of the side, you had to try and turn at the same time and line up the tines of the machine.”[18]

  1. [30]
    With the truck at that angle, the plaintiff explained the need to centre the pallet saying:

“The base of the pallet was a metre and a-half in the air.  When you lifted the tines of the walkie stacker up, it had a blocked-off area where you couldn’t see near the tines.  So at that height, when it was up at one and a-half metres, I was looking around to the side to try and get it centred when I was putting the tines in.”[19]

As for side loaded trucks, he said: 

“…they were difficult because you had to turn and try and judge where centre was as you were turning because there wasn’t much room on the side.”[20]

  1. [31]
    As to the importance of aligning the pallet on the walkie stacker, the plaintiff added:

“It was easier with the machine if you could get it centred so that you could place it straight down when you got the pallet off.  If it wasn’t centred, you had to use the side shift to shift it either right or left.”[21]

  1. [32]
    There was conflicting evidence about the model and side shift function of the defendant’s walkie stacker. The plaintiff was steadfast in his position drawing on his significant experience of day-to-day use of the machine. At trial, the defendant’s witnesses, Ms Brown and Mr McWatters, disagreed about the functions of the original walkie stacker, and the defendant disclosed no records on the issue. Curiously, the defendant initially admitted that the defendant’s original walkie stacker had a side shift function, but recanted from that position in its Further Amended Defence.[22] 
  1. [33]
    However, not much turns on this dispute because the case focused on the levering task during the period when the defendant hired a different walkie stacker.
  1. [34]
    At various times during September, October and November 2011, the defendant’s walkie stacker was inoperable, and it hired a replacement walkie stacker, being the only available alternative. There was no dispute that the hired machine did not have an extender reach function or a side shift function.
  1. [35]
    In the absence of the side shift function on the hired walkie stacker, the plaintiff testified about how the dockworkers manually used a steel bar in one hand to shift and manoeuvre pallets in conjunction with the operation of the hired walkie stacker with the other hand. He explained the evolvement, awkwardness and frequency of this levering task in the following exchange:[23] 

“So what happened with the unloading of pallets that weren’t properly aligned with the replacement walkie stacker?‑‑‑We had to use a steel bar and lever it so that the pallet was centred so it would fit between the legs.

Can you tell the court what instruction or training you were given by Woolworths, any of your supervisors, about the change in the system?‑‑‑None.

….

How did you find out about using the steel bar?‑‑‑I come in one day and seen that the other guy was using it and doing it that way.

….

Now, can you describe the steel bar?‑‑‑It was about 800 mill long, approximately 40 mill in diameter, and it was solid steel, like a piece of big reo bar or something.

….

Reo bar?‑‑‑Yeah.  The stuff they use in concreting, construction – big solid bar.

Okay.  Thank you.  And where was it kept?‑‑‑At that point, it was kept on the machine.  Before that, it was just leaning against the desk.  Prior to the machine breaking down, it was leaning against the desk at the back dock, and they occasionally used it to push boxes into the compacting machine.

I see.  So can you describe to the court how you would use the steel bar to adjust pallets that weren’t properly aligned when you were unloading?‑‑‑You would have to put the bottom of the bar between the straddle arm and the pallet on an angle like that.  You had to lower the pallet at the same time as heaving it over.  So you had to – the control arm was sort of over – a bit distance over there, so you had to push the button and push like that.

Just tell us where on the walkie stacker was the control switch or – for raising and lowering the tines?‑‑‑It was on the control panel on the arm that come off the walkie stacker.

And when you were lowering the pallet down using the tines of the walkie stacker, how far did you have to lower it down to before you went to get the steel bar to do the adjustment?‑‑‑The straddle arm was about 100 mill high, or 10 centimetres.  Then I’d allow about 10 centimetres, and then you had the pallet.  So there was a 10-centimetre space between the straddle arm and the pallet – bottom of the pallet.

And so can you describe what position your body was in when you were levering the pallets on the replacement walkie stacker?‑‑‑It was awkward.  You were stretched and you were trying to push as hard as you could on the same time.  So you’d try to lean, press the button and then push as hard as you can to move the pallet over.

And how far did you need to move the pallet, on average?‑‑‑It depended on the pallet, but at least 20 mill sometimes.  Up – sometimes even more.

….

So this job you did of levering the pallets on the walkie stacker to realign them using the bar, how often would you do that during a shift?‑‑‑Nearly every pallet.  It was very rare to get a pallet that was centred properly off the truck.

So which was the day – you told us how you – your shifts you had – Tuesdays, Wednesdays, Thursdays, Fridays and Saturdays were your shifts?‑‑‑Yeah.

Was it the case that you were unloading pallets more on some days than others, or did it vary?‑‑‑Yeah.  That was correct.  On a Saturday I did a full shift at back dock.  The other days of the week, except for Friday, I would be filling in for people, so I might do an hour or two at the back dock those days, but Saturday was all day at the back dock.

And how long was the shift on Saturday?‑‑‑Ten hours, I think.  It was from 7 till 5. 

Now, on the Saturday, did you ever do other work, apart from unloading the trucks?‑‑‑No.  I had – as part of unloading the trucks I had to do the delivery dockets input them into the system to say they had been received but no, I was at the back dock the whole day. 

On a full day such as Saturday, you tell us about, how many pallets would you unload?‑‑‑It depended on what time of year it was and how much stuff come in.  I’d say around 20 to 25 in total.  And you’d have like a bread truck, you’d have a milk truck, then you’d have a grocery truck.  You’d have a fridge freezer truck come in and maybe a produce truck. 

…. 

On the other days, like a Tuesday, Wednesday, Thursday, Friday?‑‑‑Maybe an hour or two while someone was on lunch or if they weren’t – didn’t start till a bit later, I’d fill in.”

  1. [36]
    The plaintiff gave evidence that he reported the arduousness of the levering task to Peter Rasmussen and Lydia Wild in a passing conversation, and later to the relief store manager, Sarah George. He testified that Ms George told him that the hired machine was the only replacement available and that the dockworkers would need to persist as they were.[24]  Indeed, the plaintiff’s work performance reviews undertaken on 20 September 2011 and 18 October 2011 affirmed that the plaintiff “Applies Safe work practices” and “Understands safe work practices & Work (sic) to achieve.”[25]
  1. [37]
    The plaintiff testified that from October 2011 he began to experience back pain daily after using the hired walkie stacker. He explained:[26] 

“Now, was there an occasion when you were using any of the walkie stackers when you experienced any back pain?‑‑‑There was an occasion when I was using the replacement walkie stacker, not where I experienced a sudden incident, but when I went home I had back pain and it just got gradually over the day.  I went to bed early and the next day it was gone.  And that happened a couple of Saturdays and the last Saturday it took a few days to go away.

Well, can you tell the court when you first started to experience this back pain in your back?  Can you remember what month it was or how long before you left or were sore?‑‑‑I would imagine it was in October.

And at that stage, which of the walkie stackers were you using?‑‑‑The replacement.

So what did you do so far as the – this back pain you were experiencing?‑‑‑I took Panadol, went to bed early and, like I said, it would subside.

Now, can you tell us where the pain was and how would you describe it?‑‑‑It was in my lower back and it was an ache.  It wasn’t real strong pain, but it was moderate pain.

Did you think to see a doctor about it at that stage?‑‑‑No, well, like I said, it – if I took Panadol and went to bed early, it was fine the next day, so I just figured that it was from putting more exertion in when I was using the walkie stacker.”

  1. [38]
    The plaintiff’s leave records[27] do show 11 instances of leave over the period between commencement of employment on 13 August 2011 and 1 November 2011.  That is about one instance a week over that period and indicia of the plaintiff’s deteriorating work capacity consistent with his testimony.
  1. [39]
    The plaintiff testified that he first experienced radiating symptoms in the lower back and down the back of his right thigh on 3 November 2011, as follows:[28]

“Yes. I can remember, I think it was the 3rd of November 2011, I had been out the back dock, and I had come back in to the grocery to help an elderly lady put boxes on the top shelf, I put the box up on the top shelf, and when I stepped off the ladder, I could feel pain from my groin – in the rear of my leg, from my groin to my knee, and it felt like I had torn a muscle or pulled something.

Now, before that, what had you been doing on the back dock? --- I had been levering pallets …

How long for? --- I think it was at least an hour.  The driver was on lunch break, if I remember correctly.”

  1. [40]
    The plaintiff described that during the ensuing period until his resignation on 18 November 2011:

“The pain was constant.  It was there all the time, from my groin to my knee.  I didn’t really think too much of it.  Like I said, I thought I had maybe pulled something, strained something.  It was a – an ache, I would say, yes.

Were you taking any medication for pain?‑‑‑Yes.  I tried Panadol, Nurofen, Voltaren.  Voltaren is an anti-inflammatory, so – I thought if I’ve strained something, it might help.

Now, how much medication were you taking and how often were you taking it?‑‑‑After the 3rd I was taking it in the morning before I would go to work, lunchtime and when I got home.”

  1. [41]
    He recalled that his work performance was impaired. He was abnormally slow and taking longer to do things. He recalled being reprimanded by Mr McWatters about being slow when unloading a pallet in the fridge/freezer.
  1. [42]
    The plaintiff resigned amidst an adverse performance review on 18 November 2011.

Credibility

  1. [43]
    In summary, the defendant argues that the plaintiff’s mere assertion of injury as alleged is an insufficient foundation for a substantial award of damages and relies upon various indicia of dishonesty:
  1. The plaintiff did not report any injury to the defendant or to any medical practitioner for some four and a half months, nor to any other person;
  1. The plaintiff’s objective conduct is inconsistent with any injury during his employment with the defendant and inconsistent with the claimed mechanism of injury; and
  1. The plaintiffs attempted explanation of those matters did not withstand examination.
  1. [44]
    The defendant broadly submits that no suggestion of injury at the defendant’s store is found in the evidence until 27 March 2012,[29]and that the walkie stacker is not implicated in the story until 2 May 2012.[30]  I disagree for several reasons.
  1. [45]
    Whilst evidence of complaints is often relied upon to bolster or damage a plaintiff’s credit due to consistency or inconsistency, the mere fact, or absence, of a complaint does not prove or disprove anything. There is no obligation or set way to make any complaint. There may be many reasons personal to a plaintiff about making a timely complaint to any employer or anyone else. Here, the plaintiff complained to a co-worker and a prospective employer. He refrained from complaining to his employer for reasons discussed below.
  1. [46]
    There is no evidence contradicting the plaintiff’s testimony that he undertook his usual dock work duties, involving the levering task and the hired walkie stacker, immediately before using the ladder on 3 November 2011. This is the occasion whilst in the employ of the defendant that the plaintiff first recalled feeling pain radiating down his leg. In that context he was asked about complaining to a co-worker:

“The pain that you were experiencing in your leg, did you tell anybody at work about that?‑‑‑Yes, I told Karen Munroe.

And when and where was that?‑‑‑It was in the morning.  I can’t remember the specific day.  But she was in aisle two or three fixing up the eggs.  I walked out – keep going?

Yes?‑‑‑I walked out and she was doing the eggs.  I went over to her, and I said that I had this ache from my groin to my knee in the back of my leg, and I thought I had pulled something.  She said, “You should go up and report it,” and I said I would see how it went.”

  1. [47]
    Ms Munro could not recall the circumstances described by the plaintiff, but did recall the plaintiff complaining of back pain, and did not recall any complaint of leg pain. She hypothesised that had the plaintiff mentioned leg pain she would have sent the plaintiff straight to the duty manager.[31]  Indeed, this was precisely what occurred according to the plaintiff, and I prefer his evidence.
  1. [48]
    The plaintiff’s work performance generally reflects his evidence about painful back episodes from October 2011 and the events of 3 November 2011. The performance reviews undertaken on 20 September 2011, 18 October 2011 and 18 November 2011 reveal contrasting comments about the plaintiff around those times:

Review - 20/9/11

Review - 18/10/11

Review - 18/11/11

Shows great interest in his work.  Works hard to achieve.

Working well as a team.  Works to achieve task completion.

Impacts on customers as productivity is very inconsistent.

Does the right thing.  Demonstrates Integrity.

Michael needs to listen & take on-board coaching.

Is inconsistent with both productivity & standards.

Completes tasks given.  Shows great responsibility.  Reliable.

Completes tasks.  Had a few sick days.  Hopefully over that.

Attendance has been poor.  Michael has had numerous time off since starting with the company.

Honest Trustworthy.  Shows respect.

Shows respect, Honest & Trustworthy.

Michael has been showing disrespect to management, when he is given tasks which he does not want to complete.  Michael often shows his disapproval at the tasks given to him and seems not to listen.

Applies Safe work practices.

Understands safe work practices & work to achieve.

Michael has been spoken to in regards to unsafe work practices.

Completes tasks & shows enthusiasm.  Complies with company policies.

Shows enthusiasm.  Completes tasks need.  Need to listen to advice given.

Has not been consistently completing tasks given to him in the appropriate time frame.  Michael shows interest with tasks that he wants to complete but shows no enthusiasm or interest or consistency when given tasks that he does not want to do.

  1. [49]
    The plaintiff explained why he did not act on that advice to report his injury or symptoms to his superiors. Initially, he thought his symptoms were not serious, but that he’d merely “torn a muscle or pulled something” in his leg.[32]  During cross-examination he said:  “I didn’t think it was serious.  I thought I’d strained something.”[33]  This seems to me to be reasonable and plausible in the plaintiff’s circumstances.
  1. [50]
    The plaintiff also perceived that: “I was having trouble with the managers at the time”.[34]  He was concerned that he might lose his job if he reported his injury to his managers and they would use it as an excuse “to get rid of me”.[35]  Under cross-examination the plaintiff said: “I wouldn’t have said anything to them.  I didn’t feel comfortable even talking to them.  I tried to avoid them.”  It seems to me that the plaintiff’s perception was genuinely held.  It is also consistent with the remarks in the ongoing performance reviews and, as it turned out, the plaintiff resigned amidst an adverse and volatile performance review interview on 18 November 2011.
  1. [51]
    The defendant also argues that the plaintiff’s request to return to the defendant’s employ is inconsistent with his claims. I do not accept Mr Stanbrook’s account that the plaintiff asked to be re-employed some days after 18 November 2011. Mr Stanbrook’s contemporaneous notes were lost in 2013 when he moved and he has not had cause to recall his meeting with the plaintiff in December 2011 until he prepared to give evidence about four years later. I prefer the plaintiff’s evidence that he called a meeting with Mr Stanbrook to complain about his unfair treatment leading up to his resignation.
  1. [52]
    The plaintiff had already secured work with Mr Bergmann, a former employer, who coincidentally offered the plaintiff plumbing work on 21 November 2011. I accept that the plaintiff immediately disclosed his compromised state to Mr Bergmann before commencing employment. The plaintiff testified that he told Mr Bergmann that he had “hurt his back at Woolworths”, “wouldn’t be able to do full time duties” and “was in a lot of pain”.[36] Mr Bergmann testified that he telephoned the plaintiff to offer him a job performing light duties as a safety observer.  I was impressed by Mr Bergmann’s candour and simplicity.  His account of the initial telephone call accorded with the plaintiff’s evidence as follows:

“ … Well, just tell us what happened about that when you spoke to him and offered him the job?‑‑‑He said he got back pain and he can’t work for the time being.

And did he tell you how he happened to have that back pain?‑‑‑Apparently – I don’t recall too much about it.  But he said it – he had to do something at Woolworths and he hurt his back, and I told him not to be a wuss or a girl and come to work.”

  1. [53]
    Whilst the plaintiff made it clear that he was injured in the course of his employment with the defendant, it seems to me that he had not turned his mind to the real seriousness of his condition or its cause, let alone, the levering task and dock work. Further, he apparently did not conceive the need for any workers’ compensation claim in the face of employment with Mr Bergmann.
  1. [54]
    The plaintiff acceded to Mr Bergmann’s offer and commenced on 21 November 2011. I accept Mr Bergmann’s evidence that the plaintiff was assigned light duties, “just basic, little jobs”, such as to “run a little half inch copper pipe”, connecting up pipes,[37] holding a ladder, passing roofing tools and guiding roofing sheets.  I am unable to discern any other likely cause of injury during his work with Mr Bergmann, however, I accept the work did cause some flare-ups from time to time.  Within weeks the plaintiff’s condition deteriorated, with the back pain radiating further towards his ankle.
  1. [55]
    The plaintiff called a home doctor service on 12 December 2011, underwent a CT scan and attended upon Dr Kresevic the next day. It seems to me that those consultations were short in duration and focused upon the plaintiff’s contemporary presentation and circumstances with the result that the doctors conflated the plaintiff’s work history and symptoms. It is likely that the plaintiff also learnt of the CT scan results. Dr Kresevic noted: “Seen by Dial-A-Doctor.  CT scan.  Some bulging of L4/5 disc with element of canal stenosis and bilateral foraminal narrowing.”  Even then the plaintiff had not seriously turned his mind to the likely cause of his predicament, instead he was rather naively “focused on getting better, mate, and getting back to work”.[38] 
  1. [56]
    The plaintiff was unable to continue working for Mr Bergmann and his employment was terminated on 16 December 2011. Mr Bergmann testified that:[39]

“…You said earlier that Michael told you that he had severe back pain – bad back pain.  Did he go into any detail about that.  What did he tell you about that?‑‑‑It took a while until he told me.  He said it was something at Woolworths with – a pallet lifter was broken or something.  And I think he’s supposed to push [indistinct] or something.  I can’t recall.  It’s five years ago, and it’s – I’m getting a little bit old and forgetting things as well.  It was some – some – something happened at Woolies.

All right.  Now, did you discuss with him continuing working for you with his back pain? --- yeah. My- my - that’s why I wanted him. I had another – after Christmas – another big job.  The foreshore development for [indistinct] starting and I needed somebody trustworthy on the job. That’s why I – I went through this whole exercise of keeping him on.

… I was waiting for him to come better.  I gave him the number of my chiropractor to – to go and see.

Now, I think you record in your records that his employment was terminated on the 16th of December 2011? --- yeah.

Now, why was that? --- We – we sat down. And, I mean, by then he was 3 hours per day at work. He had to go to the doctors.  And I saw him in pain.  We just spoke as friends and I said look, I’m very sorry. I mean, its – it looks like it doesn’t go away. You’ve got to go really to the doctors and get it sorted out.”

  1. [57]
    The plaintiff was well aware that if he was hurt at work he could claim WorkCover benefits and obtain compensation for lost wages and treatment.[40]  However, he quickly secured work with Mr Bergmann and has never attributed his condition to his work with Mr Bergmann.  When that employment ceased he specifically claimed Centrelink benefits supported by a certificate from Dr Shanmugan on 10 January 2011 and subsequently Dr Kresevic.[41]
  1. [58]
    The plaintiff was later recalled by Mr Bergmann to perform rectification work for about two hours, which involved going up and down a ladder. This caused a flare-up of the plaintiff’s back pain and he was taken by ambulance to Cairns Hospital for treatment on 20 January 2012. On 26 February 2012, the plaintiff again attended the emergency department at the Cairns Hospital by ambulance because of severe back pain after a “minor fall”. The plaintiff testified that he had a few falls since the injury in November 2011.[42]
  1. [59]
    It seems to me that it was not until March 2012, upon learning of the MRI results, that the plaintiff finally accepted that he had a very serious back condition, which would prevent his return to work.[43]  His general practitioner, Dr Clift, gave the plaintiff a workers’ compensation medical certificate on 27 March 2012,[44] which recorded the date of the injury as “10/11/2011” and the cause of the injury as “stepped off ladder”.  However, Dr Clift also advised the plaintiff to prepare his own statement about the events for the employer’s purposes.  I accept the plaintiff’s evidence that he immediately attended a Post Office and faxed the workers’ compensation medical certificate to the defendant’s Raintrees store and then went home to write his statement on 27 March 2012.[45]  He delivered the statement to the defendant on 2 May 2012 when he attended at the Raintrees store to complete an application for workers’ compensation.[46] 
  1. [60]
    Contrary to the defendant’s submission, in my view the plaintiff’s explanation of those matters did withstand examination, and his explanation was entirely plausible given his strained work relations, perception of injury and optimistic outlook until March 2012. It seems to me that it was only through making a workers’ compensation application that the plaintiff was forced to turn his mind to his work history and causative events. His written statement, together with his application for compensation and “Injured Worker Statement Form”,[47] are entirely consistent with his testimony.
  1. [61]
    The defendant points to various inconsistencies between the plaintiff’s account and documentary evidence.[48]  I do not accept that the medical records and solicitor’s correspondence are infallible indicators of the plaintiff’s reliability.   In my view the nature and extent of the inconsistencies do not warrant the rejection of the plaintiff’s evidence.  It seems to me that some inconsistency, cross-pollination and blurring is to be expected in the unusual circumstances of this case where the plaintiff’s levering tasks preceded the otherwise unremarkable use of a ladder.  On my analysis, plaintiff’s evidence constituted more than a mere assertion of injury.  He impressed me as a naïve, docile, sincere, honest and reliable witness.  His account was uncontradicted by other witnesses on critical maters and when considered in its proper context his testimony is consistent with other objective and expert evidence.
  1. [62]
    Like most conditions, there are a number of possibilities for the plaintiff’s intervertebral disc protrusions which were identified by Dr Campbell as follows:[49]
  1. All discs are susceptible to protrude where there is an underlying inherent weakness;
  1. Degeneration in the disc is thought to be required and that may show as dehydration on an MRI scan;
  1. The MRI scan taken on 13 March 2012 indicated just that, dehydration in the L4/5 disc;
  1. In those circumstances, even a young person, the protrusion of the nuclear disc material can be caused by quite innocuous activities such as bending over, jarring, lifting items;
  1. Stepping off a curb or stepping heavily may cause the protrusion;
  1. Minor falls and stumbles can cause it; and
  1. Ordinarily one would expect the patient to feel some symptomatology at the time of the protrusion.
  1. [63]
    In re-examination, when the effect of the plaintiff’s evidence was broadly put to Dr Campbell he accepted that the probable cause of the plaintiff’s disc protrusion was the levering task, followed by the “stepping off the ladder being the straw that broke the camel’s back”.[50]  This is also consistent with the evidence, which I prefer, of Dr Ness, Dr Guazzo and Dr Atkinson, supporting the view that the more probable cause of his disc protrusion was the levering task.[51]  “More probable” means no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty. 
  1. [64]
    I accept that the plaintiff suffered an onset of back pain radiating down his leg from 3 November 2011, which worsened with radiating further down his leg as he attempted to keep working. It seems to me that his conduct is entirely consistent with an injury sustained in the employ of the defendant and with the claimed mechanism of injury. His credit was bolstered by timely complaint to a co-worker and a prospective employer. The terms of his complaint were general and did not warrant a detailed analysis of the nature and extent of his pain, which remained a constant for him since 3 November 2011. I accept his reasons for not complaining to his employer until he was forced to accept his disabled predicament.
  1. [65]
    In the circumstances of this case and based on ordinary common sense and experience, I conclude that it is more probable than not that it was the defendant’s negligence of permitting the plaintiff to undertake the levering task in conjunction with the hired walkie stacker that caused the plaintiff’s back injury including radiating leg pain. The defendant is therefore liable for the consequential loss and damaged suffered by the plaintiff.
  1. [66]
    Having reached that conclusion, I now turn to assess the relevant heads of damage.

General Damages

  1. [67]
    The plaintiff alleges that as a result of the defendant’s negligence he suffered:
  1. (a)
    A right L4/5 disc protrusion requiring surgical discectomy and rhizolysis;
  1. (b)
    Surgical scarring to the midline of the lumbar spine; and
  1. (c)
    Adjustment disorder with depressed mood.
  1. [68]
    The assessment of general damages requires consideration of an Injury Scale Value (ISV) to the injury pursuant to the Workers Compensation and Rehabilitation Regulation 2004 (Reprint 4A) (Qld) (“the Regulation”).

Back Injury

  1. [69]
    The plaintiff’s counsel submits that the plaintiff’s back injury warrants an ISV of 20 being within the low end of the range of 16 to 35 for a Serious Lumbar Spine injury within item 90 of the Regulation. In contrast, the defendant’s counsel contends for an ISV of 15 being at or near the top of the range of 5 to 15 for a Moderate lumbar spine – disc prolapse or nerve root compression or damage within item 91 of the Regulation.
  1. [70]
    Items 90 and 91 are in the following terms:

90Serious thoracic or lumbar spine injury

Comment

  • The injury will cause serious permanent impairment in the thoracic or lumbar spine.
  • The injury may involve-

(a)bilateral or multilevel nerve root damage; or

(b)a change in motion segment integrity, for example, because of surgery.

Example of the injury

A fracture involving at least 25% compression of 1 thoracic or lumbar vertebral body.

Comment about appropriate level of

ISV

  • An ISV at or near the bottom of the range will be appropriate if-

(a)the injured worker has had surgery and symptoms persist; or

(b)there is a fracture involving 25% compression of 1 vertebral body.

  • An ISV in the middle of the range will be appropriate if there is a fracture involving 50% compression of a vertebral body, with ongoing pain.
  • An ISV at or near the top of the range will be appropriate if the injured worker has had a fusion of vertebral bodies that has failed-

(a)leaving objective signs of significant residual nerve root damage and ongoing pain, affecting 1 side of the body; and

(b)causing whole person impairment of 24%.

16 to 35

91Moderate thoracic or lumbar spine injury- fracture, disc prolapse or nerve root compression or damage

Comment about appropriate level of ISV

  • An ISV at or near the top of the range will be appropriate if-

(a)there is a disc prolapse for which there is radiological evidence at an anatomically correct level; and

(b)there are symptoms of pain and 3 or more of the following objective signs, that are anatomically localised to an appropriate spinal nerve root distribution-

(i)sensory loss;

(ii)loss of muscle strength;

(iii)loss of reflexes;

(iv)unilateral atrophy; and

(c)the impairment has not improved after non-operative treatment.

  • An ISV of about 10 will be appropriate if there is a fracture of a vertebral body with up to 25% compression, and ongoing pain.
  • An ISV at or near the bottom of the range will be appropriate for an uncomplicated fracture of a posterior element of 1 or more of the vertebral segments, for example spinous or transverse processes, without neurological impairment.

5 to 15

  1. [71]
    The plaintiff suffered a disc prolapse. There is radiological evidence at an anatomically correct level. He has symptoms of pain and signs of some sensory loss. He describes that he suffers constant back pain, which radiates into his right leg on a day-to-day basis.[52]  He equates the feeling to being “stabbed in my lower back and down my right leg”.  The pain varies in intensity.  He rates a good day as 7 out of a score of 10, and a bad day as 10 out of 10.  Prolonged sitting, standing, bending, lifting and other physical activities aggravate his pain.  This was also evident during the trial when I observed the plaintiff experience obvious discomfort whilst seated giving evidence, and at other stages of the trial when he descended to kneeling on the floor at the desk behind the bar table.
  1. [72]
    Dr Campbell and Dr Atkinson agree that the plaintiff’s back injury should be assessed as a 13% whole person impairment being a DRE Category III rated impairment pursuant to AMA 5. Dr Atkinson's examination did not find evidence of loss of muscle strength, reflexes or any unilateral atrophy.
  1. [73]
    It seems to me that the plaintiff’s condition hovers on the border of items 90 and 91 of the Regulation. In the circumstances, I assess the plaintiff’s back injury as an ISV 15 being at the high end of the range of Item 91.

Psychiatric injury

  1. [74]
    I accept the plaintiff’s evidence that he continues to experience low mood, decreased motivation, lack of interest, and impaired concentration.[53]  Whilst giving evidence the plaintiff seemed deflated and slow to respond.  The plaintiff required psychiatric treatment following the breakdown of his relationship after the accident.  He thinks of suicide daily, which is harder to resist during periods of severe pain.[54]
  1. [75]
    I received evidence from psychiatrists, Dr Shaikh and Dr Gunn, about the plaintiff’s psychiatric injury.
  1. [76]
    Both experts were impressively thorough and helpful. Dr Shaikh had the opportunity of examining the plaintiff on two separate occasions. Dr Gunn examined the plaintiff only once. The history relied upon by Dr Shaikh was accurate and better accorded with the plaintiff’s proven history and circumstances. Dr Gunn inaccurately recorded some aspects of the plaintiff’s history and placed more weight on the plaintiff’s historical episodes of depression. I find that the plaintiff suffers an adjustment disorder with depressed mood. I prefer the opinion of Dr Shaikh who assessed the plaintiff with an impairment of 17% under the psychiatric impairment rating scale.
  1. [77]
    On this basis, I find that the plaintiff suffers an adjustment disorder with depressed mood. I assess the plaintiff’s psychiatric injury with an ISV of 13 being in the low end of the range for an item 11 – serious mental disorder.

Assessment

  1. [78]
    The plaintiff’s dominant injury is his Serious Lumbar Spine Injury for which I have allowed an ISV of 15. In my view that ISV does not adequately reflect the adverse impact of all the plaintiff’s injuries, so I will apply an uplift of 30% to take account of his psychiatric injury. The result is an ISV of 20, which equates to general damages in the amount of $31,450.00.[55]

Economic loss

  1. [79]
    The plaintiff claims that his physical and mental disabilities have reduced his working capacity resulting in past and future economic loss.
  1. [80]
    The plaintiff argues that but for his injury he would have returned to work for Mr Bergmann, he would now be working as a foreman, and that his average loss would be in the order of at least $1000 net per week. In contrast the defendant argues that the plaintiff’s average loss would have been $600 net per week having regard to his earnings before and after his injury.
  1. [81]
    Section 306J of the Act provides:

306JWhen earnings can not be precisely calculated

(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2) The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

(4) The limitation mentioned in section 306I(2) applies to an award of damages under this section.

  1. [82]
    In Allianz Australia Insurance Limited v McCarthy,[56] White J remarked about the analogous provision, s 55 of the Civil Liability Act, as follows:

“[47] ... Section 55(2) of the Civil Liability Act mandates that a court may only award damages if satisfied that the person injured will suffer loss of earnings. In this, the provision does not alter the common law.

[48]  In Graham v Baker Dixon CJ, Kitto and Taylor JJ noted:

“… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.”

That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission:

“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute ahead [sic] of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the diminution of … earning capacity is or may be productive of financial loss.”

[49]  In Nichols v Curtis Fraser JA, with whom the President and Chesterman JA agreed, observed of a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury:

“The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that that [sic] she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.”

[50]  His Honour continued:

“Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity had been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.””  (Footnotes omitted.)

  1. [83]
    I am satisfied that the plaintiff in his current and stable state is wholly incapable of working. Accordingly, I conclude that the plaintiff’s earning capacity has been diminished because of his injuries. An examination of the plaintiff’s working capacity before and after the injury must be taken into account to assess the extent of any loss of working capacity and whether it sounds in economic loss.
  1. [84]
    The plaintiff was always desirous of a career in plumbing, even at one point considering doing so in the armed forces.
  1. [85]
    He commenced an apprenticeship in plumbing on 12 August 2005 after leaving part way into his final school year. In June 2007 he was unsuccessful in his attempt to join and work as a plumber in the Army. In accordance with the advice of Army recruitment, the plaintiff continued his plumbing apprenticeship and work (with a view to reapplying to the Army). He finished his apprenticeship on 24 November 2010 and attained the requisite Certificate III in plumbing.
  1. [86]
    The plaintiff enjoyed regular employment until plumbing work declined in about May 2011 after working for Mr Bergmann for about four months. He then secured work in retail fruit and vegetable sales, and later commenced with the defendant on 13 August 2011. He was still working for the defendant at the time of his injury on 3 November 2011 and resigned from that employment on 18 November 2011. In the year ended 30 June 2011 the plaintiff’s net income was $524.82 per week and at the time of injury his average wage was about $575.00 net per week.
  1. [87]
    The plaintiff was desirous of returning to a career in plumbing when work became available.
  1. [88]
    It was fortuitous that the plaintiff quickly resumed supervisory plumbing work with Mr Bergmann from 21 November 2011. He was unable to sustain that work and was forced to cease work on 16 December 2011. Mr Bergmann gave evidence of his recruitment of the plaintiff based on his trustworthiness. He was keen to retain the plaintiff as a foreman[57] on an impending contract for a foreshore development.  In that event, the plaintiff would have earned $35 per hour, plus allowances and overtime.  This would be about $1,200 net per week. 
  1. [89]
    The plaintiff has been unemployed for about 267 weeks.
  1. [90]
    Whilst I accept that he was likely to resume a career in plumbing, I am not persuaded that the work was consistently available from 21 November 2011. I doubt that the plaintiff considered himself ready to return to the industry but for his injury and poor work performance. There is no evidence of him monitoring the building industry or actively pursuing a return to his preferred vocation at that time. Further, I think Mr Bergmann’s evidence of continuing to employ the plaintiff is somewhat situational and favourable. By that time, the plaintiff had only about six months experience as a qualified plumber and was unlikely to sustain regular employment as a foreman.
  1. [91]
    Having said that, I think it likely that the plaintiff would have realised his preferred vocation as a plumber within the last three years in a role commensurate with his age and experience. Having regard to his past and potential earning I will adopt an average loss of income of $700.00 net per week.
  1. [92]
    On this basis, I assess the plaintiff’s past economic loss at $186,900.00, being $700 net per week for about 267 weeks from 16 December 2011.
  1. [93]
    I also allow interest on past economic loss of $6,915.32 using the agreed half yearly bond rate of 1.41% calculated on $108,868.13 being past economic loss less net workers’ compensation benefits of $34,515.87 and Centrelink benefits of $56,866.00.[58]
  1. [94]
    I will allow past superannuation loss of $16,821.00 using the rate of 9%.

Future economic loss

  1. [95]
    An award for future economic loss should equate to the reduction in the plaintiff’s earning capacity to the extent that it may be productive of financial loss. This is difficult to assess with precision using a defined weekly loss, since the plaintiff has not realised his career path, but was likely to do so with the consequence of actual loss in the future.
  1. [96]
    The plaintiff is 29 years old.
  1. [97]
    At present he is commercially unemployable. Dr Atkinson observes that the plaintiff may be motivated to work after this litigation and after he manages to reduce his narcotic intake. He will need intensive rehabilitation, retraining and assistance to get back to work. Prior to the accident the plaintiff demonstrated wherewithal, flexibility and resilience to secure alternative work opportunities as a plumber and storeman. It is likely that but for his impairment he would have worked through the various stages of plumbing over 38 years until voluntary retirement at age 67. I think that the plaintiff will now be limited to more sedentary work and duties ideally in building or plumbing. Even then he will remain at some risk of remaining unemployed for a period and from time to time. In the circumstances it is not possible to precisely calculate future economic loss and a global sum is preferred. It seems to me that the plaintiff’s lost earning capacity would variously fall in the vicinity of $400 to $1,000 net per week. I will adopt the mean of $700 per week.
  1. [98]
    On that basis I will allow a global award of $375,000.00 for future economic loss.  In doing so, I rationalise the outcome adopting $700 net per week and using the 5% multiplier of 902 for 38 years to achieve $631,400.00, and then applying a discount of about 40% for contingencies in the plaintiff’s life and vocation. 
  1. [99]
    I also allow $41,250.00 for future superannuation being 11% of $375,000.00.

Future Expenses

  1. [100]
    The plaintiff contends that $15,000.00 should be allowed for future expenses, including attending a pain clinic and vocational rehabilitation. In contrast the defendant contends for $5000.00.
  1. [101]
    It seems to me that the plaintiff will require continuing medication for pain relief, which may be acute at times, as well as other conservative treatment, rehabilitation and retraining. I will allow a global amount of $14,000 for future expenses of this kind.

Other heads of damage

  1. [102]
    The parties are in substantial agreement on the other heads of damage or the mechanism for their calculation.
  1. [103]
    I allow special damages in the amount of $49,380.66 for the following:
  • Expenses incurred on the Plaintiff’s behalf by WOW Care Queensland $37,487.56;[59]
  • Refund to Medicare $7,893.10;[60]
  • Other special damages agreed at $4,000.
  1. [104]
    The plaintiff’s Fox v Wood component is $6,953.00 in accordance with the WorkCover Payment History.[61]

Summary

  1. [105]
    In summary my assessment of the plaintiff’s damages is as follows:

General damages

$31,450.00

Past economic loss

$186,900.00

Interest on past economic loss

$6,915.32

Past superannuation

$16,821.00

Future economic loss

$375,000.00

Future superannuation

$41,250.00

Special damages

$49,380.66

Fox v Wood

$6,953.00

Future expenses

$14,000.00

Sub-total

$728,669.98

Less WOW Care refund

-$78,024.60

Total

$650,645.38

Conclusion

  1. [106]
    For these, reasons, I give judgment to the plaintiff against the defendant in the amount of $650,645.38.
  1. [107]
    Unless either party applies for a different costs order within 14 days of this judgment, I will also order that the defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Judge Dean P Morzone QC DCJ

Footnotes

[1]Further Amended Defence, para 9.

[2]Amended Statement of Claim, para 15B; and Further Amended Defence, para 4A.

[3]Amended Statement of Claim, para 28; and Further Amended Defence, para 8(a).

[4]Further Amended Defence, para 4A(a).

[5]Further Amended Defence, para 4(g).

[6]Amended Statement of Claim, paras 31 & 31A.

[7]Further Amended Statement of Claim, paras 15A, 15B, 27, 28, 29, 30, 31 & 31A.

[8]Further Amended Statement of Claim, paras 35 & 36.

[9]Amended Statement of Claim, paras 26 & 27.

[10]Tabet v Gett (2010) 240 CLR 537.

[11]Chappel v Hart (1998) 195 CLR 232 at 269-270; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6.

[12]Medlin v State Government Insurance Commission (1995) 182 CLR 1.

[13]March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 174-5.

[14]Reprint 5E effective 6 June 2011, then in force.

[15]Wallace v Kam (2013) 297 ALR 383.

[16]Reliance was placed on a paper by McClellan CJ “Who is telling the truth? psychology, common sense & the law" (http://www.austlii.edu.au/au/journals/NSWSchol/2006/14.pdf), cf. Fox v Percy [2003) 214 CLR 118 at [31] per Gleeson CJ, Gummow & Kirby JJ.             

[17]Referred with apparent approval by the New South Wales Court of Appeal, and extracted from Withyman v NSW [2013] NSWCA l0 at [65].

[18]T1-54/36-42

[19]T1-55/10-16.

[20]T1-55/19-20.

[21]T1-55/25-28.

[22]Further Amended Defence, para 4(a).

[23] T1-57/6 – T1-59/15.

[24]T1–59/35-44.

[25]Exhibit 5.

[26]T1–61/3-25.

[27]Exhibit 25.

[28]T1–61/27-41.

[29]Exhibits 6 & 7.

[30]Exhibit 9.

[31]T3-62/21.

[32]T1-61/33.

[33]T1-91/1-3.

[34]T1-62/36.

[35]T1-63/28.

[36]T1-67/5-10

[37]T2-59/16-23.

[38]T2-12/1-6.

[39]T2-60/20-36.

[40]T1-77/35-45; T1-78/1-10; T1-78/33-45.

[41]Exhibit 13: Vol. 2, Tab 9, pp 103 & 104; and Exhibit 17.

[42]T1-73/1-5.

[43]T1-75/1-5.

[44]Exhibit 6.

[45] Exhibit 7

[46]T1-74/20-45; Exhibit 8.

[47]Exhibit 9.

[48]Defendant’s Outline of Argument, paras 54, & 55-72.

[49]T2-46/25 – T2-47/30.

[50]T2-50/39 – T2-51/14.

[51]Reports of Dr Ness, Dr Guazzo & Dr Atkinson & the file notes, Exhibit 13, Docs 1, 2, 3, 4, 9, 10, 19 & 20.

[52]Exhibit 2, paras 105-115.

[53]Exhibit 2, para 116.

[54]Exhibit 2, para 117.

[55]$21,800 + (5 x $1930) = $31,450.

[56]Allianz Australia Insurance Limited v McCarthy [2012] QCA 312.

[57]T2-60/20-30; T2-61/3-9.

[58]$186,900.00 – ($34,515.87 + $56,866.00) = $95,518.13.

[59]Exhibit 1 less the weekly compensation of $40,537.04.

[60]Exhibit 2, para 166.

[61]Exhibit 2, p 21.

Close

Editorial Notes

  • Published Case Name:

    Perkins v Woolworths Pty Ltd (ACN 000 014 675)

  • Shortened Case Name:

    Perkins v Woolworths Pty Ltd (ACN 000 014 675)

  • MNC:

    [2017] QDC 1

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    25 Jan 2017

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
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
2 citations
Jump To
Cite 1 - [2012] QCA 312
Cite 2 - [2012] QCA 312
Chappel v Hart (1998) 195 CLR 232
1 citation
Jump To
Cite 1 - (1998) 195 CLR 232
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
1 citation
Jump To
Cite 1 - (1991) 174 CLR 64
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
1 citation
Jump To
Cite 1 - (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
2 citations
Jump To
Cite 1 - (1995) 182 CLR 1
Cite 2 - (1995) 182 CLR 1
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403
2 citations
Jump To
Cite 1 - [1968] 2 Lloyd's Rep 403
Cite 2 - [1968] 2 Lloyd's Rep 403
Tabet v Gett (2010) 240 CLR 537
2 citations
Jump To
Cite 1 - (2010) 240 CLR 537
Cite 2 - (2010) 240 CLR 537
Wallace v Kam (2013) 297 ALR 383
2 citations
Jump To
Cite 1 - (2013) 297 ALR 383
Cite 2 - (2013) 297 ALR 383

Cases Citing

Case NameFull CitationFrequency
Gambaro v Workers' Compensation Regulator [2017] QIRC 332 citations
1

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