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Smart v Compass Group (Australia) Pty Ltd[2021] QDC 176

Smart v Compass Group (Australia) Pty Ltd[2021] QDC 176

DISTRICT COURT OF QUEENSLAND

CITATION:

Smart v Compass Group (Australia) Pty Ltd [2021] QDC 176

PARTIES:

RICKI MARCUS SMART

(Plaintiff)

v

COMPASS GROUP (AUSTRALIA) PTY LTD

(Defendant)

FILE NO:

283/17

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

13 August 2021

DELIVERED AT:

Townsville

HEARING DATE:

18-19 February 2020 and 26-27 August 2020, at Townsville

JUDGE:

Coker DCJ

ORDER:

  1. That the plaintiff’s claim is dismissed and there be judgment for the defendant.
  2. That any submissions as to costs by the defendant be filed and served within 21 days of today and any response by the plaintiff be filed and served within 21 days of receipt of service.
  3. That either party may seek to address the court as to costs with any such request to be made within 7 days of the date of the plaintiff’s filing date but otherwise that any costs application be dealt with in chambers.

CATCHWORDS:

TORTS – PERSONAL INJURIES – NEGLIGENCE – where the employee alleges a breach of duty owed by the employer led to a workplace injury – where liability and causation are in issue – whether the employer breached its duty of care – whether the plaintiff has discharged the onus of demonstrating any breach of the duty of care – whether any injury sustained was ‘not insignificant’.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – Assessment of damages – where liability of employer is not proven – where assessment of notional damages is necessary.

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 305B(1) and 305B(2)

CASES:

Fox v State of Queensland [2016] QDC 146

Seage v State of New South Wales [2008] NSWCA 328

COUNSEL:

SJ Deaves for the plaintiff

MD Glen for the defendant

SOLICITORS:

Rapid Legal Solutions for the plaintiff

BT Lawyers for the defendant

Introduction

  1. [1]
    The Plaintiff in this matter is Ricki Marcus Smart, hereinafter referred to as ‘the Plaintiff’.  The Plaintiff claims that on 29 February 2016, due to an unsafe system of work, he sustained an injury to his right knee in the course of his duties at Cannington Mine.  He says that the injury led ultimately to the need for a total knee replacement and further, that the injury has rendered him unsuitable to work in any field in which he has previous experience. 
  2. [2]
    The Defendant employer is Compass Group (Australia) Pty Ltd (ACN 000 683 125) hereinafter referred to as ‘the Defendant’.  The Defendant says that the Plaintiff’s claim should be dismissed.  The Defendant argues that this should be the case because:
    1. (a)
      the Plaintiff has failed to establish the cause of his fall and has therefore failed to prove his case;
    2. (b)
      there has been no breach of the statutory modified duty owed by the Defendant;
    3. (c)
      if any breach has occurred, the Plaintiff has failed to show causation; and
    4. (d)
      any injury sustained on 29 February 2016 was nominal and a subsequent event has caused the Plaintiff’s ongoing symptomology.

Background

  1. [3]
    The Plaintiff is 61 years of age having been born on 9 June 1960 in Tasmania.  He was 55 years old on 29 February 2016.  The Plaintiff has a year 10 education and has no trade qualification.
  2. [4]
    He has worked his whole working life in predominantly physical roles.  He lived and worked in Tasmania until about 2005 but having holidayed in Queensland in 2003/2004, determined that the weather was lovely and decided with his wife to make the move.
  3. [5]
    He initially had some labouring work and then for a short time drove a bus for a Townsville company, Sunbus.  He then obtained in 2005, work on a casual basis as a bus driver for the Defendant.  He then obtained work with the Defendant as a ‘Yardie’ and about a year later, he obtained a role as an Airport Reporting Officer (ARO).  The Plaintiff was promoted in or about 2009 to supervisor ARO and remained employed in that role on 29 February 2016 and subsequently, until he resigned later in June 2018.
  4. [6]
    The Plaintiff’s wife, Sally Marie Smart, also obtained work with the Defendant in or about 2007, and he and his wife then enjoyed what was termed, a ‘lifestyle roster’ with the Defendant until she also resigned at the same time as the Plaintiff.
  5. [7]
    The Plaintiff acknowledged that he had previously suffered an injury to his right knee in about 1999 which required some operative intervention in 2001 and 2002 but he said that by the time he commenced work for the Defendant, he was not experiencing any symptoms in his knee.  He indicated that he was active until 29 February 2016 walking 20 kilometres three times per week and was also engaged in ten pin bowling. 

Liability

  1. [8]
    As indicated in the Plaintiff’s outline, his case is one that can be simply put.  The system of work in relation to the unloading of baggage at the Cannington Mine Village was inherently unsafe, in that it required workers to confront an obstacle, in the form of a kerb, repetitively and unnecessarily whilst unloading baggage from a trailer to the footpath.
  2. [9]
    As indicated earlier in these reasons, the Defendant contends that for a number of reasons, the Plaintiff’s claim should be dismissed.
  3. [10]
    What does appear to be clear is that on the morning of the 29 February 2016, the Plaintiff and two other employees, Patrick Garlando, also a supervisor ARO and Wayne Lehmann, a security ARO, were rostered on to perform the necessary tasks associated with the arrival of two planes from Townsville and Brisbane carrying workers due to start their duties that day.  The flight records show that the Townsville plane arrived at 8.10am and the Brisbane plane landed at 8.36am.
  4. [11]
    The ARO’s duties involve marshalling the planes into position so that the passengers can disembark, and that baggage can be unloaded from the aircraft and placed into a trailer attached to a four wheel drive utility, which is then driven to the Cannington Mine Village for unloading.  Also involved in the various tasks required of the ARO’s is the refuelling of the aeroplanes which requires two of the officers to remain with the plane so that one officer then drives the baggage, once loaded into the trailer, to the village for unloading and then returns for the unloading of the second aeroplane upon its arrival.
  5. [12]
    It was the Plaintiff on 29 February 2016 who was designated to take the baggage from the Townsville aeroplane to the village, unload and then return to the airport.  Marshalling and unloading progressed without incident and the Plaintiff’s journey to the village, a short drive of four to five minutes, was uneventful.
  6. [13]
    In an attempt to assist in the understanding of what was required of an ARO, particularly one performing this task, I had the opportunity to view two recordings, the first being live footage of an actual arrival and subsequent loading and unloading of baggage, and the second being a reconstruction of a loading and unloading, which included the same number of bags as was carried on the flight arriving from Townsville on 29 February 2016.
  7. [14]
    Those two videos were tendered and marked as Exhibits 18(a) and 18(b) respectively.  The live footage was recorded on 27 January 2020 and the reconstruction was recorded on 10 February 2020.
  8. [15]
    Those recordings show the unloading of baggage from the trailer with the reconstruction requiring three minutes and 35 seconds from commencement until all bags were unloaded and the demonstration, relating to an actual arrival, required slightly less than two minutes from the opening of the trailer until unloading was completed and the trailer closed up so as to commence the return to the airport.
  9. [16]
    On 29 February 2016 however, the Plaintiff says that the unloading did not progress uneventfully.  The Plaintiff’s available evidence, closest in time to the actual incident, is his personal statement prepared as a result of the incident and dated 29 February 2016.  In that statement he says:

While unloading the bags in the village, my left ankle gave way and I fell hitting my right knee on the ground next to the trailer.  Julie Lenz asked was I ok and I said my knee is a bit sore.

  1. [17]
    During the trial, the Plaintiff gave evidence on a number of matters which I will come to in due course but in respect of the actual incident, he said in evidence in chief:[1]

All right.  Thank you.  All right.  So when you arrived at the village can you tell his Honour what happened next?‑‑‑Well, I drove in to the area where the – we had to put the baggage, hopped out the driver’s seat, went round, opened the door and started putting the bags up on the baggage area.

All right.  And what did that involve?‑‑‑That involved stepping up and stepping down.

All right?‑‑‑I got about two-thirds of the way through ‑ ‑ ‑

Well, hang on, I’ll just pull you up there.  How many bags were you moving at a time?‑‑‑One.

All right.  And do you have a recollection of how many bags were in the trailer that day?‑‑‑I thought about 80, but ‑ ‑ ‑

All right.  And do you have a recollection whether there was any freight in the trailer that day?‑‑‑No freight.

Okay.  Thank you.  All right.  So I think you just said you got about two-thirds of the way through ‑ ‑ ‑?‑‑‑Yeah, I got about two ‑ ‑ ‑

‑ ‑ ‑ and then what happened?‑‑‑ ‑ ‑ ‑ two-thirds of the way through, went to step down.

Sorry, stepped down where?‑‑‑I stepped down from the path – from the pathway to the road ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ towards the trailer to pick up the next bag.  My left ankle give way and I fell on my knee.

Which knee?‑‑‑My right knee.  I broke the fall a bit by having my hand on the trailer.  Yeah.

All right.  When you struck your knee on the ground did you experience any pain?‑‑‑Yeah.

All right.  So what happened after that fall?‑‑‑Once I got myself back together again I finished unloading the bags.

All right.  Well, I’ll just pull you up there.  Was anybody else around at the time?‑‑‑Yeah, somebody seen me fall.

All right.  Well, can you tell us who else you recall being there at the time?‑‑‑Julie Lenz was the only one there.  Yeah.

All right.  And did Julie Lenz do anything?‑‑‑Yeah.

What did she do?‑‑‑She asked me was I okay.

Okay.  All right.  And what did you say to her?‑‑‑I just said, my bloody knee.  That

was ‑ ‑ ‑

Was there anything else exchanged between you?‑‑‑She says for me to go up and see the medic and I said, well, I hope to go and get the next load and then after that, I’ll go up

and ‑ ‑ ‑

Did you end up going to the medical centre?‑‑‑No.

Why not?‑‑‑I went back to my room and iced it.

All right.  How can you be sure that you twisted your ankle as you stepped off the kerb? 

MR GLEN:   He didn’t say that, with respect, your Honour, and I object to it and it’s significantly in issue.  What he said is his left ankle give way.

HIS HONOUR:   Gave way.

MR GLEN:   I’d ask for him not to lead at all on this negligence.  It’s very important.

HIS HONOUR:   All right.  Thank you.

MR DEAVES:   My learned friend’s right.

How can you be sure that your left ankle gave way as you were stepping off the footpath on to the roadway?‑‑‑That’s the only way that I could see it.  Like everything was very quick and that’s just how I recalled it.

  1. [18]
    The Plaintiff provides more information in his oral evidence than is contained in the original ‘personal statement’ and specifically makes reference, to there being an actual step down.
  2. [19]
    He was cross-examined about the actual incident on 29 February 2016 but before that line of questioning he was asked a significant number of questions about training and direction given to all those employees at the mine, in respect of safe work practices.  That line of questioning led ultimately to the tendering of the ‘safe work procedure’ document titled ‘Lifting objects and other general manual handling’ which had a Site Content Revision date of 27 April 2016 but which had a template Revision date of 23 March 2013.
  3. [20]
    Additional to that, the Plaintiff was also asked about other training including specifically the requirement that assistance should be sought in certain circumstances.  On day one of the trial the following exchange occurred:[2]

MR GLEN:   So in addition to training and annual refresher training and slip strips and falls and in manual handling, you also had training in respect of seeking assistance.  Correct?‑‑‑Yes, that’s correct. 

And this train was, sort of, two-fold, I might suggest to you.  First of all, you had extensive training to say, look, if you got a job and you need assistance, you seek assistance?‑‑‑Yeah. 

You recall that.  And the second thing – second aspect of that training was if you think the job is unsafe, you stop it – stop the job.  You’re nodding your head.  You’re agreeing that that was part of the training?‑‑‑Yep.  That’s correct. 

Yep.  In fact, that formed one of the great safety standard fundamental principles in relation to behaviour, I suggest.  Maybe if I give you the document.  Just have a look at the document.  So you recognise that as one of the safety standards in relation to behaviour?‑‑‑Yes.  Yep, we ‑ ‑ ‑

And you’ve signed that document as well?‑‑‑I have, yes. 

Back on 10th of February 2010?‑‑‑Yep. 

But the principles were maintained throughout 2016?‑‑‑Yes. 

And you see it says: 

Employees shall follow safe work procedures or job hazard analyses.  Stop if the task is unsafe. 

Do you want to just have a look at it – the second bullet point?‑‑‑Yeah.  Yeah.  Yep. 

Okay.  So you knew that was what you were supposed to do?  If you thought a job was unsafe, you should stop it.  Correct?‑‑‑That’s correct.

  1. [21]
    That particular point is of some significance in light of the Defendant’s witness’ evidence regarding whether there was communication between the Plaintiff and the administration team, including office staff on 29 February 2016.  I shall address that particular matter shortly.
  2. [22]
    In cross-examination, the accident, as described by the Plaintiff was the subject of lengthy questioning. [3]

Right.  And when you were unloading, you would tow the trailer – unloading at the path, you would tow the trailer up to near the concrete footpath as it’s shown in those photographs?‑‑‑Yes.

And you’d park the trailer about a metre or a bit more away from the edge of the concrete footpath?‑‑‑Yes, that’s correct.

So you can have sufficient room to unload from the trailer and walk across and place the bags down, correct?‑‑‑That’s correct.

And you’d then open the trailer and unload the bags – open the trailer from I think we called it the passenger side, and ‑ ‑ ‑?‑‑‑Passenger side.

‑ ‑ ‑ then unload the bags on to the concrete footpath?‑‑‑Yes, that’s right.

And when you unloaded the bags on to the concrete path, you’d put them at the back of the concrete path, is that correct?‑‑‑Yes, that’s correct.

And you did that for a couple of reasons, I suggest.  Firstly, to give you sufficient room to fit all the bags on?‑‑‑Yes.

If there was a lot of bags to come off, then you wouldn’t put them all at the front otherwise you wouldn’t have enough room, correct?‑‑‑That’s right, yes, that’s correct.

So you’d load back and then front, yes?‑‑‑Yep.

Also loading at the back gave you room to move around and have a clear work area?‑‑‑Yes.

So they were the reasons that you’d – sorry, I withdraw that.  So you get the bag out of the trailer, step up on to the path, put the bag at the bag of the path and then step off the footpath again and then go back to get another bag, correct?‑‑‑Yes, that’s correct.

All right.  And I’ll put it to you that on occasions you would perform that process with two bags at a time?‑‑‑No.

Did you see others perform the process lifting two bags at a time?‑‑‑No.

I see.  And sometimes there would be two of you performing the task, sometimes there would be one of you performing the task?‑‑‑Sometimes two of us, yes.

But if there was two of you, the same approach was adopted, I’d suggest?‑‑‑No.  One would stay on the path and lay the bags down while the other bloke passed the bags from the trailer.

Right.  So you’re talking about what they call a daisy chain ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ type arrangement?‑‑‑Like a – yeah.

Which is what you used for unloading out of the hold, you’d use ‑ ‑ ‑?‑‑‑That’s correct.

‑ ‑ ‑ a daisy chain arrangement.  But I suggest to you at the village there was never a chain arrangement used with one person standing up on the path, one person down the

roadway?‑‑‑Yes, there was.

Okay.  The task of unloading the bags took only a few minutes, I’d suggest – sorry, I’ll be specific.  The task of unloading the bags at the village took only a few minutes?‑‑‑No, that would have taken a lot more.  No, longer than two minutes.

HIS HONOUR:   Sorry, to interrupt.  Just to be clear, with one person doing it or two people doing it? 

MR GLEN:   Thank you, your Honour.

With one person doing it, it took only a few minutes?‑‑‑No.

And with two people doing it, roughly half the time than with one person doing it?‑‑‑No.  It’s still the same amount of time.

Right.  So it wouldn’t have shortened the time at all if you had a second person doing

it?‑‑‑No.

I suggest to you to unload the trailer with one person at the village, it only took about between – anywhere between about two to five minutes depending on the number of

bags?‑‑‑Two to five minutes would be correct.

Okay.  So you’re accepting it would be that sort of short period of time?‑‑‑Yep.

All right.  And you’d accept from me, wouldn’t you, that it was not a physically strenuous task?‑‑‑No.

You’re agreeing with me?  It’s not a physically strenuous task?‑‑‑No.  It’s repetitive.

All right.  It’s pretty lightweight task, though, in terms of energy, in terms of the force required to lift things and shift them?‑‑‑Yes.

And the task, would you agree with me, was a pretty simple task?‑‑‑Yes.

Didn’t require any great concentration?‑‑‑Apparently it does, yeah.

Sorry?‑‑‑Apparently it does, yes.

Well, the task was if you were – if you were doing it by yourself was to take a bag from the trailer;  correct?‑‑‑Yes.

Turn around;  correct?‑‑‑Yes.

It’s not causing too much concentration to do that, is it?‑‑‑No.

No.  Okay.  Stepping up onto the footpath?‑‑‑Yes.

Putting a bag down ‑ ‑ ‑?‑‑‑The bag down.

‑ ‑ ‑ on the ground;  correct?‑‑‑Yes.

Turning around, stepping back down to the road?‑‑‑Yes.

Getting another bag?‑‑‑Yes.

Repeating the process?‑‑‑Yes.

It was a pretty simple and straightforward task, I suggest?‑‑‑Yes.

And did you notice when you arrived to do that task, often there were a lot of passengers waiting there for the bags?‑‑‑Not that day.  There was nobody.

Sorry?‑‑‑Not on that day.

 

What, there was no passengers waiting for the bags?‑‑‑There was no passengers waiting for the bags, no.

And you’re certain about that?‑‑‑I’m positive.

All right.  That’s the date of the incident you’re talking about ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ the 29th of February 2016?‑‑‑That’s correct.

There was no passengers waiting for the bags?‑‑‑No.

So no passengers who could have helped you to unload the bags?‑‑‑No.

Was that from the start of when you unloaded the bags to the end of when you unloaded the bags?‑‑‑Yes.  The bus come in after I’d – after I’d finished unloading, yes.

Okay?‑‑‑The only person that was there was a South32 person.

Right.  Who was that, sorry?  Who was that?‑‑‑The lady that seen me fall.

I’m sorry?‑‑‑The lady that seen me fall.

  1. [23]
    Following this exchange, the Plaintiff was shown the recordings to which I have already made reference, and was questioned as to the processes that were depicted.  Though there were some distinctions noted between what was put to the Plaintiff and what he said reflected the general course of events, the timeframes to perform the task required was generally agreed.
  2. [24]
    Thereafter, the Plaintiff was asked about the procedure for seeking assistance with unloading at the village, in situations where there was insufficient time for a second ARO to accompany the driver.  The Plaintiff acknowledged that assistance could be sought, but suggested that on the day in question, he had radioed for assistance and had then been told, “there’s nobody”. 
  3. [25]
    This evidence was disputed by the Defendant’s witnesses including Mr Myatt, Mr Garlando, Mr Hutchinson, Mr Kimber, Ms Hickox and Ms Schrader.  The Defendant’s submission in respect of this point is found at pages 41 to 45 of the submissions. They were in these terms and I adopt them as they reflect exactly my assessment in relation to that aspect of the evidence:

(i) Mr Myatt

Mr Myatt gave evidence that he had a recollection of the date of incident. He gave evidence of having been alerted to the Plaintiff's fall whilst sitting at his desk in the office and having a discussion with the Plaintiff later on about him having fallen. That is how he recalls the day.

Mr Myatt gave evidence that he was at his desk in the main office that morning when the planes were coming in. Mr Myatt’s evidence was as follows:

“...Did you hear a call for assistance from the Plaintiff that morning with respect to needing assistance unloading at the village? --No. If there had been a call by the Plaintiff that morning for assistance unloading the village, would you have been able to hear it or not? --Yes. Yep, for sure. ... Why would you have been able to hear it? --On the front of my desk there’s a twoway radio...also we’ve got a two-way radio which is in the larger office area and you can clearly hear that too. ... ... If the Plaintiff had radioed in and asked for assistance that morning and you had been in the office what would you have done? --I would have gone down to assist as requested”.

(Mr Myatt clarified in questions from Your Honour that he had been at his desk “for quite some time” prior to being advised that someone had fallen).

  Mr Myatt was cross-examined about the prospect that he was at an EBA meeting or otherwise out of the office on the morning of 29 February 2016.'3? Mr Myatt rejected that suggestion stating, inter alia:

“No we wouldn’t be away...the flights were due in so we’re to make sure we were around the administration office”.

That was consistent with the balance of his evidence to the effect that he was aware of the time planes were coming in and in re-examination the following:

“... You said you wouldn't go...to site when planes were coming in. Is there a reason for that? --That’s correct, because of the assistance — what would be required, not only in the office, but also if any assistance was required out at the airport or out at the village bus stop.

...In the office itself...with what sort of task? ---Administration...

Would you schedule a meeting to conflict with that? ---No. No.”  

Mr Myatt also gave evidence (consistent with every Defendant witness) that if a request for assistance was made it would be provided. He personally had provided assistance and observed management staff assisting on occasion.

(ii) Mr Garlando

Mr Garlando gave evidence that each ARO (including himself) took turns in unloading at the village such that the time they did it was “roughly always the same”.  That AROs travelling to the village could get assistance by calling on the radio and if so, managers from the office would come and help (as well as passengers also helping). Further, that he was never refused assistance when requested. And that he did not always radio for assistance but only sometimes, depending upon the time available and number of bags involved.  Mr  Garlando’s evidence was unchanged in cross-examination.

(iii) Mr Hutchinson

Mr Hutchinson gave evidence that the “practice” of AROs radioing for assistance with unloading bags at the village had been ongoing since he had worked there. Mr Hutchinson further gave evidence of the staffing in the office usually 3 at any one time and of a radio on the front desk which was always on when there were inbound flights.  And that he or the Assistant Managers could hear the radio calls from the adjoining office. The Defendant “had Darren Myatt who was in the office that morning as the Assistant Manager” who could assist.  Mr Hutchinson identified, in the normal course that there were 3 female administration staff who could have assisted with unloading the baggage and although it wasn’t common practice “they had unloaded bags before if they needed to”.  Otherwise there was multiple other people onsite in the position to assist.  He had never heard an ARO refused a request for assistance. 

(iv) Mr Kimber

Mr Kimber gave evidence that there was a practice of AROs travelling to the village to unload baggage radioing the office for assistance if necessary. He confirmed there would be three administrative staff as well as Mr Myatt in the office on the date of incident, and further that if Myatt had been out of the office he could have been contactable on two-way radio or a mobile phone the number of which AROs were given.

(v) Betty Hickcox

Ms Hickcox has worked as an Administration Assistant in the Defendant’s office for 11 years. As such her knowledge and experience could hardly be challenged. Ms Hickcox gave evidence entirely supportive of the Defendant’s case as follows:

“...Do you have any recollection as to whether AROs would ever radio in for assistance with unloading of the baggage? ---Occasionally they would...once a fortnight or a month...

...90 if you were in the office and a call for assistance was received on the radio what would happen? ---Well, we’d get someone out there to help. ...We’d either call the managers, whose in the office, or whoever is in the office, or we radio someone; we get someone out there to help. ...Whoever is on the front desk would do it... ...What if no one was in the back office? ...What would you do then? ---Well, we'd phone the managers. We'd use the mobile — their mobile phone they keep on them all the time, and we’d phone and tell them that help was required.

... If you'd tried to phone a manager in the normal course, would you be able to get a hold of them or not? ---Yeah.

What about if, for some reason, you phoned them and you still couldn’t get onto a manager, so no managers were available, what would you do then? ---Well, one of us girls would probably go out and help...

Have you ever known that to happen before? ---On rarely occasions yes.

... If none of the managers were available and none of the admin staff could help either, what would you do then? ---Well, we'd either get them to get the AROs to come in and help...or we could get our sweepers or whoever. Kitchen staff...the bar staff, we could get — grab one — grab him. Just...whoever’s available.

Have you ever had to do that? ---No.

... Have you ever refused...an ARO calling in for assistance with unloading baggage at the village? ---No.

... Have you ever heard anyone refusing help to an ARO who had requested assistance for unloading of baggage at the village? ---No.

...Can you ever recall the Plaintiff, Ricki Smart, being refused assistance? ---No”. (vi) Ashley Schader

It is suffice to note that Ms Schader gave evidence consistently with Ms Hickcox to the effect, inter alia, that she could never recall any ARO who had requested assistance being refused the same.

  1. [26]
    The Plaintiff’s evidence indicated that in the normal course, if assistance was sought it would be provided.  However he says that on 29 February 2016, whilst requested it was not provided by anyone from the administrative office.  No one else could obviously say on behalf of the Plaintiff that assistance had been requested but that no one could assist on that day.  However, Mr Murray Allan Franswar, called on behalf of the Plaintiff, was able to speak of his experience when working in a similar role.  In evidence in chief Mr Franswar said:[4]

So in the circumstances where only one of you would go over to the village, was it possible to obtain assistance elsewhere in unloading the luggage at the village?‑‑‑Yes.  Yes, it was.

How would that take place?‑‑‑We would radio through to the office ‑ ‑ ‑

All right?‑‑‑ ‑ ‑ ‑ to let them know that we were on our way with – with one person and we would request assistance to unload ‑ ‑ ‑

All right?‑‑‑ ‑ ‑ ‑ at the other – at the drop off point.

And if the assistance came, where would it come from?‑‑‑From the office.

So a member of staff from the office, I take it?‑‑‑Yes.

Yes.  Were those requests for assistance always met?‑‑‑Predominantly yes.  But there were occasions – there were quite a few occasions that it wasn’t met.  No.

All right.  Can you try and quantify that by how often, as a percentage, the request wasn’t met?‑‑‑Probably 25 per cent of the time.

  1. [27]
    He was challenged in relation to this evidence however in cross-examination where the following exchange occurred:[5]

MR GLEN:   Yes.  So predominantly, you say that assistance would be provided when you called for it?‑‑‑Sorry?

Your evidence was predominantly – I think you used the word predominantly – that when you called for assistance on the way in to the village, assistance would be provided;  correct?‑‑‑Yes.

All right.  And that process of calling for assistance was one which was entrenched in place when you were working there back in the earlier periods of time?‑‑‑Correct.

Yes.  Do you remember how that process developed, calling for assistance, or not?‑‑‑No.  I – no.  I don’t recall how – how it was put in place.  No.

All right.  But it existed and was the process that was carried out?‑‑‑Yeah.  Yes.

If there was one person going in alone?‑‑‑Yes.

Okay.  And at times there would be two people who would go in, depending on when the flights – whether they were early, late, or how it worked out?‑‑‑Correct.  Yes.

Okay.  And you said you have a recollection of not being – of not given assistance.  How did that come about?  Was that because you’d called and it was refused, or what would happen, sorry?‑‑‑Quite often, on several occasions, there was actually no one there that could physically give us a hand.  They were out of the office, like, the menfolk.  Other times, we would get there;  they just – they wouldn’t turn up.  No one – no one – and we were there doing – you know, I was – the person on their own was – would just carry on and do the job anyway.

Yes.  Well, that’s exactly right, isn’t it?  If you were there by yourself, you’d just unload the bags yourself?‑‑‑Yes.

And I think you said that it was something like – you thought that it was maybe 50 bags would be the average if there was 100 passengers on the plane?‑‑‑It – it varied, but yeah.

But roughly 50 per cent of the number of people on the plane would be the number of bags?‑‑‑Roughly – roughly.  Yes.

So when you say that you would – you wouldn’t get assistance because there was no one there, do you mean no one would answer the radio, or do you mean ‑ ‑ ‑?‑‑‑No.  The radio was always answered.

All right.  And what would happen?‑‑‑We would radio the girls in the office, and then they would relay the message that we needed assistance. 

That’s – all right.  Okay.  And – well, I thought you said you were told that no one was there;  is that – have I got it right?‑‑‑To actually come out and help with the task.

But did the lady who answered the phone say to you, “Look, there’s no one available,” is that what happened?‑‑‑Sometimes that did happen.

Right.  All right.  And that was – what, Betty Hipcox during those days?‑‑‑Betty was there.

Yep.  Okay.  And Ashley Shader?‑‑‑Yes.

Okay.  Because I suggest to you that that wouldn’t happen, that they wouldn’t say that there was no one available for assistance?‑‑‑If – it happened to me.  Yes.  It did.

Well ‑ ‑ ‑?‑‑‑I was told that information.

All right.  And just if it could have happened, then it would have been a very rare occasion, not 25 per cent of the time?‑‑‑I – no.  It was more than rare.  It was more often than rare.

All right.  Well, your 25 per cent is a – sort of, an estimate there in the witness box I gather?‑‑‑That’s correct.

You said people just wouldn’t turn up;  is that right?  Tell us about that?‑‑‑That’s right.  Yes.

So you’d be told someone was coming?‑‑‑Yes. 

Told a particular person was coming?‑‑‑Yes.

All right.  And do you know who the person is that you’d be told?‑‑‑Yes.  It was one of three people that were in the office.

Okay.  Was that Mr – you tell me who they were?‑‑‑David Hutcheson.

Yes?‑‑‑Darren Myatt, Simon Kimber.

All right.  Okay?‑‑‑Yep.  They were always in there.  Yeah.

All right.  So on occasions you were told they would be coming, and they didn’t turn up?‑‑‑Yes.  There’d be someone there to meet us, to give us a hand.  Yes.

All right.  Well, again, I’ll suggest to you that’s not right.  If they were asked to give a hand, they would come and meet you and give you the assistance?‑‑‑That was on the – that was the understanding that I was on as well, but it never happened on several occasions.

  1. [28]
    I was not much impressed with Mr Franswar’s evidence generally and particularly in respect of this point.  It appeared to fly in the face of all other evidence, including that of the Plaintiff and I formed the view that in respect of this matter, Mr Franswar was not a reliable source.
  2. [29]
    This concern then leads me to some other issues that might best be described as discrepancies, but they cumulatively lead to some ongoing concerns that I have with the Plaintiff’s case.  They related to matters such as the diary entry relied upon by the Plaintiff, as well as to the cause of the injury.
  3. [30]
    I have already noted what the Plaintiff said occurred at the time when he says he was injured.  He said that there were no others present at the time he sustained the injury.  However, his witness Julie Anne Lenz says she was present and said she witnessed his fall.  More specifically, when asked about other passengers she did not say there was no one else present but rather indicated that there weren’t many other passengers around.  Unfortunately, I was not at all comfortable with the evidence of Ms Lenz.  In my assessment, her evidence was more a reconstruction of discussions had with the Plaintiff and not her actual observations.  She may have seen the Plaintiff fall to the ground but her explanation of what she says she saw in detail falls far short of what I would consider convincing.
  4. [31]
    Also, the evidence of the Plaintiff regarding his entry into his wife’s diary was very troubling.  Early in his cross-examination on the first day of trial, the following exchange occurred:[6]

Mr Smart, you yesterday provided a copy of a diary entry.  You’re familiar with the diary entry I’m talking about?‑‑‑Yes, sir.

Thanks.  Did you just give it to you lawyers yesterday, did you, or ‑ ‑ ‑?‑‑‑Yes, sir.

Okay.  And it’s your wife’s diary, is it?‑‑‑Yes, sir.

And do you normally write in your wife’s diary?‑‑‑When I was at work, yes.

I see.  How often would you write in your wife’s diary when you were at work?‑‑‑Not very often.  Only if it’s – if I need to remember things.

Right.  Okay.  And there’s an entry there on the page which is 29 February 2016.  When did you write that entry?‑‑‑That night.

You wrote it on the 29th of February 2016 that entry?‑‑‑Yes.

I see.  All right.  Why did you write that entry that night?‑‑‑Because I’d – I’d injured my leg that day.

Okay.  All right.  And you felt it necessary to record in the diary entry:

Called for help on radio.  No one there to come out.  All busy while incoming – with incoming pax.

?‑‑‑Yes, sir.

Right.  You knew that was important?‑‑‑Yes, sir.

And you knew to write it down in there?‑‑‑Yeah.

It was on your mind, was it?  It was on your mind at the time that that was a significant issue?‑‑‑Yes, sir.

Okay.  And why didn’t you give the diary to your lawyers before yesterday?‑‑‑Because it was put away in storage.  We’ve – we’ve been unpacking stuff from one of the storage sheds that we had and it was put in there.

Right.  Okay.  Anyway, you knew that was an important issue that you needed to raise?‑‑‑Yes, sir.

Okay.  I’ll come back to that later.

  1. [32]
    Subsequently, in cross-examination later that afternoon, the entry in the diary for 29 February 2016 was further canvassed as follows:[7]

And on this occasion, I suggest to you, you didn’t call for assistance?‑‑‑Yes, I did.

Well ‑ ‑ ‑?‑‑‑Otherwise I wouldn’t have written it down that night.

Other – okay.  Otherwise you wouldn’t have written it down that way.  Okay.  We spoke about that earlier, didn’t we, that you knew it was important to mention that?‑‑‑Yes.  That’s correct.

Who did you speak to when you called for assistance?‑‑‑One of the girls in the office.

Which girl?‑‑‑I can’t remember.

You didn’t think to write that down on your note when you wrote it that very night?‑‑‑Nope.

Didn’t think that was important, like, I spoke to Betty, or whoever?‑‑‑No, it wouldn’t have been.  It wouldn’t have been Betty.  Betty wasn’t there.  I don’t even know if Betty ‑ ‑ ‑

Well, I suggest Betty was there?‑‑‑I don’t even know if Betty was in the office that day.

I suggest Betty was in the office that day?‑‑‑Okay.

And I suggest you didn’t speak to Betty that day?‑‑‑No, I didn’t speak to Betty over the radio.

Okay.  So you know now, you can tell us you didn’t speak to Betty.  You know someone you [indistinct] speak to?‑‑‑It could’ve been Lorelle, it could’ve been – who’s the other one?

Ashley?‑‑‑Could’ve been Ashley.

How do you know it wasn’t Betty?‑‑‑Because you know by the voice.

Right.  So what did this person who you spoke to say to you about – when you asked for assistance?‑‑‑They just said, no, there’s nobody here.

All right.  Well, did you query that at all?‑‑‑Nope.

Did you try calling anyone else on the radio?‑‑‑No.

But you knew that you could get Darren Myatt on the radio?‑‑‑No, no.  Darren wasn’t in the office.  He didn’t have a – he doesn’t carry a radio around with him all the time.

Is that what – that’s what you believed, I gather, at the time?‑‑‑That’s what I know.  They don’t carry a radio round with him.

Okay.  All right.  Well, I suggest he did have a radio with him that morning, and he was in the office?‑‑‑Well, you can suggest whatever you like, but I know different.

And that he didn’t – sorry, I suggest that you didn’t make any call to the office?‑‑‑Yes, I did.

And you were never refused assistance on that day, I suggest that to you.  You disagree?‑‑‑I disagree wholly.

So you mentioned Alistair Williams in your evidence, he’s the health and safety officer?‑‑‑Yes, that’s correct.

He’s the person who investigates the incidents?‑‑‑Yes, he does.

He investigated this incident, to your knowledge?‑‑‑Yes, I think so.

He questioned you about the incident?‑‑‑No, I don’t think so.

You don’t think so?‑‑‑No.

He spoke to you, Mr Smart, on either the day of the incident, or perhaps the next day, but certainly within two days of the incident, he questioned you about what had happened in the incident?‑‑‑ [indistinct]  I wrote it down.

No, I’m suggesting to you that he questioned you about what happened in the incident either that day or within a day or, at the most two days.  He spoke to you about what had happened?‑‑‑Yeah.

You remember that now?‑‑‑Yeah, yeah.

You’re putting your hand up.  What does that mean?  I don’t know?‑‑‑Well, I’m getting confused.

You do remember him speaking to you?‑‑‑Yeah, well, he had to speak to me at some stage because I writ down that, yeah, I’ve injured myself.

Yes, okay?‑‑‑And he’s the man that’s got to do the investigation into it.

Correct.  Correct.  And you did not tell him, you did not tell him, I suggest, that you had called for assistance and been refused assistance, did you?‑‑‑I can’t remember.  Maybe I didn’t.  Maybe it slipped my mind.

But you, that very night, in that diary that was disclosed to us yesterday, you tell us that very night you wrote it down in your diary ‑ ‑ ‑?‑‑‑That’s right, it was writ ‑ ‑ ‑

‑ ‑ ‑ because you knew how important it was?‑‑‑It was writ down that night, yes.

Yes.  But you didn’t tell Alistair Williams that you’d been refused assistance, even though you knew how important it was?‑‑‑He – no.

He was investigating the incident, wasn’t he?‑‑‑If he was investigating, yeah.

Well, some break down in procedure like that, something that had gone wrong that had caused you to be injured, you would have told him, wouldn’t you, if it had happened?‑‑‑Yeah.

You didn’t tell him because it didn’t happen?‑‑‑Yes, it did.  Going round in circles.

That diary entry you’ve given us yesterday, when did you write it?  Last week?‑‑‑No.

You didn’t write it back on the 29th of February, I suggest?‑‑‑Yes, I did.

And you didn’t lose it and you didn’t just find it.  You’ve just fabricated it just in the last few days?‑‑‑No.

So tell us – here, have a look at the diary.  Show us all the other entries where you write in your wife’s diary?‑‑‑I’ve got two entries in there.

Two entries.  So with 365 days, you’ve got two entries?‑‑‑There’s one and there’s the other one.

Two entries in 365 days that you decided to write in there, correct?‑‑‑Well, I wasn’t at work after – after that date for quite a long time so how can I write in it if I’m not there? 

What about before that time?  There’s no other entries before either, is there?‑‑‑That’s because there was no problems before then.

So you’ve just got two entries where you say one is the 29th of the February where you’ve put no one answered the call?‑‑‑Yep.

Yes?‑‑‑Yes.

Didn’t tell Alistair Williams about it.  You’re just making that up, I suggest ‑ ‑ ‑?‑‑‑Is that what he’s telling you? 

You’re just making – I put it to you ‑ ‑ ‑?‑‑‑No, no.  He’s ‑ ‑ ‑

‑ ‑ ‑ you can assume that I’m acting on instructions.  You didn’t tell him anything about that?‑‑‑I would have done if it was written down.

Right?‑‑‑And it was written down.  Whether he’s written in his report or not, I don’t know.

  1. [33]
    I was troubled by the Plaintiff’s evidence in relation to the diary, including in respect of his use of it and also its location and production.  The diary referred to was tendered as Exhibit 21.  It does include a notation in the Plaintiff’s handwriting for 29 February 2016 and as suggested by the Plaintiff there appears to be some other entries by him on the 6 June 2016, 7 June 2016, 13 June 2016 and 3 November 2016.  The entry of 13 June 2016 relates to the Plaintiff telling Simon Kimber that his knee had ‘blown up’.  What is troubling about the diary entries is that they were not revealed until literally the day before the trial, and though the Plaintiff acknowledged that he recognised their importance, they were not produced or ever mentioned as existing previously. 
  2. [34]
    Moreover, as is submitted by the Defendant, the diary smacks of reconstruction and fabrication and if anything, detracts from the evidence of the Plaintiff and his witnesses.  It makes specific mention of factors which though relevant to the Plaintiff’s claims, do not seem to be likely to be noted at first instance.  Such matters include, radioing for assistance and it being refused, having a witness who saw the fall and of the fact that the necessary activities were being conducted in a situation where they were ‘under-manned’.
  3. [35]
    No mention of these matters were raised with Mr Williams, the appropriate person to notify, on the next day when he was conducting initial enquiries and I accept Mr Williams’ evidence with respect to any such matters not being raised with him.
  4. [36]
    Also noteworthy and of particular concern is the entry of 13 June 2016.  The Plaintiff’s wife has made an entry which on the face of it I accept as contemporaneous, but the entry by the Paintiff which follows is troubling.  It is in these terms:[8]

‘Got up at 5.00am as normal could hardly walk as the knee had blown up. It took 15 min to walk to office [where] it is normally 2 min.  Told Simon Kimber the assistant manager that my knee had blown up.  He said I’ll talk to Dave Hutchinson when he gets here.  He might send you home.  Sally spoke to Simon and said I will have to go home to drive me to Dr.

I never heard back from Simon or Dave and was still out at work for another 10 days.’

  1. [37]
    As is clear, it relates to a report to Mr Kimber but then goes on in a ‘contemporaneous’ note to say ‘I never heard back…’’.  That is impossible to have been recorded at the time but rather, it would be expected that on 23 June 2016, which simply has an entry on Mrs Smart’s hand of ‘Home’.  It is there that there would be the Plaintiff’s note to the effect, ‘finished 10 day shift and no response from Simon Kimber’.
  2. [38]
    The entry in the diary of the 13 June 2016 strongly reinforces the other concerns held in respect of the Plaintiff’s evidence and that of his witnesses.  The diary entries were not reliable pieces of evidence and similarly there were concerns with the evidence of Ms Lenz, Mr Franswar and Mr Li.   I have already made comments regarding the reliability of the evidence of Lenz  and Franswar but would record here some concerns with the evidence of Mr Li.
  3. [39]
    He worked for the Defendant until 2013, so finished some years before the incident.  His evidence as to the availability of assistance in unloading baggage at the village conflicted with that of the Plaintiff and Mr Franswar as well as with the Defendant’s witnesses.  His evidence as to the placement of baggage at the earlier drop off point differed from the Plaintiff’s. 
  4. [40]
    Additionally, Mr Li struck me as a former employee of the Defendant with a gripe about the employer.  His evidence regarding directions given by management fell flat and I formed the distinct impression that he was not a reliable witness but rather something of a contrarian.  His evidence did not assist the Plaintiff. 
  5. [41]
    Additionally, the evidence of the Plaintiff’s wife repeatedly makes reference to the pain that the Plaintiff was experiencing but the diary is almost entirely silent about that, any steps taken to alleviate pain or to consider or arrange medical intervention.
  6. [42]
    On the evidence available, I am not at all satisfied that the diary entries are contemporaneous and genuine entries made at the time, but rather are later additions designed to bolster the Plaintiff’s claim.  My views in that respect have been reinforced by the fact that the only medical practitioner to see the Plaintiff, at least initially with respect of the injury directly was Dr Ambreen Samir. 
  7. [43]
    Dr Samir is a medical practitioner working at the Riverway Medical Centre.  The Plaintiff’s medical records from the centre were produced and it was agreed that the Plaintiff’s first attendance with a doctor following the incident on 29 February 2016 was with Dr Samir on 22 April 2016.  That was 53 days after the incident was said to have occurred and the records note that the reported cause of injury was that, “someone fell on his right knee 6 weeks back”.  I note that the incident was said to have occurred three days short of eight weeks prior.
  8. [44]
    Dr Samir noted in examination as follows, “knee: not red, not swollen, not hot, not tender, restriction present, restricted ROM.”  I note ROM as an abbreviation for Range of Movement.  The records then show her notation as to reasons for the contact and management and the actions, including diagnostic imaging requested: X-ray-knee (R). 
  9. [45]
    A few days later on 25 April 2016 a follow up appointment occurred which again noted the history as including “a person fell on his knee” and “x-ray is normal”.  Interestingly, the examination recorded the same details as 22 April 2016 except that there was then, “full ROM”.  An ultrasound of the right knee was requested and two days later, on 27 April 2016, the Plaintiff again attended for a follow up appointment with the results showing, “possibility of partial tear in lateral ligament”.
  10. [46]
    What can be specifically taken from the notes of Dr Samir is that she records in the history on two occasions that the injury to the Plaintiff’s knee arose from someone falling on his knee.
  11. [47]
    In oral evidence she was challenged as to the accuracy of those notes but confirmed in examination-in-chief that it was sometimes difficult to write notes and see the patient at the same time but her notes are recorded straight away after seeing the patient.  In cross-examination, the doctor was challenged as to the accuracy of those notes, referring specifically to the fact that the doctor had no independent recollection of her consultation with the Plaintiff.
  12. [48]
    Dr Samir confirmed that her notes were made sometimes during a consultation but otherwise straight after the patient leaves and denied that there were any longer delays.  She was challenged however as to the accuracy of her notations when it was put to her that the request to Queensland X-Ray gives as the history, “history of fall”. She explained that the request would come into existence during the consultation and was hurried in its preparation but that her medical notes would be a more comprehensive and accurate record.  As she said “…I will stick to my notes” and “…my notes are right”.
  13. [49]
    Though Dr Samir was challenged repeatedly regarding alternative means by which injury to the knee could occur, she remained adamant that her recording as to the manner of injury to the knee reflected what she was told by the Plaintiff and was not a mistaken or inaccurate notation.  I accept Dr Samir’s evidence in respect of this matter, particularly in respect of the accuracy of her medical notes regarding what she was told as to how the injury was sustained.
  14. [50]
    The evidence of Dr Samir is telling here.  It records on two occasions what the doctor says she was told by the Plaintiff was the cause of the injury.  It is also evidence which I am satisfied is both truthful and reliable and casts a great doubt over the evidence of the Plaintiff and his witnesses.
  15. [51]
    The Plaintiff’s evidence as to the fall is that his left ankle gave way.  There is no suggestion of a slip, trip or other reasons for the ankle giving way.  As best he could articulate it, he says that he could not explain it because it just happened ‘that quick’.  Mr Alistair John Williams, the mine site health and safety adviser, gave almost identical evidence as to that of the Plaintiff, at least insofar as the explanation as to what occurred on 26 February 2016.  His evidence in respect of that enquiry made by him and of his follow up is also significant.  He said in evidence-in-chief the following:

Following the plaintiff injuring himself on 29 February 2016, did you have any discussions with him?---Following. Sorry. Yes.

After he injured himself - - -?---Yes. Yeah.

- - - did you have any discussions with him?---Sorry. Yeah. I spoke with Ricki as soon as he notified me that something had occurred to determine what had happened and what we might do to improve our processes.

All right. And do you remember how long after the incident that discussion occurred?---Yes. He reported it at the morning meeting on the day. So that’s the 10 o’clock meeting. And we went from there. So that’s the initiation of the investigation.

Do you have a recollection of that discussion with the plaintiff?---Yes. That was just a generalised mentioning of the – during the meeting to mention that he may have fallen while unloading the bags in the Village, and then I spoke with him afterwards.

All right. When you say you spoke with him afterwards, how much longer?---Shortly after the meeting.

All right. And can you just tell the court your recollection of the conversation with the plaintiff?---Yes. Ricki identified that he had fallen while unloading the bags in the Village, and I asked what happened because that’s the most important part so we can identify how to change it, but, unfortunately, he wasn’t sure. He didn’t recall exactly how he – how the incident occurred or what specific factor caused it.

What did he say to you about what had happened?---He just said that his ankle gave way when he was placing the bags down in the area.

All right?---He didn’t recall exactly why or - - -

All right?--- - - - whether there was any other stimulus.

Did he say anything to you about having radioed for assistance with unloading at the Village and being denied assistance?---No.

Did he say anything to you about feeling rushed or time pressured or anything about that?---No. No. That’s why it was frustrating because there was not much to go on.

Did he express any reason to you as to why he fell?---No. No. He just – he didn’t know why he fell. He just seemed to stumble. I just – all I could gather was that he stumbled and – and fell. That’s why I didn’t have many strong controls for that incident.

If the plaintiff had raised any of those issues with you, for example, that he had been denied assistance or he fell because he was rushing or if he had said something like that, what would you have done, if anything?---Implement a simple control. First of all, check if that had occurred and why. And then once you know why it has occurred, you can implement a control that suits for whatever reason. If it was – I don't know. It could have been anything. But whatever you work out that it can be, you can then make a change.

So what sorts of things might you have done if he had actually said any of those things to you? What steps might you have taken?---Pursued it and started asking questions of the people he may have been denied help from and asked them why. Once you find out why they denied help, you can then implement a control to make sure that that restriction doesn’t occur again.

After those conversations with the plaintiff, were you able to make any findings or any recommendations by way of corrective action?---Not especially. All I could do was – at the time, Ricki didn’t have a major problem with it. He actually said it was not much at all, I think. I think he said that – he just – he just scoffed and he said … not – not much at all. It wasn’t a thing. Which doesn’t give me much to go on, so all I can do as a control factor is just reiterate the importance of keeping our mind on task and ensuring we think about the job that we do. The other thing that I did was put a follow-up action in there to make sure that the condition didn’t decline and then followed that up.

So – sorry. A follow-up action? Sorry. I missed that?---Yeah. So the other action that was in there was that I needed to follow-up with Ricki two days later to make sure that his knee was okay and didn’t require anything further.

And did you do that?---Yeah.

All right. And what was the result of that follow-up?---I think that was the occasion that he scoffed and said, “It’s fine.” Multiple times, “Fine.’

All right. Did you ask the plaintiff to prepare a statement about the event for you?---Yes.

All right. Could the witness please have a look at exhibit 7, your Honour.

HIS HONOUR: Thank you.

MR GLEN: Do you recognise that document?---Yes.

Is – what is that?---That’s Ricki’s statement of the incident.

Is that the one that was provided to you shortly following the event?---Yes.

How does it compare to what he – your recollection of the conversation he had with you?---That is an accurate representation.

  1. [52]
    In particular, I note the direct enquiries made regarding any injuries and the fact that the Plaintiff’s repeated indications were that he was fine.  I accept that evidence of Mr Williams, particularly where it conflicts with that of the Plaintiff.  More specifically however, I note the lack of any concern with an injury at the time of the ankle giving way and note that it again seems to accord with there being another accident, such as that recorded by Dr Samir. 
  2. [53]
    There is other evidence relating to the incident which is said to have led to the injury but it is confused and I must say, unhelpful.  The recurring theme is that the Plaintiff’s ankle gave way.  That was his description of what occurred and what he told Mr Williams contemporaneously and Dr Eundoroba some two months later.  There is, no matter what, confusion as to the mechanism of any fall which gives rise to real difficulties in relation to the issues of liability.
  3. [54]
    Similarly, there are difficulties that arise regarding the cause of any fall.  The evidence of the Defendant’s witnesses, especially Mr Garlando would indicate that the task at hand was a straightforward one, one that did not require any special degree of exertion and not one that had ever given rise to any similar concerns.  Interestingly, the Plaintiff’s witnesses, who had worked in a similar capacity, Messrs Franswar, Lopez and Li also noted the straightforward nature of the task at hand and none of them, like the Plaintiff and Mr Garlando, had experienced difficulties.
  4. [55]
    In that respect, I would note that some of those witnesses had ceased their employment at the village prior to any change in the position of the bag drop off.  However, the task was to all intents and purposes the same, though in a slightly different position, at the bus stop rather than at the adjacent footpath.  I would also note here that I was entirely unconvinced by the Plaintiff or his witnesses regarding what they said was the situation in respect of unloading at the bus stop, not requiring a step up.
  5. [56]
    The description that was given by them how the unloading of baggage was conducted so as to not require a step up onto the plinth that formed the bus stop, was illogical and smacked of reconstruction of the actual task to somehow show a difference to the task required to be performed when unloading on the footpath.  A step up was required, no matter where the task was performed and though it was suggested that the unloading of bags at the bus stop was conducted only along the edge of the gutter, the available space, even with an opportunity for ‘back filling’, was such that a step up and down would have inevitably been required, in respect of at least some of the baggage.
  6. [57]
    I am far more accepting of the Defendant’s witness’ evidence in that regard and would find that the task was unchanged from one point of drop off to the other.
  7. [58]
    The task being performed by the Plaintiff on 29 February 2016 was, as submitted on behalf of the Defendant, an easy straightforward and everyday occurrence.  It did not require any additional or specific precautions to be taken over and above those normal precautions for which training was provided.  There was nothing in the task performed that gave rise to a ‘significant’ risk of injury.
  8. [59]
    In respect of that particular matter, I note that the staff training suggested in the safe work service procedures that if possible, two persons be involved in the unloading of baggage.  However, Mr Williams was specifically asked about that matter and in his evidence said the following:

All right. One of the administrative controls referred to is to have a second person involved. Why was that there?---Yes. I beg your pardon. That is one of the controls recommended in the manual handling training and is just another way to reduce the risk potential of something occurring. Many hands make light work.

Was the provision for a second person – did it bear any relationship to the risk of slips, trips and falls or not?---No.

  1. [60]
    Mr Williams went on to note that as baggage was limited to a 10 kilogram weight limit, it was the lowest that he had seen but that from a health and safety perspective, it was great. 
  2. [61]
    As  I have indicated, I am satisfied that the nature of the task required to be carried out in unloading the baggage was unchanged, to all intents and purposes from the bus stop area to the footpath and further that it is a straightforward task, involving light weights, and that if necessary, assistance was available but was not sought on this occasion.
  3. [62]
    I am specifically comfortable with that finding in light of the concern previously expressed by me in respect of the veracity of the Plaintiff’s evidence and the lack of any reliability in the diary notes relied upon.  That assessment is supported by the reliability I found in the evidence of the management and administrative staff. 
  4. [63]
    Finally, in respect of the evidence, and for the purposes of completeness, I would note that the time available for the performance of unloading, from departure from the airport to return, after the unload was more than adequate to perform that duty without rush or risk.  The arrival time of the two flights and the evidence of what was required to perform the task clearly showed that there was no ‘time pressure’.
  5. [64]
    Before determining the question of liability, it is appropriate that I should note the relevant legal principles at play.  They include the identification of the risk of injury, whether the risk of injury was not insignificant, whether there was any breach of duty and if there was any breach of duty, whether it was causative of injury.
  6. [65]
    The first point therefore relates to whether there was a risk of injury to the Plaintiff or any employee from stepping down off a footpath and in the Plaintiff’s case, in the course of unloading baggage.  No matter what might be required, in extreme circumstances, there may be a risk, but the evidence here is that the injury occurred when the Plaintiff was not carrying baggage and there was no suggestion of a misstep or trip.  Rather his own evidence was that his ankle gave way.  As Bowskill QC DCJ, as Her Honour then was, said in Fox v State of Queensland [2016] QDC 146 at [72]:

“The risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred. However, it is not confined to the precise set of circumstances in which the plaintiff was injured. Rather, what must be reasonably foreseeable is ‘the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred’”.

  1. [66]
    Secondly and importantly, the Plaintiff must establish that the risk of injury was “not insignificant” to use the language of the Statute.  S. 305B(1) to (2) of the Workers’ Compensation and Rehabilitation Act 2003 provides:

305B General principles

  1. (1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless—
  1. (a)
    the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  2. (b)
    the risk was not insignificant; and
  3. (c)
    in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
  1. (a)
    the probability that the injury would occur if care were not taken;
  2. (b)
    the likely seriousness of the injury;
  3. (c)
    the burden of taking precautions to avoid the risk of injury.
  1. [67]
    In commenting in Fox v State of Queensland (supra), Bowskill QC DCJ noted with respect to whether there was a ‘not insignificant’ risk of injury as follows:

“[84]… To say the risk of harm is insignificant, is not to comment on the nature of the harm actually sustained; but rather on the probability of the risk of that harm eventuating.

[85] Although the fact that there was no evidence of previous complaints, or injury sustained as a result of raising the bed rails does not necessitate a conclusion that the risk of injury is slight, when that is considered with the fact that the raising of bed rails on patient’s beds is something that happens many times, in the course of each shift; and that turning patients is also a routine, regular task, 54 it is reasonable to conclude that the degree of probability of the risk of harm eventuating was very low, such as to be “insignificant” within the meaning of s 305B(1)(b).”

  1. [68]
    A similar consideration to that looked at by Her Honour arises here.  Was there a ‘not insignificant’ risk is requiring or allowing the Plaintiff to step on and off the footpath during the course of unloading baggage.  In her Honour’s words:

“It is reasonable to conclude that the degree of probability of risk of harm eventuation was very low, such as to be ‘insignificant’ within the meaning of s. 305B(1)(b).”

  1. [69]
    The task did not give rise to a ‘not insignificant’ risk of injury, nor did it constitute a breach of duty in circumstances where it was reasonable to expect that a person in the position of the Plaintiff would take reasonable precautions in performing the task.  As was submitted by the Defendant this is because:
  1. The employer was unaware of any previous incident having occurred in the course of unloading at the village or any baggage handler having previously sustained injury whilst stepping up and down in the course of unloading.  Although the absence of any prior incident ‘does not necessitate a conclusion that the risk of injury is slight’, a reasonable employer would conclude the degree of probability of the risk of harm was very low such as to be ‘insignificant’.
  1. The static condition of the footpath was reasonable, safe and ‘normal’ for transition by workers unloading the baggage at the village.  In that regard:
  1. The footpath height was measured at 160mm.  Hence, the riser was of a relatively standard normal height.  (By way of comparison – if the riser had been of an unusual or unreasonable height e.g. particularly low at 50mm or particularly high at 300mm then some issue could potentially have arisen but the riser height was a standard footpath type height and as such both safe and reasonable).
  1. The evidence of Mr Williams (above referred to) records the footpath having been ‘a nice flat gutter and it steps onto nice flat bitumen…designed to the Australian standard for gutters.
  1. The edge of the footpath was very clearly marked in a broad yellow painted strip.  The footpath was marked in a contrasting blue colour.  The delineation of the edge of the footpath was reasonable.  Nothing further could have been done to delineate the edge of the footpath.
  1. The unloading task was a simple, easy task involving light weights being carried a short distance of a few meters for a short duration of a few minutes.  As such, the task involved negligible risk of injury.

…

  1. The stepping up and down was not unduly repetitive.  Even if it was carried out 32 times over the space of a couple of minutes.  That would not have exposed the Plaintiff to a ‘significant’ risk of injury.
  1. The witness’ evidence does not establish that the task involved (or was likely to or did) give rise to a not insignificant risk of injury e.g. in the form of mis-stepping or tripping or losing balance.  The Plaintiff’s case alleges that the Plaintiff was at ‘real risk of mis-stepping or tripping’ as a result of carrying out the task of unloading luggage at the village but the Court would not find that allegation established.  That is because the allegation is:
  • Not established by any witness evidence called by the Plaintiff in the proceeding;
  • Inconsistent with the witness evidence called by the Defendant in the proceeding;
  • Not otherwise established by expert evidence of an ergonomic type nature (no evidence of this nature was called); and
  • Not a matter capable of inference by the Court (and particularly not an inference contrary to the direct witness evidence of Mr Garlando and Mr Kimber both of whom denied any difficulties with the unloading task).  There is no evidence from any witness that they had difficulty with the stepping up and down or found it unduly repetitive or difficult.  (The Plaintiff did not say that.  Mr Garlando specifically said he had never found any difficulty with the stepping up and down).
  1. At the time of his fall, the Plaintiff was not carrying a bag – he was not carrying anything – there was nothing to obscure his vision.  There was nothing to distract his attention.  All he had to do was step form the footpath onto the road. Requiring a worker to step off the footpath (even a number of times) does not cause a significant risk of injury (and does not call for any further or special protection). 
  1. [70]
    In light of these matters, which I am satisfied of, I find that the probability of the risk of harm was extremely low such as to be insignificant within the meaning prescribed in s. 305B(1)(b)
  2. [71]
    Following on from that finding, it is not difficult to deal with any issue that might arise regarding a breach of duty.  Stepping up to, or down from, even gutters of regulation height, particularly one in which the gutter was clearly delineated, is an everyday task.  As Macfarlane JA said in Seage v State of New South Wales [2008] NSWCA 328 at [32] and [33]:

“[32] It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury.  Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen?  Or not to scold themselves when pouring water which they have boiled for their tea or coffee?  Or to be careful when ascending or descending steps?  Or not to bump into furniture…

[33] A reasonable employer would ordinarily regard it as quite unnecessary to give warning or take other steps in relation to these commonplace activities.”

  1. [72]
    In that regard, I need only note that the task to be performed by the Plaintiff was not difficult, strenuous or giving rise to risk.  The location of the unload at the bus stop or at the footpath was irrelevant insofar as these considerations were concerned and there was good reason for the change in location.  Similarly, the task of unloading, in my assessment required the same actions at both the bus stop and at the footpath, and the Plaintiff’s evidence and that of his witnesses to the contrary, is not accepted for the reasons I have detailed.  The requirement, as may have been necessary, to step up and down while unloading baggage was reasonable and did not give rise to a ‘not insignificant’ risk of injury.
  2. [73]
    Finally, with regard to the task of unloading baggage, I am satisfied that there was no breach of any duty arising from one person unloading baggage or from any time constraints.  As already found, there was assistance available if required and it was not called for on the day of the incident.  If such a call were made, I am satisfied that arrangements for assistance would have been made as had been the case in the past.
  3. [74]
    Further, I find that no call was made, because the number of bags to be unloaded did not warrant such a call specifically as there was no time pressures arising from the arrival of the second flight.  I do not accept the evidence of the Plaintiff in that respect or that of his witnesses regarding previous practices.  As indicated, I am more comfortable with the evidence of the Defendant’s witnesses and am satisfied that there was no breach of any duty by the Defendant. 

Conclusion

  1. [75]
    Ultimately, having been satisfied that there is no breach of duty by the Defendant, I am not satisfied that the Plaintiff has satisfied me as to liability. 
  2. [76]
    I am satisfied that an incident occurred on 29 February 2016.  However, that incident in no way reflected a breach of duty by the Defendant.  That means that there must be judgement for the Defendant and that the Plaintiff’s claim must be dismissed.  However, I am still required to assess damages.

Quantum

  1. [77]
    The positions of the Plaintiff and Defendant as to quantum and how it should be calculated is detailed in the submissions of Counsel for both.  The Plaintiff’s case was outlined in submissions as follows:

“… is that he sustained a soft tissue injury to his right knee in the incident which, together with the infection caused by the injection to treat that soft tissue injury, greatly accelerated the rate of arthritic change in his right knee, leading to him requiring a total knee replacement earlier than he otherwise would and rendering him unsuited to any occupation for which he had prior qualifications or experience.”

  1. [78]
    The Defendant’s case similarly was set out in the written submissions and was to this effect:

“The Plaintiff sustained only a minor injury in the subject incident with a more serious aggravation thereafter.”

  1. [79]
    The submissions by the Defendant reflects my own assessment in respect of this matter.  The incident, as it was very minor did not cause the Plaintiff any significant injury.  The timeline that I have previously detailed from 29 February 2016 until the initial attendance with Dr Samir on 22 April 2016, shows the Plaintiff continuing to work the rosters he had been assigned, notwithstanding the incident on 29 February 2016, or in my assessment, the root cause of any long term difficulties, the fact that ‘someone fell on his knee’, six weeks before he attended with Dr Samir.  In passing, I would note that six weeks before that attendance would be 10 March 2016, the commencement of a seven day period back in Townsville and not referable to a time relating to the incident on 29 February 2016.
  2. [80]
    The Defendant’s outline, submitting a benefit attainable from the fresh reading of the transcript of the Plaintiff’s evidence is helpful.  The Plaintiff struggles to explain the extent of any injury to his knee, and whilst I accept that he may not be the most articulate of men, he struggles to even explain the degree of any pain.  At page 1-114 the following is said:[9]

“And when the event occurred, you said – you say in paragraph 40, 10 I think  is, of your quantum statement, that you were in significant pain and discomfort, correct?---Yep, that’s correct.

So at that time when the incident occurred, did you feel like you had sustained quite a significant injury?---It felt like it at that stage. I thought it was, yep, okay, it’s – yeah.

Because you’ve had significant problems with your knee going back in time so it had felt like that again, that you had sustained a significant – quite a significant injury?---No, not really, no.

All right. But it caused you significant pain, you said?---Yep.

But it wasn’t the case that you just hurt your knee that day and it was better the next day?---No.

The pain continued?---Yeah.

And was it – was the pain there all the time after you hurt your knee?---Yeah. It wasn’t really – real bad pain but it was pain enough for me to take painkillers, yeah.

Right. Well you describe it as significant pain and discomfort and you had to use ice packs?---Yes, that’s correct.

You had to take Panadol?---Yes.

But you worked the rest of the nine or 10 days of that shift – 10 days of that shift, correct?---Yep, that’s correct.

And you completed working full duties?---Yep.”

  1. [81]
    Thereafter the exchange between the Plaintiff and Counsel for the Defendant emphasises the fact that work continued for nearly eight weeks before any attendance with Dr Samir was arranged and that it was work conducted at the same level of intensity that was in place before the incident.  And then in evidence relating to the Plaintiff’s approach to WorkCover, the Plaintiff struggled to recall what had been said by him or when reminded, to explain the notation by the WorkCover Claims representative, Ms  Jennifer Jones, formerly Everingham, which noted that:

“Flared up a couple of weeks before I went to the treating general Practitioner”.

  1. [82]
    This notation of 6 May 2016 accords with the notes of Dr Samir of both 22 April 2016 and 25 April 2016, and reinforces the concerns held by me as to the real cause of any injury and the timing of any injury.  This evidence also accords with that of the witness, Cameron John Cooke, an orthopaedic surgeon practicing in Brisbane. 
  2. [83]
    Dr Cooke prepared two reports regarding the Plaintiff, dated 15 November 2017 and 13 November 2018.  They occurred before and after the Plaintiff had a total knee replacement.  Dr Cooke was asked specifically about the incident on 29 February 2016 and depending upon any injury sustained, how it would affect the Plaintiff’s capacity to work.  At p. 2-23, the following is said:[10]

Just a couple of questions, Dr Cooke. If the plaintiff had sustained a significant injury to his right knee on the 29th of February 2016 of the type he described to you, what would you expect his symptoms to be?---There’d be typical – if you had a significant injury of your knee, the typical symptoms are immediate swelling within the knee and difficulty with weight bearing and certainly because of those symptoms, difficulty with carrying out your normal work duties.

All right. And if that was the case, would you expect that the injury would be such as to require medical treatment or not?---Usually patients who’ve had an acute any injury that is significant will attend their local medical officer both for assessment but also for analgesic requirements as well.

Now, if you accept from me this chronology, that the plaintiff was injured on the 29th of February 2016. He was four days into a 14-day roster and he went on to work 10 days of that roster which was from the 29th of February to 9th of March ’16. I just interrupt the chronology for a moment to say you’re aware that this man was working as an airport reporting officer?---Yes.

All right. And you took some history from him about the heavy nature of the duties involved in that role?---Yes. My understanding was that involved transferring bags from aircraft.

All right. And also involved yard duties such as whipper snipping and the like and other duties as a yardman?---Okay.

In any event, the chronology continues. So after working 10 days on full duties following the incident, he had seven days off and didn’t seek any medical assistance. He then worked a further full 14 – full duties for a further 14 days from 17 March to 30 March and then had another seven days off in Townsville from the 31st of March to the 6th of April where he did not seek medical assistance. And he then worked a further 14-day roster on full duties from 7 April ’16 to 20 April 2016 and then first went to a doctor on the 22nd of April 2016. So if you accept from me that that was a total period of 53 days of not seeking medical treatment and 38 days of work after the event on full duties in his role as an ARO, can you comment upon whether, in your view, that would be consistent with the plaintiff having sustained a significant injury to his knee on the 29th of February 2016?---In my mind, with the ability to  return to work and do moderately heavy work duties, that would suggest that the initial injury was relatively minor and that then I would call that more an exacerbation, possibly, of knee arthritis rather than an aggravation, meaning a permanent worsening. So in summary, I think, really, it sounds to me more like a minor injury and not a significant injury that caused long-term worsening of the condition.

  1. [84]
    Then when asked to consider the scenario relating to a subsequent injury from a person falling across the Plaintiff’s knee, the following exchange occurred:

All right. If another person had fallen on to the plaintiff’s right knee at some stage in the period before he got medical treatment, can you state could an incident like that give rise to a mechanism such as to cause significant injury to the right knee or not?---Yes, it most certainly could, yes.

Just explain how would that happen if someone fell on your right knee?---So if someone fell on your knee, that could cause a twisting moment about the knee which could cause increased pressure and across the area of arthritis within the knee which then could result in acute onset of symptoms with swelling, pain and the need to seek medical help or attention.

All right. And if an incident like that it occurred in the weeks prior to the 22nd of April 2016 when the plaintiff first attended a doctor, what would you think would be the more likely cause of his attendance; that incident a couple of weeks prior or the alleged accident on 29th of February following which he returned to work for the periods I’ve outlined?---Well, typically, if you have an acute knee injury, you seek medical – and it’s significant, you seek medical attention fairly promptly. So it would suggest to me that that second event may have been the significant aggravating event.

  1. [85]
    Dr Cooke’s evidence was persuasive and even in cross-examination when asked to assess a considerable number of matters, he did not deviate from his position as to the need for earlier medical intervention than 22 April 2016 if a significant injury occurred on 29 February 2016.  At p 2-28 the following is said:[11]

All right. In those circumstances, it is not inconsistent with him having suffered a significant soft tissue injury to his knee on the 29th of February 2016, 5 is it?---That is possible, but it would be difficult for him to be doing the work activities that were described to me before, and I would particularly, you know, Nurofen Plus isn’t a very strong, sort of – it’s an anti-inflammatory. It gives some pain relief. Typically, people that have, you know, significant changes or they’re heading towards needing a knee replacement would seek stronger medication, so a prescription anti-inflammatory such as Myadec or Voltaren, which would be stronger, and probably some stronger analgesics as well.

All right. But it’s entirely possible that this man, if he was a very hard worker, could have continued working and not sought medical attention for the 53 days you’ve been told about, notwithstanding a significant soft tissue injury to his knee?---Yeah, but he would have had difficulties with his work activities, I suspect, but, yeah, it’s possible to continue.

…

So it comes down to the individual’s pain tolerance, doesn’t it?---It’s the pain tolerance and ability to do work activities, so even if you’ve got significant pain tolerance, if you’ve got a fairly – you know, if you’ve got a knee that’s heading towards needing a knee replacement, you’d have difficulties with doing heavy manual work activities.

  1. [86]
    I am assisted by Dr Cooke’s evidence particularly with regard to the effect of a significant injury on 29 February 2016. 
  2. [87]
    Called for the Plaintiff was another orthopaedic surgeon, rather confusingly, Dr Allan Edward Cook. Dr Cook also had prepared two reports regarding the Plaintiff on 13 August 2017 and 2 February 2019.  Dr Cook was cross-examined at some length in relation to possible future employment opportunities for the Plaintiff before turning to issues regarding the degenerative state of the Plaintiff’s knee and alternative scenarios regarding any injury.  Unfortunately, I thought Dr Cook was less than cooperative or willing to concede any other explanation for the state of the Plaintiff’s knee.

All right. Now, can you tell me, if someone fell across this plaintiff’s knee – fell under this plaintiff’s knee, is that the type of forces which would be likely to cause a significant injury to the right knee?---Well, yes. He advised that he missed his step, and he went off balance and started to fall, and he would have automatically just naturally twisted or turned to try and put his hands to the ground or the – in this case, the ground, to try to save himself.

Yes. But I’m not asking you about that, Doctor. What I’m asking you is if a person – not if a person fell over, but if a different person from the plaintiff fell on to the plaintiff’s right knee, that would be the type of force applied to a knee that could have caused him a significant injury to his knee; correct?---Yes.

Right. And that would be especially the case if the knee already had a degree of degeneration and vulnerability; correct?---Well, there would be not only just the injury to the knee and the soft tissues, but some aggravation to the pre-existing degenerative arthritis.

Right. So if you take it from me that the plaintiff attended a general practitioner at Riverway Medical Centre on the 22nd of April 2016, and that was seven days before the Sonic Health Centre that you’re referring to, all right; understand that?---Yes.

And if he told the doctor at that point in time that he – someone fell on his right knee, and he’d had knee pain, then that would change your view about the likely causation of injury, wouldn’t it?---So he attended his general medical practitioner on – what was the date?

The 22nd of April 2016?---So that’s after his injury.

That’s after he fell on the 29th of February ’16. Correct?---Yes. Well, that would – if he’s complaining of pain in his left knee, that just shows that he’s had ongoing pain from that time onwards.

Well, Doctor, couldn’t it be the case – I’ll put another scenario to you. If the plaintiff’s pain had improved or been relieved post the February incident, and he 35 subsequently had pain from someone falling on his right knee shortly before the 22nd of April, and then he went to the doctor on the 22nd of April complaining that someone had fallen on his right knee and he’s had pain, then the cause of that pain would be someone falling on the right knee, would it not?---Well, it certainly would aggravate his previous injury and the pre-existing degenerative changes.

Right. If this plaintiff had a significant injury to his right knee, you would expect he would seek medical treatment?---From the history that I obtained, he remained at the mine till the end of his roster, which was another 10 days, and then rested at home to see if it’d settle down, and used some just local medications, and he said that it did improve to a degree, and he went back to do more shifts, but the knee was not improving, and he was trying to manage the pain himself.

From the history he gave you, you would take it that the plaintiff had suffered a significant injury to his right knee on the 29th of February 2016; correct?---Yes.

He had immediate pain, and he had swelling, and he said he had ongoing pain; correct?---Yes.

So if that injury was significant, then you would expect the ongoing pain to be of some severity?---Well, pain is, obviously – people’s perception of pain can vary enormously. It also depends if he took perhaps some anti-inflammatories, analgesic medications. He did tell me he did use ice packs when he was able to or needed to, and these measures would have helped to a degree.

Yes. But still he would have been in significant pain if he had a bad injury aggravating his pre-existing osteoarthritis, would he not?---Well, as I said, that can be decreased to a degree by taking medication.

And it would have impacted on his capacity to carry out his work tasks as an ARO, especially heavier work tasks, Dr Cook?---Well, it certainly would have made his work more difficult and probably wouldn’t have been able to work as quickly. His –his work rate would have been reduced.

So things like twisting below baggage, getting in a plane hold on your knees, those sorts of things would have been very difficult, wouldn’t they?---They would. Yes.

And you would anticipate he would have needed medical treatment if he was in that state?---Well, yes. He would.

How long do you think it was before he got medical treatment for the injury he alleges?---Well, the history that I take, as is outlined in my first report, following his injury on 29.2.16, there was no one to relieve him, so he – he self-managed his pain, used ice packs, but otherwise continued with his work to the end of the roster, or that rotation, and he – he reported the incident, so he went on working the extra 10 days using Panadol and ice packs. When he was home, he rested, took Nurofen. That did help to a degree, and he hoped that it would certainly go away, but he worked another couple of tours.

Yes. That – perhaps I can assist you, Dr Cook. That’s what you do say in your report. This man didn’t go to a doctor for 53 days after the accident of 29 February, 53 days, during which 53 days he worked 38 days of full duties shifts, undertaking heavy duties at work; is that not inconsistent with him having sustained a significant injury on the 29th of February 2016?---It always depends on the nature of the injury.

If he has sustained, say, a fracture to his patella, no. He certainly wouldn’t have been able to work all those shifts. He informed me that his knee hit the ground quite hard, and he did have some injury to the front of the knee and soft tissue injury to the joint, but that would not necessarily totally prevent him from trying to go and work in managing his pain and hoping that it would settle down and go away.

MR GLEN: All right. Well, I suggest to you, Doctor, that it’s highly inconsistent with someone having a severe knee injury, that they would not go to a doctor for 53 days and be able to work full duties for 38 days?---Well, I would call a severe injury one that has sustained a fracture to the joint or ligament rupture. That is a severe injury.

  1. [88]
    Dr Cook was less than willing to concede that there may have been other causes for the injury to the Plaintiff’s knee and specifically avoided any proper concession that should have arisen from the consideration of the evidence of Dr Samir.
  2. [89]
    Those matters simply reinforce the view that I have come to in this matter, which is that whilst an incident of no real significance occurred on 29 February 2016, that the Plaintiff has failed to establish the cause of his fall, to establish any breach of the statutory modified duty of the Defendant, and should there have been any such breach of duty, which I have not found, then has failed to prove causation.
  3. [90]
    I am satisfied that any injury sustained on 29 February 2016 was nominal and that a subsequent event, unrelated to the Defendant has caused any ongoing symptomology for the Plaintiff.  Any damages that might therefore be awarded are negligible and for the purposes of this assessment, I fix them at $10,000.00.
  4. [91]
    In light of the finding made previously regarding liability, the judgment is as noted at the commencement of these reasons.

Footnotes

[1] TS1-32.33 to 34.17

[2] TS1-61.24 to 62.7

[3] TS1-76.20 to 79.22

[4] TS2-75.3 to .22

[5] TS2-79.20 to 81.16

[6] TS1-70.3 to .44

[7] TS1-109.25 to 112.25.

[8] Exhibit 21 13/06/2016

[9] TS1-114.10-40

[10] TS2-23.11 to 24.5.

[11] TS2-28.4-18 and 28.31-35.

Close

Editorial Notes

  • Published Case Name:

    Smart v Compass Group (Australia) Pty Ltd

  • Shortened Case Name:

    Smart v Compass Group (Australia) Pty Ltd

  • MNC:

    [2021] QDC 176

  • Court:

    QDC

  • Judge(s):

    Coker DCJ

  • Date:

    13 Aug 2021

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
Fox v State of Queensland [2016] QDC 146
2 citations
Jump To
Cite 1 - [2016] QDC 146
Cite 2 - [2016] QDC 146
Seage v New South Wales [2008] NSWCA 328
2 citations
Jump To
Cite 1 - [2008] NSWCA 328
Cite 2 - [2008] NSWCA 328

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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