Maraki v Interport Cargo Services Pty Ltd
[2017] QDC 26
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- Unreported Judgment
- Maraki v Interport Cargo Services Pty Ltd[2017] QDC 26
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Maraki v Interport Cargo Services Pty Ltd[2017] QDC 26
Maraki v Interport Cargo Services Pty Ltd[2017] QDC 26
DISTRICT COURT OF QUEENSLAND
CITATION: | Maraki v Interport Cargo Services Pty Ltd [2017] QDC 26 |
PARTIES: | DOUGLAS MARAKI (Plaintiff) v INTERPORT CARGO SERVICES PTY LTD (ACN 009 707 028) (Defendant) |
FILE NO/S: | 2409/16 |
DIVISION: | Trial division |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 15 February 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 – 4 November 2016 |
JUDGE: | Shanahan DCJ |
ORDER: | Judgment for the plaintiff in the sum of $5, 033.08 |
CATCHWORDS: |
|
COUNSEL: | J. P Kimmins for the plaintiff B. F Charrington for the defendant |
SOLICITORS: | Shine Lawyers for the plaintiff BT Lawyers for the defendant |
- [1]The plaintiff claims damages for personal injury sustained as a result of a workplace incident at the defendant’s workplace on 28 May 2012. The nature of the injury is lumbar spine related.
- [2]There is no doubt that the defendant suffered a back injury at work on that day. He immediately collapsed in pain and an ambulance was called to attend him. The injury occurred whilst dismantling timber frames used to store cargo in a shipping container.
- [3]Both liability and quantum of damages are in issue.
The plaintiff’s account of the incident
- [4]The plaintiff’s evidence was that on 28 May 2012 he was dismantling timber dunnage used to secure a cargo of four cars, a motor and boxes (T1-14). There was a wooden platform towards the front of the container. There were wooden chocks securing the motor to the platform (T1-15). The chocks were nailed to the platform. He used a crowbar to separate the chocks from the platform. The motor was removed from the car by a forklift. He then commenced to remove timber which formed a fence between where the motor had been and the cars. He was removing wooden chocks that supported the fence. He had dismantled the wooden dunnage and was moving the loose dunnage from the platform to the front of the container (T1-17). There was a wooden chock on the platform which had a nail still in it. He decided to pull it with his hands. He used his right hand (T1-19). He then felt pain in his back. He was bending over at the time, standing on the platform that the motor had been on. He couldn’t move as a result of the pain. He called a friend over. After some minutes without improvement, a manager was called. An ambulance was called and he was taken to hospital. He was released from hospital that night (T1-19).
- [5]He described his action of removing the dunnage. When he initially pulled at it he realised a nail was still attached to it. He was asked what sort of force he then used to pull it again. His response was, “just minor. Just a little one” (T1-19).
- [6]In cross-examination he repeated that he was removing a wooden fence that was in front of the cars in the container. There was loose dunnage around the chock (T1-35). It was put to him that he made a simple mistake by trying to pull out a chock that he thought was loose when, in reality, it was still nailed in place by one nail. The plaintiff agreed (T1-35).
- [7]On this account, the incident occurred as the plaintiff was removing dismantled timber to the front of the container for disposal. It was not in the process of dismantling the dunnage.
- [8]Unfortunately, the plaintiff has given a number of different accounts of this incident.
- [9]In an incident report (Exhibit 9), apparently completed somewhat contemporaneously, he gave this description:
“I was pulling the blocks out with the jimmy bar and I went down to pick the blocks up. I didn’t notice that there was nails still in the blocks…”
- [10]On 13 May 2015, the plaintiff was assessed by Associate Professor Peter Steadman, Consultant Orthopaedic Surgeon, on behalf of the defendant. In Dr Steadman’s report (Exhibit 2) he set out the plaintiff’s account to him:
“He describes unpacking a container that had two cars in it. He was trying to take apart a shelf of wood between the two cars. He did not know whether it was hardwood or softwood. He said it was just normal wood. He said he was using a 4 ft. crowbar and demonstrated to me how he was lifting it. He said that he thought the wood was loose and he pulled it, but it still had a nail in it. As he pulled it up he hurt his back.”
- [11]On 2 December 2016, the plaintiff was assessed by Dr Christopher Cunneen, Occupational and Environmental Physician, on behalf of the defendant. Dr Cunneen described the plaintiff’s account in a report dated 12 December 2016 (Exhibit 17) as, “whilst lifting up wooden chocks from the ground to a container, he noted severe low back pain.” Dr Cunneen also asked him if the chocks were nailed and “he said no, they’re chocks for cars and he bent down to pick them up” (T2-23).
- [12]In cross-examination, the plaintiff was questioned about a consultation he had with Dr Justin Ludcke on 19 April 2016. The plaintiff agreed that he gave Dr Ludcke an account of the incident. The plaintiff agreed that he could have told Dr Ludcke that he and a co-worker had moved on to removing chocks from around the wheels of the motor vehicles (T1-27). He remembered telling Dr Ludcke that the problem he had when removing the chocks from around the wheels of the motor vehicle was that he did not have enough space to do it properly. The plaintiff also agreed that he told the doctor he suffered the back pain when he was trying to remove one of the timber chocks along the side of a wheel of one of the cars in a cramped position because he could not use the crowbar (T1-37).
- [13]On 12 March 2015, the plaintiff was assessed by Dr Scott Campbell, Neurosurgeon. In Dr Campbell’s report dated 12 March 2015, the history was stated as:
“At the time he was unloading cars from a ship container in his capacity as container loader. He was required to move dunnage that supported each car during transport. Whilst pulling on a piece of timber to free it, he noted sudden onset of lower back pain and stiffness.”
- [14]Doctor Steadman observed that the plaintiff was a poor historian (T1-54). That was also my observation of his evidence. He did not volunteer much detail and his accounts were somewhat disjointed. I am of the view he was not being dishonest but had difficulty in giving a consistent logical account. Whilst many of the differences in detail may be minor, there is, in my view, a fundamental difference between an incident occurring when disassembling the dunnage and an incident occurring whilst moving what was thought to be dismantled woodwork. It is difficult to conceive a system not using hands in the latter exercise. However, the only occasion when the plaintiff gave this version was in his evidence some four years after the event. All his earlier versions, including the contemporaneous incident report, describe the incident as involving the dismantling of the dunnage. His evidence on the trial may have been the consequence of faulty memory or nervousness in the courtroom situation. Considering his earlier accounts, I accept that the injury was occasioned as he was dismantling the dunnage rather than as he was removing remnants that had already been dismantled.
Liability
The plaintiff’s case
- [15]The plaintiff’s claim is based in the common law of negligence. It is submitted that the use by the plaintiff of his hands to pull the timber apart, whilst partially nailed, carried with it a foreseeable risk of injury. The defendant, in fact, pleaded that the risk of injury from so doing was “an obvious risk” (Amended Defence, paras 7(h), 7(i), 7(j)(ii), 10(d) and 10(e)(iv)). It was common practice for the plaintiff and the defendant’s workers to use their hands to pull the pieces of timber apart when partially nailed. The defendant was negligent in allowing that practice of its workers in using their hands when the timber was still partially nailed. The defendant was negligent in failing to warn of an obvious danger when its employees were adopting this practice. It should have instructed its employees not to use their hands to separate timber that was still partially nailed.
- [16]The plaintiff argues that the present case does not fall to be decided by reference to the common law alone. Sections 305B – 305E Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCA”) affect the question of liability. Those provisions are relevant in considering whether there has been a breach of duty to take precautions against a risk of injury to a worker. The plaintiff also pleads that a duty was owed by the defendant to the plaintiff to ensure his workplace health and safety.
The defendant’s case
- [17]The defendant submits that the plaintiff’s claim should be dismissed because the court could not be satisfied of the reliability of his evidence given the different versions of the incident that he has given. On his evidence that he used a minor amount of force in the manoeuvre that caused the pain, then injury in such circumstances was not foreseeable. The plaintiff has failed to adduce any evidence that this use of minor force involved a breach of duty by the defendant employer, having regard to established standards. The plaintiff has failed to establish that a system ought to have existed as a reasonable precaution that would have obviated the risk of injury.
The system of work
- [18]There is a dispute in the evidence about the system of work adopted by the defendant in relation to the dismantling of the timber frames (dunnage) used in shipping containers to hold cargo during transit.
- [19]The plaintiff’s evidence was that he had been employed by the defendant from 11 May 2011. He had performed the tasks of removing the timber dunnage from containers on a daily basis. This was usually to unload motor vehicles but could involve other cargo. With respect to car containers, there were platforms constructed of timber secured by nails and timber chocks used to brace the wheels of the vehicles (T1-10). The plaintiff received no formal training in that task, but was assigned to work with a more experienced co-worker, Mr E. Turner (T1-9 – 10). It was on the job training. The plaintiff was provided tools to dismantle the timber frames. The tools were crowbars and hammers, depicted in Exhibit 3. The instructions given by Mr Turner to the plaintiff were to simply rip the timber apart and the plaintiff observed Mr Turner “using the crowbar, just ripping it apart.” When removing the chocks, the plaintiff would use the crowbar to loosen the chocks and then use his hands to pull the timber and he adopted that practice “pretty much all the time” (T1-12). He would pull the timber when he needed to, “probably about four times per one container” (T1-13). The dunnage that he pulled was loose or partly nailed. He had observed other workers pulling the dunnage with their hands “pretty much all the time” (T1-13). He had seen Mr Turner pull timber that was partly nailed.
- [20]In cross-examination, the plaintiff agreed that he had performed the task of removing chocks thousands of times (T1-29). He did not need to be supervised (T1-30). He had no trouble removing the chocks or any other part of the timber using a crowbar (T1-31). He had never complained that the crowbar was not the appropriate tool to use (T1-32). He agreed that the buddy system of training was a practical way of learning. He had been involved himself in training newer workers (T1-32). On checking whether a chock could be removed by hand, if it was firmly in place, there would be no point pulling on it as he would need to keep working on it with the crowbar (T1-34). He agreed that, in relation to the incident, he made a simple mistake by trying to pull out a chock that he thought had become loose but was, in fact, still nailed into place by one nail (T1-35).
- [21]Other employees gave evidence of the work practice in place and the training system.
- [22]Mr Shannon Oldham gave evidence on behalf of the plaintiff. He commenced employment with the defendant in February 2011 and worked there for approximately 9 months (T2-37). His work involved the unloading of containers which included the dismantling of the timber dunnage he used to secure cargo. There had been no specific training, but he was put with more experienced people to learn from example (T2-37). He described the process of dismantling the dunnage by using the crowbar to pry the wood apart and tear it out of the container. His evidence was “you would use your hands to pull the last bit of it out” (T2-38). Hands were used in relation to every container. “It was just part of the method of getting the wood out of the container”. The work was not the subject of direct supervision (T2-29 – 40). He was never instructed by anyone from the defendant not to use his hands to tear or rip the dunnage apart (T2-40). In cross-examination he agreed that the buddy system of training was appropriate (T2-41). It was not an overly complicated job but, when dealing with heavy weight, there were things to be careful with (T2-42). The use of the hands was when it was physically possible to simply pull the wood apart (T2-44).
- [23]Mr Peter Mitchell gave evidence on behalf of the plaintiff. He had started working for the defendant approximately six years before “and worked there for about three years” (T2-46). He had worked with the plaintiff. His employment involved the unloading of containers. That involved dismantling and removal of the dunnage (T2-47). There had been no specific training about how to dismantle the timber. There was “just pretty much crowbar and a sledgehammer”. He was at first placed with the more experienced worker who had shown him how to do it (T2-48). He had used the sledgehammer and crowbar to loosen the timber and then “you’d have to use your hands to reef it up” and then take it out and put it in the wood crate. He would use his hands all the time to help dismantle the timber. He would use his hands to pull the timber away (T2-49). Everyone used the same process (T2-49). He was never instructed not to use his hands to assist to dismantle the timber. In cross-examination, he agreed that the buddy system was the appropriate training for the manual task (T2-50). It wasn’t a complicated task. He agreed that the crowbar was the appropriate way to lever the timber apart but “there’d still be a piece of nail still stuck in there and you’d have to still reef it out” (T2-51). He had removed the dunnage on thousands of occasions and never had an incident (T2-53).
- [24]Mr Tangihia Savage gave evidence on behalf of the plaintiff. He had been employed by the defendant in 2014 for approximately four months. His role was mainly the unloading of containers (T2-56). There would be timber dunnage nailed in the containers to protect heavier cargo. A requirement was to remove all the dunnage from the containers before the containers were returned to the container yard. He had never received any formal instructions on how to unload the containers (T2-57). He would use a crowbar or jimmy bar to help loosen the wood and get the nails out and then try and pry the wood off with his hands (T2-57). That was a regular thing. All the workers pretty much worked the same way (T2-57). He was never given an instruction not to use his hands to assist in separating timber (T2-58). The work was unsupervised. In cross-examination he agreed he learned the process of removing dunnage from watching a more experienced worker (T2-60). He agreed that was the most practical way of learning. Removing the chocks and wooden dunnage was a daily occurrence (T2-61). He used the crowbar to the point where he could pick the timber off. It was a judgement call (T2-62).
- [25]Mr David Goodwin gave evidence on behalf of the defendant. He was a director and owner of the defendant. He had been in that position for 10 years (T2-68). He knew the plaintiff as a former employee. He was a solid and competent employee (T2-68). The defendant had a buddy training system by placing a new employee with an experienced one. The plaintiff progressed to being a mentor himself (T2-69). In Mr Goodwin’s time with the defendant, no one had suffered a previous injury in relation to the removal of chocks (T2-71).
- [26]Mr Gary Toomey gave evidence on behalf of the defendant. He had been employed by the defendant for 40 years and had been a director of it for 30 of those years (T2-83). His role was to oversee the “hands on part of the business”. Involved in that was the training of new staff. They put newcomers with more experienced staff to “build their skill levels up” (T2-83). In relation to unloading containers which had timber dunnage, the tools used were a jimmy bar or a pinch bar (T2-85). The process was to use the pinch bar to lever the wood until “it pops loose” and then pick it up to discard it (T2-86). In relation to wooden chocks, the pinch bar would be put under the chock and it would be prised loose with the nails out (T2-86). You would loosen the chock “so it just pops loose and then you pick it up”. During his time with the defendant he could not recall anyone else being injured when pulling out a chock (T2-87). In cross-examination, his evidence was that he had never seen anyone use their hands to remove a chock when it was still partly nailed (T2-88). If he had seen someone doing that he would stop them (T2-89). If a supervisor saw that sort of activity, they would have been stopped (T2-89). Staff were never taught to do it that way (T2-90). There was no possible chance of that (T2-91). It was a system he would not teach (T2-91).
- [27]Mr William Yesberg was called by the defendant. He had been an operations manager for the defendant during the time that the plaintiff was employed there. He was present on 28 May 2012 and filled out an incident report. He had never personally dismantled and removed the dunnage from a shipping container (T3-6). He agreed that workers would probably use their hands to remove wood if still partly nailed and easy to pull off, although that “wasn’t the instructions” and he had never personally seen the practice (T3-7).
- [28]Mr Mark Vilua was called on behalf of the defendant. He had worked for the defendant from 2010 to the present time. He firstly worked as a container unpacker and then as a leading hand (T3-11). He described the process of dismantling the dunnage by the use of a crowbar (T3-11). He had observed the plaintiff dismantling the dunnage and “he did it like everyone else” (T3-12). In cross-examination, he described using the crowbar until the nails came out and then using hands to remove the piece of wood (T3-14). He was reminded of the statement he gave where he described:
“If the chock was lifted but remained in position, it was obvious that it was still slightly secured by the nail or nails. I would give it a gentle tug, and if it came free, all well and good. If it didn’t move, I would use the crowbar again to forcefully separate it from the wood” (T3-15).
He maintained if the timber was partly nailed, you could not pull it out with your hands (T3-16).
- [29]No other employees were called to give evidence that they were trained not to use their hands until the timber pieces had been completely loosened.
- [30]I am of the view that the training system (the buddy system) was the appropriate way to train employees in what was, a basic manual task. I accept the evidence of Mr Oldhan, Mr Mitchell and Mr Savage that they had been trained in a way that involved the use of the hands when the wooden pieces were only partly dismantled. Each was clear in his evidence and their account was consistent. They were plainly honest witnesses with no obvious interest in giving a false account. Their evidence was also consistent with the concession made in Mr Vilua’s statement and Mr Yesberg’s evidence. I find that none of them had been instructed by the defendant not to use their hands until the wooden pieces were completely separated. The training system in place perpetuated that practice.
- [31]I thus accept the plaintiff’s evidence that that was the practice of the person who trained him (Mr Turner) and was how he observed the task to be performed. I accept his evidence that this practice was routinely adopted by himself and other employees on a day-to-day basis in the dismantling of the timber dunnage.
- [32]That being the case, I have difficulty accepting that supervisors and others in a position of authority with the defendant were not aware of the common practice.
The law
- [33]As stated above, the plaintiff’s case is founded in the common law of negligence and the impact of s 305B – 305E of the WCA and also the duty of care pursuant to s 18 and 19 of the Work Health and Safety Act 2011 (Cth) (“WH & S” Act).
- [34]To paraphrase the defendant’s submissions, there are four elements that must be proved by a plaintiff in a personal injury action grounded in the common law of negligence:
- (a)The existence of a duty of care;
- (b)A breach of that duty;
- (c)A causal link between the breach of duty and the damage sustained; and
- (d)Foreseeability of damage of the kind sustained.
- [35]The duty of care of an employer to an employee clearly applies in this case. Such a duty has been described as the duty being that of a reasonably prudent employer to take reasonable care to avoid exposing the employee to unnecessary risks of injury (Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18). The duty was defined in Czartyrko v Edith Cowan University (2005) 79 ALJR 839 at 842 [12]:
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”
- [36]At common law, the question of whether a breach of duty had occurred “turned on whether the defendant failed to take reasonable care for the safety of the plaintiff as an employee in all of the circumstances” (Stokes v House With No Steps [2016] QSC 79 at [56], Jackson J).
- [37]That statement was derived from Mason J’s observations in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, in relation to negligent breach of duty at common law:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”
- [38]The employer must take steps that are reasonably open in all the circumstances to avoid exposing employees to an unnecessary risk of injury. Gibbs CJ said in Turner v State of South Australia (1982) 42 ALR 669 at 670:
“The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25. The employer is not an insurer of his employees against danger. ‘For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.’: Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319. 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 416–7, 419.”
- [39]A breach of the duty may also arise where an employer has failed to warn employees of risks even when they may be obvious. “For example, if it is apparent that the employees are making a practice of ignoring an obvious danger, a warning may be necessary” (McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423). Gibbs CJ went on to say that no detailed rules could be laid down. The question was whether in all the circumstances of the case the taking of reasonable care by the employer involved the giving of a warning.
- [40]The plaintiff submits that the question of liability does not fall to be decided by reference to the common law alone. Sections 305B – 305E of the WCA affect the question of liability.
- [41]Sections 305B – 305E provide:
“305B General principles
- (1)A person does not breach a duty to take precautions against a risk of injury to a worker unless—
- (a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
- (b)the risk was not insignificant; and
- (c)in the circumstances, a reasonable person in the position of the person would have taken the precautions.
- (2)In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
- (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.
305C Other principles
In a proceeding relating to liability for a breach of duty—
- (a)the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
- (b)the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
- (c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
Division 3 Causation
305D General principles
- (1)A decision that a breach of duty caused particular injury comprises the following elements—
- (a)the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
- (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).
- (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.
- (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 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.
305E Onus of proof
In 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.”
- [42]As noted by Jackson J in Stokes v House With No Steps (above) at [62], unless these relevant statutory provisions are borne in mind, it is likely that the wrong question will be asked in relation to whether firstly a breach of duty has occurred and secondly whether a breach of duty caused a particular injury.
- [43]Sections 305B – 305E WCA, Jackson J noted, broadly correspond to s 9-12 of the Civil Liability Act 2003 (Qld). Similar New South Wales provisions were considered by the High Court in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, where the court stated at paras [42], [45] and [53] – [54]:
“[42] Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.
…
[45] Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred?
…
[53] In the present case, in contrast, the “but for” test of factual causation was not established. It was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place. That is, the absence of security personnel at Adeels Palace on the night the plaintiffs were shot was not a necessary condition of their being shot. Because the absence of security personnel was not a necessary condition of the occurrence of the harm to either plaintiff, s 5D(1) was not satisfied. Did s 5D(2) apply?
[54] Section 5D(2) makes provision for what it describes as ‘an exceptional case’. But the Act does not expressly give content to the phrase ‘an exceptional case’. All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the ‘but for’ test of causation is not met. In such a case the court is commanded ‘to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party’. But beyond the statement that this is to be done ‘in accordance with established principles’, the provision offers no further guidance about how the task is to be performed. Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent ‘established principles’ countenance departure from the ‘but for’ test of causation.”
- [44]The plaintiff also relies on s 18 and 19 WH & S Act in relation to an employer’s duty of care. The plaintiff submits that whilst s 9 of the Act does not create a discrete cause of action, it may be relevant to the content of the duty of an employer to its employees.
- [45]Sections 18 and 19 WH & S Act provide, as relevant here:
“18 What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—
- (a)the likelihood of the hazard or the risk concerned occurring; and
- (b)the degree of harm that might result from the hazard or the risk; and
- (c)what the person concerned knows, or ought reasonably to know, about—
- (i)the hazard or the risk; and
- (ii)ways of eliminating or minimising the risk; and
- (d)the availability and suitability of ways to eliminate or minimise the risk; and
- (e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
19 Primary duty of care
- (1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
- (a)workers engaged, or caused to be engaged by the person; and
- (b)workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking.
- (2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
- (3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
- (a)the provision and maintenance of a work environment without risks to health and safety; and
- (b)the provision and maintenance of safe plant and structures; and
- (c)the provision and maintenance of safe systems of work; and
- (d)the safe use, handling and storage of plant, structures and substances; and
- (e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
- (f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
- (g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
…”
- [46]As noted by the plaintiff, these provisions do not create a discrete cause of action. As the High Court noted in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 at [49]:
“While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer, ‘whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden’.”
Consideration
- [47]It is clear that the defendant owed the plaintiff a duty of care. That duty was to take reasonable care to avoid exposing the employee to the unnecessary risks of injury.
- [48]The question then becomes: was there a breach of that duty? At common law, this is to be determined by reference to a balancing of factors including the magnitude of the risk, the degree of probability of the injury occurring, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have (Wyong Shire Council v Shirt (1980) 146 CLR 40). In the case of a breach by omission, the plaintiff must clearly identify what should have been done and prove that it was unreasonable in the circumstances not to do it (Vozza v Tooth & Co Ltd (1964) 112 CLR 316). This enquiry is prospective, in that it must address what response a reasonable person would have made to the risk if confronted with a foreseeable risk of injury (Vairy v Wyong Shire Council (2005) 223 CLR 422).
- [49]Section 305B WCA also affects the issue of liability and breach of duty. Section 305B(1) provides that there is no breach of duty to take precautions against the risk of injury to a worker unless the risk was foreseeable (a risk of which the employer knew or ought reasonably to have known) and the risk was not insignificant and in the circumstances, a reasonable person in the position of the employer would have taken the precautions. Section 305B(2) specifies some matters which the court must consider in deciding whether a reasonable employer would have taken precautions against the risk of injury. Whilst not an exclusive list, those matters are the probability that the injury would occur if care were not taken, the likely seriousness of the injury and the burden of taking precautions to avoid the risk of injury.
- [50]I am of the view that the risk of injury was clearly foreseeable. The risk involved in the use of hands to remove partly nailed timbers is obvious, particularly in the confined spaces of dismantling timber in a shipping container. The medical evidence (discussed below) indicates that only minimal force is required to cause an injury to the lumbar spine. That it was inappropriate to use hands in this was is clearly demonstrated in the evidence of Mr Toomey. If he had seen the practice he would have stopped it. The training system adopted perpetuated the unsafe practice. New employees were not instructed not to use their hands in the dismantling process. That no such injury occurred in the past is simply fortuitous. The risk was not insignificant and would have been easily addressed by instructing employees not to use their hands in the dismantling process and emphasising the risk of injury. That would have addressed the employer’s responsibility. It was not done. The burden of taking those precautions would not have been in any way significant. It would simply to have been to ensure that the on the job training incorporated that warning. While the risk of injury in using hands to remove a partially nailed piece of timber may be obvious, it would have been obvious also to the defendant. The widespread practice should have been warned against. I am also of the view that the likely injury to the back or lumbar spine should be classed as serious.
- [51]I am thus satisfied that there has been a breach of duty by the defendant both at common law and under the terms of the WCA. In terms of causation, I am also satisfied that if the appropriate warning had been included in the training, it would have prevented the injury suffered by the plaintiff. Although a worker may have ignored such a warning, and accepting that there is a physical danger in all manual labour, the risk of injury from such a practice is obvious, as recognised in the Amended Defence. The defendant should have guarded against it by ensuring that the training included instructions on the danger of using hands in the dismantling process. That it was an unacceptable practice and dangerous in the view of one of the directors of the defendant is plain from the evidence of Mr Toomey. If the plaintiff had ignored those warnings he then could have hardly complained.
- [52]I find the defendant was negligent in failing to instruct its employees not to use their hands in the dismantling process where timber pieces were still partially nailed together. The defendant clearly allowed the practice to continue on a daily basis. In my view, there is no issue of contributory negligence as the plaintiff was plainly following a system of work permitted to continue by the defendant. An obvious danger was ignored and a warning was necessary.
- [53]I find for the plaintiff on the issue of liability.
Quantum
- [54]The quantum of damages is also in contest. The defendant submits that the preponderance of the medical evidence has failed to establish the existence of anything other than a short-term injury.
- [55]The plaintiff’s evidence was that after the injury he was taken to the Redcliffe Hospital. He was released that night (T1-19). After his release, he continued to have back pain. The pain lasted for a few weeks. After that the pain would come and go. He had the rest of that week off work (T1-19). When he returned to work he undertook light duties for about four months. He went back on full duties after that (T1-21). He would experience back pain in his employment from too much walking or sitting (T1-22). He used painkillers after the incident. He still uses them about once a week (T1-20). There had been later incidents that aggravated his back injury on 21 November 2012, 11 December 2012 and 6 June 2014 (T1-20 – 21).
- [56]In November 2013, he went to New Zealand for what he described as a (Rugby) League Tournament but he went to a family reunion instead (T1-21).
- [57]His employment with the defendant ceased in January 2015 as a result of a downturn in business (T1-21). On 2 March 2015 he found work as a forklift driver. He did not really have problems with his back in that position. He was laid off from that employment in August 2015. He secured further work on 24 August 2015 at a Meatworks. He had problems with his back during that work. He was taking days off because of his back pain and, because of that, was laid off (T1-22). On 13 October 2015, he obtained employment as a forklift driver. He had no problems in that work. He obtained permanent full-time employment with K & S Freighters from 22 February 2016. That work entailed forklift work and unloading containers again with the dismantling of timber dunnage (T1-23).
- [58]Prior to the incident on 28 May 2012, he had played rugby league in reserve grade with the Wynnum Manly Rugby League Club. After the injury he had played contact football once in August 2016 (T1-23). That was in New Zealand and he played for 5-10 minutes. He stopped because he was unfit and starting to get pain in his lower back. He played touch football for a social side with the defendant for four or five matches in 2013 (T1-24).
- [59]He described his current back pain as a “bit sore”, “it gets a bit painful”, “it comes and goes if I’m sitting too long or walking around too long”. The pain starts in his back and goes down to his buttocks (T1-24).
- [60]In cross-examination the plaintiff agreed he was on full duties with the defendant from late 2012 to June 2014 (T1-38). He agreed he played a game of Rugby Union with a team with Mr Goodwin of Interport Cargo Services on 6 October 2013. He played for about 15-20 minutes (T1-39). He disagreed with the suggestion that he had played most of the match. He made no complaint of back problems after playing the match. He had also played in a Rugby League match in August 2016 in New Zealand. Mr Goodwin gave evidence that the Rugby Union match was played on 13 October 2013. The plaintiff played in the second row and outside centre. The plaintiff played more than half the game. It was a full contact game and it was a very vigorous game (T2-73).
- [61]The plaintiff was cross-examined about his employment with K & S Freighters. The plaintiff had to undergo a medical assessment before becoming a full-time employee (T1-42). He was asked whether he was assessed by Dr Elizabeth Smart. The plaintiff thought it was a male doctor. He told the doctor he had suffered a previous back injury (T1-43). Tests were administered to assess his back and he passed those tests. He was found fit to do the job on a permanent basis. He was still in that employment on a wage substantially higher than what he was receiving at the defendant company (T1-43). The work involved was similar to that that he was undertaking for the defendant (T1-45). His evidence was that he was not coping with the employment, but could not tell his employers.
The medical evidence
- [62]There is despute in the medical evidence as to the extent and classification of the plaintiff’s injury.
- [63]Dr S. F. Campbell, Neurosurgeon, was called by the plaintiff. Dr Campbell agreed with the opinion in a report of 12 August 2014 concerning an MRI scan, that the plaintiff had early discogenic degenerative changes in his lumbar spine (T2-3). In his reports, Dr Campbell described these as “minor disc bulges” (Exhibit 1). Dr Campbell was of the view that this was a normal finding for someone of the plaintiff’s age (T2-3). He was of the view that with that condition, one could not accurately forecast whether back pain would occur in the future. There was nothing in the MRI scan that would allow Dr Campbell to conclude that the plaintiff would not be able to work as a labourer until retirement age (T2-3).
- [64]Dr Campbell examined the plaintiff on two occasions, 12 March 2015 and 22 April 2016. On 12 March 2015, examination of the lumbar spine revealed a full range of movement, although there was pain at the extremity of movements. There was pain with straightening from the flexed position. Dr Campbell was of the opinion that the plaintiff, as a result of the incident of 28 May 2012, suffered a musculoskeletal injury of the lumbar spine (Exhibit 1). The plaintiff suffered a 2% Whole Person Impairment as a result of that injury, in accordance with Chapter 18 of the Medical Guides. The examination of 22 April revealed a full-range of movements, although there was pain at the extremity of flexion and extension. There was tenderness and guarding over the lumbar paraspinal muscles bilaterally. The lower limb power, reflexes and sensation were normal. Dr Campbell’s diagnoses was again musculoskeletal injury of the lumbar spine, as a result, in part, of the 28 May 2012 incident (Exhibit 1). He was also of the view that over three years since the onset of the symptoms, the plaintiff’s condition had stabilised and further recovery in the future was unlikely. Dr Campbell noted the plaintiff’s current employment with the comment that the plaintiff tolerates the increased pain that occurs through the course of a busy shift. The position was basically unchanged since the review on 12 March 2015. The doctor’s opinion was again that the plaintiff had suffered a 2% Whole Person Impairment as a result of the incident. Dr Campbell considered the plaintiff’s prospects of returning to work as a container loader were guarded or poor (Report 12 March 2015; Exhibit 1).
- [65]In reaching that opinion, Dr Campbell gave evidence that the plaintiff could not be classed as falling within the DRE 2 category, under the Medical Guides (AMA Guides; 5th Edition; Exhibit 15) and, under a DRE 1 category, he would be held to have a 0% Whole Person Impairment (T2-4 – 5). The doctor relied on an assessment under Chapter 18 of the Guides (Exhibit 16) to reach his conclusion of a 2% Whole Person Impairment (T2-5). Dr Campbell’s evidence was that he disagreed with the opinion of Dr Steadman (below) that the injury was an aggravation of the degenerative condition (T2-6). There had been no gradual onset of symptoms, but a sudden onset of lower back pain whilst performing a physical task at work. It was either a tear or an inflammatory response within the lumbar spine (T2-6).
- [66]In cross-examination, Dr Campbell’s evidence was that the plaintiff had made no mention to him of playing a Rugby Union match in October 2013 (T2-7). Dr Campbell was of the view that a person could play touch football with a bad back in the case where this was a minor back injury (T2-8). He conceded that the history of football matches would not be consistent with what the plaintiff had told him of being unable to play with his two-year-old son (T2-9). He had not been told of the football matches.
- [67]The scans Dr Campbell reviewed were consistent with degenerative change only and not any acute disc injury (T2-12).
- [68]Dr Campbell’s evidence was that if the force involved (in pulling on the attached piece of wood) had been light or minor, it was less likely to cause the injury, but not impossible (T2-12). He agreed that a person with underlying spinal degeneration can suffer episodes of pain from things like sneezing “or doing up shoe laces or crossing the road” (T2-12). The injury was still related to the physical act although, if it involved light force, it could have happened at any time (T2-13).
- [69]Dr Campbell was cross-examined about his use of Chapter 18 of the Medical Guides, where a person fell in the DRE 1 category. Dr Campbell’s view was that it was not clear in the guides whether you could resort to Chapter 18, and his interpretation was that if something could not be adequately assessed using the DRE 1 or 2 categories, then it was reasonable to use Chapter 18 (T2-13). It was clear that the plaintiff was suffering ongoing pain from an injury and thus a permanent impairment was present, if it interfered with his day-to-day activities (T2-7).
- [70]Dr Campbell was thus of the opinion that the plaintiff suffered a musculoskeletal injury of the lumbar spine caused by the incident of 28 May 2012. His opinion was that there was a 2% Whole Person Impairment as a result of that injury.
- [71]Associate Professor P. B. Steadman, Orthopaedic Surgeon, gave evidence on behalf of the defendant. Professor Steadman provided a report dated 2 June 2015. He had examined the plaintiff on 13 May 2015. His examination of the MRI (taken 12 August 2014) showed desiccated discs at L3/4, L4/5 and L5/S1 with bulges or minor central protrusions at L4/5 and L5/S1. Professor Steadman was of the opinion that the plaintiff suffered degenerative back disease and had suffered a couple of minor injuries, one of which occurred on 28 May 2012. His examination was that the plaintiff’s back “would represent an aggravation of degenerative disorder, with no significant ongoing result of the work injury.” The plaintiff did not suffer from an impairment. No further pathological changes were caused by his work in 2012. Permanent impairment would be nil as a result of the injury. He was in the DRE category 1, with a Whole Person Impairment of 0%. He based this opinion on his own physical examination of the plaintiff.
- [72]Professor Steadman provided a second report dated 23 June 2016 (Exhibit 2). He had again examined the plaintiff on 13 June 2016. The plaintiff was noted to still have a sore back. He noted with respect to Dr Campbell’s assessment of the Whole Person Impairment that AMA 5 did not allow the application of Chapter 18 to a DRE Group 1 patient. Professor Steadman remained of the opinion that the back pain was due to degenerative disease and that the workplace incidents did not continue to “carry any significant weight going forward.” The condition, as a result of a single incident, would have resolved within 6-12 weeks.
- [73]With respect to the plaintiff’s evidence that he used minor force, Professor Steadman’s opinion was that if there was substantial pre-existing pathology, a minor mechanism may aggravate the pre-existing disease (T1-49). In the longer term, the ongoing problem (the pain) reflected the underlying pre-existing disorder.
- [74]Under cross-examination, Professor Steadman accepted that the plaintiff had injured himself, but disagreed that the long-term problem and symptoms were related to the incident of 28 May 2012 (T1-58). The incident made the degenerative condition symptomatic. Professor Steadman could not give an estimate date as to when the plaintiff would have become symptomatic as a result of the pathology present on the radiology (T1-59).
- [75]With respect to the DRE 1 category from the Medical Guides and a 0 percentage impairment, that did not mean that the person examined had no pain (T1-62). A permanent impairment assessment was a physical assessment. Impairment was a physical process, disability was a functional process. Professor Steadman again reiterated that it was quite clear that DRE category 1 cannot access an assessment under Chapter 18 (T1-63).
- [76]Professor Steadman’s view was that an injury of some kind was sustained on 28 May 2012, but it was unlikely in the longer term that the cause of the pain was related to that injury but that it was related to the pre-existing pathology (T1-67). The plaintiff became symptomatic as a result of the injury (Exhibit 2, p 7, Report of 23 June 2016).
- [77]Dr C. Cunneen, Occupational and Environmental Physician, gave evidence on behalf of the defendant. Dr Cunneen provided a report dated 12 December 2014 in relation to the 28 May 2012 incident (Exhibit 17). Dr Cunneen examined the plaintiff on 2 December 2014. The plaintiff reported he had central low back pain which was not constant. Dr Cunneen’s diagnosis was that the plaintiff suffered musculo-ligamentous strain lumbar spine, which was work related, and pre-existing degenerative lumbar spondylosis which was not work-related. The musculo-ligamentous strain lumbar spine was stable and stationary. There was a 0 percentage of Whole Person Impairment. Dr Cunneen noted however, that the plaintiff suffered from the pre-existing lumbar spondylosis which was constitutional in nature and unrelated to his employment. That constitutional condition would impact significantly upon his future capacity for work.
- [78]Dr Cunneen assessed the level of force that was associated with the incident as “relatively minor, but enough to cause him symptoms” (T2-23). The plaintiff’s explanation was that he bent over to pick up chocks from the ground (T2-24).
- [79]The plaintiff had not mentioned to Dr Cunneen playing the game of Rugby Union, or the touch football games (T2-23).
- [80]In cross-examination, Dr Cunneen reiterated his opinion that the plaintiff’s current symptoms were due to his pre-existing degenerative lumbar spine changes (T2-26). The pain the plaintiff had when examined was not due to the 2012 injury, which had resolved.
- [81]Dr E. J. Samoilenko, Occupational Health Doctor, gave evidence for the defendant. She conducted a health assessment of the plaintiff in relation to fitness for work for the plaintiff’s current employer, K & S Freighters. She provided a report under the name Dr E. Smart (Exhibit 2, T2-32). The assessment took place on 16 February 2016. The plaintiff was found to be fit for work as a store person/forklift operator.
- [82]The examination included an assessment of the cervical spine and back movement. Dr Samoilenko was taken to the report she had prepared. The plaintiff had disclosed a lower back disc protrusion in 2012. Her notes indicated the plaintiff had been treated with physiotherapy and had “full function, full duties” (Report, p 4). She had then tested his back movement in all directions (T2-34). She assessed all the movements as normal (Report, p 7; T2-34). She noted “full range of movement, lumbar spine nil pain”. In cross-examination she indicated that her practice also included treating spinal injuries in relation to Workplace Health Management. Such treatment was with a physiotherapist (T2-35).
Consideration
- [83]The plaintiff submits that the evidence of Dr Campbell should be accepted and that I would reject the evidence of Professor Steadman and Dr Cunneen and place little weight on the evidence of Dr Samoilenko because she was not a specialist and not working as a General Practitioner. The plaintiff submits that I should accept the evidence of Dr Campbell, that the ongoing pain suffered by the plaintiff is a result of the incident of 28 May 2012 and that recourse could be had to Chapter 18 of the Medical Guides to assess a Whole Person Impairment.
- [84]The defendant submits that the preponderance of the medical evidence is of the plaintiff having a DRE category 1 injury assessable as 0 percentage permanent impairment. Any injury associated with the event in question had resolved prior to the plaintiff leaving the defendant’s employment. Any ongoing symptoms of back pain were attributable to the pre-existing degenerative condition of the spine.
- [85]I have difficulty accepting the evidence of Dr Campbell. It is plain from all the medical evidence that the plaintiff had a pre-existing degenerative condition of his lumbar spine, even if, as in Dr Campbell’s opinion, this was age related and not unusual. It is also clear that the condition was asymptomatic prior to the incident of 28 May 2012. The preponderance of the medical opinion from Dr Steadman and Dr Cunneen is that the ongoing pain suffered by the plaintiff is as a result of the degenerative process and not caused by the incident. I note, in that regard, the evidence of Professor Steadman that it could not be estimated when the degeneration would have manifested in pain but that it would have occurred at some time.
- [86]I am of the view that Dr Campbell’s opinion was also based on information disclosed to him by the plaintiff, which was not the complete picture. He was told by the plaintiff that the plaintiff had difficulty playing with his infant son, but was not told of the plaintiff playing a rugby match and some touch football games. Dr Campbell also conceded that if minor force had been used by the plaintiff in the incident, it was less-likely to cause the injury but that that was not impossible. With a degenerative back condition, such an injury could have happened at any time (T2-13). By these findings I do not suggest that the plaintiff was dishonest. As noted above, I found him a poor historian. However this does impact on the assessment of Dr Campbell’s opinion.
- [87]There is also the difficulty raised by Dr Campbell’s recourse to Chapter 18 of the Medical Guides to determine a Whole of Person Injury. In Professor Steadman’s view, that was inappropriate in relation to a lumbar spinal injury. The classification of the plaintiff as falling within the DRE category 1 (as agreed by both Dr Campbell and Professor Steadman) meant that there was 0% Whole Person Injury.
- [88]I am of the view that it is unnecessary to resolve the conflict between the doctors about the recourse to Chapter 18 because of the later history of the plaintiff. After some time on light duties, he returned to full duties with the defendant, doing the exact same work for a substantial period of time. He clearly felt able, at some stages, to play a game of full-contact Rugby Union and a number of games of touch football. He passed a fitness test for his new employers which specifically involved his back. He had, of course, disclosed that injury. He is currently employed, from the start of 2016, doing the same type of work, unloading shipping containers as he did with the defendant. In that regard, I accept that Dr Samoilenko performed appropriate tests in assessing the plaintiff’s fitness to work. Those assessments of back injuries and ability were part of her daily workload and she clearly possessed medical qualifications, even if she was not then working as a General Practitioner.
- [89]I accept the evidence of Professor Steadman and Dr Cunneen. In that regard, it is clear that a light amount of force, as described by the plaintiff, caused the aggravation of a pre-existing degenerative condition. The description of the light use of force supports that this was an aggravation of a pre-existing condition and not the cause of his ongoing pain and back problems. In that regard, I reject Dr Campbell’s assessment of a Whole Person Injury as a result of the incident. I accept Professor Steadman and Dr Cunneen’s view that the ongoing problems are the result of a degenerative condition. In my view, if the defendant bears a persuasive onus in proving that the ongoing symptoms are a result of another condition, the defendant has discharged that onus with the medical evidence I have accepted coupled with the history of the plaintiff since the incident.
- [90]Those findings obviously have an impact on the assessment of damages.
Damages
General damages
- [91]General damages are to be assessed pursuant to Schedule 9, Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) (“WCRR”). The plaintiff submits that he falls within Item 92, “Moderate Thoracic or Lumbar Spine Injury – Soft Tissue Injury” at an injury scale value (“ISV”) of 7. Such a classification requires that the injury will cause moderate permanent impairment, for which there is objective evidence, of the thoracic or lumbar spine. My findings prelude a finding of permanent impairment. The injury therefore falls under Item 93, a minor lumbar spine injury. The defendant submits that the appropriate ISV assessment is 1. The preponderance of the evidence from the plaintiff is that the pain lasted for a few weeks and then would come and go. He was on light duties for about 4 months. He continued to use pain killers after that. In those circumstances, I am prepared to find that the injury should be assessed as 4 on the ISV range. Pursuant to Schedule 12, Table 2, the resulting calculation of general damages is $4, 840. There is no allowance for interest on general damages (s 306N WCRA).
Past special damages
- [92]The plaintiff claims past special damages in relation to a WorkCover repayment ($6,303.51), Medicare refunds ($254.20) and painkiller medication at $3.50 per week. Considering the evidence, I am prepared to allow an 8 month period in relation to the use of the painkillers as a result of the incident. That amount is $112. The Medicare refunds should be restricted to the two that occurred before December 2012 ($71.20). The amount awarded for past special damages is $6,486.71.
Interest on special damages
- [93]The plaintiff claims interest on the past monetary loss (pursuant to s 306N WCRA) calculated at a rate of 0.98%. Using 0.98% interest on the total of $112 that I have allowed in relation to the eight months in 2012 and using a rate of 1.96% for the 50 months to the present, the amount of interest is $9.88.
Future special damages
- [94]The plaintiff claims future special damages in relation to his future use of painkillers. As I have found that his ongoing pain is a result of the degenerative changes, I am of the view that there should be no award under this head of damages.
Past economic loss
- [95]There is no claim for past economic loss.
Future economic loss
- [96]My finding is that future work restrictions as a result of his back condition are a result of the pre-existing degenerative condition of his lumbar spine. Whilst there may be restrictions on his future working capacity because of his back condition, that is not the result of the workplace injury. Indeed in his current position, which involves similar tasks as that required by the defendant, he receives a substantially higher wage. In view of my findings, there is no future economic loss. There is also no future loss of superannuation entitlements.
Damages
- [97]Thus the assessment of damages is:
General damages: $4, 840
Past special damages: $6, 486.71
Interest on past special damages: $9.88
Sub-total: $11, 336.59
Less WorkCover refund: $6, 303.51
Total: $5, 033.08
- [98]I give judgment for the plaintiff against the defendant and order that the plaintiff be paid $5, 033.08.
- [99]I will hear the parties as to costs.