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Cosic v G James Safety Glass (Qld) Pty Ltd QDC 170
DISTRICT COURT OF QUEENSLAND
Cosic v G James Safety Glass (Qld) Pty Ltd  QDC 170
G JAMES SAFETY GLASS (QLD) PTY LTD
20 September 2019
14, 15, 16, 17, 20, 21 May and 5 June 2019
Judgment for the plaintiff in the sum of $469,931.45
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff claims damages for injuries suffered in the course of employment with the defendant – where both liability and quantum of damages are in contention
TORTS – NEGLIGENCE – BREACH OF DUTY – where the plaintiff was operating a lifter and attempting to unload a glass pane on a production line and sustained an injury to his lower back – whether the risk of injury was foreseeable and not insignificant – where it was the plaintiff’s case that he was not trained to operate the lifter and was pulling the lifter laterally across his body – where the defendant’s case is that the plaintiff was not injured when operating the lifter in the manner alleged and that he was trained – whether unknown to the defendant the plaintiff was vulnerable to a lumbar spine injury on account of pre-existing degeneration and/or a rheumatology condition – where the defendant did not have a record of previous similar incidents
TORTS – NEGLIGENCE – CAUSATION – where the plaintiff experienced symptoms consistent with the lumbar injury after he felt the twinge in his back when operating the lifter – whether the forces involved in operating the lifter were sufficient to cause the lumbar spine injury
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR AN ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL DAMAGES – where the parties are agreed as to moderate lumbar spine injury – where in the range the assessment should be
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR AN ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – PAST ECONOMIC LOSS – where the plaintiff was a valued employee and wanted to keep working – where there was medical evidence predicting that the plaintiff would have had symptoms arising from his psoriatic arthritis and/or pre-existing degeneration likely to be responsible for curtailment of the plaintiff’s ability to work beyond aged 60 – whether the medical evidence can be taken as likely that the plaintiff would have had symptoms sufficient to prevent him working by this time – whether the calculation of past economic loss should be further discounted to allow for various contingencies
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR AN ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – FUTURE ECONOMIC LOSS – where the plaintiff has no residual earning capacity – where a claim is made assuming full time employment until the age of 70 – whether the plaintiff would have remained in full time employment with the defendant until this time
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305D, s 305E, s 306N
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) sch 9, sch 12
Uniform Civil Procedure Rules 1999, r 380
J McClymont for the plaintiff
W P D Campbell for the defendant
Shine Lawyers for the plaintiff
Jensen McConaghy for the defendant
Table of Contents
Plaintiff’s work with the defendant
Double glaze line
Duty of care and breach
Foreseeable and not insignificant risk of injury
System of work
Conclusion re breach of duty
Plaintiff’s medical history
Past economic loss
Interest on past economic loss
Fox v Wood
Past loss of superannuation
Future economic loss
Future loss of superannuation
Interest on out of pocket expenses
Future out of pocket expenses
|Summary of damages award||53|
- The defendant is a producer of glass and aluminium based products. The plaintiff was employed by the defendant as an assembler. He claims he injured his lower back in the course of his work duties in January 2014. At the time he was operating a vacuum lifter that was being used to transfer a glass pane from a trolley to a production line.
- In October 2016, the plaintiff commenced this proceeding against the defendant for damages and other orders.
- In May and June this year, this matter was heard before me over seven days. Both liability and quantum are in dispute. At the commencement of the trial, the plaintiff sought and was granted leave to file a further amended statement of claim pursuant to r 380 of the Uniform Civil Procedure Rules 1999 (Qld). A further amended defence and a further amended reply were also filed. Fourteen witnesses gave evidence, of which seven were lay witnesses, five were medical practitioners and two were engineers. There were 55 exhibits tendered. The plaintiff is Serbian and gave his evidence with the assistance of two different interpreters. The parties have provided detailed written and oral submissions.
- The plaintiff’s claim is that on or about 21 January 2014, he was instructed to use an Armatec Vacuum Lifter (‘the lifter’) to move large panes of glass from a trolley to the production line (‘the double glaze line’). The panes were of varying dimensions. It is pleaded that at least one pane was approximately 8mm thick, 1920mm high and 2502mm long. It is further pleaded that the panes weighed about 50 kilograms, although some of them weighed up to approximately 96 kilograms.
- It is alleged that the plaintiff was positioning the panes in preparation for the first job of the day to commence. He was required to move them quickly to maintain a constant supply of glass to the double glaze line. Multiple panes were to be placed on it with approximately 50 millimetres between them. The plaintiff had placed the first pane on the double glaze line and was attempting to place the second pane on it and next to the first pane. This required him to push and pull the lifter laterally across his body when he was standing close to the support post for the lifter. While doing this, he suffered an injury to his lumbar spine.
- In response to the plaintiff’s pleaded claim as to how the subject incident occurred, the defendant:
- (i)admits the plaintiff was:
- (a)instructed to use the lifter to move panes of varying dimensions from trolleys to the double glaze line;
- (b)required to position multiple panes of glass on the double glaze line;
- (ii)does not admit:
- (a)one of the panes of glass was approximately 8mm thick, 1920mm high and 2502mm long;
- (b)each of the panes being moved weighed approximately 50 kilograms;
- (a)some of the panes weighed approximately 96 kilograms;
- (b)the plaintiff moved some panes that were 8mm thick, 1920mm high and 2502mm long;
- (c)the plaintiff was required to move the panes quickly;
- (d)the panes had to be positioned on the double glaze line 50 millimetres apart;
- (e)the plaintiff injured his lumbar spine while positioned close to the support post and while pushing, pulling and rotating the lifer to move it towards the double glaze line to place it next to a pane that was already there;
- (iv)further says, it was not necessary for the lifter to be positioned close to the support post in order to place the pane on the double glaze line.
- The plaintiff’s case on liability as argued, is that the defendant breached the duty of care owed to him as their employee by failing to assess the risk associated with operating the lifter, to implement a proper system of work and to train the plaintiff in relation to it. The pleaded case included an alleged failure to make modifications to the lifter. That aspect of the case was not pursued by the plaintiff at trial or in submissions.
- The defendant’s case is that it had assessed the risk, implemented a system of work and trained the plaintiff as to the correct method to be used when operating the lifter. This method is demonstrated in the video footage taken at the time Dr Grigg inspected the workplace in May 2018 (the video footage’). The defendant further contends that the injury the plaintiff sustained was insignificant and not foreseeable in circumstances where it was not known that the plaintiff was vulnerable to sustaining an injury to his lumbar spine on account of pre-existing degeneration and psoriatic arthritis. The defendant also points to the lack of any documented incidents of injuries being sustained by other workers in similar circumstances.
Plaintiff’s work with the defendant
- The plaintiff commenced full time employment with the defendant in March 2008. He had applied for the job as his father had worked in the glass industry. Approximately three years earlier he had emigrated from Bosnia and had limited English. His wife had acted as an interpreter for him at the job interview.
- The defendant operated its Queensland business operations from three sheds at Narangba and three sheds at Eagle Farm in Brisbane. It also produced glass in New South Wales and Victoria. One of the three sheds at Eagle Farm, known as Shed 22, was dedicated to double glazing and glass coating. There was an annex to the shed which was used to construct wooden cases. It was in this shed that the subject incident occurred. The other sheds housed other production lines for other parts of the defendant’s manufacturing process.
- A variety of vacuum lifters were used by the defendant to move panes around its production lines and to other parts of the manufacturing process. There were 162 of these lifters throughout Australia, some of which were permanently fixed to posts and others which could be temporarily affixed to lifting equipment. Of the 162 lifters, 80 of these were at the defendant’s Eagle Farm premises and of these, four were in Shed 22. It is one of these lifters that the plaintiff was operating at the time he was injured. This is discussed in further detail below.
- While the defendant’s records describe the plaintiff as having been employed as an assembler, he performed a variety of manual and unskilled tasks. These included unloading glass at the end of a cutting line, loading and unloading trucks, sorting glass and packing glass for transportation. After some time, he also started operating the lifter on an ad hoc basis.
- The plaintiff would generally work weekdays from 6am until 2pm. There would be occasions when he would work overtime. He would usually work under the instruction of a supervisor. This person would vary depending on the task he was required to perform.
Double glaze line
- The double glaze line was in Shed 22 and was known as IGU line 1. There was another similar production line known as IGU Line 2. This was a back-up line to the double glaze line. Single and multiple units would be processed along these lines.
- An order by a customer for panes to be processed on the double glaze line would be recorded on a customer order that was entered electronically. Job sheets would then be generated recording the number and dimensions of the panes to be processed for each shift. The job sheets each had barcodes.
- The loading area of the double glaze line is depicted in exhibits 29 and 30. There are three grey panels with rollers at the base of them. There is a black felt panel next to the far right grey panel. It too has rollers at the base of it. Exhibit 30 shows a yellow cage in front of the right hand end of the black panel. This housed the edge deletion machine. On top of the rollers at the base of the black felt panel was an optical sensor. For a pane to go to the edge deletion machine, it would need to be loaded so at least part of it would be resting so as to activate the sensor. At the other end of the loading area, the washer can be seen. This washed the panes before they proceeded further down the double glaze line.
- The panes, whether they be single or in multiple, would vary in shape and would include square and rectangular panes. Others were triangular or had radius corners. The panes would also vary in size and could be as small as 400 millimetres by 400 millimetres and as large as four metres by two and half metres. The double glaze panels would consist of two panes. One would have had a coating applied to enhance the insulation properties of it and the other pane would not.
- While all panes would go through the washer, it was only the coated panes that were put through the edge deletion machine. It would remove some of the coating at the edges of the coated panes. This would then enable an aluminium frame to be applied to it. The process of edge deletion for the coated panes would happen before those panes were washed. This meant that coated panes would be loaded onto the double glaze line and be sent right to the edge deletion machine, before being sent left to the washer and then downstream to a further four stations. The time taken for the edge deletion process would vary depending on the size of a pane but would take no longer than a minute. The washing process for a pane would take a similar amount of time.
- The closest downstream station to the washer was the inspection station. A worker was routinely positioned at this station to visually inspect each pane of glass that had come out of the washer. If the pane passed the inspection it would have a sticker placed on it with a barcode. The next station down the line was the spacer placement station. Whether a worker was positioned at this station would depend on the size of the spacer being placed and or the shape of the pane which was having the spacer applied. The next station was the IGU press station. This is where the panes for double, triple, or quad glazed panels would be pressed together. There was a computer scanner at this station and a worker would scan the barcode from the job sheets to ensure that the pane coming down the double glaze line matched the job order. The final station was the silicon station. A worker was positioned at this station to unload the panes or panels from the double glaze line.
- At the commencement of each day all the machines and/or other equipment along the double glaze line would be started up. This process would usually commence at the silicon station and then progressively move upstream to each station.
- The equipment being used by the operator in the loading area of the double glaze line in exhibits 29 and 30 is the lifter. It was used to transport and manipulate large glass panes from the trolleys to the double glaze line. Only the larger panes required the use of the lifter. It was mounted on a yellow slewing jib crane which was attached by a hinge to the yellow post directly behind the grey panel furthest to the right (‘the yellow post’). The mass of the lifter and the crane jib are not known. Mr McDougall estimated them to be at least 100 kilograms. The top end of the vertical cylinder supporting the lifter was attached to a trolley that ran on tracks in the horizontal lower members of the crane.
- Prior to approximately 2009, the crane had been attached to the thinner structural grey steel pole with a yellow marking around it, seen in the upper left corner in exhibit 29. The repositioning to the yellow post meant that the attachment point of the crane was moved approximately 1.1 metre closer to the loading area of the double glaze line. It is admitted by the defendant that the lateral force to move the lifter was greatest when the lifter was positioned closer to the yellow post.
- The lifter had a suction frame which had six suction pads, two in the middle and four on the outside. These could all work independently from each other. The number of suction pads used depended on the size of the pane to be moved.
- The operator of the lifter needed to manually apply force to rotate the jib of the crane about its articulation point at the yellow post. The operator would also need to manually apply force to move the lifter radially in and out along the jib.
- When a pane was to be loaded from a trolley onto the lifter, it would be suctioned by a partial vacuum in the suction pads and held in position. Once the lifter was attached to the pane, the worker would operate the lifter to lift the pane and ensure that only one pane was attached. The lifter could be turned, tilted, rotated or inclined. While using the lifter, the operator would hold the handles with both hands and in an outreached position.
- The lifter would transport the pane to the double glaze line. If the pane was to be washed, it would be placed on the rollers at the base of the two grey panels to the left. They were activated by pushing a pedal that would move the pane left towards the washer. The speed of the rollers was variable.
- If a coated pane was to have its edges deleted it would be placed on the rollers at the base of the far right grey panel and on at least some of the rollers and the sensor at the base of the black panel. These rollers were also activated by a pedal and were operated independently to the rollers used to transport panes to the washer. They could move in either direction depending on whether the pane was going to or from the edge deletion machine.
- As to the staffing arrangements, David Waldock had been the defendant’s Queensland workplace health and safety co-ordinator since January 2006. Bruce Moy was the chief engineer. Michaela Robbins was the supervisor of Shed 22 and Jason Hill was the leading hand. He had worked for the defendant from about 1994 to 2009 and he recommenced working with the company in 2013. Chris Hansen also worked for the defendant. While he was not formally described as a supervisor, from approximately 2007 he was required to supervise other workers on the double glaze line. In the further amended defence it is admitted that on occasions Mr Hansen acted as the plaintiff’s supervisor on the double glaze line. Mr Hansen would also operate the lifter. Kyle Winters occupied the same position as Mr Hansen. He did not give evidence.
- It would usually be Ms Robbins or Mr Hill who would assign workers to particular tasks in Shed 22. If those tasks involved the double glaze line, Mr Hansen or Mr Winters would supervise the workers for those tasks. The only evidence from lifter operators was that of the plaintiff and Mr Hansen.
- It is unsurprising that the witnesses who gave evidence did not have perfect recollections of each of the matters about which they testified. In some instances witnesses were attempting to recall details of events and conversations that occurred more than five years earlier.
- I am cognisant of the need to exercise caution in drawing conclusions about the credibility of a witness substantially from their demeanour in the witness box. It is but one of the considerations. The others are the inherent consistency of their account, the consistency of their account with other witnesses and undisputed facts, and the inherent probabilities of the evidence in question.
- The critical issue in this trial is whether the plaintiff was an honest and reliable witness. He bears the onus of proof to satisfy the court on the balance of probabilities that his version of the incident should be accepted.
- Counsel for the defendant urges upon me a finding that neither the plaintiff nor Mr Hansen were credible witnesses.
- As to the plaintiff’s credibility, the defendant’s contention is summarised by its counsel in oral submissions in the following way:
“The defendant doesn’t dispute that the plaintiff is a fundamentally decent working person, and that he was a valued employee of the defendant. The great difficulty is, he’s been dragged in here, perhaps unwittingly, into a common law “no win no fee” case. Where, in order to construct a case which might entitle him to damages, he’s effectively been encouraged to reconstruct a version of events that quite simply never occurred.”
- Further, a significant issue in this case is whether the plaintiff was trained to use the lifter. The plaintiff said he was not. The defendant submits that this is a deliberate fabrication by the plaintiff to improve his prospects of success in this case.
- As to Mr Hansen, the defendant would have the court believe that he has an ‘axe to grind’ and has given intentionally false evidence to support the plaintiff.
- I reject each of the defendant’s submissions in this regard for the reasons detailed immediately below. Otherwise, where appropriate, I have indicated later in these reasons the extent to which I have accepted or rejected the evidence of particular witnesses.
- It is submitted by the defendant that the reconstruction on the part of the plaintiff probably commenced at the time Mr McDougall, mechanical engineer inspected the workplace on 2 May 2017. This was the time when it is alleged that the plaintiff realised that he had gaps to fill if his claim was to succeed. According to the defendant, from this time the plaintiff set about inventing additional pieces of evidence to fill these gaps. It is said that this process of reconstruction continued after Mr McDougall inspected the workplace.
- There are several observations to be made about this. First, the defendant relies on the evidence of Mr McDougall to the effect that the plaintiff would not have a case unless he had been moving quickly when operating the lifter at the time of the subject incident. It says that the plaintiff has effectively ‘latched on’ to Mr McDougall’s view in this regard and has moulded his case accordingly. I am in no way persuaded by this. Mr McDougall only met the plaintiff on the one occasion. There is no evidence that Mr McDougall’s view in this regard was ever conveyed to the plaintiff.
- Second, this submission assumes levels of sophistication and calculation on the part of the plaintiff, both of which are inconsistent with my impression of him. He did not present as someone who was likely to falsify his account of the incident for personal gain.
- Third, the defendant points to the fact that prior to 2016 there are references in four separate documents to the plaintiff twisting to the left when he initially felt pain in his lower back. This is in circumstances where the plaintiff’s case is that he was twisting to the right at the relevant time. These references appear in the record of the plaintiff’s consultation with Dr Osborne, general practitioner on 28 January 2015; the file note of an employee of the plaintiff’s solicitors dated 19 February 2015; the notice of claim for damages; and the letter of instruction from the plaintiff’s solicitors to Dr Campbell.
- I accept these references exist. However, a close analysis of the circumstances in which they came to be recorded does not support the defendant’s reconstruction argument. There are a number of reasons for this. None of the versions of the incident in any of these four documents were written or otherwise recorded by the plaintiff. They were also not provided to the respective authors by the plaintiff directly. His wife, Mirjana Tabak interpreted for him on each occasion. While she had a much better grasp of the English language when compared to the plaintiff, it is also not her first language. As Ms Tabak explained in evidence, she would not interpret exactly what the plaintiff told her. Rather, she would explain it in a way that she thought could be more easily understood from the information that had been conveyed to her by the plaintiff. She said that it was not until she attended the workplace in May 2017, when Mr McDougall carried out his inspection, that she saw the double glaze line and gained a better understanding as to what the plaintiff had relayed to her. Prior to this time, she had found it difficult to visualise and otherwise understand what the plaintiff had been telling her. Against this background it is likely that many of the defendant’s criticisms of the versions provided by the plaintiff are explicable by the language barrier resulting in relevant facts getting ‘lost in translation’.
- The only one of the four documents the plaintiff signed is the notice of claim, which is some 14 pages. He could not and did not read it. He accepted that his wife would have read it to him. He did not read or have read to him the contents of any of the other three documents. He thought he signed the notice of claim in the presence of his wife and the solicitor.
- It is instructive that the notice of claim contains other inaccuracies which suggest that the author of it, the plaintiff’s wife or indeed both of them did not fully appreciate what was being explained to them by the plaintiff. For example, the double glaze line is described as a ‘track’ which was simply used to transport the panes to the ‘packaging area’. Further, the lifter is described as a lifting bar when it had two handles. The author of this document was Ms Meakins.
- The letter of instruction to Dr Campbell contains the same inaccuracies. It is dated two days after the date the notice of claim was signed. It is readily apparent from the contents of it, that it was taken from the notice of claim.
- Dr Osborne’s notes also contain another inaccuracy. They record not only the plaintiff having twisted to the left but also having felt a twinge of pain to his left lower back. This is clearly a mistake because all the objective evidence is that the injury was to the plaintiff’s right lower back. For example, during this very consultation Dr Osborne provided the plaintiff with a referral for a MRI scan which detailed a clinical history of signs and symptoms of a right sided L5/S1 disc prolapse. The plaintiff ultimately underwent surgery for a right sided disc protrusion. Ms Tabak said that the plaintiff had told her that the pain was in his lower back and right leg.
- The plaintiff was extensively cross-examined about these references to having twisted to the left. He explained that while he was turning to the right when he felt the twinge, that shortly prior to this, he had turned left towards the double glaze line. In oral evidence, the plaintiff consistently maintained that when he first felt pain in his lower back, he was twisting towards the right. I accept the plaintiff’s evidence in this regard.
- The defendant asserts further support for its submission that the plaintiff has reconstructed the subject incident can be found in the additional detail the plaintiff provided about it at Mr McDougall’s May 2017 workplace inspection and subsequent to this. Examples of the additional detail include the positioning of the trolleys, that the plaintiff was working quickly and that he was unloading the pane to the right of the yellow post. It is true that these details do not appear in the incident report completed by Mr Waldock on 22 January 2014, Dr Osborne’s record of 28 January 2014 and the versions documented by the employees of the lawyers for the plaintiff.
- As to the incident report, this was completed by Mr Waldock as the defendant’s workplace health and safety co-ordinator. It was he who was ‘investigating’ the incident to ensure measures were taken to prevent a similar incident in the future. In these circumstances it is somewhat surprising that he did not elicit from the plaintiff the sorts of details which the defendant now complains are missing in that report. This is certainly not something that should be held against the plaintiff now.
- In relation to Dr Osborne’s entry of 28 January 2014, the level of detail recorded is that which would be expected with such an entry. Medical records have their limitations in the context of litigation. They are generally short and made for the purpose of dealing with the presenting problem and recording the future plan for the management of the presenting problem. Their purpose is not to provide comprehensive information of the circumstances surrounding an incident for a forensic analysis for examination later by a court.
- The various versions recorded by the lawyers are dependent on the questions asked and the plaintiff’s limited understanding of what information was relevant to give. The plaintiff is not a sophisticated man and communications with him have been hampered by his limited English. Further, the different persons who took the various versions may well not have appreciated the significance of the various details now relied on by the defendant and so have had the plaintiff address what has proved to be some significant matters from the defendant’s perspective. In my view nothing turns on this.
- It is accepted that the first occasion the plaintiff mentioned the pace at which he was working was in response to a direct question from Mr McDougall at the workplace in May 2017. Once again, in my view nothing turns on this. It would seem most unlikely that the plaintiff had any understanding of its relevance to the injury he sustained. It has become important in the context of the engineering evidence. It is relevant to the acceleration force the plaintiff is likely to have applied when he attempted to move the lifter laterally across his body.
- The defendant is critical of the plaintiff for not having told Mr McDougall that he had been attempting to unload the pane to the right of the yellow post. However, this criticism does not withstand scrutiny. The plaintiff was adamant in his evidence that he told Mr McDougall this, which is not disputed. Rather, Mr McDougall said that he was not clear from his discussion with the plaintiff, parts of what was being described to him. Mr McDougall did not seek to clarify this with the plaintiff but instead simply assumed that the plaintiff had been loading it to the left based on the documentation he had been given by the solicitors. Mr McDougall’s lack of clarity around this discussion does not reflect adversely on the credibility of the plaintiff.
- I reject the defendant’s submission that the plaintiff deliberately fabricated his evidence that he was not trained to operate the lifter. I accept the plaintiff’s evidence on this point. The reasons for this are detailed below.
- The defendant also submits that there is some discrepancy in the evidence as to when the subject incident occurred and that this reflects adversely on the plaintiff’s credibility. However, a careful consideration of the evidence reveals that no such discrepancy exists and I accept the plaintiff’s evidence on this point. The plaintiff recalled being injured at approximately 7am while performing the first job for the day. His shift had commenced at 6am. The first person he reported it to was a co-worker who had come to see him to ascertain why the panes had not yet been sent down the double glaze line.
- The defendant attaches significance to the evidence of Ms Robbins to the effect that it was her recollection that the plaintiff had come to her office to report the incident at approximately 9am and that Mr Waldock had recorded this later time in the incident report. The first occasion she was asked to recall anything to do with the subject incident was a couple of weeks prior to the commencement of the trial and therefore more than five years after the relevant events. Her estimate was based on the fact that smoko usually commenced at 10 am and it was her recollection that the plaintiff had come to see her prior to this. She did not know whether she was the first person the plaintiff had reported it to and whether there had been a period of time between the incident having occurred and the plaintiff reporting it to her. As to the time of 9am in the incident report completed by Mr Waldock, he was unable to say whether this referred to the time that the plaintiff reported it to Ms Robbins.
- According to the defendant, Mr Hansen has an ‘axe to grind’ against it and has therefore given evidence to assist the plaintiff’s claim. This is said to arise out of the circumstances in which Mr Hansen left his employment with the defendant. He gave evidence that he resigned as his wife had received a promotion in her work and they had made the decision for him to become a stay at home father. Shortly prior to his resignation, the defendant had requested Mr Hansen to sign a written warning which he did not sign as he did not believe such action was warranted. He expressly denied that this contributed to his decision to resign. Even if it did, I did not get the impression that Mr Hansen and the plaintiff were friends or that there was any other reason why Mr Hansen would deliberately give false evidence to the court. While he clearly regarded the plaintiff as a valuable and dedicated worker, it would be difficult to believe that he would let that high regard interfere with his duty to the court. Further, Mr Hansen was not cross-examined to the effect that because of some perceived grievance in relation to the defendant that his evidence was in any respects untrue. Therefore, I am not satisfied that there is any reasonable hypothesis as to why Mr Hansen may have invented his evidence. In my view, his credibility was not damaged on that account.
- Mr Hansen’s evidence was that while he could not be certain, it was likely he was working on the day of the incident. He recalled being told by Mr Hill that the plaintiff had gone home. He thought he was told this on the day of the incident. Counsel for the defendant initially cross-examined the plaintiff on the basis that Mr Hansen had been the plaintiff’s supervisor on the day. It was later discovered from the defendant’s records that Mr Hansen did not work on this day. When Mr Hansen was informed of this he readily accepted it and said that he may have been told this on the day that he returned to work. I do not consider this to be significant. It is the kind of detail about which honest witnesses make mistakes. Overall, I accept that Mr Hansen was a truthful witness.
- It is not in dispute that the plaintiff was using the lifter in the loading area of the double glaze line on Tuesday 21 January 2014. Neither the double glaze back-up line nor the coating lines were being used on this morning. The plaintiff had worked the previous day. He had not worked for the month prior to this as he had been on annual leave.
- At the commencement of the shift the plaintiff had been told that he would be working in the loading area of the double glaze line. His evidence was that he was instructed to use the lifter to transport large panes from the trolleys to the double glaze line to be unloaded onto the rollers. The plaintiff could not remember who gave him this particular instruction. The fact that he would have been given such an instruction is not in dispute. Ms Robbins said that while she had no recollection of this day, it was part of her duties to allocate workers to tasks in the way described by the plaintiff. She said that she would have simply told any workers allocated to the double glaze line to run it with the work that was waiting there.
- The plaintiff was also unable to recall who his supervisor was while he was working on the double glaze line. As discussed above, the defendant’s records show that it was Mr Winters. He was not called by the defendant to give evidence.
- According to the plaintiff, when he commenced working on the double glaze line there were four large panes to be loaded from trolleys onto the rollers followed by a number of smaller panes. These panes were on four trolleys. The positioning of these trolleys are marked with four numbers, being 1 to 4 in exhibit 29B. Mr Hansen said that these markings represented “a general day to day positioning of trolleys.” Mr McDougall’s evidence was that the plaintiff told him that there had been multiple trolleys in the loading area. These trolleys could be difficult to move particularly when they were fully loaded, as they were at the relevant time.
- Mr Hansen explained that he and some other workers would on occasions, commence work at 4am. In the two hours prior to the 6am shift starting, they would prepare the panes for production for the day. This would include pairing the panes to be used to make multiple panels, placing them on a trolley and then moving the trolley to the loading area of the double glaze line ready for production.
- The precise measurements of the pane the plaintiff was transporting with the lifter at the time he was injured is not known. Prior to Mr McDougall’s inspection it does not appear that anyone questioned the plaintiff about this. This is despite Ms Robbins and Mr Waldock’s knowledge of the incident shortly after it occurred. Mr Waldock even went over to the double glaze line to inspect the lifter but surprisingly did not measure the pane. The plaintiff continued working in Shed 22 for the following three days after he was injured and his employment with the defendant was not terminated until some 21 months later. No-one sought to clarify this matter with the plaintiff over this time. Further, the dimensions of the pane would have been recorded on the electronic job order sheet that the defendant would have retained for at least three years. These were not disclosed at trial.
- In was pleaded in the plaintiff’s initial pleading that he estimated the weight of the pane to be approximately 50 kilograms. This can be regarded as nothing more than a guestimate. The plaintiff’s evidence, which I accept, was that he did not know how heavy it was given that the purpose of the lifter was to mechanically take the weight of it.
- At the time of Mr McDougall’s inspection, the plaintiff did not see a pane of a similar size to that he recalled moving with the lifter when he first felt the twinge in his back. Rather, he saw a pane that had a similar length and another that had a similar height. Mr McDougall was then told by the defendant of the thickness and weight of panes that had such dimensions. It is against this background that it was pleaded in paragraphs 8(b) and 8(c) of the statement of claim that the panes were large and of varying dimensions with at least one pane having the dimensions of approximately 8mm thickness x 1920mm height x 2502mm length. Mr McDougall was initially told by someone on behalf of the defendant that these panes weighed 96 kilograms and then subsequently told that they in fact weighed 79 kilograms. In exhibit 29A, the plaintiff marked the approximate size and position of the first pane on the double glaze line at the time that he was attempting to unload the subject pane. It is about half a metre longer than that which he identified at the inspection with Mr McDougall. The plaintiff reiterated in his evidence that this was an approximation only. Mr Hansen said it was not uncommon for panes this size to be loaded onto the double glaze line.
- The defendant contends that the court ought to be cautious in accepting the plaintiff’s evidence that he was moving a pane as large as this. In support of this, the defendant points to the measurement of 8.10 lineal metres recorded under the heading ‘Grind.Length’ in the Daily Production Summary Report (‘the DPS Report’) in relation to IGU Line 1, which is the double glaze line.
- I am not persuaded this measurement assists the defendant in the way contended for. It was not taken from the edge deletion machine. Rather, it was recorded further down the double glaze line at the press station from the scanning of bar codes that related to completed customer orders. The measurement does not include those panes that went through the edge deletion machine but then failed the visual inspection at the station immediately following the washer. There would be occasions where panes would not pass this inspection. The frequency of this was variable. Further, the number of panes that comprise this measurement are unknown as the source documents were not before the court. It could well be as few as one or two.
- I am satisfied that it is more likely than not that the lifter was loaded with a pane of those dimensions approximated by the plaintiff. He has consistently maintained that the pane was a large one. The defendant does not dispute that it was processing panes with such dimensions. As previously mentioned, the lifter was used to transport only the larger panes.
- The plaintiff also alleges that he was required to move the panes quickly from the trolleys to the double glaze line in order to maintain a constant supply of panes to it. He gave evidence that there were other workers at stations downstream from the washer waiting for the panes. Mr Hansen explained that this would usually be the case. This evidence was not challenged. It was also not in dispute that there were additional panes on the trolleys for subsequent jobs to be completed.
- The defendant denies that there was a requirement for the plaintiff to work at a faster pace than demonstrated to Mr McDougall and Dr Grigg at the times of their respective inspections. Dr Grigg described this as a “relaxed pace, with no need to hurry or for rapid acceleration”.
- According to the defendant, support for this can be found in the DPS Report where nine hours and forty five minutes is recorded under the heading ‘Estimated Time’ for the double glaze line. It is contended by the defendant that it can be inferred from this that there was more than a four minute interval between each pane being loaded onto the rollers during the course of the shift. This interval time was one of the assumptions adopted by Dr Grigg.
- I am not persuaded that such an inference can be drawn. The defendant’s own witnesses gave evidence that this time represented the period of time over which a worker was logged onto the double glaze line, rather than the time it was being used to process the panes. Further, it is premised on an assumption that is not borne out in the evidence, namely that the panes would be unloaded from the lifter to the rollers at equal intervals. Mr Hansen explained that there could be delays or malfunctions along the line. It was also his evidence that some panes would take longer than others to process. These included ones that were new, had radius corners or required the application of a larger than normal spacer.
- As previously mentioned, apart from the plaintiff, the only witness that gave evidence who had worked on the double glaze line was Mr Hansen. He described the pace shown in the video footage as slow and robotic. He said that he operated the lifter at a much faster pace than that shown. It was his evidence that if he had seen a worker operating the lifter at that pace that he would have told them to hurry up.
- Mr Hansen explained that workers operating the lifter would have tried to complete the work as fast as possible. The following exchange occurred between counsel for the plaintiff and Mr Hansen:
“Mr Hansen, Mr Cosic’s account is he was told one job had to be done quickly so that another job could be started quickly. I don’t want to be too specific in the proposition I put to you. He was told that there was one job to be done quickly so that another job could be started quickly. Could you inform the court, please, how that accords with your experience of the way jobs were allocated at the start of a working day with the double glaze line?---
At the start of the working day, we try to get as many of the urgent jobs done as fast as possible. As I described before, they had to have silicon put in them. That required time to dry. So if a job was due out that afternoon, we tried to get it done as fast as possible so that it could be ready to go when it needed to go out.
So what might be some reasons that a job might be urgent?‑‑‑
If we had a – because it was coated, as it was described before, we may have had to coat that one particular glass on a number of times due to being rejected for coatings previously. We could’ve been waiting for a particular component. The clear piece of glass to go with that glass. A job could’ve broken on site, so we had to make it quickly to get that level closed off. There’s – there’s a number of reasons why that it was urgent.”
- It was Mr Hansen’s evidence that this was the case irrespective of the number of panes to be processed through the double glaze line for any particular shift. He explained this in his evidence in chief in the following way:
“No, we made sure we made them as quickly as possible. That way, if we came across any issues with rejected glass, we could get them sorted out so that we could have it all re-ordered. Or if – we had to get those done quickly so then we could inspect the single pane glass for coating. Generally speaking, if that was all done, then we could go and pack. There were many other jobs in the shed that we could be doing if we weren’t double glazing.”
- The plaintiff alleges that he was positioned close to the yellow post and was pushing, pulling and rotating the lifter to move it towards the double glaze line when he suffered an injury to his lumbar spine.
- At trial the plaintiff explained that the two panes that he first needed to place on the double glaze line were identical in size and were positioned on either side of the trolley marked 2 in exhibit 29B. He used the lifter to retrieve the first pane from the side of the trolley facing him as he walked towards it with the lifter. He attached the pane to the lifter and then walked while pushing it to the rollers on the left side of the loading area in front of the left and centre grey panels. Its approximate position and size is depicted in exhibit 29A.
- The plaintiff had not activated the pedal to move the first pane left towards the washer. This is because it was the first order of the day for the double glaze line and he was waiting to receive the signal from his co-worker further down the line that all stations were ready for production to commence. The plaintiff was cross-examined to the effect that there was no need to wait for such a signal. He denied this.
- The evidence of the plaintiff in this regard was corroborated by Mr Hansen. He explained that at the commencement of each shift on the double glaze line, the signal was given to let the operator of the lifter know that the machines and the other equipment downstream from the washer had been turned on and were operating. He explained that if the operator of the lifter did not wait for this signal and the next station in the double glaze line was not ready, any panes that had been sent to the washer would need to be reversed out of the washer. Production would then be delayed.
- Having placed the first pane on the rollers, the plaintiff returned to the trolley marked 2 and attached the lifter to the coated pane. This was of identical dimensions to the first pane. His evidence was that it was somewhat difficult to manoeuvre the lifter with the attached pane from the trolley to the double glaze line. This was because of the size of the pane combined with the presence of the trolleys, particularly those which are marked 2, 3 and 4 in exhibit 29B. This had the consequence that he was unable to move the lifter in a direct line of travel to where he wanted to unload the pane, which was to the right of the pane that was already there.
- The plaintiff decided to walk with the loaded lifter forward to the position marked with ‘X’ in exhibit 29B. As can be seen from this photograph this was in close proximity to the yellow post and the rollers. However, it was not possible to unload the pane at that point because of the position of the first pane that was still on the rollers. Faced with this dilemma, the plaintiff had both hands outstretched holding the handles of the lifter at a height between his shoulders and head. He attempted to move the lifter laterally across his body to the right. He described having to push the lifter “very hard”. He was working quickly as he knew there were other workers waiting at stations down the line. It was while performing this manoeuvre that the plaintiff initially felt some resistance and a sudden pain in his lower back on the right side. He stopped work immediately.
- Mr Hansen had described to him during evidence in chief the way in which the plaintiff was attempting to position the second pane on the right side of the rollers at the time he was injured. He said that he too had attempted this and had injured his back. Mr Hansen’s evidence was that it was often necessary to place multiple panes on the rollers at the one time “to make the process as speedy as possible”. Mr Hansen further explained that the purpose of doing this was so that workers down the line were not left waiting. It would also enable the operator to attend to other tasks such as trimming laminate, clearing stickers or wiping panes over while waiting for the panes on the rollers to move through the double glaze line. As to the force required to push the lifter laterally, Mr Hansen said:
“If the lifter is right up close to the wall, and you’re trying to move from left or right in a lateral movement, it is very, very difficult to move it. Especially if you have a piece of glass on the – the sucker at the time. Because you can’t twist the handles to get a better – to get better movement with it because otherwise the glass would hit the double glazing line on either – either side. So you had to hold it solid and try and move it sideways.
So, Mr Hansen, are you describing an operation you yourself have performed in the past?‑‑‑
Yes, many times.
And when you had to perform such a task – to move the lifter sideways, parallel to the roller while you’re closer to the support post – how would you be able to accomplish that task?‑‑‑
With a lot of force. That’s the only way you can do it, is put a lot of force and effort into moving it sideways. If that was the only way you could do it, then, yes, you’d need a lot of force to do it.”
- The defendant does not dispute that the lifter could be operated in this way. Rather, it contends that the lifter did not need to be operated in this way. According to the defendant, the lifter could be effectively operated by forwards and backwards movements. This meant that rather than attempting to move the lifter laterally across his body to the right, the plaintiff could have walked backwards away from the rollers while pulling the lifter backwards. He could have repositioned himself so that he could then have walked towards the rollers again, while pushing the lifter directly forwards to where he needed to unload the pane onto the rollers.
- I am satisfied on the balance of probabilities that the incident occurred in the way described by the plaintiff. In my view, contrary to the defendant’s submission, the plaintiff’s evidence falls well short of a reconstruction. There is nothing inherently improbable about his account. It was not contradicted by any witness. None of the witnesses said that the lifter could not be operated in this way. Mr Hansen corroborated the plaintiff’s version, in that he had repeatedly operated the lifter himself in the way described by the plaintiff. He had also observed other workers operate the lifter in this way. As might be expected, there were some things which the plaintiff could remember and others that he could not. His explanations as to why that was so were plausible. The changes and differences in his version of what occurred are typical when a person is questioned on successive occasions by different people. This was compounded in the case on account of the plaintiff’s language barrier.
- Brendan McDougall, mechanical engineer inspected the double glaze line at the request of the plaintiff’s solicitors, on 2 May 2017. He has provided two reports dated 26 June 2017 and 17 April 2019. The plaintiff and his wife were present at the inspection and she interpreted for him. During the inspection no production was being undertaken on the double glaze line.
- At the request of Mr McDougall, an employee of the defendant demonstrated the use of the lifter to transport a pane from a trolley to the double glaze line. This was captured on video footage. The rollers were not operating and nor was the edge deletion machine. The footage depicts the lifter being manoeuvred slowly and smoothly and the operator applying pushing and pulling tasks in the sagittal plane characterised by exertion of hand force away from the body for pushing and toward the body for pulling.
- WorkCover arranged for Frank Grigg, mechanical engineer to inspect the workplace. This occurred on 15 May 2018. The plaintiff was not present at this inspection. The double glaze line was operational in that the rollers were running in the direction of the washer to the left of the loading area. Dr Grigg has provided two reports dated 1 June 2018 and 1 May 2019 respectively. The video footage taken during Dr Grigg’s inspection includes close views of the operator lifting and placing a pane; much broader views showing the movements of the crane and the operator performing two lifts; and overall views of the operations including an operator placing a large pane on the rollers. This video footage depicts the lifter being operated in a way very similar to that depicted in the footage taken at the time of Mr McDougall’s inspection.
- The opinions expressed in Dr Grigg’s reports were premised on the assumption that the plaintiff was operating the lifter as shown in the video footage taken at the time of his inspection. Based on this assumption, Dr Grigg considered that there was no need for the plaintiff to have been working quickly. He also thought the task being performed involved pulling or pushing the lifter towards or away from the body in the sagittal plane only. This meant that no significant forces were being applied laterally across the body. Mr McDougall agreed in his evidence that if the plaintiff had been operating the lifter in the manner shown in the video footage, the forces measured were within recognised safety criteria.
- However, as I have explained above, I am not persuaded that the plaintiff was operating the lifter in the way shown in the video footage. In making this finding, I am satisfied that there are four significant differences between the way the plaintiff was operating the lifter and the demonstration in the video footage. First, the plaintiff was unloading a second pane on the double glaze line to the right of the yellow post and the other pane had already been positioned on the left hand side. Second, there were trolleys in the loading area as depicted in exhibit 29B, which meant that the plaintiff was unable to walk forward in a straight line to where he was going to unload the subject pane. Third, the plaintiff was in close proximity to the yellow post and the rollers when he attempted to move the lifter laterally to the right to position it for unloading. Fourth, the plaintiff was working at a quicker pace than that shown in the video footage.
- Both engineering experts accepted in oral evidence that there were a combination of forces involved in the plaintiff having operated the lifter in accordance with my findings above. These included the lifter moving radially in or out along the crane jib arm assuming the plaintiff was not positioned perfectly perpendicular to the boom. This is because not only would the plaintiff have been attempting to move the lifter laterally, but he would also have been attempting to push it forward, causing some binding of the rollers on the sides of their tracks in the presence of lateral forces. There was also the force required for the jib arm to rotate about its articulation point at the yellow post. Further, there was the force required to accelerate the combined mass of the pane, lifer and crane jib sideways from the stationary position. This force would have increased with the pace at which the combined mass was moved. Further, as is admitted by the defendant in its pleading, the closer the lifter was positioned to the articulation point while performing this manoeuvre, the greater the lateral force would have been. In addition, the strength capability for the application of force across the body would have been compromised given that the plaintiff’s arms were outstretched.
- Dr Grigg gave the following evidence in cross-examination as to the forces involved in the manoeuvre being performed by the plaintiff:
“Yes. But do you accept that that would be a necessary component of training to inform operators that they ought to avoid twisting their torso when attempting to rotate this lifter or moving it laterally?‑‑‑
Well, that would be good advice.
Yes. And it would be good advice because that type of manoeuvre has a higher risk of injury to probably ‑ ‑ ‑?‑‑‑
‑ ‑ ‑ a number of parts of the body, but also the back?---
Yes. It’d be a higher risk, but at the same time I – I think the risk is not – not really very high. It’s mainly the lateral force across this way ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑
that would be a problem.
Yes. Well, let’s move on to that lateral force across this way. And can I indicate for the record, Doctor, are you moving your hands laterally in front of your body?‑‑‑
Essentially demonstrating holding the handles of the lifter and shifting it sideways?‑‑‑
And did you say that that would be the most problematic movement that an operator could do with this machine?‑‑‑
Yes, I believe so.”
- A short time later, Dr Grigg explained this further in the following way:
“‑ ‑ ‑ the movement that you would be concerned about would be facing the support post and moving the lifter laterally?‑‑‑
Yes. And why would that be a concern to you?‑‑‑
Well, it – it requires basically a movement of the arms, hands out across the body and – and that is creating a torque on the spine and as such is less desirable. If you can get the movements to be more fore and aft in the sagittal plane then that is preferred.
Is that – I’m sorry, Doctor?‑‑‑
It’s less – it involves less risk, if you like.
But – well, that – that’s basically it.
Yes. And that degree of torque that you just described, Doctor, is that increased if the arms are held outstretched from the body in order to apply the force across the lateral plane of the body?‑‑‑
Well, for a given force the further your arms are out the – the bigger the torque, but there’s no obvious reason why you would do it at arm’s length. It’s – it’s – just makes it more difficult.”
- This further exchange occurred in cross examination between counsel for the plaintiff and Dr Grigg:
“Yes. I understand. Now, what are the other factors which you commented on your report in the operation of this lifter is the position of the lifter along the boom. You accept, I think, Doctor, that if one is attempting to laterally move the lifter, i.e. slew the boom ‑ ‑ ‑?‑‑‑
‑ ‑ ‑ it requires more force to do that when one is positioned closer to the support post ‑ ‑ ‑?‑‑‑
‑ ‑ ‑ than one is positioned at – towards the end of the support post?‑‑‑
End of the boom, rather. Yes?‑‑‑
Yes. I agree with that.”
- It is instructive that the defendant admits in the pleadings that the force to move the lifter was greatest when slewing the boom closer to the yellow post, particularly if the hoist was not truly lateral to the boom in which case the force would be even greater. It also admits that acceleration of the lifter required force to move the combined mass of the pane, lifter and boom. Further admissions are made that force to use the lifter required the application of force laterally across the body and that the force to move the lifter was greater when quick movement of the pane was required.
- There is no dispute on the engineering evidence that the peak combined frictional and acceleration forces being exerted when attempting to move the lifter in the manner described by the plaintiff could have well exceeded 20 kilograms. Whether it did, and if so by how much, depended on the magnitude of the acceleration force applied by the plaintiff. His evidence about this, which I accept, is that he was trying to do the job quickly. He described “I had to do it very hard. And I didn’t finalise that move, because there was a – some kind of resistance and – and the problem happened - the – with – the body.”
Duty of care and breach
- It is not in contention that it was an implied term of the contract of employment between the plaintiff and the defendant and it was the non-delegable duty of the defendant to take reasonable care to safeguard the plaintiff from injury whilst he was performing his duties in the course of his employment.
- It follows that the defendant was not required to guard against all risks of injury or to safeguard employees completely from all perils. It was also not required to take care to avoid exposing a particular employee to risks resulting from a special vulnerability, absent some special knowledge of that susceptibility to injury. I accept the defendant’s submission that if the forces involved with a task were such that they were not likely to injure a worker of normal fortitude, the fact that those forces could have been reduced so as to be less likely to injure a worker, does not establish a need to act on the part of the defendant.
- The High Court set out the duty of care of an employer to an employee in Hamilton v Nuroof (WA) Pty Ltd where Dixon CJ and Kitto J held that the duty “is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury.” It is well established that what is a reasonable standard of care for the safety of an employee is ‘not a low one’. The determination of what constitutes a reasonable standard of care is a question of fact.
- The defendant’s duty of care included obligations to take reasonable care to undertake appropriate risk assessments; s 305D(1) to devise, implement and maintain a safe system of work; and to train or otherwise instruct employees in how to safely carry out their work.
- As von Doussa J said in Perkovic v McDonnell Industries Pty Ltd:
“Each case will turn on its facts. Generally speaking, the greater the degree of danger inherent in the work, the more likely will be the need for instruction and warning. Even the most skilled employees in their familiarity with the work, or because of the speed or the circumstances under which the work is performed, may be prone to take shortcuts, to disregard obvious precautions, or to be unmindful of dangers. The employer's duty to exercise reasonable care for the safety of his employees will often require that skilled employees be reminded periodically about the risks of their work and the need to guard against them.”
- The statutory framework provided for in the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WCR Act’) must also be taken into account. Pursuant to s 305B(1), an employer does not breach a duty to take precautions against a risk of injury to a worker unless the risk was foreseeable, not insignificant and in the circumstances a reasonable person in the position of the employer would have taken the precautions. The effect of this legislative provision is to direct the court’s attention to the level of risk that needed to be guarded against when considering whether an employer has breached its duty of care. It requires an objective enquiry.
- Pursuant to s 305B(2) of the WCR Act, in determining whether a reasonable person would have taken precautions against a risk of injury, the court is to consider (amongst other relevant things), 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. These factors reflect the common law’s approach as explained by Mason J in Wyong Shire Council v Shirt.
- A court must identify what a reasonable person would have done, rather than looking backward to identify what would have avoided the injury. A finding of negligence does not inevitably flow from a failure to eliminate a risk of injury that was reasonably foreseeable and preventable.
Foreseeable and not insignificant risk of injury
- It is not necessary for the precise harm to have been foreseeable, provided the harm is of the same kind or type as that which was reasonably foreseeable. It is also not necessary for the precise sequence of events by which the harm came about to have been foreseeable. It is sufficient if the consequence of the same general character as that which followed the negligence was reasonably foreseeable.
- According to the plaintiff, the risk that was foreseeable was the risk of a musculoskeletal injury when moving the lifter laterally while in close proximity to the yellow post.
- It is not in contention between the engineering experts that applying a 20 kilogram or more force laterally across the body in the manner described by the plaintiff involved a risk of a musculoskeletal injury. It is likely the plaintiff was applying forces of this level given his description as to how quickly and how hard he was attempting to push the lifter at the time he was injured as described in paragraph 96 above.
- I reject the defendant’s submission that the plaintiff had a particular susceptibility to injury to his lumbar spine in the context of the duties he was performing at the time. The reasons for this are addressed in detail below. Suffice to say here that on the balance of probabilities I am satisfied that the plaintiff’s pre-existing degeneration was largely asymptomatic and that his psoriatic arthritis did not affect his lumbar spine.
- In my view the defendant was or ought to have been aware of the risk of injury. This is even though it points to the lack of other documented similar incidents when using lifters throughout its sites in Queensland, New South Wales and Victoria. There is no evidence that any of the defendant’s other lifters were attached to posts that were in such close proximity to where the panes were being unloaded. The other lifters in Shed 22 were not. This close proximity was one of the significant factors that created the risk of injury.
- The other reason why I do not accept the defendant’s reliance on the lack of other documented similar incidents is because I am not confident that the defendant’s system of reporting such incidents had been adequately implemented and enforced. The evidence tends to suggest that it was not. Mr Hansen was not aware of it. He thought that he only needed to report an incident if the injury sustained required medical attention. He was cross-examined to the effect that he would have signed a document at the commencement of his employment in 2003, to the effect that he agreed to advise a manager of any accident. However, it appears that the defendant was unable to locate such a document on Mr Hansen’s personnel file. Mr Hansen had no memory of having seen such a document. In addition, there is no suggestion by the defendant that Mr Hansen was reminded of this requirement to report any incident at any time in the subsequent eleven years that he worked for the defendant.
- Mr Waldock was aware that the yellow post had been moved closer to the double glaze line. He explained that it was 1.1 metres closer. He acknowledged in his evidence that he was aware that the forces to move the lifter were greater when closer to the articulation point. He was aware of a risk of back injury for an operator if it was being moved laterally while in close proximity to the yellow post.
- Mr Hansen had previously hurt his back operating the lifter in the same way as the plaintiff. He knew that it was difficult to manoeuvre it sideways when positioned where the plaintiff was. He was a person with overall responsibility for the operation of the double glaze line and his knowledge was readily available to the defendant. Mr Hansen’s concerns in this regard would have been available to Mr Waldock had he chosen to enquire of Mr Hansen of any problems he had encountered when using the lifter. The test for foreseeability is an objective one and is undemanding and in my view has been met. I am satisfied that the defendant knew and/or ought to have known of the risk of injury.
- I am also persuaded that the potential forces to be applied when operating the lifter as I have found the plaintiff was, when assessed prospectively from the defendant’s perspective, were such that the probability of the occurrence of the risk of harm was real and was not insignificant. In reaching this conclusion, I am mindful that this test is more demanding than the common law test of ‘not far-fetched or fanciful’.
- In these circumstances, it was incumbent on the defendant to take reasonable measures to meet that risk of injury. In determining, implementing and enforcing reasonable measures, the defendant was obliged to take into account thoughtfulness or inadvertence by a worker.
- It is the plaintiff’s case that the measures that had been taken by the defendant were plainly inadequate in that the defendant failed to:
- (i)undertake a proper risk assessment;
- (ii)provide training to the plaintiff;
- (iii)maintain and enforce a proper system of work.
- I have addressed each of these in turn below.
- Mr Waldock was aware that in 2009 the attachment point for the crane jib and lifter had been moved closer to the double glaze line. He was aware in his capacity as the workplace health and safety co-ordinator that this repositioning meant that a worker may be at a risk of a back injury if they attempted to push the lifter sideways while in close proximity to the yellow post. Despite this knowledge, he did not request Mr Moy or any other engineer who was employed by the defendant to measure the potential increases in the forces required by an operator when using the lifter in this way.
- The risk assessment was undertaken by Mr Waldock in the following year. Mr Waldock was cross-examined at length about this assessment. He accepted that it was necessary for him to have prospectively and proactively audited the task of operating the lifter in order to identify the associated risks or hazards and then to have assessed the likelihood of such risks occurring and the potential consequences that flowed from these. The purpose of conducting a risk assessment in this way is to enable not only the risks to be identified but also for appropriate countermeasures to be implemented.
- In my view the risk assessment that was undertaken by Mr Waldock was inadequate. As mentioned above, Mr Waldock was aware that the yellow post had been moved closer to the double glaze line and that the forces to move the lifter were greater when closer to the articulation point. He acknowledged being aware of a risk of back injury if he saw an operator moving the lifter laterally while in close proximity to the support post. Yet he did not document this in the risk assessment. Neither did he take any steps to have these forces measured.
- By the time Mr Waldock undertook the risk assessment, Mr Hansen was working as a supervisor on the double glaze line and was aware of the difficulties operating the lifter when positioned as the plaintiff was. Mr Waldock did not seek his input. Such were Mr Hansen’s concerns, that he had reported them to the defendant’s maintenance department but was told that it could not be rectified as the yellow post had been bolted to the floor. Clearly those concerns were never passed on to Mr Waldock. It was Mr Hansen’s evidence that if Mr Waldock had sought his input that he would have raised his concerns.
- Not only was the process of undertaking the risk assessment inadequate, but on the face of it, the risk assessment document compiled by Mr Waldock is confusing. His attempts to explain it in cross-examination did little to provide clarification. It assessed two risks, one being in the top half of the document and the other in the bottom half. As to the one in the top half, initially in cross-examination Mr Waldock explained that it related to the risk of a worker suffering an injury from panes that were broken in the course of using the lifter. It then recorded a risk of a consequential back injury. Mr Waldock could not explain the relevance of a back injury to an assessment of such a risk. When this apparent anomaly was pointed out to Mr Waldock he said that the top part of the document in fact recorded the risk of workers manually lifting and handling panes in the course of using the lifter. Mr Waldock assessed this risk as minor and unlikely. He explained that this low level of risk was assessed because although a worker could suffer a back injury from incorrectly manually handling panes, the potential for this to occur was reduced because the panes were stored on trolleys prior to being moved with the lifter. The second part of the document related to the risk of manual handling associated with lifting, carrying, pushing or rolling in the context of operating the lifter. This risk was assessed to be moderate. Mr Waldock was unable to explain his process of reasoning whereby he assessed the consequences of an injury in the top part of his assessment as minor and in the bottom part of his assessment as moderate.
- For the reasons detailed above, I consider the risk assessment undertaken by Mr Waldock to have been inadequate.
- Mr Waldock issued a work instruction on 26 March 2010. It expressly provided that no worker was to operate the lifter until completion of specially supervised on the job training and an assessment. The scope and content of the training is detailed in the work instruction. There is no evidence that this work instruction or the contents of it were ever conveyed to the plaintiff.
- It was the evidence of Mr Waldock that it was his expectation that workers would be trained to operate the lifter in the way demonstrated in the video footage taken at the time of Dr Grigg’s inspection.
- The following exchange occurred between counsel for the plaintiff and Dr Grigg:
“And what we mean by that, if we can talk in real life matters rather than just this notion of procedural controls, what we really mean about that are several things. Firstly, training of operators. Do you agree?‑‑‑
Well, you need to train the operator and see that they are doing things the way you expect.
Yes. So you firstly need to train them to ensure that they know not to rush, as you say; correct?‑‑‑
Yes. And you also need to train them with respect to an appropriate speed to move the lifter so as not to introduce that extra element of acceleration force that you’ve mentioned. Is that so?‑‑‑
To move it slowly and gently as we see in the video?‑‑‑
Yes. But the – most people seek to do things in the easy way and so there’s a certain amount of self-learning that would be involved in the process, as well.”
- Dr Grigg also said in cross-examination that this training needed to include instructions for the operator to avoid twisting their torso, to avoid lateral movement of the lifter when slewing the boom, and to avoid such a movement with arms outstretched.
- Mr Waldock said that it was his expectation that the plaintiff would have been trained by a worker specifically tasked with providing training. He thought the training could take days, particularly if the worker had limited English skills.
- The plaintiff was adamant that he did not receive any specially supervised on the job training. In particular he was not trained to operate it at the pace shown in the video footage, or to only load the panes to the left of the yellow post. He had not been instructed to avoid twisting his body. He had not been instructed to avoid moving the lifter laterally across his body, particularly if he was standing near the yellow post. The defendant urges upon me a finding that the plaintiff is being dishonest about this even though there is no cogent evidence that he was trained. I am persuaded by the plaintiff’s evidence in this regard and for the reasons below I find that he did not receive specially supervised on the job training or any other training.
- Support for the plaintiff’s evidence can be found in the circumstances in which he came to use the lifter. This evidence was not challenged by the defendant. The plaintiff said that although he had commenced employment with the defendant in March 2008, the first occasion he used one of the defendant’s lifters was in approximately 2013. This came about when a co-worker who he knew was operating one of the lifters. He was simply curious as to how it worked and asked the co-worker to show him. The co-worker agreed. The plaintiff estimated that the time the co-worker spent with him telling him about the lifter would have been less than two minutes.
- The plaintiff could not recall how long after this that he next used a lifter. He explained in evidence that it was on an occasion when he was washing panes near the double glaze line. Once again he knew the co-worker operating the lifter and asked if he could have a go. The co-worker obliged. This happened again a few days later.
- It was the plaintiff’s evidence that after this time he would be requested by his supervisor in the course of his duties to operate the lifter. The frequency of these requests would vary. Sometimes they would be on consecutive days. On other occasions there may have been an interval of a few weeks. He was unsure as to how his supervisor had come to know that he had operated the lifter.
- There is no evidence that the plaintiff was provided with specially supervised on the job training as envisaged by the defendant’s work instruction. It is not documented in any of the defendant’s records. Mr Hill did not train the plaintiff. He simply assumed that because the plaintiff was operating the lifter, that he had been trained. Mr Waldock had no recollection of having trained the plaintiff. There is no suggestion Ms Robbins trained him. It seems unlikely that she would have, given she worked in an office and performed largely administrative tasks. Mr Hansen did not train him and had no knowledge of him being trained. This leaves Mr Winters. He did not give evidence. The plaintiff was not cross-examined to suggest that Mr Winters trained him.
- In addition to and after completing the specially supervised on the job training, the work instruction provided that workers would undergo a practical assessment task. It was to consist of a practical demonstration observation and oral questioning. There is a factual dispute at to whether this was undertaken. Mr Hill said he conducted the assessment of the plaintiff. It was the evidence of the plaintiff that if he was being assessed by Mr Hill he was unaware of it. Given my finding that there was no adequate training, in my view it is not necessary to resolve this conflict. This is because the assessment was intended to be completed after a worker had received the specially supervised on the job training. It was not intended to replace it, or to be an alternative to it. Further, Mr Hansen explained in evidence that the difficulty in operating the lifter when standing in front of the yellow post would be unlikely to be encountered in a practical assessment, which was focussed on ensuring that the worker knew how to operate the various functions of the lifter.
- To the extent that I am required to resolve this conflict, in my view, if this assessment was undertaken, it was far from comprehensive. Although it was Mr Hill’s evidence initially in cross-examination that he had an independent recollection of having performed the assessment, he later gave evidence that he had no such recollection. He said that he would have questioned the plaintiff about the lifter while the plaintiff was in the loading area using it. The plaintiff had no recollection of this. I do not accept that the plaintiff’s grasp of the English language was sufficient to have enabled him to have engaged in any meaningful discussion with Mr Hill in these circumstances.
- Further, it was the plaintiff’s evidence that he was not even familiar with some of the components of the lifter which were part of the assessment. For example, it required the assessor to ask the worker what should be done if the lifter was to lose vacuum. The document indicates that the plaintiff was able to answer the question correctly. However, the plaintiff said in evidence that he did not know what to do if such a circumstance presented itself. He did not even know the lifter had a low vacuum warning whistle, let alone know how to use it. The assessment also required the assessor to ask the worker to describe the consequences of perished airlines and dirty sucker pads. The document once again indicates that the plaintiff was able to answer the question correctly. However, the plaintiff said that he had never heard of the phrase ‘perished airlines’. In addition, the assessment included the worker returning the lifter and the crane to the appropriate storage area. Mr Hill completed the form to show that he had asked the plaintiff the question and the plaintiff had provided the correct response. However, Mr Hill said that he did not even know where the appropriate storage area was.
- In short, I am satisfied that the plaintiff ought to have been but was not the recipient of specially supervised on the job training as provided for in the defendant’s own work instruction, or indeed any other adequate training.
System of work
- Not only was the plaintiff not trained in the defendant’s procedure for operating the lifter as shown in the video footage, I also find that compliance with the demonstrated procedure was not adequately monitored and/or enforced. This was a procedure that the defendant says would not have injured the plaintiff. Dr Grigg agreed that it was important to institute procedural controls so that the way in which the job was demonstrated in the video footage was the way it was performed on a day to day basis. Both experts considered that if the plaintiff had been operating the lifter in the manner shown in the video footage, the forces measured were within recognised safety criteria.
- There was the following exchange between counsel for the plaintiff and Dr Grigg in cross examination:
“Right. Well, in addition to informing employees or training them, it’s also then important to monitor them to ensure that they’re doing what they’re trained to do. Is that right?‑‑‑
And to ensure that they haven’t slipped into any bad habits. Is that right?‑‑‑
Yes. That’s ‑ ‑ ‑
And so that monitoring needs to be done – I’m not going to say continually – but intermittently to ensure that the workers are continuing to do the job the way they’re supposed to. Is that so?‑‑‑
Yes. I agree with that.”
- In support of my finding that compliance with the demonstrated procedure was not adequately monitored or enforced, it is hardly necessary to look beyond that fact that Mr Hansen, as the supervisor of the double glaze line, did not follow the demonstrated procedure and did not monitor the workers he was supervising to ensure the lifter was being operated in this way. He himself had operated the lifter in a manner similar to that of the plaintiff and he had witnessed other workers attempt to push the lifter laterally across their bodies. This is not intended to be a criticism of Mr Hansen. It seems that like the plaintiff, he was unaware of the correct procedure to be followed. Mr Waldock’s monitoring was limited to what he observed while he was on the floor and a reliance on workers approaching him to report problems. This was clearly inadequate.
- Further, according to the work instruction, operators who had been appropriately trained and who had successfully completed the assessment were required to have their names entered into an operator’s master file. It also stated that under no circumstances was a worker to operate the lifter unsupervised unless they were listed on the Double Glaze Operator’s Register. Mr Waldock explained that neither the file nor the register were ever created let alone maintained.
Conclusion re breach of duty
- A reasonable person in the positon of the defendant would have taken steps to undertake a proper risk assessment, train workers not to operate the lifter in the manner the plaintiff was and to enforce a system of work which prohibited that practice. These steps were obvious in prospect and would in no way have impeded the performance of the task. They could have been easily undertaken. There could be no suggestion that they involved any conflict with the defendant’s other responsibilities. In these circumstances, the defendant breached its duty of care to the plaintiff.
- Causation is comprised of two elements, being factual causation and the scope of liability.
- What is in issue here is factual causation. It has been codified in s 305D(1)(a) of the WCR Act. This provision does not alter the common law ‘but for’ test. Rather, its practical effect is to require the court to state expressly the reasons why causation has been established in any case. It is to be assessed as a matter of common sense and experience.
- Pursuant to s 305E of the WCR Act, the onus of proving any fact relevant to the issue of causation is on the plaintiff and on the balance of probabilities test.
- A causal connection is not satisfied because the plaintiff was at work and there is a temporal relationship between the workplace and the onset of his symptoms. The fact that there is an increased risk of injury on account of a defective system of work does not necessarily demonstrate that an employer’s actions in breach caused the injury. On the other hand the fact that a worker has been able to do something on other occasions without injury does not mean it will not cause injury on another occasion.
- The plaintiff must show that ‘but for’ one or more of the defendant’s abovementioned articulated breaches of duty, his lumbar spine injury would not have occurred. I am satisfied the plaintiff has discharged his onus in relation to this hypothetical inquiry with respect to the provision of training and the enforcement of safe procedures for the performance of the task. The facts warrant the inference being drawn. The plaintiff was operating the lifter manually. The forces involved a foreseeable risk of injury to a worker’s spine. The video footage shows the procedure to be followed when operating the lifter. Had the plaintiff been trained in this and had the procedure for operating the lifter in this way been enforced, I am of the view that these measures would probably have prevented or minimised the risk of injury. This is because they would have brought to the plaintiff’s attention the inadvisability of operating the lifter in the way that he did.
- This is in circumstances where the defendant’s own risk assessment had identified a moderate risk of physical injury from operating the lifter. In response to this risk, the defendant had implemented a system of work which required specially supervised on the job training. It was not provided and the system of work was not enforced and the risk eventuated.
- It is probable that the plaintiff’s disc prolapse was consequent upon and relevantly caused by the forces involved in the plaintiff attempting to operate the lifter in the way that I have found he was, for which the defendant is liable. It has a greater degree of likelihood, sufficient to satisfy the balance of probabilities test, than the hypothesis postulated by the defendant. I find causation to be established.
- The plaintiff was born on 13 January 1957. He is Serbian. He was 57 years of age at the time of the subject incident. He is now 62 years of age. He completed year 12 and was a mechanical technician. He did national service for about 12 months before moving to Bosnia where he worked in a manual job constructing custom tools for military machines. The Bosnian war broke out in the early 1990s and from then until it concluded a couple of years later, the plaintiff was unable to work. He subsequently obtained work as a taxi driver but was unable to support his now wife and family. For this reason he went in search of a better life and migrated to Australia in 2005. The plaintiff’s wife could speak some English and she came out to Australia approximately 12 months earlier with their young daughter and she found work in nursing. When he arrived he did not speak any English and did some language courses over the next 12 or so months. He then worked in a food processing factory for about 12 months prior to commencing employment with the defendant.
- Prior to coming to Australia, the plaintiff was active. He enjoyed playing soccer and going fishing and bowling. He had been diagnosed with psoriatic arthritis. The plaintiff’s evidence was that the symptoms relevant to this medical condition commenced in 1995 while living in Bosnia. This is addressed in detail below. He had otherwise been in good health.
Plaintiff’s medical history
- In March 2007, the plaintiff commenced seeking regular medical treatment for his psoriatic arthritis from rheumatologists at the Royal Brisbane and Women’s Hospital (‘the RBWH clinic’). He remains under the care of the RBWH for ongoing management of it. The records of the RBWH clinic are exhibit 10. Dr Sumant Kevat has been the plaintiff’s treating rheumatologist since September 2008.
- When the plaintiff was seen at the RBWH clinic on 20 March 2007 he reported that he had significant stiffness and swelling particularly affecting his fingers, knuckles, thoracolumbar spine, knees, elbows and hips. It was reported that these symptoms were starting to make his work difficult. He also reported that he was not taking any medication. He was commenced on salazopyrin, an immunosuppressant. When the plaintiff was reviewed at the clinic some three months later on 17 April 2007, he reported that this medication was making it easier for him to work full-time. The plaintiff still had some symptoms and the decision was made to prescribe a further medication, namely methotrexate at the dose of 10 milligrams per week. When reviewed on 13 October 2007, the plaintiff reported that he was feeling very well, although he had ongoing discomfort in his elbows and fingers during his daily activities. The dose of methotrexate was increased to 20 milligrams per week.
- The plaintiff was next reviewed at the RBWH clinic on 5 June 2008. On this occasion he reported ongoing morning stiffness involving his wrists, fingers and elbows as well as some pain over the greater trochanter region. He said that he was still getting some pain throughout the day that was limiting his ability to do his job with the defendant. At this time he had ceased taking the salazopryin as he did not feel it had been effective in controlling his symptoms and he was reluctant to recommence it. For this reason he was prescribed meloxicam, an anti-inflammatory medication.
- When Dr Kevat took over the consultant management of the plaintiff’s care on 25 September 2008, the plaintiff was clinically examined. He did not have inflamed joints. The plaintiff was in clinical remission when reviewed on 9 March and 22 July 2009.
- It was on 13 January 2010 that the plaintiff was next reviewed at the RBWH clinic. He reported that heavy lifting at work increased his pain slightly but that it remained tolerable. At his next review on 26 June 2010 the plaintiff reported that he had no recurrence of his symptoms. His dose of methotrexate was 15 milligrams per week.
- On 20 December 2010 the plaintiff re-attended the RBWH clinic and reported that he had reduced the dose of methotrexate from 15 to 10 milligrams per week. He said that his arthritis had been fairly stable, although he was experiencing early morning stiffness for up to an hour, with pain in his knuckles and occasional swelling. The pain and swelling were evident on clinical examination. The dose of methotrexate was increased back to 15 milligrams per week.
- Dr Kevat reviewed the plaintiff at the RBWH clinic on 10 March 2011. The plaintiff reported that he had considerable morning stiffness, although he had minimal joint swelling. Dr Kevat recommended that the plaintiff cease smoking. He increased the dose of methotrexate to 20 milligrams per week. When reviewed in the RBWH clinic some six months later on 26 September 2011, he reported that his symptoms were confined to his hands, with pain and stiffness in the morning which could last for two to three hours, although these symptoms were not present daily. He also reported that despite these symptoms, he was continuing to work full-time with the defendant. When next reviewed on 14 February 2012, the plaintiff reported mild swelling of his hands in the morning. He denied that this was causing any functional limitations. He was continuing to work full time with the defendant. The plaintiff’s joints were unremarkable on clinical examination.
- When the plaintiff was reviewed at the RBWH clinic on 23 April 2012 he reported that his arthritic related symptoms had been in complete remission. Dr Kevat considered it was appropriate to trial a reduction of his methotrexate dose to 20 and 15 milligrams per week on alternate weeks. If this was successful, the plan was to reduce the dose of methotrexate to 15 milligrams per week after three months.
- The plaintiff was reviewed by Dr Kevat at the RBWH clinic on 15 November 2013. He reported that he was smoking 20 cigarettes per week. He was experiencing early morning stiffness, predominantly in his hands, lasting for hours. He also had some stiffness in his wrists, elbows and knees which was adversely impacting on his ability to lift materials over 20kg in his work with the defendant. His dose of methotrexate was increased to 25 milligrams per week.
- Since the subject incident the plaintiff has continued to be regularly reviewed at the RBWH clinic. When seen on 1 May 2014, it became apparent that the methotrexate dose had not been increased from 20 to 25 milligrams per week as had been intended. The plaintiff reported that his joints were stable but that he was suffering from fatigue when taking the methotrexate. It was recommended that he increase his folic acid supplementation. When the plaintiff was reviewed by Dr Kevat in November 2013 he learnt that the plaintiff’s methotrexate therapy had been interrupted due to concerns that it may have been adversely affecting his lower back. Dr Kevat considered these concerns to be unwarranted. The reason for this is that there is no scientific literature that establishes an adverse link between methotrexate and mechanical lower back issues. This interruption to his methotrexate therapy had resulted in a flare up of his psoriatic arthritis. The plaintiff had been recommenced on the methotrexate at 20 milligrams per week and reported that his symptoms had settled.
- The RBWH clinic records contain copies of correspondence that have been forwarded to Dr Osborne, treating general practitioner regarding the ongoing management of this condition. There is a letter of 5 June 2016 in which Dr Osborne was informed that the plaintiff’s psoriatic arthritis was being well controlled on 20 milligrams per week of methotrexate. In a subsequent letter to Dr Osborne dated 20 November 2017, he was informed that the plaintiff had not experienced any symptom flare ups of his small or large joints. This remained unchanged when the plaintiff was reviewed by Dr Kevat in June 2018 and January 2019. The frequency of his reviews was extended from six months to 12 months. Dr Kevat explained that the plaintiff’s psoriatic arthritis has remained stable and in remission when he is maintained on 20 milligrams per week of methotrexate.
- The plaintiff’s records from the Greenslopes Family Practice (‘the GP clinic’) are also before the court. They commence on 30 August 2006. There is then an interval of some three and a quarter years until the next attendance on 5 May 2010. Between this date and the incident in January 2014, the plaintiff attended upon a doctor at the GP clinic on 13 occasions. Dr Talic saw the plaintiff on 11 of the 13 occasions. There is no reference to lower back related symptoms in the GP clinic records.
- The GP clinic records show that prior to the subject incident the plaintiff sustained a laceration to a tendon in his left hand in April 2010. This required surgical repair at St Andrew’s Hospital. The plaintiff made a WorkCover claim for this injury. He returned to normal duties in mid-August 2010 but reported to Dr Talic that he could not do all the work that he used to do with his left hand. Subsequent to this time, there is no reference in any medical records to continuing symptoms relevant to the plaintiff’s left thumb. I am satisfied that these symptoms did not continue to significantly trouble him thereafter.
- Following the subject incident the plaintiff first sought medical treatment for his lower back related symptoms on 28 January 2014, when he attended upon Dr Osborne at the GP clinic. Dr Osborne referred the plaintiff for a MRI scan of his lumbar spine. He underwent this on 30 January 2014. The report relevant to this radiology investigation revealed a moderately large sized right sided L5/S1 disc herniation causing compression of the right S1 nerve root. It also noted evidence of multilevel facet joint arthropathy.
- The plaintiff returned to see Dr Osborne on the same day with the radiology report. It was reported by the plaintiff that he was reasonably comfortable with the pain relief medication he was taking. The entry records that the plaintiff had no motor compromise. The plan was to treat the plaintiff conservatively and review him in two weeks.
- On 13 February 2014, the plaintiff returned to see Dr Osborne. He reported that the symptoms in his lower limb were still present, although they were settling. His mobility was good and he could sit comfortably. The plan was to commence physiotherapy treatment and for him to be reviewed in a further two weeks.
- In accordance with the abovementioned plan, the plaintiff commenced physiotherapy treatment and was reviewed by Dr Osborne on 27 February 2014. He reported that his back pain had settled but he continued to experience sensory changes in his right lower limb. This was able to be reproduced on examination when the plaintiff bent over. Dr Osborne considered the plaintiff was not fit to return to normal duties and that his language difficulties would make it challenging for him to perform suitable duties. A further review was planned for two weeks, with regular physiotherapy treatment to continue in the interim.
- This further review by Dr Osborne took place on 13 March 2014. The GP clinic records for this consultation reads that the plaintiff was continuing to improve with no back pain and only tightness in his calf and residual sensory changes in his heel and the dorsum of his toes. The plaintiff told Dr Osborne that he was keen to return to work and that most of his duties did not require lifting. Dr Osborne considered the plaintiff was fit for normal duties with continuing physiotherapy treatment. The plan was to review the plaintiff in four weeks with the potential then for a clearance to return to normal duties.
- The plaintiff re-attended upon Dr Osborne on 10 April 2014. He reported that his sensory changes in his right heel and cramping in his right calf were being aggravated by the physiotherapy treatment. The plan was for the plaintiff to continue with normal work duties with a further review in three weeks.
- The review occurred as planned on 1 May 2014. The plaintiff was managing to perform his normal duties at work, although his radicular symptoms were continuing. Dr Osborne provided a referral for a repeat MRI scan of the plaintiff’s lumbar spine. This was undertaken on 5 May 2014. The report relevant to this investigation states that the appearance of the plaintiff’s lumbar spine remained unchanged with a moderate-sized right L5/S1 disc protrusion/extrusion. There was still compression of the right S1 nerve root.
- On account of the continued presence of the disc protrusion, Dr Osbourne referred the plaintiff to Dr Sarah Olson, neurosurgeon on 8 May 2014. She examined him on 23 May 2014. She opined that the plaintiff required a minimally invasive laminectomy, discectomy and rhizolysis. She performed this surgical intervention on 13 June 2014. In a letter to Dr Osborne dated 16 June 2014, Dr Olson noted that the surgery had been uncomplicated in that a small prolapse was found and a lateral rhizolysis was performed to enable the nerve root to exit. In the treatment letter, Dr Olson noted that the plaintiff had done very well post-operatively with resolution of his pain.
- It was the plaintiff’s evidence that after the surgery his pain levels and functional capacity improved. However he could not bend and could not lift anything heavy.
- Dr Olson reviewed the plaintiff on 25 July 2014. He complained of continued numbness and weakness in his right lower limb, which Dr Olson thought may have been permanent symptoms. She considered he was fit for suitable duties.
- A further MRI scan was undertaken on 29 July 2014, the results of which showed significantly reduced herniated disc material in the right paracentral region. There was enhancing soft tissue around the right S1 nerve root that was considered to be most in keeping with granulation tissue. The imaging showed good decompression of the right S1 nerve root.
- The plaintiff returned to see Dr Osborne on 9 August 2014. The GP clinic records state that the plaintiff still had some residual numbness in his heel and fifth toe and some mild weakness in his calf. Otherwise he was making good progress. He had commenced hydrotherapy.
- It was not until some three months later on 9 December 2014, that the plaintiff re-attended upon Dr Osborne. The GP clinic records document that the plaintiff was doing normal duties at work but was struggling. He reported that although he had experienced some resolution of his back and leg symptoms after the lower back surgery, that he was again experiencing persistent back pain and numbness in his right leg commensurate with the symptoms he had experienced leading up to the surgery. The plaintiff told Dr Osborne that he had another appointment scheduled with Dr Olson in February 2015. Dr Osborne provided a referral for a further MRI scan of the plaintiff’s lumbar spine. This was undertaken on the same day. The report revealed that the plaintiff still had small residual material in the right paracentral region at L5/S1 and associated perineural thickening and enhancement which remained largely stable. No new disc herniation was found. This MRI scan was of similar appearance to the scan of July 2014.
- Dr Olson re-examined the plaintiff on 6 February 2015. In her letter back to Dr Osborne dated 11 February 2015, she noted that the plaintiff continued to work full time even though he was struggling with his duties. Dr Olson thought the plaintiff had reached maximal medical improvement and that further surgery was not indicated. The plaintiff was taking Lyrica for the neural pain but was struggling with the side effects of this medication. For this reason, she also gave him prescriptions for Tramadol and Mobic.
- Since this time the records from the GP clinic show that the plaintiff has attended upon the practice on more than a dozen occasions with ongoing complaints of lower back related symptoms.
- Dr Scott Campbell, neurosurgeon initially examined the plaintiff at the request of his solicitors on 15 January 2016. He has provided a report dated 15 January 2016. The plaintiff reported that he experienced daily lower back pain which he rated as 9/10 in severity, with radiation down the right leg to the foot region. The plaintiff denied any history of lower back pain.
- On examination, the plaintiff walked with a normal posture and gait. Examination of the lumbar spine revealed decreased flexion and extension by 30% to 40%. There was asymmetry of movements and pain at the extremity of movements. There was also central tenderness and guarding. Lower limb power, reflexes and sensation were normal.
- As to the plaintiff’s prognosis, Dr Campbell considered further recovery was unlikely and that his symptoms and restrictions would persist indefinitely. Dr Campbell considered that in accordance with the AMA Guides 5th Edition DRE Category III, the plaintiff was suffering a 13% whole person impairment wholly attributable to the subject incident.
- When Dr Campbell re-examined the plaintiff on 22 March 2019, his symptoms and the examination findings were essentially unchanged from the time of his earlier examination. Dr Campbell reaffirmed his earlier opinion as to prognosis and permanent impairment.
- WorkCover arranged for the plaintiff to be examined by Dr Robert Labrom, orthopaedic surgeon. This examination occurred on 8 June 2016. Dr Labrom has provided a report dated 9 June 2016. In this report, Dr Labrom referred to having read a report of Dr Atkinson and the opinion of Dr Atkinson contained therein. I have attached neglibile weight to the stated opinion of Dr Atkinson summarised in Dr Labrom’s report, in circumstances where Dr Atkinson did not give evidence and his report was not tendered as an exhibit.
- When Dr Labrom examined the plaintiff, he reported constant pain in his lower back which he rated as 7.5/10, although he said that the severity of it would vary depending on the activities he was engaging in. The pain was radiating to his lateral buttock, thigh and calf. The plaintiff was limited in his ability to sit, walk, lift objects and travel in a vehicle. He felt that pain killers were only giving him partial pain relief.
- On examination, Dr Labrom noted that the plaintiff stood with an essentially normal spinal alignment. His gait pattern was normal, albeit slow. His straight right leg raise was to 90 degrees when he was seated bilaterally, but reduced to 70 degrees when he was lying on his back. The plaintiff demonstrated a forward flexion range in the lumbar spine, such that his outstretched fingertips reached his mid shins only. He could extend his lumbar spine to 10 degrees beyond neutral. A neurological examination of both lower limbs revealed a slightly reduced ankle jerk on the right side compared to the left. The plaintiff had altered sensation on the lateral border of his right thigh, knee and calf. His posterior calf also had some sensory disturbance.
- Dr Labrom considered that the plaintiff’s disc herniation had resulted from the incident. However he thought that the plaintiff’s ongoing complaints of pain were in excess of those that would be expected following technically successful decompression surgery and in the context of his examination findings. It was against this background that Dr Labrom questioned whether the ongoing symptoms could be at least partly attributable to the plaintiff’s pre-existing degeneration and psoriatic arthritis. He considered that the plaintiff’s multi-level facet joint arthropathy found in the radiological investigations is consistent with a rheumatoid condition. Dr Labrom thought that the extent of the plaintiff’s stiffness was consistent with a more systemic condition like rheumatoid arthritis and psoriatic arthritis. He considered that the plaintiff’s complaints of right sided leg pain could reflect some neural irritability made worse by the rheumatoid arthritis.
- It was in this context that Dr Labrom opined that the plaintiff’s ongoing condition is partly attributable to his work related disc herniation and in part relates to this underlying pre-existing condition. He thought it was appropriate to consider the injury sustained in the subject incident as a permanent aggravation of the plaintiff’s pre-existing multi-level lumbar spondylosis and rheumatoid condition.
- Dr Labrom considered that the plaintiff’s whole person impairment was no more than 12%. He apportioned 50% of the impairment to the successful decompression surgery and the remaining 50% to the plaintiff’s ongoing pre-existing rheumatoid condition and his not insignificant smoking habit. He thought the subject incident had probably accelerated the degenerative process at the L5/S1 level in a permanent way.
- It was Dr Labrom’s opinion that it is probable that irrespective of the subject incident, the plaintiff may have been at more risk of developing a disc herniation because of his pre-existing conditions. He explained that rheumatoid arthritis can cause altered connective tissue quality in the skeleton and the body. He also noted that the plaintiff had a not insignificant smoking habit which accelerates degenerative change at the intervertebral disc level. Accordingly, he considered that it was probable that some activity of daily living would have resulted in a similar event by the time the plaintiff was 60 years of age.
- There was initially some confusion in the medical evidence as to whether the plaintiff had been diagnosed with rheumatoid arthritis or psoriatic arthritis. While they are both autoimmune diseases, they have different disease processes with different genetic profiles. Dr Kevat had been the plaintiff’s treating consultant rheumatologist since October 2008. The plaintiff’s solicitors conferred with Dr Kevat on 5 April 2019. The file note of the conversation is exhibit 26. Dr Kevat also gave oral evidence. Dr Kevat confirmed that that plaintiff has psoriatic arthritis. Dr Olson expressed the opinion that rheumatoid arthritis (if the plaintiff had this condition), could partially explain why the plaintiff has struggled to recover as well as some patients do, following surgery. However, the plaintiff has tested negative to rheumatoid arthritis.
- I am not ultimately persuaded that it is probable that the plaintiff’s slower recovery and ongoing lumbar spine and lower limb symptoms can be partially explained by the plaintiff’s psoriatic arthritis. I prefer Dr Kevat’s evidence on this point. In doing this, I am mindful that some caution is required in accepting the evidence of a doctor who has been treating a person for many years. This is because there is a risk that the familiarity that can exist with such a relationship has the potential to erode the professional impartiality. Bearing this in mind, it was not my impression that Dr Kevat gave evidence as an advocate rather than a dispassionate professional. He has treated the plaintiff as a consultant rheumatologist in the public hospital system and has seen him intermittently. He is a rheumatologist where the issue under consideration is the likely effect of the plaintiff’s psoriatic arthritis on his lumbar spine. This is a rheumatological condition. Further, Dr Kevat’s evidence was largely based on the entries contained in the RBWH clinic records.
- Dr Kevat explained that psoriatic arthritis belongs to a cluster of conditions that fall under the umbrella of spondyloarthritis. One of the conditions in this cluster is ankylosing spondylitis and it is this disease process that can affect the lumbosacral spine and the sacro-iliac joints. Dr Kevat explained that there are two markers that indicate that a patient with psoriatic arthritis also has ankylosing spondylitis and therefore is at increased risk over the general population of experiencing lower back pain.
- The first marker is if the patient suffers sacro-iliac joint disease. A radiological investigation of the plaintiff’s sacro-iliac joints was undertaken in 2007. The results were not indicative of such a disease. While there has been no more recent radiological investigations of the plaintiff’s sacro-iliac joints, it is significant that there is no evidence of him having complained of symptoms of such a disease process. This would usually involve complaints of pain in the buttocks region, well below the lumbar spine region. The second marker is if a patient tests positive for a genetic factor known as HLA-B27. The plaintiff has tested negative for this marker.
- While I accept Dr Labrom’s evidence that it is possible for a patient with psoriatic arthritis to have back pain associated with this condition, in the absence of either of these markers, Dr Kevat opined that this would be rare and that it would be entirely speculative to attribute complaints of lower back pain to the arthritic condition. I accept Dr Kevat’s evidence in this regard.
- It was of significance to Dr Labrom that the plaintiff’s symptoms of psoriatic arthritis have required a dose of 20 milligrams per week of methotrexate to control them. He considered this is a high dose and is indicative of the severity of the plaintiff’s condition. Dr Kevat did not agree. In his experience as a rheumatologist treating this condition, approximately 80 percent of patients have their symptoms controlled on such a dose. Further, this is somewhat irrelevant in circumstances where I consider it is unlikely that the plaintiff’s psoriatic arthritis affects his lumbar spine.
- Finally, Dr Olsen did not agree with Dr Labrom that the plaintiff’s ongoing symptoms are inconsistent with a technically successful decompression. She explained that in her experience, while most patients experienced resolution of their symptoms following such surgery, there are a percentage of patients who experience ongoing symptoms of the type the plaintiff complains of. Dr Labrom accepted this in cross-examination. Dr Olson said there can be many reasons for the ongoing symptoms. One such reason can be scarring of the nerves. Another reason can be that pain is a subjective experience and can vary from one individual to another.
- I am also not persuaded that it is probable that the plaintiff’s slower recovery and ongoing lumbar spine and lower limb symptoms can be partially explained by the plaintiff’s smoking in the context of pre-existing degeneration in his lumbar spine. Dr Labrom noted in his report of 9 June 2016 that there did not appear to be any obvious evidence of the plaintiff requiring treatment for his lower back prior to the subject incident. Support for this can be found in the various medical records. The only records of such pain date back to 2007, for which there are two entries in the RBWH clinic records in March and April 2007. These were some seven years prior to the subject incident. The plaintiff’s evidence, which I accept, was that he did not suffer lower back pain in the years leading up to the subject incident. His wife said that he had previously never complained to her about back pain. He was able to work full time and complete overtime.
- A separate question is whether it is likely that the development of symptoms from the plaintiff’s pre-existing conditions would have produced similar lower back and right lower limb symptoms by the age of 60 (some two years ago), even if the subject incident had not occurred. This is relevant because where a pre-existing condition is of a type that would ultimately have affected the plaintiff anyway, the defendant is liable only for the acceleration brought about by the defendant’s negligence.
- I am not persuaded that the plaintiff’s psoriatic arthritis is likely to have had this effect. It does not find support from a careful analysis of Dr Olson’s evidence. She expressed the opinion that if the joints around the lumbar disc are arthritic then the disc can become degenerate. However, for the reasons set out above, I am not satisfied that there is any evidence the plaintiff’s sacro-iliac joints or any other joints around his lumbar disc are arthritic so as to have placed the L5/S1 disc under strain. Further, for the reasons set out above, there is no other reason to believe that the plaintiff’s psoriatic arthritis affects his lumbar spine.
- As to the plaintiff’s pre-existing degeneration, given it was essentially asymptomatic, I am also not persuaded that it would have had this effect.
- The plaintiff claims $24,300 for general damages. This equates to an ISV of 15 in accordance with Item 91 of the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) (‘the Regulation’).
- The evidence establishes that the plaintiff’s life has been transformed from one in which he undertook meaningful and fulfilling work as an assembler, partook in recreational activities and had a happy home life. He was fit and had much to look forward to. His current condition and foreseeable future are adversely impacted by pain in his lower back and other symptoms in his right lower limb. He is now 62 years of age. He is no longer able to enjoy his hobbies. He feels that he can no longer contribute to his family. He is nervous about his future. He takes pain relieving medication on a required basis. The plaintiff’s wife said that she had noticed the negative impact the injury had had on him. Dr Olson described him as stoic and genuine. Dr Labrom did not consider the plaintiff consciously exaggerated or overstated his ongoing condition. I have no reason to doubt the plaintiff’s truthfulness as to his ongoing symptoms and the adverse impact on his life. It was corroborated to a significant extent by the evidence of his wife. I found her to be an impressive witness.
- General damages must be assessed in accordance with the Regulation current at the time the plaintiff was injured in January 2014. There is no contest that the plaintiff has a moderate lumbar spine injury which involved a disc prolapse and nerve root compression.
- In these circumstances, the legislation requires guidance to be drawn from the description of a moderate lumbar spine injury at Item 91 of Schedule 9 of the Regulation. The range of ISVs is between 5 and 15. It provides that an ISV at or near the top of the range of 15 will be appropriate if there is radiological evidence of a disc prolapse at an anatomically correct level and there are symptoms of pain and three or more objective signs that are anatomically localised to an appropriate spinal nerve root distribution. These signs include sensory loss, loss of muscle strength, loss of reflexes and unilateral atrophy. Further, to come within an ISV at or near the top of the range, the impairment must not have improved after non-operative treatment.
- I have had regard to the whole person impairments of Drs Campbell and Labrom, being 13% and no more than 12% respectively. I take into account that the plaintiff had radiological evidence of a disc prolapse that was surgically treated. He has ongoing pain in his lower back radiating into his lower limb. On examination, there have been signs of altered sensation in his right leg, a slightly reduced right ankle jerk and a reduced straight right leg raise to 70 degrees.
- In my view an ISV of 12 is appropriate to reflect the level of impact of the plaintiff’s lumbar spine injury. Schedule 12 of the Regulation produces a figure of $18,130.
- Pursuant to s 306N(1) of the WCR Act, a court cannot award interest on general damages.
Past economic loss
- The plaintiff claims $927.14 net per week since the incident less income earned from the defendant. This assumes that he would have remained in constant ongoing full time employment with the defendant.
- The approach to the assessment of economic loss is to compensate the plaintiff for loss of earning capacity. The plaintiff must not only establish a diminution of earning capacity, but also that the diminution is or may be productive of economic loss.
- The incident occurred on a Tuesday morning. The plaintiff worked the rest of the shift and for the following three days, including four and a half hours overtime on 23 January 2014. There is no record from the defendant as to the duties he was performing on these days. Mr Waldock’s evidence was that he did not formally place the plaintiff on light duties.
- The plaintiff’s recollection is that he did not operate the lifter for the remainder of the week. He had been performing a variety of lighter and heavier duties prior to the incident and he only performed the lighter duties for the remainder of the week. Some support for this can be found in the evidence of Ms Robbins. She was content for him to decide which tasks he felt he could do on account of his pain.
- It was not until 28 January 2014, one week after the incident that the plaintiff first sought medical treatment from Dr Osborne at the GP clinic. The plaintiff explained in evidence that he had hoped the pain and his other symptoms would resolve without the need for medical attention. I accept that the plaintiff did his best to keep working as he enjoyed his job and needed the money.
- Dr Osborne certified the plaintiff to be unfit for work for five weeks. The plaintiff then returned to suitable duties on 14 March 2014 but on account of his ongoing symptoms he was provided a specialist referral to Dr Olson, neurosurgeon. It was approximately five weeks later that Dr Olson recommended the surgery that was performed on 13 June 2014. Following this, the plaintiff returned to work on suitable duties in late July 2014 with his duties progressively increasing.
- In December 2014, the plaintiff was reporting problematic functional symptoms. Dr Osborne recommended that he revert back to suitable duties. These had not been implemented prior to commencing annual leave on 23 December 2014. When the plaintiff returned to work in late January 2015, the occupational therapist informed Dr Osborne that a suitable duties program could not be completed due to persistence of the plaintiff’s symptoms. In February 2015, Dr Olson expressed the view that the plaintiff would need to remain on some form of suitable duties indefinitely.
- There were two attempts at host employment placements for the plaintiff. One was with a courier company on 20 April 2015. This was not successful on account of ongoing symptoms and the plaintiff left this work after a couple of hours. The other was with Supercheap Auto. The plaintiff’s tasks included stock facing for shelves, dusting, price checking and ticketing. The plan was to commence suitable duties for four hours per day three days per week, to be increased each week.
- WorkCover arranged for the plaintiff to be assessed by Kristy Milligan, occupational rehabilitation specialist on 14 July 2015 and she provided a report dated 20 July 2015. At this time, the plaintiff was continuing to engage in host employment at Supercheap Auto. He demonstrated functional capabilities that included working up to 15 hours per week in a role that allowed him to change positions and postures regularly and work at his own pace. At this time he was assessed as able to sit for approximately 15 minutes, stand for approximately 10 minutes and lift up to two and a half kilograms to waist height.
- Ms Milligan opined that the plaintiff did not appear capable of performing his pre-injury duties with the defendant. She considered he was suitable for sedentary work restricted to a maximum of 15 hours per week. It was recommended that prior to commencing any work that a worksite assessment be conducted. This was to clarify the inherent job demands of the position to ensure that the proposed duties were within the plaintiff’s functional capacity.
- By 30 July 2015, it was apparent that the plaintiff was unable to increase his hours beyond four hours per day five days per week. He remained working these hours for a further four weeks.
- The plaintiff’s WorkCover claim was finalised on 8 August 2015. His employment with the defendant was terminated approximately one month later. The reason for this was that on account of his ongoing lower back and leg symptoms, it was considered that he was unlikely to be able to return to his pre-injury duties. Mr Waldock explained that the defendant was committed to returning injured employees to work if possible and would only terminate an employee’s employment as a last resort after being satisfied that there was no possible role for the injured worked to be deployed to. The plaintiff fell into this category.
- Dr Campbell thought the plaintiff’s prospects of returning to work as a glazier and in any other occupation requiring lifting and bending are poor. He considered that the plaintiff’s age is a further barrier to future employment. He also noted that the plaintiff’s tertiary qualifications would not be recognised in Australia. Dr Campbell confirmed his opinion in this regard in his most recent report. He described the plaintiff as commercially unemployable.
- In June 2016, Dr Labrom expressed the opinion that the plaintiff could return to part time work with the defendant and possibly work in that capacity at least until retirement age. There are two difficulties with Dr Labrom’s opinion in this regard. First, the plaintiff’s employment with the defendant had been terminated some nine months prior to Dr Labrom examining him. As discussed above, the reason for the termination was that the defendant did not consider the plaintiff physically capable of performing the required duties. The second issue, albeit less significant, is that Dr Labrom frankly conceded in cross-examination that this opinion had been expressed in circumstances where he had a limited understanding of the tasks the plaintiff was required to perform.
- In evidence Dr Labrom conceded that given the plaintiff’s educational background and limited English, vocational retraining might be an issue for him. He further conceded that the plaintiff’s age could also present challenges regarding further employment. In my view these concessions are reasonable.
- In March this year, Dr Olson told the plaintiff’s solicitors that she did not believe that he could return to a labouring role and that it would have been ideal if the defendant could have continued to offer him suitable duties.
- It appears that the plaintiff made reasonable but unsuccessful attempts to participate in relatively light work in the host employment programs discussed above. He was unable to cope with the demands of these jobs due to his injuries and ongoing symptoms. I am satisfied on the evidence that the plaintiff is permanently unfit for not only his former work with the defendant but also for any similar employment.
- There is no suggestion on the evidence that work with the defendant would not have been continuously available to the plaintiff during the intervening period since the subject incident. In oral submissions, counsel for the defendant described the plaintiff as a “fundamentally decent working person and that he was a valued employee of the defendant.” He later said “he [the plaintiff] seems to have been highly regarded.” It was the plaintiff’s evidence that he liked his job and it was his intention to keep working for as long as he could.
- The defendant points to the plaintiff’s complaints of shoulder related symptoms between September 2015 and September 2016. The relevant question is whether these symptoms would have prevented the plaintiff from working for the defendant. As to the nature and severity of these symptoms, the GP clinic records show that on 3 September 2015, the plaintiff attended upon Dr Osborne complaining of symptoms of right shoulder impingement. A referral for ultrasound imaging was provided and the results revealed a partial tear of the plaintiff’s right supraspinatus. Conservative management was implemented. The plaintiff continued to complain of right shoulder symptoms for some months. In January 2016 the plaintiff told Dr Osborne that he had developed pain in his left shoulder. There is no mention in the GP clinic records or in any other medical records of ongoing shoulder symptoms subsequent to September 2016. Dr Osborne gave evidence that he had not referred the plaintiff to an orthopaedic surgeon or for any other treatment for the shoulder symptoms. He explained that in his experience partial tears in shoulders inevitably heal and he considered this had been the case with the plaintiff’s tear.
- I am satisfied the plaintiff would have managed these symptoms by performing lighter duties, as he did in the days following the subject incident when he had lower back pain and radicular symptoms in his right lower limb. Alternatively he would have been able to take sick leave. There is no evidence that the plaintiff’s shoulder symptoms have been ongoing.
- The plaintiff had worked in full time employment with the defendant as an assembler since 3 March 2008. His schedule of earnings is exhibit 56. It reveals that the plaintiff earned an average net weekly income of $801.07 in the 2011 financial year. By a letter to the court dated 11 June 2019, the parties stated that they agreed that the plaintiff’s net weekly income was $786.11 in the 2013 financial year and he worked an average of 5.16 hours of overtime per week.
- It is further agreed by the parties that in the 29 weeks of the 2014 financial year before the plaintiff was injured, he earned an average net weekly income of $677 and he worked an average of 2.71 hours of overtime per week. For the remainder of the 2014 financial year after the plaintiff was injured his average net weekly income was the same. He has earned $30,247 from the defendant during his various periods of employment since the incident.
- I am satisfied in this case that the plaintiff is entitled to recover, as damages for loss of earning capacity, the difference between what he would have earned in the period since the incident and any amount which he has earned or could reasonably have earned during this period. In my view this provides a reliable basis for assessing compensation for the diminution of earning capacity.
- The evidence suggests that there has been an increase in wages payable by the defendant since the incident. The defendant has disclosed comparable net wage figures of three employees over the period between the time of the subject incident and 31 March 2019. These were tendered by consent. The net wage figures over this period are $240,000, $226,000 and $180,000 respectively. These equate to net weekly incomes of $922.65, $871.67 and $804.76 respectively. The average net weekly income of the three employees is $866.36. Two of the employees had amounts deducted from their salaries for withholding payments, CFMEU payments and social club payments which the plaintiff did not have deducted from his salary. These payments were added back in for the purposes of these calculations. The third employee salary sacrificed and this was taken into account in arriving at his average net weekly income. These comparable net wages provide a helpful guide as to the value of the plaintiff’s earning capacity but for the subject incident.
- The defendant contents that the net weekly loss should be at the very low end, namely $800 per week and that this should be allowed for no more than 18 months post injury. This reflects Dr Labrom’s opinion that it is probable that had the incident not occurred, some activity of daily living would have produced a similar injury by the time the plaintiff reached 60 years of age. I am not persuaded by this approach to the calculation of past economic loss, in circumstances where I have not accepted this hypothetical scenario for the reasons set out above. Further I consider a loss of $800 per week to be too low given the overtime worked by the plaintiff prior to the incident.
- I have allowed a net weekly loss of $865 per week since the time of the subject incident, being a period of approximately 5.66 years. This equates to a figure of approximately $255,000. Deducting $30,247, being the amount the plaintiff earned from the defendant during his various periods of employment between the time of the incident and when his employment was terminated in September 2015 gives a figure of approximately $225,000.
- The discount, if any, to be applied to an award for economic loss in the past involves considerations that are different to those that are appropriate for the future. The principal reason for this is that the past is certain while the future is of necessity less certain. There are no particular circumstances in this case that call for a reduction in contingencies beyond $215,000 (approximately five percent) for past economic loss.
Interest on past economic loss
- The plaintiff has received approximately $33,987.78 from WorkCover by way of net weekly compensation from 4 February 2014 to 7 August 2015. Therefore, interest should be awarded on the shortfall of past economic loss of $181,000 from 12 August 2015, being the date his WorkCover compensation benefits ceased. This a period of 4.08 years at a rate of 1.8%. The resulting figure is approximately $13,290.
Fox v Wood
- The Fox v Wood component is agreed at $6,011.
Past loss of superannuation
- The parties agree that the appropriate rate is 9.25%. In these circumstances, the allowance for loss of past superannuation is $19,890.
Future economic loss
- Turning to future loss, the plaintiff needs to show not only a loss of earning capacity but that the loss of capacity is or may be productive of economic loss. I am satisfied the plaintiff has discharged his onus in this regard. He claims an ongoing loss of $950.52 net per week until he turns 70, being a period of some seven and a quarter years.
- The parties agree that the average net income of the three comparable employees in the six months from 1 October 2018 until 31 March 2019 were $988.48, $928.12 and $901.72 respectively. The average net weekly income of the three employees over this six month period was $939.44.
- The defendant contends that there ought to be no allowance for future economic loss on the basis that the plaintiff would be in a similar situation now even if the incident had not occurred. I reiterate that I do not accept the defendant’s submission in this regard for the reasons above.
- The plaintiff is currently 62 years of age. This could not be considered a natural retirement age for him. He and his wife planned to work for as long as they could. He enjoyed his job and his wife continues to work. He had financial incentives to continue to earn an income, including an ongoing mortgage obligation on their family home which required further work. He had planned on buying a car and taking holidays. Mr Waldock’s evidence was that there had been no complaints about the plaintiff’s work. Mr Hansen described him as an extremely hard and enthusiastic worker who just “got in and got the job done”. In short, there was no retirement age, the plaintiff wanted to work and there is no suggestion that the defendant would have terminated the plaintiff’s employment for any reason. Having said this, it was a manual job that could be physically demanding for a worker of more mature years.
- The difficulties of persons aged in their 60’s obtaining employment are well-known. This is compounded by the plaintiff’s limited English and that his previous jobs have been in manual type roles.
- Overall, I consider it appropriate to adopt a figure for the period from today to age 68, namely a period of approximately five and a quarter years. I have adopted a weekly figure of $940, being the average for the three comparable employees. The five per cent multiplier for this period is 241 and therefore the present value of $940 per week for five and a quarter years is approximately $226,000.
- This figure does not incorporate contingencies. The onset of medical problems including serious injury or illness is relevant and the issues concerning the plaintiff’s pre-existing conditions are important. I am not satisfied that by reason of these pre-existing conditions the plaintiff’s chances of an uninterrupted exercise of earning capacity are less than average, particularly over the relatively short period I have allowed. In my view the degree of discounting on account of adverse contingencies is not as great as it would be if future economic loss was allowed over a longer period of time. Further, there are a number of positive contingencies to be considered. These include the plaintiff’s stoic nature, his long-term employment history with the defendant, the financial incentive for him to have continued working and the fact that the defendant does not have a compulsory retirement age for its employees.
- A discount of 15 per cent for contingencies is often but not uniformly adopted by the courts. The reason why there is no such pre-determined approach is because it is inevitable that the factual significance of positive and adverse vicissitudes will vary from case to case. Given the relatively short period of the future economic loss assessment, the degree of discounting warranted on account of the adverse contingencies is not as great as if the period of the loss was longer.
- Given all these circumstances, in my view the abovementioned contingencies justify a reduction from the starting point of $235,000 to a figure of $205,000, which is a discount of approximately 10%.
Future loss of superannuation
- The parties are agreed that the appropriate rate is 10.5%. Allowing this rate on future economic loss gives a figure of approximately $21,500.
- WorkCover expenses amount to $33,727.77 and the refund to Medicare Australia is $462.25. The total of these refunds is $34,190.02. The plaintiff claims and additional $2,872.33 for pharmaceutical and travel expenses. This is agreed to by the defendant. The total is $37,062.35.
Interest on out of pocket expenses
- It is not in dispute that the plaintiff is entitled to interest on $2,872.33. The parties agreed that the calculation results in a figure of $275.57.
Future out of pocket expenses
- The plaintiff claims a total of approximately $14,200 for future expenses. This is comprised of claims for ongoing expenditure on pharmaceuticals, travel and physiotherapy treatment.
- The claim for pharmaceuticals is made at $4.25 per week. This is based on the average cost of the plaintiff’s medications since the cessation of his WorkCover payments. The medications he has taken in the past are Lyrica, Palexia (an opioid analgesic) and Comfarol Forte (pain relief with Panadeine and Codeine).
- The plaintiff told Dr Scott Campbell in January 2016 that he was taking Panadeine Forte and Lyrica for lower back pain on an as required basis. He told Dr Labrom in June 2016 that he was taking Panadeine Forte as required and Lyrica twice a day. The RBWH clinic records show that the plaintiff reported on each occasion that he attended for his six monthly review from November 2015 that he was taking Panadeine Forte as required. There is no mention of Lyrica prior to the review in June 2018. The plaintiff gave evidence that he continues to take Lyrica and Pandeine Forte. This is what he had told Dr Campbell when he most recently saw him on 22 March 2019. It was also the evidence of the plaintiff’s wife that he continued to take medication. The medical experts agree that the plaintiff will require ongoing medication.
- The plaintiff also claims $5 per week on the basis that the average cost of travel in the past has been $7.92 per week. The plaintiff travels a significant distance from Bald Hills to Greenslopes to attend upon Dr Osborne. However, the defendant accepts it is reasonable for this to continue given the therapeutic relationship that exists. The GP clinic records show that the plaintiff has been seeking medical treatment for his lumbar spine related symptoms on a less frequent basis over time and that he often attends these appointments for at least two medical issues, where one is unrelated to the incident.
- The claim for physiotherapy treatment is made at a weekly cost of $10.00 for 24 years (5% factor 738), totalling $7,380.00. In his most recent report, Dr Campbell considered the plaintiff may benefit from six to eight sessions of allied health treatment at a cost of $90-$120 per session for acute exacerbations.
- Dr Labrom considered that a self-directed program with six-monthly reassessments over the course of a two year program may be appropriate. However, he thought it would probably make negligible difference to the plaintiff’s condition. There is no evidence of the plaintiff having received such treatment since the cessation of his WorkCover claim in August 2015.
- In my view it is appropriate to make a global assessment of $7,500 for future out of pocket expenses.
Summary of damages award
Head of damage
Past economic loss
Interest on past economic loss
Fox v Wood
Past loss of superannuation
Future economic loss
Future loss of superannuation
Interest on out of pocket expenses
Future out of pocket expenses.
Less WorkCover Refund
- There will be judgment for the plaintiff against the defendant for $469,931.45.
- I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within twenty-one days.
 Further amended statement of claim, para 8.
 Further amended defence, para 5.
 Exhibit 7.
 T3-88, ln 23-33.
 T5-19, ln 18-21.
 T6-24 ln 15-36.
 Further amended defence, para 4(d)(i).
 T3-88, ln 40-44.
 T5-36, ln 28-47 to T5-37, ln 1-3.
 Further amended defence, para 5A(b)(iii).
 Fox v Percy (2003) CLR 118, 129 at .
 T7-7, ln 14-19.
 Exhibits 1, 39, 40 & 41.
 T4-48, ln 11-24.
 The plaintiff did not call Ms Meakins and the defendant contends that a Jones v Dunkel inference ought to be drawn. However, such an inference is not open in relation to privileged communications between a party and his lawyer (Donaghue v Donaghue & Anor  QSC 54 at ).
 Exhibit 4.
 T2-26, ln 15-19; T2-48, ln 20-26.
 T5-61, ln 12-13; T5-62, ln 1-9 & ln 25-30.
 T6-20, ln 1-7.
 T3-88, ln 1-20.
 Further amended defence, para 5(b)(i).
 T3-67, ln 41-47; T3-93, ln 42-47.
 T4-20, ln 11-16.
 T6-26, ln 16-27.
 Statement of claim, para 8(c).
 T1-60, ln 32-46 to T1-61, ln 1-5.
 T3-68, ln 20-22.
 Exhibit 48.
 T5-85, ln 16-30; T5-100, ln 18-32; T5-101, ln 1-9.
 T5-35, ln 8-11.
 Further amended statement of claim, para 8(c1).
 Exhibit 5, pg 7.
 T5-35, ln 33-36; T5-39, ln 35-40.
 T3-77, ln 14-25.
 T3-80, ln 30-45.
 T3-70, ln37-46 to T3-71, ln 1-6.
 T3-74, ln 1-8.
 Further amended statement of claim, para 8(e).
 T3-9, ln 15-28; T5-62, ln 14-17.
 T3-79, ln 1-12; T3-96, ln 17-25.
 T1-67, ln 1.
 T3-39, ln 1-24; T3-69, ln 1-20.
 T3-65, ln 24-28.
 T3-89, ln 27-36.
 T3-63, ln 17-26 & ln 41-45.
 Exhibits 1 and 2.
 Exhibit 3.
 Exhibits 5 and 6.
 T4-61; Further amended defence, para 4(d).
 Further amended defence, para 4(d)(i).
 Exhibit 1, pg 14.
 T4-52, ln 23-43.
 T4-53, ln 22-38.
 T4-56, ln 14-24.
 Further amended defence, paras 4(d)(i), 4(d)(iv), 4(e), 4(f) and 4(j).
 T1-67, ln 1.
 Finn v The Roman Catholic Trust Corporation for The Diocese of Townsville  1 Qd R 29 at 41.
 (1956) 96 CLR 18 at 25.
 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230.
 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308.
 S J Sanders Pty Ltd v Schmidt  QCA 358 at .
 (1887) 45 SASR 455 at 554.
 (1980) 146 CLR 40.
 s 305C(2) WCR Act; Brisbane Youth Services v Bevan  QCA 211.
 Mount Isa Mines v Pusey (1970) 125 CLR 383 at 390.
 T3-64, ln 20-31.
 T3-85, ln 34-39.
 State of New South Wales v Mikhael  NSWCA 338 at .
 Smith v Broken Hill Proprietary Co Ltd (1957) CLR 337; McLean v Tedman (1984) 155 CLR 306; Czartyrko v Edith Cowan University (2005) 214 ALR 349.
 Exhibit 33, pg 89.
 T3-64, ln 40-42; T3-71, ln 38-44.
 T3-64, ln 44-47.
 T3-72, ln 5-9.
 Exhibit 33, pg 84.
 T4-49, ln 3-22.
 T4-49; T4-52; T4-53; T4-54.
 T5-76, ln 14; T5-127, ln 1-19.
 T1-51, ln 10-17; T1-52, ln 1-4.
 T1-71 to T1-73.
 T3-72, ln 23; T3-73, ln 8-10.
 T3-72, 35-44.
 T1-53, ln 12-15.
 T1-53, ln 19.
 T5-93, ln 12-27.
 T4-48, ln 37.
 T4-48, ln 15-20.
 T4-49, ln 24-33.
 T3-64, ln 7-12.
 WCR Act, s 305D(1).
 March v E & MH Stramere Pty Ltd (1999) 171 CLR 506.
 Stitz v Manpower Services Australia Pty Ltd  QSC 268.
 Strong v Woolworths Ltd (2012) 246 CLR 182 at .
 T3-20, ln 45-47.
 Exhibit 1.
 T5-65, ln 25-37.
 Exhibit 17.
 Exhibit 18.
 Exhibit 27.
 Exhibit 23.
 T3-17, ln 17-21.
 Exhibit 10, pg 52.
 T3-28, ln 42-46 to T3-29, ln 1-2.
 T3-29, ln 4-8.
 Exhibit 10, pg 52, 53.
 T4-81, ln 1.
 T4-79, ln 1-9.
 Qantas Airways Limited v Fisher  QCA 329.
 Exhibit 16.
 Exhibit 37.
 T7-7, ln 15.
 T7-52, ln 46-47.
 T1-77, ln 35-43.
 T3-56, ln 12-19.
 Bevan v Wagner Industrial Services Pty Ltd  QCA 246.
 Graham v Baker (1961) CLR 340 at 347.
 T1-76, ln 13-47 to T1-77, ln 1-43.
 T3-74, lm 14-26
- Published Case Name:
Cosic v G James Safety Glass (Qld) Pty Ltd
- Shortened Case Name:
Cosic v G James Safety Glass (Qld) Pty Ltd
 QDC 170
20 Sep 2019