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  4. Johnson v Fraser Coast Regional Council - [2020] QDC 228

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Johnson v Fraser Coast Regional Council[2020] QDC 228

Johnson v Fraser Coast Regional Council[2020] QDC 228

DISTRICT COURT OF QUEENSLAND

CITATION:

Johnson v Fraser Coast Regional Council [2020] QDC 228

PARTIES:

CLINTON JAMIE JOHNSON

(plaintiff)

v

FRASER COAST REGIONAL COUNCIL

(defendant)

FILE NO/S:

138 of 2016

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

23 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 - 28 August 2020,1 September 2020

JUDGE:

Loury QC DCJ

ORDER:

Judgement for the plaintiff in the sum of $349,548.07.

CATCHWORDS:

TORTS – NEGLIGENCE – GENERALLY – where plaintiff claims damages for an injury suffered at his employment with the defendant – where defendant denies injury occurred at work – where plaintiff had a pre-existing degenerative knee condition

WORKERS’ COMPENSATION – LIABILITY OF EMPLOYER – where plaintiff stepped on unstable tow-hitch to cover a load of asphalt – where plaintiff stepped down, and twisted knee – where defendant accepted that it had not enforced a system for covering asphalt – where plaintiff had complained to his supervisors of difficulties in covering asphalt

DAMAGES – MEASURE OF REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where event causing injury was minor – where minor injury aggravated pre-existing knee condition – where plaintiff would have had problems working in heavy labour in any event because of pre-existing injury – level of current impairment – discount which should apply for contingencies

Czatyrko v Edith Cowan University (2005) 214 ALR 349

Bevan v Wagner Industrial Services Pty Ltd [2017] QCA 246

Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424

Wyong Shire Council v Shirt (1980) 146 CLR 40

Meandarra Aerial Spraying Pty Ltd v GEJ and MA Geldard Pty Ltd (2013) 1 Qd R 319

Vairy v Wyong Shire Council (2005) 223 CLR 422

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642-643

McDonald v FAI General Insurance Co Ltd [1995] QCA 436

Stitz v Manpower Services Australia & Anor [2011] QSC 268

March v E & MH Stramare Pty Ltd (1999) 171 CLR 506

Workers’ Compensation and Rehabilitation Regulation 2014 Sch 8 s 9

Workers’ Compensation and Rehabilitation Act 2003 ss 306O, 306P

COUNSEL:

RC Morton and JM Sorbello for the plaintiff

WDP Campbell for the defendant

SOLICITORS:

Morton & Morton Solicitors for the plaintiff

Jensen McConaghy Lawyers for the defendant

  1. [1]
    The plaintiff is now a 49 year old man. He was born in Maryborough and has spent the vast majority of his life living in Maryborough. He was educated to part way through year 11. He has a long-term partner and five children including a step-son. He has worked in manual labouring jobs for all of his working life until he suffered an injury to his knee in September 2014. He has not worked since.
  1. [2]
    The plaintiff was employed by the defendant. On 26 October 2015 his employment was terminated (effective 1 December 2015)[1] as he was no longer fit to undertake the manual components of his duties.  Those components included regular bending and squatting, heavy lifting and the operation of heavy plant and fleet. 
  1. [3]
    The plaintiff was well regarded by the defendant. In his last performance appraisal in August 2014 (two weeks prior to his injury) the plaintiff was considered to meet all/the majority of the requirements of his role as a plant operator. Relevantly, it was considered that he understood and complied with work, health and safety requirements and reported all potentially unsafe conditions and incidents. He was described in this way, “Clint always displays a good work ethic. He is a team player and does his work to a high standard.  Needs little supervision and gets on well with other team members.”  
  1. [4]
    The plaintiff sues for damages against the defendant claiming that the injury he sustained in September 2014 occurred whilst at work and was caused by the defendant’s negligence. The defendant does not accept that the injury occurred at work and denies liability on that basis. For the reasons which follow I am satisfied that the plaintiff sustained an injury at work on 5 September 2014 and that the injury was caused by the defendant’s negligence.

The plaintiff’s evidence as to his injury

  1. [5]
    The plaintiff was tasked to drive a 16 tonne double axle Isuzu truck. He carted gravel and asphalt (referred to as hot-mix) to job sites. When not driving the truck he was required to work as a labourer. He also drove a roller. He would collect the asphalt from a plant just outside of Maryborough or from a plant at Dundowran near Hervey Bay.
  1. [6]
    Asphalt is a dark, hot, sticky substance used to patch road surfaces. The process of loading it into the tray of the truck required the plaintiff to position his truck under a hopper from which the asphalt was poured. Two loads of asphalt would be poured into the tray of the truck creating two mounds. Before driving the asphalt to a work site where it would be used to repair roads, the plaintiff was required to cover the load of asphalt by placing a tarpaulin over it. On the Isuzu truck, a mechanical system had been installed where the plaintiff turned a handle which allowed him to wind the tarpaulin from a fixed point near the cab of the truck, over the load.
  1. [7]
    On 27 June 2014 the plaintiff took some recreation leave. He returned to work on Tuesday 15 July 2014 and was tasked to drive a different truck. It was a smaller Mitsubishi Fuso truck, approximately 10-12 tonne. Again, the plaintiff was required to cart asphalt and gravel. The truck was loaded with asphalt in the same way as previously had occurred with the larger truck, by positioning the tray under a hopper from which the asphalt was poured. The system for covering the load of asphalt with a tarpaulin was different to the mechanical system he had previously used. The plaintiff was required to manually pull the tarpaulin over the load of asphalt by use of a rope. That required him to stand at the rear of the truck and pull the tarpaulin by the rope from the front of the tray where it was affixed, to the rear of the tray where it was then attached to some hooks.
  1. [8]
    The plaintiff experienced difficulty undertaking the task of covering the asphalt in the smaller truck because the mounds of asphalt in the tray extended beyond the height of the tray. If standing on the ground when attempting to pull the tarpaulin into place, it would dig into the mounds of asphalt. Consequently, in order to manoeuvre the tarpaulin into place the plaintiff stood on the tow-hitch at the rear of the truck, which allowed him to lift the tarpaulin over the mounds of asphalt.
  1. [9]
    Images of the tow-hitch tendered in evidence[2] demonstrate that it was not a flat surface and not a large enough surface upon which a person could place two feet comfortably.  The tow-hitch was also not a stable surface.  There was some movement in it.[3]  By standing on the tow-hitch however, the plaintiff was able to lift the tarpaulin over the two mounds of asphalt and attach it to the hooks at the rear of the truck. 
  1. [10]
    The plaintiff gave evidence that he spoke to his supervisor, Mr Bausch, about the difficulties he was having covering the asphalt with the tarpaulin. He could not remember when this conversation occurred but thought it was three or four weeks after he started driving the smaller truck which would be around mid-August. Mr Bausch told the plaintiff that he would “look into it”.  The plaintiff said that Mr Bausch did get back to him about the tarpaulin.   An entry in the plaintiff’s dairy suggests that occurred on Wednesday, 3 September 2014.  The entry reads, “Talk to Darren and Fred about tarp”.[4]  The reference to Fred is a reference to Mr Bausch. 
  1. [11]
    The plaintiff said that he remembered speaking to Mr Bausch, “Darren” and the maintenance supervisor, “Smithy” on 3 September 2014.   He had returned to the depot at the end of the day.  Mr Bausch approached him and asked about the work site he had attended that day.  Mr Bausch then said “we’ll find out a way – leave it up to Darren and Smithy about the tarp”.[5]  The plaintiff said that neither Darren nor Smithy were present for this conversation.  He could not recall whether he discussed with Mr Bausch how he was going about covering the asphalt with the tarpaulin although he did say that he told Mr Bausch that he was standing on the tow-hitch.  He recalled Mr Bausch suggested that he might try standing on a platform at the rear of the truck which was higher from the ground than the tow-hitch.  Mr Bausch did not, however, tell him not to stand on the tow-hitch.  The plaintiff said that he was otherwise not told how to go about covering the asphalt with the tarpaulin.[6]
  1. [12]
    On Friday 5 September 2014 the plaintiff said that he was carting asphalt to Ariadne Street in Maryborough. He said initially in his evidence that he could not remember where he collected the asphalt but said “it would’ve been at the Maryborough plant”.[7]   In cross-examination however he said that he attended the plant at Dundowran.[8]   In any event, the plaintiff said that after the tray of his truck was filled with asphalt he covered it with the tarpaulin.  He stood on the tow-hitch and pulled the tarpaulin over the asphalt making sure that it was tied off correctly.  He then stepped down off the tow-hitch onto his right leg.  As he turned, his knee twisted and he fell to the ground.[9]   He suffered pain in his right knee however he nonetheless continued working.  He took some time to compose himself and then drove the load of asphalt to the job site at Ariadne Street.   He described his knee as having pain shooting through it as he drove to the site.  
  1. [13]
    In his diary for 5 September 2014 the plaintiff has written:

“Hot Mix

Ariadne St

Darren and Fred came over to see

what to do about the tarp. Twisted

my knee.”

  1. [14]
    The plaintiff said in evidence that whilst at Ariadne Street, Darren and Mr Bausch and Smithy called him over and spoke to him about modifying the tray of the truck so that gravel did not spill from the tray. He said that Mr Bausch asked him if he was alright and he responded that he was. He did not tell him that he had injured his knee.[10]  The plaintiff continued working for the remainder of the day.  He said that his knee was very sore and swollen.[11] 
  1. [15]
    The plaintiff did not work again until Tuesday 9 September 2014 (he had a rostered day off on Monday 8 September 2014). Over the weekend he iced his knee or placed a heat pack on it. He did not seek any medical treatment because he thought it would “come all good”.   The plaintiff continued working over the following days.  He said that his knee “wasn’t too bad” although moving it from the accelerator to the brake and back to the accelerator caused it to swell.  The knee continued to cause him pain and to swell until Friday 12 September 2014 when he went to the hospital.  He said that Mr Bausch told him to go to hospital.  He did not ask him what the problem was with his knee.[12] 

Credibility/Reliability of the plaintiff

  1. [16]
    The plaintiff is, in my view, an unsophisticated man. His answering of questions, including in evidence-in-chief, was restricted. He did not volunteer information. He did not provide detailed descriptions or a narrative style answer. He often misunderstood questions, giving literal answers when the question was not directed to the literal meaning of the words. There was a tendency for the plaintiff to answer questions quickly regardless of whether he understood them. The plaintiff did not appear to understand complex sentences and often tended to focus his answers on the very last part of the question without understanding the true meaning of the question. I consider that the plaintiff’s communication skills are somewhat limited. The plaintiff also has some difficulty with his memory particularly as it relates to his ability to give an accurate medical history. Nonetheless, I consider the plaintiff to be an honest and sincere witness who has attempted, to the best of his ability, to communicate what he considered to be the truth.
  1. [17]
    The defendant argues that the plaintiff has fabricated the circumstances of the incident in order to fraudulently obtain the benefit of workers’ compensation statutory benefits, initially for medical expenses and weekly benefits consequent upon his inability to work and ultimately in a claim for common law damages. There are a number of features of the evidence, upon which the defendant relies, arguing that they give rise to an inference that the plaintiff has fabricated the circumstances of the incident. Those features arise from inconsistencies found in a number of documents which were admitted into evidence.
  1. [18]
    The plaintiff, as required by his employer, completed an incident report in relation to this event, however it was not completed until 12 September 2014 contrary to the defendant’s policy.[13] It indicates that the injury was sustained at 10:30 am on 5 September 2014. It also documents that the injury was sustained at Ariadne Street at Maryborough.   The incident report indicates that the nature of the injury is a sprain to the knee.  The type of incident is described as “stepping on” and “strain”.  
  1. [19]
    The plaintiff, in his evidence-in-chief, initially stated that the injury occurred at the Maryborough plant. Later in cross-examination he said that the injury occurred at the Dundowran plant. He was definite that the injury did not occur at Ariadne Street as documented in the incident report. His explanation for writing Ariadne Street in the incident report was difficult to understand. He appeared to be saying that Ariadne Street was the site where he was working on the day that the injury occurred and that he was busy.[14]  There were a number of times during the course of his giving evidence that I consider the plaintiff struggled to communicate with both counsel.  He, at times, struggled to understand the question being asked and struggled to communicate his answer in a responsive and understandable manner.  
  1. [20]
    I consider that the plaintiff made an error in completing the incident report by inserting Ariadne Street as the place where the incident occurred. At the time he completed this report he was about to go to hospital. It was one week after the injury had occurred. I infer that he was in pain as a result of the condition of his knee at that time and he was then at the Ariadne Street address when he completed the report. His account of what occurred when he injured himself cannot have occurred at the Ariadne Street address as that is where he was unloading the asphalt from the truck. At this site he was not required to cover the load of asphalt, but rather to uncover and unload it. The reference to Ariadne Street is, in my view, explicable as an error made by the plaintiff in the circumstances of his filling out the report.
  1. [21]
    The first occasion that the plaintiff gave a lengthy account of the events of this day was on 13 October 2014 when he spoke to an investigator retained by the defendant.[15]  He indicated at that time, close in time to these events, that the injury occurred at Dundowran, consistent with the opening given by counsel for the plaintiff.  The plaintiff in his evidence-in-chief initially said that the injury occurred at the Maryborough plant however in cross-examination said that it occurred at the Dundowran plant.  I do not consider that anything turns on this inconsistency as it is consistent with the plaintiff finding himself in the unusual environment of the courtroom and is no more than a minor error made in those circumstances.     
  1. [22]
    The plaintiff, in the incident report, wrote in a section providing for a description of what happened “step on back towing hitch on truck, to pull trap(sic) rope over headed hot mix to cover load.  While pulling on rope felt right knee twist. Got wose (sic) over period of week”.
  1. [23]
    The incident report is signed by the plaintiff and dated 5 September 2014, however he accepted that he did not in fact complete the document until 12 September 2014 when he informed his supervisor, Mr Bausch, about his injury. He said that he didn’t fill out an incident report on 5 September 2014 because he thought his knee would get better. The reason he signed and dated the report as 5 September 2014 (rather than 12 September 2014) was because Mr Bausch told him to do so.[16]
  1. [24]
    There are other bodies of evidence which, in my view, provide support for the plaintiff’s evidence that Mr Bausch told him to sign the document as 5 September 2014. The plaintiff’s partner, Ms Julie Polzin, gave evidence that she recalled the plaintiff injuring his knee at work. It was swollen and causing him pain. He alternated the use of ice packs and deep heat before returning to work for a few days. She recalled receiving a telephone call from Mr Bausch who instructed her to pick up the plaintiff and take him to the hospital. Ms Polzin completed a Local Government Workcare Application for Compensation form[17] for the plaintiff.  She said that Mr Bausch brought the form to their home where she completed it, as the plaintiff’s glasses were broken.  She said that she filled in the form on the basis of what the plaintiff told her together with Mr Bausch’s advice.[18]  The form suggests the injury occurred at Woodstock Street, Maryborough at around 10:00 am on 5 September 2014.  Woodstock Street intersects with Ariadne Street.  The intersection is the job site where the plaintiff was working on 5 September 2014.  The document also records, like the incident report, that the injury was reported to the plaintiff’s supervisor on 5 September 2014 at approximately 10:00 am. 
  1. [25]
    Ms Polzin recorded Mr Bausch’s details on the form which included his phone number, which I infer was provided by Mr Bausch to her. The document also records that the plaintiff stopped work on 12 September 2014 at around 11:00 am. The document recorded the mechanism of injury as “standing on tow hitch pulling a tarp over the load in the truck”.  It is signed by the plaintiff and dated 16 September 2014.   That the mechanism of injury is stated to be in the context of covering the load of asphalt, demonstrates that it cannot have occurred at the job site (at Woodstock Street or Ariadne Street) as that is where the asphalt was unloaded rather than loaded in to the truck. 
  1. [26]
    I again consider that the reference to the injury occurring at Woodstock Street in the incident report is an error which has occurred in the context of the document being completed 11 days later by the plaintiff’s partner. Ms Polzin said, in cross-examination, that Mr Bausch assisted in completing the document by helping with the dates. It is unclear on the state of the evidence before me what particular information she was provided by the plaintiff as opposed to Mr Bausch. The reference to Woodstock Street can be seen to be a reference to the same job site as referred to in the incident report. The plaintiff has consistently, in his diary, referred to this job site as Ariadne Street. I do not consider it likely that the plaintiff indicated Woodstock Street as the place of the incident. In any event the reference to Woodstock Street is an error which in my view does not impact upon my acceptance of the plaintiff’s evidence given the circumstances in which the document was completed.
  1. [27]
    Ms Polzin’s evidence that Mr Bausch helped with the dates provides support for the plaintiff’s evidence that Mr Bausch told him to indicate he had reported the incident on 5 September 2014. Mr Bausch was not called by the defendant to refute the plaintiff’s claim (or that of Ms Polzin) that he told the plaintiff and/or Ms Polzin to insert 5 September 2015 as the date the injury was reported into the relevant forms. That is despite Mr Bausch being present at court and available to give evidence.
  1. [28]
    The plaintiff accepted that the council was quite strict in its policy that all injuries irrespective of however minor they might be, must be reported to a supervisor. The plaintiff had, over the years, reported a number of minor injuries by completing incident reports. In particular, on 4 September 2014 (the day prior to his knee injury) the plaintiff signed an incident report[19] in which it was documented by Mr Bausch that the plaintiff had injured his lower back on Wednesday 3 September 2014 at Ariadne Street when he stepped out of a boxed section on a road.  This is not an injury that the plaintiff made a note of in his diary.  Nor did he make a note of having completed an incident report.  His explanation was that he was busy at work on those particular days. 
  1. [29]
    This injury to his back was very minor. There is no suggestion that the injury gave the plaintiff any medium or long term effects. It may well be that by the time the plaintiff came to make his diary entries on 3 September 2014 at the completion of his shift, that his injury had resolved and it was simply forgotten. The plaintiff did sign an incident report the following day in relation to this event. The policy of the council in regards to reporting injuries appears in a document headed “HR Matters Safety Bulletin”[20].  This bulletin indicates that problems arise if injuries are not reported at the time that they occur or as soon as possible afterwards.  The bulletin however indicates that a formal incident report does not have to be filled out in relation to minor injuries or small incidents.  A diary entry in the supervisor’s diary is sufficient. 
  1. [30]
    Entries from Mr Bausch’s diary were admitted into evidence.[21]  There are three relevant entries. The first is written on 5 September 2014.  It reads “Clint twisted back stepping out of boxing on road. Pink slip completed.  Also stated he twisted knee stepping on tow hook on back of truck F0173 to pull tarp over hot-mix. Talked to Steve Smith to see if he could modify tarp”.   On 9 September 2014 there is an entry which reads “Talked with Smith for tarp modification on truck F0173.  Advise to put in work request”.   On 12 September 2014 there is an entry which reads “Clinton off to hospital with sore knee.  Completed incident report. Left work approximately 10.30am”. 
  1. [31]
    The entry on 12 September 2014 is consistent with the evidence as to what occurred on that day as given by the plaintiff, Ms Polzin and from a review of the medical records as to the time of the plaintiff’s presentation at hospital.[22]
  1. [32]
    The reference to the “pink slip” in the entry of 5 September 2014 is a reference to the incident report prepared in relation to the injury the plaintiff suffered on Wednesday 3 September 2014. That report was in fact completed on 4 September 2014 by Mr Bausch.  The entry in his diary on 5 September 2014 is not accurate.  Accepting for a moment that the plaintiff told Mr Bausch about his knee injury on 5 September (despite his evidence to the contrary), Mr Bausch was not informed of the injury to the plaintiff’s back and the injury to his knee on the same day. He was not told about the back injury on Friday 5 September 2014 because he completed the incident report in relation to that injury on Thursday 4 September 2014.  That tends to suggest that the entry made by Mr Bausch in his diary on 5 September 2014 is not an accurate reflection of what he was told (if anything) that day. 
  1. [33]
    The defendant argues that I should not accept from Mr Bausch’s diary entry that the plaintiff reported his injury to his supervisor on 5 September 2014 most particularly because his evidence was that he did not report his injury until 12 September 2014. I agree. The plaintiff was clear in his evidence that he did not report his knee injury. There is other evidence in the form of statements given to an investigator retained by Local Government Workcare that support the plaintiff’s evidence that he did not report his injury on 5 September 2014.
  1. [34]
    The plaintiff’s statement to the investigator was provided on 13 October 2014.[23]  In that statement, consistent with his evidence, he indicates that he did not report any injury to Mr Bausch or another supervisor, Mr Smith, despite having spoken to them on 5 September 2014 about difficulties he had covering the asphalt with the tarpaulin.  He stated that it wasn’t until Friday 12 September 2014 that Mr Bausch asked him how he hurt himself and he reported the injury to Mr Bausch.  He then completed the incident report before attending at the hospital.[24]
  1. [35]
    Mr Bausch prepared two statements. The first is dated 17 September 2014.[25]  Mr Bausch states that the plaintiff approached him on 5 September 2014 about an injury he had sustained to his back, stepping out of the box section of the road works and completed an incident report.   That event in fact occurred on Wednesday 3 September 2014 and the incident report completed on 4 September.  Mr Bausch’s memory of when that injury occurred is mistaken.  Importantly Mr Bausch indicates that it wasn’t until 12 September 2014 that he was informed by the plaintiff of the injury to his knee.
  1. [36]
    Mr Bausch also provided a statement to the investigator acting on behalf of Local Government Workcare.[26]   In that statement, which is dated 14 October 2014, Mr Bausch states that his first statement exhausts his knowledge of the matter although he goes on to say that he now recalls that on 5 September 2014 the plaintiff informed him that he had twisted his knee standing on the tow-hitch.  Mr Bausch states that he directed the plaintiff to fill in a pink form but the plaintiff indicated that he would not do so and would see how the injury progressed. 
  1. [37]
    There can be seen to be a significant inconsistency in the statements of Mr Bausch. It appears to me that there is a significant degree of reconstruction involved in his statements. I consider that his diary entry of 5 September 2014 is also likely a reconstruction. Accordingly, I place little weight on the contents of his diary entries or statements.
  1. [38]
    It is difficult to determine why Mr Bausch might have reconstructed his diary in circumstances where he was not called to give evidence. There are a number of inferences open. One inference is that it suggests that the plaintiff and Mr Bausch have colluded with each other in order to assist the plaintiff make a false workers’ compensation claim. Equally though, Mr Bausch might be a poor diary keeper and have written the entry of 5 September 2014 at a later time but without any dishonest intention. Also it is possible he was attempting to cover himself for having failed to act in accordance with council’s policy as to the documenting of injuries of workers whom he supervises, in his diary. The latter of those findings is consistent with the evidence of the plaintiff and Mr Polzin that Mr Bausch instructed each of them to insert the date the injury was reported to him, into the incident report and application for compensation form respectively. That is the more likely inference open on the evidence before me. Importantly, I am not prepared to infer that the plaintiff colluded with Mr Bausch to make a fraudulent workers’ compensation claim.
  1. [39]
    As indicated Mr Bausch was not called to give evidence. Criticism has been levelled by each party towards the other for not calling Mr Bausch. Each have legitimate reasons for not having done so. In the end however, in light of the fact that Mr Bausch did not give evidence, I am not in a position to make any findings as to his motivation for creating the diary entry of 5 September 2014. I place little weight on the evidence as contained in his diary note and in his statements, to the extent that they are inconsistent with other evidence that I accept.
  1. [40]
    The defendant also argues that there are inconsistencies in the plaintiff’s diary entries. The plaintiff, in his diary,[27] did not note that he injured his back on 3 September 2014 or that he completed an incident report on 4 September 2014, however he did make an entry on 5 September 2014 that he twisted his knee (see paragraph [13]). The plaintiff’s explanation for not having made an entry in relation to his earlier injury was that he was busy that particular day.  The diary entries were made at the end of the working day upon return to the depot.  The injury sustained on Wednesday 3 September 2014 was very minor and appears to have completely resolved relatively quickly.  There is no suggestion that the plaintiff was required to take any time off work.  Indeed the incident report documents that the plaintiff kept on working.  
  1. [41]
    It is argued that the plaintiff’s diary note, at least to the extent that it records “twisted my knee” on 5 September 2014, was created at a later date in order to support the plaintiff’s claim for compensation.  Reliance is placed on the absence of any reference to his back injury in the diary.   It is also argued that it would be expected to see that entry about his knee injury next to the printed line in the diary which reads 11:00 am.  It is also argued that the fact that it is recorded after the plaintiff spoke with “Darren and Fred” is also suggestive of the entry having been written at a later time than 5 September 2014. 
  1. [42]
    I do not consider that the entry “twisted my knee” has the appearance of having been created at a later time than 5 September 2014.  The plaintiff is a stoic man.  There are a number of features in the evidence that demonstrate to me that he endures pain without complaint and without demonstrating his feelings.   In particular, the plaintiff has a tendency to continue on working despite suffering injury.  When he sustained a significant injury in 2011, which ultimately required surgery, the plaintiff nonetheless continued working for almost three weeks.[28]  In 2012 he sustained an injury to his shoulder, however continued working.[29]  There are other similar incident reports which record the plaintiff continuing to work despite injury.
  1. [43]
    In his statement to the investigator which was given at a time much closer to this event than the plaintiff’s evidence before me (which was almost six years later) he said that upon sustaining the injury he felt intense pain inside his knee. He stopped and rested and moved it about and the pain subsided. He said that he kept on working as he didn’t think it was too serious. He felt just a niggling pain throughout the day. He said that he is a person likely to work through pain to just get the job done.[30]   I accept the plaintiff’s evidence contained in this statement that he didn’t think that the knee injury was particularly serious. Consistently with his character he continued working despite injury.
  1. [44]
    In a similar vein, the plaintiff did not remember suffering a significant knee injury when playing football in 1994 when he spoke to the investigator. In evidence he said that he recalled sustaining a knee injury playing football but he had no memory of having attended hospital on two occasions in relation to that injury. The evidence suggests that he had in fact sustained a rupture of his anterior cruciate ligament in 1994.
  1. [45]
    Again consistently with his stoic character is a comment of Mr Bausch in his statement to the investigator[31] that the plaintiff is not one to complain.  The plaintiff’s evidence in cross-examination when asked why he didn’t fill in an incident report on 5 September 2014, was likewise, that he “thought the pain would go away and everything would be good” and “you just put up with it and just do your job”.  
  1. [46]
    The diary entry was completed at the end of the day upon return to the depot. That the entry in his diary that he twisted his knee appears at the end of the entry is consistent with the plaintiff’s statement to the investigator that he didn’t think it was too serious and he thought it would go away. The plaintiff’s diary, in my view, contains a reasonably contemporaneous account of the injury and provides support for his evidence that he was injured on 5 September 2014.
  1. [47]
    The defendant argues that if the plaintiff sustained an injury on 5 September 2014 as described in his evidence it would have been apparent to Mr Bausch when the plaintiff spoke to him at the job site that day. The plaintiff’s evidence was that upon return to the work site he was walking as normally as he could. He said that he was holding his knee when speaking to Mr Bausch. He was asked if he was alright and replied “yes”.  He continued working the entire day.  At the end of the day his knee was very sore and very swollen.[32]  In his statement to the investigator[33] the plaintiff also said that he just had a niggling pain in his right knee but continued working the day without any problems.  It was when he was home and resting that he noticed that his right knee was swelling.   I consider that the account the plaintiff gave to the investigator much closer in time to the injury is more likely an accurate account of the plaintiff’s level of pain and functioning in the days following the injury.  The plaintiff continued working through the day with some pain although nothing that caused him any difficulties in completing his tasks.  It is unsurprising in those circumstances that his injury was not noticed by Mr Bausch and others. 
  1. [48]
    The defendant also points to inconsistencies in the plaintiff’s account of the incident as provided to others, including medical practitioners and argues that such inconsistencies are not consistent with an honest witness recounting a significant event leading to trauma.
  1. [49]
    The first account the plaintiff gave was in the incident report[34] dated 12 September 2014.  His account is “step(sic) on back towing hitch on truck to pull tarp rope over heaped hot mix to cover load. Whilst pulling on rope felt right knee twist. Got worse over period of week.”
  1. [50]
    At the Maryborough hospital the triage nurse has recorded as the presenting problem, “painful R knee after twisting while standing on back of truck while at work on Wednesday last week”[35].  There is a handwritten note which states “fixed foot with medial twist of knee 9/7 ago”.  The treating doctor has recorded the following mechanism “Patient on back of towbar/foot bar and twisted right knee medially with a fixed foot 1/52 ago.”[36]  That entry was made at 11:46 am.  A further document completed by the same doctor indicates the mechanism of injury as “R knee medial twist injury on fixed foot. 1/52 ago”.[37]  The plaintiff was provided with a “Richard Knee Splint” and crutches.  The same doctor drafted a discharge letter to the plaintiff’s general practitioner.  The mechanism of injury is reported as “painful R knee after twisting while standing on back of truck while at work on Wednesday last week”.
  1. [51]
    The defendant relies particularly on the notes created by the doctor at 11:46 am to argue that the plaintiff failed to mention to the doctor that he injured himself whilst stepping down from back of the truck and then falling. The plaintiff, in cross-examination, accepted that he didn’t mention that he fell after stepping down from the back of the truck.[38]  I do not consider however that he accepted the proposition that he did not mention that he injured himself stepping down from the truck.  The questions asked of him were as follows: 

Mr Campbell:

You didn’t tell anyone at the hospital on this occasion that you injured yourself stepping down from the back of the truck. Do you know what I mean by that?

Plaintiff:

Yes

Mr Campbell:

You didn’t make any mention that you fell after stepping down from the back of …?

Plaintiff:

No

Mr Campbell:

…the truck, I put it to you?

Plaintiff:

No

  1. [52]
    Whilst the plaintiff clearly accepted that he did not mention that he fell down, he did not clearly accept that he failed to mention that he was stepping down from the truck when he injured his knee. His answer in this regard was not clarified. The plaintiff tended to answer a question by reference to the last thing he heard and it is likely that he was acknowledging that he understood the question rather than accepting he did not tell the doctor he injured his knee stepping down from the back of the truck.
  1. [53]
    The letter sent by the doctor to the plaintiff’s general practitioner is not consistent with the entries that the same doctor made in the records. It appears to me that he has incorporated what someone else, likely the triage nurse, has written when drafting his letter to the general practitioner. He has adopted what I consider to be an error in the record of the nurse, that the incident occurred on “Wednesday last week” into the letter he wrote to the general practitioner.  That is in circumstances where his own notation indicates that the injury occurred one week ago which would make it Friday 5 September 2014.   
  1. [54]
    I do not accept that the plaintiff told the treating doctor at the hospital that he was standing on the back of the truck when he twisted his knee. The reliability of the doctor’s note cannot be assumed particularly in circumstances where he has incorporated an error of another into his letter. There are other factors which might affect the reliability of the doctor’s note in determining what the plaintiff said to him. That includes the level of interest the doctor had in the peripheral detail rather than the actual mechanism that resulted in the injury, that being a twist of the knee whilst the foot was fixed. It is unknown what level of detail the doctor asked of the plaintiff. He is not a man to volunteer information. I consider that both counsel at times had difficulty eliciting evidence from the plaintiff. Despite their experience in leading and cross-examining witnesses, they nonetheless encountered difficulties. It is entirely unsurprising to me that the plaintiff might not have revealed in any great detail what happened to him or that others might have misunderstood his explanation.
  1. [55]
    In a similar vein the defendant relies upon the workers compensation medical certificate and the explanation for the stated cause of the injury. The certificate[39] is unsigned.  It appears to have been provided by someone (assumedly a doctor) at the Maryborough Hospital.  It states the date of the injury as 5 September 2014 and the cause of injury as “twisting knee movement whilst standing on towbar/foot bar of truck”.    I would infer that it has been completed by the same doctor as it indicates that the said doctor attended upon the plaintiff at the Maryborough Hospital on 12 September 2014.[40] As noted, there is an inconsistency in the doctor’s own notation as to the date of the injury and the letter he wrote to the general practitioner. The reliability of his notations cannot be assumed.
  1. [56]
    The defendant refers to an entry in the plaintiff’s general practitioner’s records. Doctor Cotton’s record of 16 September 2014 states “sustained at work 12/06/2014 while torpine (sic) load, twisted felt acute pain, no locking or giving way, sense of instability, marked swelling”.  The plaintiff in cross-examination did not accept that he had failed to tell Doctor Cotton that he injured himself stepping down from the back of the truck or that his knee gave way.  The plaintiff said that he told Doctor Cotton exactly what had happened as it was the first time that he saw him after injuring himself.[41] It is apparent on the face of the records that there is an error given the doctor’s reference to the injury occurring on 12 June.  Doctor Cotton was not called to give evidence.  The reliability of his notes cannot be assumed. It is unknown what peripheral detail he was focused on, how much time he had available to him to make notes and what process he used to elicit the information from the plaintiff.  As emphasised earlier, the plaintiff is not a man to volunteer information beyond precisely what he is asked.  What he understood of the detail that needed to be given is unknown.  What he understood by the questions he was asked by his doctor is not known.
  1. [57]
    The defendant also points to an entry in the records of Doctor Burness. He is an orthopaedic surgeon who saw the plaintiff on 3 October 2014. In a letter he sent to Doctor Cotton he wrote “[the plaintiff] was standing on the back end of his truck pulling the tarps over and twisted his knee resulting in pain ever since”.  The plaintiff, in cross-examination, said that he told Doctor Burness exactly that happened.[42] He said that he told him that he stood down from the back of the truck when he was injured and that he fell to ground.[43]  As with the other medical records it is unknown how the doctor obtained the history from the plaintiff and whether the questions he asked tended to limit the scope of the detail that would be revealed.   I consider the plaintiff struggled with providing detailed descriptions.  He is not an articulate man. There are, as emphasised, difficulties with his communication skills. 
  1. [58]
    The defendant also points to the detail contained in the plaintiff’s signed statement to the investigator[44] on 13 October 2014 and the inconsistencies in his account in that statement as pointing to his lack of credibility.   The account the plaintiff gives is in my view confusing.  It reads:              

“25

I got the tarp over with some difficulty and when finished I stepped down onto the ground with my left foot first. I then stepped my right foot down onto the ground.

26

I then had to tie the rope off at the back and as I went to turn I twisted my knee.

27

I feel that when I was standing on the tow-hitch and having difficulty pulling the tarp over the load, with me swivelling on my right knee that the injury has been caused. I only felt it when I went to step off.

28

I felt a sharp stabbing pain on the inside of me knee which was quite intense. I stopped and rested and moved it about and the pain subsided.”

  1. [59]
    There are aspects of the statement that do not appear to contain the actual words of the plaintiff but rather the words of the investigator.[45]   He, the investigator, was not called to give evidence and again it is not known how he went about eliciting the detail to put into the statement.   Initially the account reads at paragraphs [14] and [15] as “[on] this day and at about 10 am to 10.30 am, just after smoko, I hopped onto the back of the truck standing on the tow-hitch to pull the tarp over the load. When I got down I felt right knee pain.”
  1. [60]
    The account at paragraphs 25 – 28 appear to confuse the right leg with the left leg. Paragraph 27 is an opinion of the plaintiff as to when the injury might have occurred. As the investigator was not called to give evidence it is unknown how it is that the plaintiff was asked to give an opinion as to precisely when he thought the injury was sustained. What is clear however, is that the pain he experienced was when he stood on the ground and turned or twisted.
  1. [61]
    It is not suggested that the account the plaintiff has given is inconsistent with that contained in his Notice of Claim.
  1. [62]
    I do not consider that there is such inconsistency as between the accounts recorded in the medical records and in the plaintiff’s statement to the investigator, either individually or in combination, that gives rise to any concern in my mind as to the veracity of the plaintiff’s evidence. The plaintiff has focused on the source of the problem, which was standing on the tow-hitch, to explain how his injury was sustained rather than on the precise mechanism of how he was injured which was a turning and twisting of his knee. That he has done so is consistent with his level of communication skills.
  1. [63]
    The plaintiff’s evidence is supported by that of his partner, Ms Polzin. She gave evidence that he came home from work having hurt his knee. It was swollen and sore. He used ice packs and Deep Heat and pain medication to treat it over the course of a few days. He returned to work for a few days until 12 September when she got a call from Mr Bausch to collect him and take him to hospital.[46]
  1. [64]
    The defendant also argues that there is evidence from which an inference can be drawn that demonstrates the plaintiff’s financial motivation to make a fraudulent claim. On the same day that the application for compensation form was filled out by Ms Polzin, the plaintiff attended upon his general practitioner, Doctor Cotton. He was referred for an MRI on his knee. Medical records from the hospital where the plaintiff attended on 12 September 2014 also reveal that it was recommended that an MRI be undertaken. It cost $403.00 and took place on 16 September 2014.[47]  The plaintiff’s diary indicates that the MRI was performed in the afternoon of 16 September 2014.  It is argued that the need to pay for the MRI on 16 September 2014 is what motivated the plaintiff to complete the application for compensation form and make a claim for compensation. 
  1. [65]
    The plaintiff did not impress as a man who had the wherewithal or the cunning to manipulate the defendant or its insurer, in this way. In any event, the incident report was completed on 12 September 2014 before the plaintiff attended the hospital and well before he was advised that he would even need an MRI. I reject the submission that there is evidence from which I can infer a dishonest intent.

Surveillance Evidence

  1. [66]
    The plaintiff was the subject of covert surveillance at the instigation of the defendant for a period of more than 85 hours.[48]  Extensive observations were undertaken in the vicinity of the plaintiff’s residential address.  During the first period of surveillance on six days between 27 June 2015 and 11 July 2015 the plaintiff was not seen to drive a car although he was the passenger in a car from time to time.  He can be seen using the handrail to assist in getting into the car.  There was no evidence seen of any significant activity by the plaintiff.  The footage shows the plaintiff walking with a limp and leaning on a counter for support. 
  1. [67]
    On 21 September 2017 the footage depicts the plaintiff walking with a limp and using a knee brace for support. The plaintiff is seen with his partner at a supermarket. He pushes the trolley whilst favouring his left leg when he walks. He uses the bonnet of the car to support himself when he steps off the gutter. He uses the handrail to get into the passenger-side of the car. His partner loads the groceries into the car and his children take the groceries from the car into the house. The plaintiff is not seen to lift anything.
  1. [68]
    On 1 October 2017 the plaintiff drives his car to a store where he remains in the car whilst his passenger enters the supermarket. He can be seen walking with a limp but with no knee brace.
  1. [69]
    On 3 October 2017 the plaintiff is wearing the knee brace. He drives his car and favours his left side when he walks.
  1. [70]
    On 13 December 2017 the plaintiff gets into his car using the handrail to assist.
  1. [71]
    I consider all of this footage to be consistent with the nature of the plaintiff’s disability and supportive of his evidence that he sustained an injury from which he has not recovered.
  1. [72]
    On 14 December 2018, twenty-five minutes of footage was obtained over a period of 11 hours of observation on that day. The plaintiff said in evidence-in-chief that there was a period of time where he had separated from Ms Polzin for approximately six months. He said that he had to move out of the family home. He moved some furniture including a mattress on wheels and a futon. A friend assisted him to move.[49] 
  1. [73]
    The video footage of 14 December 2018 depicts the plaintiff moving out of the family home. He can be seen involved in carrying a futon along a veranda, pushing a bed base, throwing five kilogram weights over the balustrade, carrying a television, and pushing a home gym along the veranda. The plaintiff said in evidence that he was still limping at this stage. It does appear to me that the plaintiff favours his left leg when he walks in the video footage. At times however there seems to be less restriction on his movement and he appears to be walking faster. The plaintiff said in evidence that he was angry at the time and that his partner wanted him out of the house, so he was moving quickly to achieve that purpose.[50] 
  1. [74]
    The plaintiff, in this footage, however is not seen loading and/or carrying any of the larger items to either his or his companion’s vehicle despite the extensive period of time over which he was under surveillance. His evidence was that the items he moved or assisted to move were relatively light including the home gym.
  1. [75]
    Later the same day (approximately three hours later) the plaintiff is filmed at a supermarket. He is using a walking stick and appears to be experiencing more significant pain. The plaintiff said in evidence, that after moving house his knee was particularly sore.[51]  Whilst the plaintiff does not appear to be limping outside the supermarket he is using the trolley for support.  He appears to take a long time to load the groceries into the car and he appears to limp as he walks around his car to get into it. 
  1. [76]
    The surveillance footage tends to support the plaintiff’s case that he has an ongoing disability. That, at times his limp is more pronounced than at other times, does not impair my confidence in his evidence as to the nature of his disability. His appearance in the videos is consistent with the effect of his knee having varying impacts upon his functioning at different times. He walks with a more pronounced limp at times consistent with his experiencing differing degrees of pain and range of motion at any given time. He is not seen to be bending or twisting his knee in the videos despite his having pushed and lifted furniture.
  1. [77]
    There is nothing in the surveillance footage that alters my conclusion that the plaintiff is an honest and sincere witness who has done his best to tell the truth as he remembers it.
  1. [78]
    In evidence-in-chief the plaintiff said after injuring himself he initially used a knee brace and at some unknown point in time he started using a walking stick.[52] He said he used his walking stick and knee brace when outside always.[53] When inside the house he uses the walls or furniture for support.[54] He said he can only walk for 15 to 20 minutes before needing to rest.[55]
  1. [79]
    I do not accept that the impact the injury has had on his function is as great as he described in evidence. The surveillance footage suggests otherwise.
  1. [80]
    I do not consider the plaintiff is a reliable historian when it comes to his medical history including how he has sustained some injuries, the degree of pain he has suffered and the progression of those injuries. That does not impair my confidence in him generally, but only insofar as it relates to his account of pain and the degree of impact on his functioning. I will return to this later in these reasons.

The tarpaulin

  1. [81]
    The plaintiff said in evidence that three or four weeks after commencing to drive the smaller truck he raised with his supervisor, Mr Bausch, difficulties he had covering the load of asphalt with a tarpaulin. The plaintiff did not have a particularly good recollection of this conversation. He did say however that Mr Bausch did get back to him on 3 September 2014 about the tarpaulin. The plaintiff made a diary entry indicating that he spoke to Darren and Fred about the tarpaulin.[56]  There is a further diary entry on 5 September 2014 indicating that the plaintiff spoke to Darren and Fred about what to do about the tarpaulin. 
  1. [82]
    An email dated 17 September 2014 from another employee of the defendant Ms Anita Dale, described as the “Safety/Rehab officer”, indicates that Mr Bausch had told her that the plaintiff had raised issues he had with the tarpaulin about one month prior to the date of the email.  Mr Bausch’s first statement[57] refers to a conversation he had with the plaintiff in which the plaintiff related to him problems he was having with pulling the tarpaulin over the load of asphalt.  He indicates that the conversation occurred on 5 September 2014 however he also refers to it occurring on the day that the plaintiff injured his back which was 3 September 2014.  The latter date is consistent with the plaintiff’s diary entry and the email that there was a conversation about the tarpaulin around 3 September 2014.
  1. [83]
    A request for service/repairs was completed by Mr Murray (Darren) on 4 September 2014. It indicates that the truck the plaintiff was driving required both a pin to attach to the trailer safety chain and “rope 4 tarp (cotton)”[58].
  1. [84]
    The incident report[59] also makes the following reference “in workshop hands. repair slip entered 3/9/14”.
  1. [85]
    Mr Bausch’s diary contains an entry on 9 September 2014 which states “Talked to Smith for Tarp modification on truck F0173. Advise to put in work request”.  This is a reference to the truck the plaintiff was using. 
  1. [86]
    An email was sent by Mr Bausch to Mr Smith on 4 September 2014 which asked for paperwork to be sent for the measuring of the plaintiff’s truck for the fitting of a hoop tarp for the purpose of carting “hot-mix”.[60]  Eventually a hoop tarp and electric pivot arm system were fitted to this truck on 15 May 2015 at a cost of $4,114.00.  Video footage was tendered of a truck fitted with a hoop tarp.  Such a device solved the difficulties associated with lifting the tarp over the mounds of asphalt.[61]
  1. [87]
    The defendant admits that it did not provide and enforce a system for covering the load of the truck with a tarpaulin that did not require the plaintiff to stand on the tow-hitch.[62]  It further admits that it did not provide and enforce the use of equipment for covering the load of the truck with a tarpaulin.[63] 
  1. [88]
    The defendant disavowed reliance on any contributory negligence on the part of the plaintiff during the course of the trial.

The pre-existing injury

  1. [89]
    It was not disputed at trial that the plaintiff had a significant pre-existing injury to his knee, a rupture of the anterior cruciate ligament. That was likely sustained when the plaintiff was playing football in 1994. The plaintiff’s memory of this event is poor and my finding comes from a consideration of the medical records.
  1. [90]
    On 6 March 1994 the plaintiff attended at the hospital in relation to an injury to his right knee sustained at football. His knee was x-rayed. He was bandaged and sent home with crutches. It was thought he had strained his medial ligament.[64]  He was seen at the fracture clinic on 10 March 1994.[65]    On 22 March 1994 the plaintiff attended at the orthopaedic clinic in relation to this knee.  He was advised to have an arthroscopy but decided to “wait and see”[66].  He was to be reviewed four weeks later however did not attend at the orthopaedic clinic.[67]  It appears that an arthroscopy was planned for 11 September 1995 however the plaintiff did not attend. 
  1. [91]
    In his evidence the plaintiff recalled playing football as a younger man and injuring his knee during a tackle. He said that he did not take any time off work and did not seek any treatment for it. He said that eventually he saw some doctors but could not remember when that was.[68]  He did not have any surgery and his knee healed.   The plaintiff would have been 22 years of age at the time.  In cross-examination he said that he did not remember attending at the hospital in relation to this injury.  He did not recall being sent home with crutches or being x-rayed or it being recommended that he have an arthroscopy. The plaintiff’s memory of the injury and its treatment is poor.
  1. [92]
    The medical records also reveal that on 15 August 1998 the plaintiff attended again at the hospital in relation to his knee. A further appointment was made for 21 August 1998. The record indicates “knee improving spontaneously”[69].  The plaintiff in his evidence had no memory of this attendance at hospital. 
  1. [93]
    On 26 October 2009 the plaintiff attended on his general practitioner.[70] The note indicates that the plaintiff had jumped out of a truck six days earlier.  His knee had become swollen and he had experienced pain. The plaintiff was not specifically asked if he remembered this attendance.  It seems unlikely that he would remember this event as he denied that he was having trouble at work with his knee in 2009.  He seems to have confused this attendance with an attendance in 2011 which involved a worker’s compensation claim.  As indicated earlier in these reasons I consider that the plaintiff has a poor memory of his medical history. 
  1. [94]
    On 14 July 2011 the plaintiff attended at the hospital. His primary complaint appears to be diarrhoea. However he additionally complained that he had a painful right knee. He had injured his knee getting out the truck at work two weeks earlier. He said that he had twisted his knee and that he could not bear weight on it and it appeared swollen.[71]
  1. [95]
    The plaintiff recalled this event as the “first time I got me arthroscope”[72].  He said that he didn’t have a very vivid memory of what had occurred. He agreed that he was jumping out of the driver’s seat of the truck to the ground.  He said that at first he felt a slight tinge to the knee but thought it would “come good”.  The plaintiff completed an application for workers compensation on 8 August 2011.  On 9 August 2011 the plaintiff underwent an MRI.  He was found to have a chronic rupture of his anterior cruciate ligament. At that time he had moderate degenerative changes in his knee joint with near full thickness cartilage loss.  He also had a tear to his medial meniscus which was considered likely to account for his symptoms.[73]
  1. [96]
    The plaintiff underwent an arthroscopy on 3 October 2011. He had a complete tear of his anterior cruciate ligament which was not reconstructed. A partial meniscectomy was performed. His symptoms improved post-arthroscopy.[74]   
  1. [97]
    The reports of Doctor Winstanley suggest that the plaintiff’s football injury occurred when he was 18 years of age. I infer that the plaintiff provided that history to him. The hospital records however indicate that the injury occurred when the plaintiff was 22 years of age. As indicated, the plaintiff does have some difficulties with his memory particularly in terms of his medical history.
  1. [98]
    The plaintiff, in evidence, recalled sustaining the injury in 2011. It seems that the history he provided Doctor Winstanley was that he slipped when getting out of the truck as the step had been damaged due to a collision. He landed heavily on his right knee twisting on uneven ground. That is different to the account he gave in evidence of jumping out of the driver’s side of the truck onto the ground. I consider that this again reflects the plaintiff’s poor memory as to his medical history.
  1. [99]
    The plaintiff was considered asymptomatic by 15 February 2012 and returned to his normal work duties with the defendant.
  1. [100]
    My view as to the reliability of the plaintiff’s memory as to his medical history and treatment has implications in relation to the opinions of the expert witnesses.

The medical opinions in relation to the knee injury of 5 September 2014

  1. [101]
    An MRI was performed on 16 September 2014. This revealed a chronic anterior cruciate deficiency; significant degenerative disease including full thickness cartilage loss in the medial compartment of the knee; and, a complex tear along the body and posterior horn of the medial meniscus. An arthroscopy was undertaken on 3 December 2014. The plaintiff had by that time, bone on bone osteoarthritis in the knee joint.
  1. [102]
    The plaintiff saw two orthopaedic surgeons, Doctor Ganko on 11 July 2017 and 9 July 2019 (for the defendant) and Doctor Kilian on 24 October 2017 (for the plaintiff).
  1. [103]
    Both Doctor Kilian and Doctor Ganko agree that the plaintiff had osteoarthritis in his knee which was evident on the MRI performed on 9 August 2011. The incident on 5 September 2014 had either caused a new tear of his meniscus or alternatively the earlier tear (treated during the arthroscopy in October 2011) was extended and aggravated. Both doctors agreed that the event in September 2014 caused an aggravation of his pre-existing osteoarthritis with a likely meniscal tear.
  1. [104]
    Both doctors also agreed that the plaintiff’s presentation might vary over the space of a few hours. A lack of activity might have an impact upon range of motion and pain. Medication might impact upon range of motion and pain. Gait and activity can be altered as a response to pain.
  1. [105]
    Doctor Kilian considered the video surveillance evidence demonstrated a variety of periods when the plaintiff’s knee was affected to a greater or lesser extent which was reflected in his greater and lesser use of a walking stick and limping more heavily on occasions.
  1. [106]
    Doctor Kilian considered that the plaintiff sustained a minor injury in 2014 from which he has never recovered. He has reached maximum medical improvement.
  1. [107]
    There is consensus amongst the experts that because of the pre-existing, degenerative disease the plaintiff would have had problems in his knee in the future which would likely have prevented him from working. A minor injury might have accelerated the onset of this impairment. Both doctors agree that the anterior cruciate deficiency and the plaintiff’s body habitus mean that the plaintiff was vulnerable to aggravation from a minor twist. It is highly likely that these factors would have resulted in an increase in impairment over time.
  1. [108]
    In determining the plaintiff’s level of impairment, Doctor Kilian considered station and gait (which is the last resort in assessing impairment) as the only realistic option available given there were pre-existing features and post injury features noted.
  1. [109]
    Doctor Kilian assessed the plaintiff’s pre-injury status as mild, antalgic gait with shorted stance phase and documented moderate to advanced arthritic changes. He considered that he had a whole person impairment of seven percent. After the September 2014 event the plaintiff fell into the moderate category with an impairment rating of between 20 and 30 percent. Doctor Kilian adopted a starting point of 25 percent on the basis that the plaintiff requires the use of a walking device at all times. Doctor Killian deducted the pre-existing impairment rating of seven percent from 25 percent (being the midway point) to conclude that the plaintiff’s whole body impairment was 18 percent.
  1. [110]
    Doctor Ganko accepted that the use of station and gait may be a legitimate way in which to assess impairment in the plaintiff’s circumstances. Accepting the plaintiff had a seven percent impairment prior to the injury in his view he has moved to a fifteen percent impairment post-injury. Using an alternative method of quantification he formed the opinion that the plaintiff has a twelve percent whole person impairment.
  1. [111]
    Doctor Ganko considered that the plaintiff seemed to have an exaggerated limp in July 2017 when he examined him and relied heavily on a walking stick in circumstances which were inconsistent with even severe arthritis in his knee. The plaintiff claimed to be unable to lift his leg from a flexed position on examination, which was inconsistent with even severe osteoarthritis. He also experienced pain with light touch to any part of the soft tissue of his knee, unexpected with osteoarthritis. Doctor Ganko considered that his symptoms were greater than what he would have expected and opined that his body weight was a significant contributing factor. He accepted that the plaintiff’s knee would cause him pain and discomfort when weight bearing and any activities that involved walking for long periods of time, standing still for any length of time, walking down hills, and twisting and turning. Upon viewing of the surveillance footage he considered that what he saw was consistent with what he would expect from the plaintiff. He has some restriction in movement of his knee and at times would have pain in his knee which may vary. His knee function was in keeping with the pathology evident in his knee, that is osteoarthritis.
  1. [112]
    Doctor Ganko opines that knee arthritis can remain asymptomatic over time whilst it progresses. Often minor events can lead to changes within the joint that results in inflammation, pain and dysfunction. Arthritic symptoms may then increase significantly. The tearing of the meniscus on 5 September 2014 may have caused the de-compensation of the plaintiff’s knee function but progress of his arthritis was inevitable. As osteoarthritis progresses the plaintiff would be increasingly less able to climb in and out of a motor vehicle, operate plant equipment and do manual loading or unloading tasks.
  1. [113]
    Doctor Ganko saw the plaintiff on a second occasion on 9 July 2019. He was of the opinion that the plaintiff’s disability was greater than what would be expected for a male of his age with normal body habitus with a severely arthritic knee but not outside the spectrum.
  1. [114]
    Doctor Ganko’s initial opinion that the plaintiff would be able to return to his employment as a truck driver[75] was dependant on his understanding that the plaintiff’s duties involved light work.  In fact his job involved heavy work as is demonstrated in the letter of termination of his employment.[76]  In cross-examination he accepted that the plaintiff was not fit to do heavy work. Doctor Ganko considered the plaintiff’s level of impairment was accelerated by at least eight percent whole person impairment as a consequence of the September 2014 injury.
  1. [115]
    Both doctors agree that the plaintiff requires a knee replacement. However, he is presently too young and too overweight for such surgery. Both agree that at best that would lessen his impairment to fifteen percent.
  1. [116]
    Doctor Walden is a Senior Pain Medicine Physician and Anaesthestist. His areas of expertise include chronic non-malignant pain conditions including complex regional pain syndrome. He saw the plaintiff on 8 February 2019.
  1. [117]
    Doctor Walden diagnosed resolving complex regional pain syndrome (“CRPS”). By that expression he meant diminishing in severity over the longer term.[77] He has relied upon the historical account of the plaintiff of pain.  In particular he relies upon the plaintiff’s description of how his pain changed from aching to sharp stabbing pains in his knee and shin.  The plaintiff also reported intermittent swelling of his knee and a blotchy blue appearance.  He reported an increase in sweating and diminished hair growth.  He opines that these symptoms indicate the presence of features of complex regional pain syndrome. 
  1. [118]
    Doctor Walden considered that the plaintiff’s CRPS was subtle, that is, it was not an overt, florid or obvious syndrome. His diagnosis very much depended on features that he drew out from the plaintiff such as intermittent swelling, blotchy blue appearance and increased sweating which all occurred shortly after the arthroscopy, according to the plaintiff.
  1. [119]
    Doctor Walden conceded that CRPS usually presents in the entire limb rather than simply localised to a joint as was the case with the plaintiff. He also accepted that the changes noted by the plaintiff might well be attributed to his prolonged wearing of the knee brace however it was the plaintiff’s report of these features being present soon after the arthroscopy that grounded his opinion as to the existence of CRPS.
  1. [120]
    Doctor Ganko did not consider that his examination of the plaintiff demonstrated evidence of CRPS on either occasion. The pathology in the plaintiff’s knee explained the stiffness within the knee joint although the subjective pain and disability were greater than average but not outside the spectrum of presentation for an arthritic knee in a person with the plaintiff’s body habitus. The pain described by the plaintiff, particularly of shooting pain, is often described in knee pathology.
  1. [121]
    Doctor Kilian mentioned nerve injury as one of his specialties. He was familiar with CRPS and does see patients with such a condition on occasion. He likewise did not see any signs in his examination of the plaintiff, of that condition.[78]
  1. [122]
    As noted earlier I do not consider that that plaintiff is a particularly reliable historian when it comes to matters involving his health. He has little or no memory of injuring his knee at football. He has no memory of multiple attendances at the hospital in relation to his knee. He has a poor recollection of how his 2011 injury was sustained. I am not prepared to accept that the plaintiff has complex regional pain syndrome when the diagnosis of it, is based heavily on the plaintiff’s historical report of when particular features were noticed by him.[79] That is particularly so when the syndrome is unusually not present in the whole of the limb; where CRPS in the knee is unusual[80]; and the pain described by the plaintiff is in keeping with the mechanical pathology of osteoarthritis.[81] 
  1. [123]
    I do not accept that the plaintiff has proven that it is probable that he has developed complex regional pain syndrome as a result of this event.

Findings

  1. [124]
    The probabilities favour the following.
  1. The injury occurred at Dundowran of 5 September 2014;
  1. The plaintiff stepped onto the tow-hitch of the truck with his left foot in order to cover a load of asphalt with a tarpaulin.    When he stepped down onto the ground on his right foot he turned, twisted his knee and sustained the injury;
  1. No instruction had been given to the plaintiff as to how he should go about covering the asphalt with a tarpaulin without standing on the tow-hitch;  
  1. The plaintiff reported the difficulties he was having covering the load of asphalt with the tarpaulin on at least two occasions to his supervisor; 
  1. The plaintiff documented his injury in his diary on 5 September 2014; 
  1. The plaintiff did not report his injury to his supervisor, Mr Bausch until 12 September 2014; 
  1. The plaintiff sustained a sporting injury in 1994 which was likely the rupture of his anterior cruciate ligament.  That was not treated and he had problems with his knee in 1998 and 2009; 
  1. His meniscus was torn in 2011.   By 2011 he had moderate degenerative changes in his knee joint; 
  1. On 5 September 2014 the plaintiff likely again tore his meniscus. By 5 September 2014 he had significant degenerative disease in his knee; and 
  1. The plaintiff does not suffer from complex regional pain syndrome. 

Employer’s obligations and breach of duty

  1. [125]
    The Fraser Coast Regional Council owed the plaintiff a non-delegable duty to take reasonable care to keep him safe and not expose him to a foreseeable risk of injury.[82]  That encompasses an obligation on the defendant to provide safe plant and machinery and a safe system of work.  In the context of this trial that involved the defendant taking reasonable steps to ensure that  the plaintiff’s task of covering the load of hot, sticky asphalt with a tarpaulin, a task that was regularly repeated, was carried out in a safe manner.[83]  That required the defendant to develop and maintain a system that would achieve that result.
  1. [126]
    The relevant statutory provisions which apply are contained in sections 305B – 305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).  
  1. [127]
    The first question which arises is whether there was a foreseeable risk of injury to the plaintiff which was not insignificant. The plaintiff had previously suffered a knee injury whilst working for the same employer. The truck he was tasked to drive did not have fitted any sort of mechanical system for covering the load of asphalt. Nonetheless the plaintiff was required to cover the load of asphalt in the truck before driving it on the roads. The task of doing so required the plaintiff to manually lift the tarp over the load. The obvious method by which that would be achieved when the load of asphalt extended higher than the tray of the truck, was by standing on the tow-hitch. For a man with a pre-existing knee injury to be standing on an unstable tow-hitch on one leg in order to manually cover a load of hot asphalt involved a foreseeable risk of injury.[84]   It was not a safe practice. 
  1. [128]
    The test as to whether the risk of injury is a “not insignificant” one has been said to be “somewhat less demanding” than the far-fetched or fanciful test contained in Wyong Shire Council v Shirt.[85]
  1. [129]
    The plaintiff had brought to the attention of his supervisor the difficulties that he was having covering the load of asphalt. The risk of a mishap for him, in standing on or stepping down from an unstable tow-hitch whilst covering a load of hot asphalt was an obvious one in my view. I am satisfied that the defendant knew and/or ought to have known of the risk of injury, and that the risk of injury was not an insignificant one.
  1. [130]
    The next question for determination is whether a reasonable person, in the position of the defendant, would have taken the precautions that the plaintiff alleges should have been taken. I must consider this question prospectively and not focus exclusively upon the way in which the injury occurred.[86] Relevant to this consideration is the magnitude of the risk and the degree of the probability of its occurrence, along with expense, difficulty and inconvenience in any alleviating action.[87] 
  1. [131]
    The plaintiff argues that a stepladder could have been provided to the plaintiff to prevent his needing to stand on the tow-hitch of the truck in order to cover the load. That would have been a reasonably practicable and cheap method of ensuring the plaintiff’s safety in circumstances where the risk to him of falling and injuring himself was obvious particularly when the defendant knew of his knee pathology. The defendant’s case as pleaded is that there was a safer method of covering the load which included walking along the side of the truck or standing on a step-ladder or milk crate or similar platform.[88]  Further, the defendant accepted that it had not enforced a system for covering the load on the truck that did not require the plaintiff to stand on the tow-hitch of the truck and had not provided or enforced the use of equipment to perform that task.[89]
  1. [132]
    Included in the evidence before me are three pieces of video footage[90] of the system developed on trucks other than that which the plaintiff was driving when injured, in order to cover a load of hot asphalt with a tarpaulin.  Those videos demonstrate that a mechanical system was in place which meant that the driver did not have to stand on an unstable tow-hitch or on a step of any kind in order to cover the load in the truck. The plaintiff had been driving one of these trucks prior to his recreation leave in July 2014. That other trucks were fitted with mechanical systems and that the truck the plaintiff was driving was eventually fitted with a mechanical system demonstrates that measures had been taken by the defendant which were reasonable, not terribly expensive and convenient in order to provide a safe system for covering the load of asphalt.
  1. [133]
    The simple step the plaintiff asserts should have been taken of supplying a stepladder to step on would more likely than not have avoided the injury which the plaintiff sustained. The steps that the defendant did take in relation to other trucks (and eventually the truck the plaintiff drove) clearly would have avoided the injury. I am satisfied that a reasonable person in the position of the defendant would have taken this step of at least supplying a stepladder.
  1. [134]
    That there was a defective system of work and an increased risk of injury does not of itself prove that the defendant’s breach of its duty caused the injury.[91] That the plaintiff was able to step on the tow-hitch on other occasions without injuring himself does not mean that it would not cause injury on another occasion.
  1. [135]
    The plaintiff must show that ‘but for’ the defendant’s breach of duty, his knee would not have been injured. This is to be assessed as a matter of common sense and experience.[92] Had the plaintiff been provided a step-ladder, I am of the view that his injury from stepping down from the unstable tow-hitch to the ground and twisting his knee would have been prevented or his risk of injury, minimised. Had the plaintiff been operating a truck with a mechanical system in place, his injury would have been prevented.
  1. [136]
    I am satisfied on the balance of probabilities that the negligence of the defendant caused or materially contributed to the injury of the plaintiff.

Quantum

  1. [137]
    The parties submitted that the plaintiff’s claim should be assessed as follows:

Head of damage

Plaintiff

Defendant

General damages

$35,400.00

$8,440.00

Past economic loss

$270,000.00

$66,703.26

Interest

$5,097.53 (following deduction of net workers’ compensation benefits)

$1,204.28

Past superannuation loss

$25,650.00

$6,336.81

Future economic loss

$350,000.00

$0.00

Future superannuation loss

$39,830.00

$0.00

Local Government WorkCover expenses

$12,332.97

$12,332.97

Medicare refund

$1,942.95

$1,942.95

Analgesic medication since incident (311 weeks)/Pharmaceutical medical expenses

$1,866.00 (at $6.00 per week)

)

)

) $341.64

)

)

)

Prescription medical expenses

$10.90

Medicare gap

$192.15

$192.15

Travel expenses

$81.45

$108.60

Interest on out of pocket expenses (analgesic medication, prescription medical expenses, Medicare gap, and travel expenses)

$43.87

$18.12

Pain physician

$6,500.00

$0.00

Future prescription medication

$30,000.00

$0.00

Other future medication

$2,500.00

$0.00

Fox v Wood

$4,674.89

$4,674.89

Subtotal

$786,122.71

$102,295.67

Less refund

$37,677.24

$37,124.06

Total

$748,445.47

$65,171.61

  1. [138]
    The plaintiff’s claim for general damages in this matter is governed by the Workers’ Compensation and Rehabilitation Act 2003, as at 1 September 2014.[93]

General Damages

  1. [139]
    I am required to assess an injury scale value (ISV) for the plaintiff’s injury from the range of scale values set out in Schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2014 in order to determine the level of general damages for pain and suffering and loss of amenities.[94] An ISV refers to a scale measuring the level of adverse impact of the injury on the plaintiff.  An ISV does not, in contrast, refer to a degree of permanent impairment (DPI) nor a percentage of a whole person impairment (WPI).  The significance of the plaintiff’s pre-existing condition is that in considering the impact of the aggravation of the pre-existing condition, I must have regard only to the extent to which the pre-existing condition has been made worse by the injury. 
  1. [140]
    Whilst I am required to consider the guidance provided by the provisions in Schedule 9, which ultimately reflect the level of adverse impact of the injury on the plaintiff, I am not necessarily limited to those factors alone.[95] It will be relevant that I consider not only the effects of the plaintiff’s pre-existing knee condition but also his age.      
  1. [141]
    The plaintiff submits that an ISV of 20 is appropriate, which places the injury within item 137 “Serious knee injury” (a category with an ISV range of 11 to 24). The defendant, on the other hand, contends that item 138 “Moderate knee injury”, a category with an ISV range of 6 to 10, is instead an appropriate range to place an ISV within.
  1. [142]
    The distinction between a serious and moderate knee injury is clear. Whilst both may involve a degree of ongoing pain and instability, a serious knee injury will involve a high risk of long-term degenerative changes, whereas a moderate knee injury will not. Additionally, to place a knee injury at roughly an ISV of 17 it will have at the very least required surgery and prolonged rehabilitation.
  1. [143]
    In my view the plaintiff has not established that his injury warrants an ISV of 20. Whilst the plaintiff underwent an arthroscopy, that did not alter the degenerative process already present in his knee. As opined by both orthopaedic surgeons, the injury aggravated that degenerative condition. It was likely that the September 2014 injury involved a further meniscal tear which was resected. The ongoing pain and discomfort and limitation of movement that the plaintiff experiences is a consequence of the already present degenerative condition of his knee. His knee was asymptomatic prior to September 2014. That injury has aggravated the already present osteoarthritis and resulted in ongoing pain and dysfunction.
  1. [144]
    The opinion as to the plaintiff’s level of impairment as provided by Doctor Kilian and Doctor Walden who both adopted the station and gait method of assessment was based on the plaintiff’s evidence that he uses the walking stick and/or knee brace at all times when outside. When inside he uses furniture and walls for support. As referred to above the surveillance evidence suggests otherwise. Whilst the plaintiff uses the walking stick he does not use it all the time. I preferred the evidence of Doctor Ganko on this point. The plaintiff’s appearance in the surveillance footage is as he would have expected given the state of his knee. In his opinion the percentage of whole person impairment attributable to the September 2014 injury is eight percent.
  1. [145]
    Dr Adam, a specialist in occupational medicine (engaged by the defendant) also provided an opinion as to the plaintiff’s level of impairment. He considered that there was no increase in whole person impairment as a result of the September 2014 injury. I do not accept that evidence. Whilst he considered that there was an eight percent range of movement impairment, the method of calculation he used precluded that being taken into account. Accordingly the level of impairment remained unchanged. That opinion does not sit comfortably with the opinions of either of the orthopaedic surgeons, particularly Doctor Ganko whose expertise is in knees. I prefer the evidence of Doctor Ganko and Doctor Kilian that there was an increase in impairment.
  1. [146]
    I consider that item 138 is the appropriate designation for the plaintiff’s injury and would place the ISV at 8. It was a relatively minor injury, a likely meniscal tear which aggravated the plaintiff’s degenerative knee condition.
  1. [147]
    Accordingly, I assess the plaintiff’s general damages as $11,720.00.

Special damages

  1. [148]
    Local Government WorkCover has paid $12,332.97 in medical and rehabilitation expenses.
  1. [149]
    The parties agree that in addition, the plaintiff has incurred expenses totalling $2,146.00.[96] 
  1. [150]
    The plaintiff gave evidence he has also incurred expenses relating to the purchase of ibuprofen and paracetamol. The plaintiff takes approximately six paracetamol tablets and six ibuprofen tablets a day since his injury.[97] The total weekly cost based on those amounts is approximately $6.00.
  1. [151]
    The plaintiff’s medical records indicate that from at least November 2018 that he has been experiencing chronic shoulder pain. Ultrasound has indicated degenerative changes in his shoulder and the presence of bursitis and tendinosis.[98] He presented to the hospital on March 2019 with costochrondritis and was advised to take analgesics.[99] The plaintiff experiences other conditions which may require analgesic medication. I will allow an amount of $1,500.00 for analgesic medication.
  1. [152]
    The plaintiff has travelled 108.60 kilometres for the purposes of obtaining medication and treatment. I will allow those expenses at 75 cents per kilometre amounting to $81.45.
  1. [153]
    Interest on out of pocket expenses is calculated at $47.89.
  1. [154]
    Special damages are calculated at $16,060.42.

Future expenses

  1. [155]
    The plaintiff continues to require analgesic medication at a cost of $6.00 per week. Whilst he has a life expectancy of 35 years, the injury to his knee would have eventually happened in any event. Further it may be that the plaintiff might receive some benefit from a knee replacement at some stage in the future. He suffers from other conditions which might require analgesic medication such as his chronic shoulder pain. I will make an allowance of $1,000.00 for future analgesic medication.

Economic loss 

Past economic loss

  1. [156]
    Doctor Kilian attempted an assessment of how long the plaintiff would have been able to work before reaching the same level of impairment. He considered this a difficult task because of the plaintiff’s pre-existing pathology and his obesity. He used demographic data to come to an assessment. He used the statistical data as to the rate of arthritis in Australians and doubled it to take into account the plaintiff’s constitution, and his anterior cruciate ligament deficiency. He determined based on this that the plaintiff would have reached the same level of impairment naturally between the ages of 55 and 64. He considered that the injury in 2014 accelerated the plaintiff’s condition by at least ten years. In evidence Doctor Kilian accepted that his opinion was speculative and not scientific but was the only process available to him to formulate an opinion.
  1. [157]
    Whilst no similar assessments were undertaken by the other expert witnesses, nonetheless they all considered that the plaintiff was vulnerable to a similar injury and that it could have occurred at any time. The event was minor in that it involved a twisting of the knee. The fact the plaintiff worked in a job that required heavy lifting, squatting and climbing in and out of a truck is a feature that increased the likelihood of a similarly minor event causing a similar aggravation of his pre-existing condition without any negligence on the part of his employer.
  1. [158]
    It is not possible to determine with any specificity how long the plaintiff would have been able to work before reaching the same level of impairment. He was highly vulnerable to a similarly minor event causing the same degree of impairment. That makes the assessment of his economic loss difficult. A cautious approach should be taken to the plaintiff’s economic loss. I do not consider that the plaintiff could have worked as a heavy plant operator beyond 55 years of age. The degeneration present in the plaintiff’s knee was already advanced.  He worked in a job involving heavy lifting and climbing in and out of a truck.  The mechanism by which he was injured involved only a minor event, twisting his knee.  Such an event could have occurred at any time. I do not consider that the plaintiff would or could have worked beyond 55 years of age given the advanced state of osteoarthritis already present in his knee particularly given that he was a mature man with little or no prospect of advancement and was working in a position involving stress being placed on his knee. 
  1. [159]
    It is the loss of earning capacity rather than loss of earnings for which the plaintiff is to be compensated.[100]  The assessment of his present and future economic loss is incapable of precise proof because of his pre-existing injury. I must therefore assess the degree of probability of the occurrence of the hypothetical event and correspondingly decrease the amount of damages otherwise to be awarded.[101] 
  1. [160]
    The plaintiff was, at the time of the injury earning $857.00 per week. By 2018 he would have been earning $905.00 per week. His anticipated net wages but for the incident up until trial would have been $274,504.00. He now has a very limited residual earning capacity.
  1. [161]
    The surveillance videos demonstrate that the plaintiff does not always use the walking stick and/or knee brace. He said in evidence and it is apparent from the videos that the extent of his disability varies from day to day. Some days he is able to walk with relative ease however at other times he is heavily reliant on the walking stick or other objects that he can use for support. Doctor Ganko, whose evidence I accept said that the function in the plaintiff’s knee as shown in the surveillance videos is what he would expect for someone with a significantly arthritic knee. The plaintiff limped and struggled at times but he was not permanently reliant on a walking stick. He is still able to drive a car, although it has an automatic transmission. Nonetheless the plaintiff’s knee has not improved over time.
  1. [162]
    The plaintiff has experienced in recent times some ongoing problems with his left shoulder. There is evidence of degeneration in the shoulder joint. He suffers from chronic pain in his left shoulder with bursitis and tendinosis.
  1. [163]
    I am satisfied the plaintiff would have continued working for the defendant but for the incident for as long as he was physically able to do so. He is a stoic man who has demonstrated that in the past he would continue to work despite injury and despite experiencing considerable pain.
  1. [164]
    The plaintiff understands that he needs a knee replacement. He is considered too young for that procedure at the current time. He does need to lose weight before that procedure can be undertaken. He has been exercising at the local swimming pool (at least until it was closed due to the COVID-19 pandemic) in order to lose weight and increase his fitness.
  1. [165]
    The plaintiff’s employment was terminated effective 1 December 2015 due to his inability to undertake the manual aspects of his employment. The plaintiff received income protection payments and a total and permanent disability payout from his superannuation fund. He has been receiving Centrelink benefits since 20 April 2017. As a requirement of receiving Centrelink payments he has to look for a job. He has been working with Mission Australia (an employment services provider) since 3 October 2018. Ms Logan of that organisation gave evidence that she meets with the plaintiff fortnightly to assist him to gain employment. Because of his medical condition she has not been able to find any suitable employment. The nature of the work that she considered suitable has been as a delivery driver, courier or bus driver. She has also looked at office work and community work. With retraining, the plaintiff may be able to do some office work or community work (particularly working with Indigenous youth) however due to the issues that he was having with his shoulder and the COVID-19 pandemic retraining has not yet occurred.
  1. [166]
    An occupational therapist, Ms Hague provided an opinion that the plaintiff is no longer fit for his pre-injury work as a plant operator. He is unable to tolerate long periods of sitting or standing, getting into and out of machinery, walking on-site on uneven ground, crouching or heavy lifting. She considered that the plaintiff is precluded from work as a labourer or machine operator in any capacity. He is also unsuitable to work as a traffic controller, a position he had undertaken in the past. With a grade 10 level of education and no experience in sedentary positions he will face significant obstacles to gaining employment in the open labour market. In my view, his now age of 49 years also presents as an obstacle given his lack of other experience or training.
  1. [167]
    Dr Adam, an occupational and environmental physician agrees that the plaintiff is not capable of working as a plant operator or truck driver as a result of the significant limitations in his ability to walk and climb.
  1. [168]
    The orthopaedic surgeons agree that the plaintiff is unable to undertake heavy duties.
  1. [169]
    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.[102] The principal reason is that the past is certain whereas the future is necessarily less certain.  The particular circumstances that exists in this case that call for a reduction for contingencies are the vulnerability of the plaintiff to sustaining the same injury at any time because of the advanced state of his osteoarthritis and the problems he has been having with his left shoulder in recent times which would in itself contribute difficulties for the plaintiff undertaking heavy duties.  It is appropriate to allow a 30 percent reduction for those contingencies.  The award for past economic loss is $192,000.00.
  1. [170]
    Local Government Workcover has paid $24,791.09.[103] It is necessary to account for interest on past economic loss less the amount paid by Local Government Workcover (less the Fox v Wood component of $4,674.89).  It is appropriate to award interest on $172,000.00 at the appropriate rate under the Workers’ Compensation Rehabilitation Act 2003 of 0.45 percent.   Interest on $172,000.00 for five and one-half years (the period since workers compensation benefits ceased) amounts to $4,257.00.  

Future Economic Loss

  1. [171]
    As indicated, in relation to the plaintiff’s future economic loss I do not consider that the plaintiff had a future working life expectancy in manual labour beyond the age of 55 years. I accept that the plaintiff would have been motivated to continue working and I accept that he would have worked despite experiencing pain for as long as he possibly could however even working as a traffic controller (a skill that he held) would have involved long periods of time standing which I do not consider he would be capable of undertaking beyond the age of 55 years given the advanced state of degeneration in his knee. His shoulder is also now causing him some problems which would add to his difficulties in undertaking heavy labour.
  1. [172]
    The plaintiff is currently 49 years. Adopting a weekly figure of $910.00 the present value of that figure for six years is approximately $246,000.00. This figure does not incorporate contingencies. As indicated the plaintiff’s significant pre-existing injury means that his chance of continuing in his employment uninterrupted by problems associated with his knee were significantly lessened given the manual nature of his work. Additionally his left shoulder is now causing some problems for the plaintiff and there is evidence of degeneration in the joint present. However his stoic nature means that he would have continued working for as long as he possibly could despite pain particularly given the evidence contained in the performance reviews which indicate that he loved his job. He would also have had a financial incentive to continue working as his partner suffered from a medical condition which meant she was unable to work. There is also the possibility that with retraining the plaintiff may be able to find work particularly working with Indigenous youth. He is an Indigenous man with a positive work attitude. He has worked in the past as an Aboriginal Cultural Officer on Fraser Island particularly engaging with and educating Indigenous children. Given these contingencies I consider that the award for future economic loss should be discounted by approximately 50 percent. The award for future economic loss is $125,000.00.

Superannuation

  1. [173]
    It is agreed that past loss of superannuation entitlements should be allowed at 9.5 percent of the plaintiff’s past economic loss. This is measured at $18,240.00.
  1. [174]
    It is also agreed that future loss of super entitlements should be allowed at 11.38 percent of the plaintiff’s future economic loss. This is measured at $14,225.00.
  1. [175]
    Fox v Wood damages are agreed at $4,674.89.

Order

  1. [176]
    I order judgment for the plaintiff in the following amounts:

Head of damage

Award

General damages

$11,720.00

Special damages

$16,060.42

Interest on out of pocket expenses

$47.89

Past economic loss

$192,000.00

Interest on past economic loss

$4,257.00

Past superannuation loss

$18,240.00

Future economic loss

$125,000.00

Future superannuation loss

$14,225.00

Future medical expenses

$1,000.00

Fox v Wood

$4,675.00

Subtotal

$387,225.31

 

Local Government WorkCover expenses

$37,677.24

Total

$349,548.07

Footnotes

[1]Exhibit 1 page 361.

[2]Exhibit 1 pages 10 and 11.

[3]Transcript 1-45 line 45.

[4]Exhibit 9.

[5]Transcript 1-49 line 32.

[6]Transcript 1-50 line 29.

[7]Transcript 1-53 line 1.

[8]Transcript 2-29 line 14.

[9]Transcript 1-53 line 16.

[10]Transcript 1-55 line 33.

[11]Transcript 1-56 line 20.

[12]Transcript 1-58 line 4.

[13]Exhibit 3.

[14]Transcript 2-30 line 20.

[15]Exhibit 15.

[16]Transcript 2-32 line 24.

[17]Exhibit 14.

[18]Transcript 4-13.

[19]Exhibit 13.

[20]Exhibit 31.

[21]Exhibit 32.

[22]Exhibit 1 page 175.  The emergency department records indicate that the plaintiff was triaged at 10:56 am. 

[23]Exhibit 15.

[24]Transcript 2-34 line 12; Transcript 2-37 line 1; Transcript 2-38 line 5.

[25]Exhibit 39.

[26]Exhibit 39.

[27]Exhibit 9.

[28]Exhibit 47 indictment report for 2011 injury.

[29]Exhibit 11 incident report for 2012 injury.

[30]Exhibit 15.

[31]Exhibit 39.

[32]Transcript 1-54 lines 6-7.

[33]Exhibit 15.

[34]Exhibit 3.

[35]Exhibit 1 page 175.

[36]Exhibit 1 page 176.

[37]Exhibit 1 page 178.

[38]Transcript 2-42 line 5.

[39]Exhibit 23.

[40]There is an inconsistency in the doctor’s notation as to the date of the injury and the letter he wrote to the general practitioner. The reliability of his notations cannot be assumed.

[41]Transcript 2-42 line 36.

[42]Transcript 2-46 line 25.

[43]Transcript 2-47 line 14.

[44]Exhibit 15.

[45]For example: “I have no concurrent employment.” “Resulting from the injury I had an arthroscopy and was away from work for some time.” “This claim is subject to my right knee injury on 5 September 2014.” “I have never had any orientation of the

truck.”

[46]Transcript 4-11 line 40.

[47]Exhibit 1 page 339.

[48]Exhibit 41.

[49]Transcript 1-63.

[50]Transcript 3-41 line 1.

[51]Transcript 3-44 line 1.

[52]Transcript 1-61 line 34.

[53]Transcript 1-61 line 17.

[54]Transcript 1-62 line 25.

[55]Transcript 1-62 line 30.

[56]Transcript 1-47 and exhibit 9.

[57]Exhibit 39.

[58]Exhibit 29.

[59]Exhibit 3.

[60]Exhibit 35.

[61]Exhibit 21.

[62]Paragraph 4(i) Third Further Amended Defence.

[63]Paragraph 4(j) Third Further Amended Defence.

[64]Exhibit 1 page 198.

[65]Exhibit 1 page 202.

[66]Exhibit 1 page 184.

[67]Exhibit 1 page 184.

[68]Transcript 1-26 line 27.

[69]Exhibit 1 page 197.

[70]Exhibit 1 page 248.

[71]Exhibit 1 page 192.

[72]Transcript 1-75 line 41.

[73]Exhibit 1 page 335 and exhibit 22 report of Dr Winstanley dated 26 September 2011.

[74]Exhibit 22 report of Dr Winstanley dated 2 December 2011. 

[75]Exhibit 44.

[76]See letter of termination of employment at exhibit 1 page 361.  The plaintiff was expected to undertake a range of manual duties involving regular bending and squatting, heavy lifting and operation for heavy plant and fleet. 

[77]Transcript 4-49 line 20.

[78]Transcript 5-5 line 6.

[79]Exhibit 1 page 100-101.

[80]Transcript 4-49 line 40.

[81]Exhibit 1 page 71.

[82]Czatyrko v Edith Cowan University (2005) 214 ALR 349 at 353 [12].

[83]Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424.

[84]Paragraph 7(c)(iv) Third Further Amended Defence.

[85](1980) 146 CLR 40 at 47-48 per Mason J; Meandarra Aerial Spraying Pty Ltd v GEJ and MA Geldard Pty Ltd (2013) 1 Qd R 319 per Fraser J at [26].

[86]Vairy v Wyong Shire Council (2005) 223 CLR 422 per Hayne J at 461.

[87]Vairy v Wyong Shire Council (2005) 223 CLR 422 per Callinan and Heydon JJ at 480 – 481; Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 per Mason J at 47-48.

[88]Third Amended Further Defence paragraph 4(ca).

[89]Third Amended Further Defence paragraph 8(i) and 8(j).

[90]Exhibit 2.

[91]Stitz v Manpower Services Australia & Anor [2011] QSC 268.

[92]March v E & MH Stramare Pty Ltd (1999) 171 CLR 506.

[93]Workers’ Compensation and Rehabilitation Act 2003 s 306P.

[94]Workers’ Compensation and Rehabilitation Act 2003 s 306O.

[95]Workers’ Compensation and Rehabilitation Regulation 2014 Sch 8 s 9.

[96]Exhibit 40.

[97]Transcript 1-65 line 10-25.

[98]Exhibit 1 page 309.

[99]Exhibit 1 page 308.

[100]Medlin v State Government Insurance Commission (1995) 182 CLR 1 per Deane, Dawson, Toohey and Gaudron JJ at 4.

[101]Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642-643; McDonald v FAI General Insurance Co Ltd [1995] QCA 436.

[102]Bevan v Wagner Industrial Services Pty Ltd [2017] QCA 246.

[103]Exhibit 40.

Close

Editorial Notes

  • Published Case Name:

    Johnson v Fraser Coast Regional Council

  • Shortened Case Name:

    Johnson v Fraser Coast Regional Council

  • MNC:

    [2020] QDC 228

  • Court:

    QDC

  • Judge(s):

    Loury QC DCJ

  • Date:

    23 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
2 citations
Jump To
Cite 1 - (2004) 217 CLR 424
Cite 2 - (2004) 217 CLR 424
Beaven v Wagner Industrial Services Pty Ltd[2018] 2 Qd R 542; [2017] QCA 246
2 citations
Jump To
Cite 1 - [2017] QCA 246
Cite 2 - [2017] QCA 246
Czatyrko v Edith Cowan University (2005) 214 ALR 349
2 citations
Jump To
Cite 1 - (2005) 214 ALR 349
Cite 2 - (2005) 214 ALR 349
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
2 citations
Jump To
Cite 1 - (1990) 169 CLR 638
Cite 2 - (1990) 169 CLR 638
March v E & MH Stramere Pty Ltd (1999) 171 CLR 506
2 citations
Jump To
Cite 1 - (1999) 171 CLR 506
Cite 2 - (1999) 171 CLR 506
McDonald v FAI General Insurance Company Limited [1995] QCA 436
2 citations
Jump To
Cite 1 - [1995] QCA 436
Cite 2 - [1995] QCA 436
Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd[2013] 1 Qd R 319; [2012] QCA 315
2 citations
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Cite 1 - [2013] 1 Qd R 319
Cite 2 - [2013] 1 Qd R 319
Medlin v State Government Insurance Commission (1995) 182 CLR 1
2 citations
Jump To
Cite 1 - (1995) 182 CLR 1
Cite 2 - (1995) 182 CLR 1
Stitz v Manpower Services [2011] QSC 268
2 citations
Jump To
Cite 1 - [2011] QSC 268
Cite 2 - [2011] QSC 268
Vairy v Wyong Shire Council (2005) 223 CLR 422
3 citations
Jump To
Cite 1 - (2005) 223 CLR 422
Cite 2 - (2005) 223 CLR 422
Cite 3 - (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
3 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40
Cite 3 - (1980) 146 C.L. R. 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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