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  4. Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd - [2022] QDC 3

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Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd[2022] QDC 3

Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd[2022] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:

Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd [2022] QDC 3

PARTIES:

MICHAEL KUP-FERROTH

(Plaintiff)

v

A1 CUSTOM STAINLESS AND KITCHENS PTY LTD (ACN 151 157 872)

(Defendant)

FILE NO/S:

BD 39/2018

DIVISION:

Civil

DELIVERED ON:

21 January 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26, 27, 28 October 2021
(Last submissions, 5 November 2021)

JUDGE:

Barlow QC DCJ

ORDERS:

Judgment for the plaintiff in the sum of $755,282.78, including interest of $5,282.78.

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – AT COMMON LAW – FAILURE TO TAKE PRECAUTIONS, WARN, INFORM ETC – plaintiff employed as sheet metal tradesman by defendant company – plaintiff directed to lift heavy benchtop by supervisor – plaintiff later complained of significant back injury – plaintiff claims injury caused as a result of lifting the benchtop – whether the injuries were caused by the lifting – whether defendant took adequate precautions to prevent risk of harm to plaintiff.

INDUSTRIAL LAW – WORK HEALTH AND SAFETY – DUTIES AND LIABILITIES – DUTIES – RISK ASSESSMENT AND SAFE SYSTEM OF WORK – plaintiff employed as sheet metal tradesman by defendant – plaintiff was injured during course of work by being made to lift a heavy benchtop – defendant admitted that it had a duty of care to provide a safe system of work – whether defendant breached that duty.

TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – AT COMMON LAW – DAMAGE AND CAUSATION – plaintiff suffered physical injury while employed by defendant – plaintiff claims that injuries have caused him to suffer psychiatric conditions – plaintiff claims damages for negligence, including damages in relation to loss of future income – whether plaintiff suffers from psychiatric conditions – whether psychiatric conditions can be attributed to breach by defendant.

EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – plaintiff employed by defendant as sheet metal tradesman – plaintiff had history of back injury – plaintiff was trained sheet metal tradesman – defendant directed plaintiff to lift heavy benchtop – plaintiff injured in course of lifting the benchtop – whether plaintiff contributorily negligent – whether risk obvious – whether plaintiff had alternative course.

District Court of Queensland Act 1967, s 68

Work Health and Safety Act 2011, s 19

Workers Compensation and Rehabilitation Act 2003, ss 305, 305B, 305F, 305H, 306O, 306P

Workers’ Compensation and Rehabilitation Regulation 2014, ss 129, 130, schs 8, 9, 11, 12

Kabic v AAI Ltd [2019] NSWCA 247, cited

Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190, followed

COUNSEL:

G J Cross, for the plaintiff

M T O'Sullivan, for the defendant

SOLICITORS:

Everingham Lawyers for the plaintiff

Cooper Grace Ward for the defendant

Contents

Introduction1

Mr Kup-Ferroth’s background2

Events leading to the injury3

Events at Aussie Rooster, 18 July 20164

Travel to and arrival on site4

The location and moving of the benchtop – Mr Kup-Ferroth’s evidence5

The location and moving of the benchtop – Mr Powell’s evidence5

The location and moving of the benchtop – Mr McDade’s evidence6

Events on return to workshop, 18 July 20167

Subsequent attempts to work8

Medical evidence8

Dr Don Todman8

Dr Bruce McPhee11

Issues of credit13

Inconsistencies in Mr Kup-Ferroth’s statements13

Other witnesses’ evidence17

The medical evidence18

Conclusions on credit18

What caused Mr Kup-Ferroth’s back injury?20

Mr Kup-Ferroth’s evidence20

The mechanical engineering expert20

Conclusion21

Mr Kup-Ferroth’s psychiatric injury21

The medical evidence21

Does Mr Kup-Ferroth have a psychiatric impairment and why?23

Was the defendant negligent?23

Was there contributory negligence by the plaintiff?24

Damages27

General damages27

Past economic loss28

Past special damages28

Future economic loss28

Future special damages29

Total damages29

Introduction

  1. [1]
    The plaintiff, Michael Kup-Ferroth, was employed by the defendant as a sheet metal tradesman.  The defendant installed a commercial kitchen fit-out at premises that were to be operated as ‘Aussie Rooster’.  Part of this fit-out included the installation of a stainless-steel benchtop, which appears to have weighed about 120kg.  The benchtop was installed, with four or five people from the defendant having a hand in lifting and carrying it.  After its installation, the benchtop was moved to a back room by people not associated with the defendant.  It appears that, in the process of that move, it was damaged.  The defendant was asked to repair the damage.
  2. [2]
    On 18 July 2016, Mr Kup-Ferroth, Colin Powell (the director of the defendant) and another employee, Drew McDade, attended at the Aussie Rooster site for the purpose of repairing the benchtop.  Mr Kup-Ferroth alleges that while they were there he, along with (and only with) Mr Powell, moved the benchtop from the nearby back room to its original location where it was to be repaired. Mr Kup-Ferroth also alleges that he had to lift one end of the benchtop to enable Mr Powell to chock it up so it could be repaired. 
  3. [3]
    Subsequent to the first lifting, Mr Kup-Ferroth alleges he started to experience pain in his lumbar spine, pain which continued through the second lifting and for the remainder of the day. Later, after returning to the defendant’s premises, Mr Kup-Ferroth turned to wave goodbye to a colleague. Mr Kup-Ferroth alleges that, in doing so, he suffered agonising pain and thereafter he has suffered, and continues to suffer, substantial and debilitating pain in his lumbar spine. Along with psychiatric injuries arising out of the pain, it prevents him working, at least full time, it affects his daily life and it requires medication to manage. 
  4. [4]
    Mr Kup-Ferroth claims that, while working for the defendant, he received no training or documentation on safe manual handling of heavy objects.  In essence, Mr Kup-Ferroth claims damages in tort arising from the alleged negligence of the defendant in its system of work, in accordance with the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA).
  5. [5]
    The defendant denies any liability.  It asserts that Mr Kup-Ferroth never lifted the benchtop and that any back injury was caused by Mr Kup-Ferroth twisting his back when waving goodbye to the colleague.  It also contends that any injury from that movement was the exacerbation of an existing back condition which arose in 2007 or 2012.  It denies that the defendant ought to have known that the work performed by Mr Kup-Ferroth was unreasonable or unsafe.  It contends that Mr Kup-Ferroth was an experienced sheet metal tradesman who had received oral training and instructions from the defendant and, in any event, had been fully trained in safe systems of work during his apprenticeship and in his earlier jobs.
  6. [6]
    The defendant, in the alternative, contends that Mr Kup-Ferroth should have been aware of the obvious risk to him of lifting the heavy benchtop, particularly given his pre-existing back condition, and therefore asserts 100% contributory negligence by Mr Kup-Ferroth.
  7. [7]
    Mr Kup-Ferroth claims damages of $750,000.  The defendant contends that any assessment of damages should be no greater than the amount of WorkCover payments made to Mr Kup-Ferroth.

Mr Kup-Ferroth’s background

  1. [8]
    Mr Kup-Ferroth was born on 29 November 1989.  He was 26 years old on 18 July 2016, the date of the alleged incident and 31 years old at the time of the trial.  At the time, he was living with his then wife and three children.  He lived a generally active lifestyle, with particular interests in four wheel driving, fishing and motorcycling, as well as fixing cars and motorcycles.
  2. [9]
    Before leaving school in Year 10, he was engaged in a school-based apprenticeship as a sheet metal tradesman and he continued in that line of work upon leaving school.  He spent a number of years working various jobs, commencing work for the defendant about six years before the incident.  Both during his apprenticeship and in his earlier jobs, he received training in safe lifting procedures.  He said that his previous employer had been very strict on safety:  if an employee knew that an item to be lifted was over-weight, the employee was required to get another employee to decide whether they would lift it between them or needed other assistance.[1]
  3. [10]
    Mr Kup-Ferroth said that, in contrast, the attitude at the defendant’s workplace was that employees must “Just get it done.  Doesn’t matter how you do it.  Just get it done.”[2]
  4. [11]
    In 2006 or 2007, while working as a sheet metal tradesman with another company, Mr Kup-Ferroth injured his back while lifting in the course of his work.  He went to a physiotherapist, who diagnosed him with a muscle strain.  He was unable to work for a couple of days.  Thereafter, he would occasionally get a “pulled muscle sort of feel” when engaging in activities that placed stress upon his back, such as work and motorcycle riding.  However, the injury did not prevent him from returning to work.  He continued to suffer occasional pain in his back in the following decade.  On a scale of zero to ten, where zero was considered no pain and ten, debilitating pain, he described that pain as floating between one and two.  It sat at this level in July 2016.[3]
  5. [12]
    In 2012, Mr Kup-Ferroth underwent a CT scan of his back and he was told he had a bulging disc.[4]  There is no direct evidence of why he had a scan at that stage, as he was not asked the reason for it.  However, in a letter that he signed and that was sent to WorkCover on 26 November 2016, he said that, “in 2012 I went back to the Doctors for a CT Scan because of constant back pain.”[5]  Mr Kup-Ferroth said that his father-in-law wrote that letter, some of the statements in it were incorrect and Mr Kup-Ferroth did not read it before signing it under the influence of a strong pain-relief drug, Lyrica, so he did not know what it said.[6]  Even if Mr Kup-Ferroth did not write or read the letter before signing it, I infer that that statement is correct, because there is no other logical explanation for seeking and undergoing such a scan unless it was to assist in determining the reason for constant back pain.
  6. [13]
    The CT scan revealed that he had narrowing of the lumbosacral discs, spaced with a moderate sized central disc protrusion abutting the thecal sac.[7]  There is no evidence that Mr Kup-Ferroth received any particular treatment (apart perhaps from a small number of physiotherapy or massage sessions) for that condition between 2012 and 2016.  He said that, during that period, he would occasionally have low-level pain or discomfort, but nothing substantial.

Events leading to the injury

  1. [14]
    Some time before the date of the incident, the defendant was engaged to do a shop fit-out of an Aussie Rooster store.  Part of the job included the manufacture and installation of a ‘z-shaped’ kitchen benchtop, which was designed to fit along a wall and to incorporate, at one end, two sink basins.  A diagram of the benchtop is annexed to these reasons.[8]
  2. [15]
    Mr Kup-Ferroth was not involved in the installation of the bench after it had been manufactured.  The evidence indicates that it was installed in about late June or early July 2016.  Alexander Stanbridge, an estimator then employed by the defendant, managed the installation.  He said that when the benchtop was delivered on site, four or five people lifted it to move and install it.[9]  After the installation, he took photographs of the completed cupboards and benchtop.[10]
  3. [16]
    On 6 July 2016, the owner of Aussie Roosters telephoned Mr Powell or Mr Stanbridge, complaining that the benchtop did not fit properly, with a gap between it and the wall.[11]  In response, Mr Stanbridge sent her an email in which, among other things, he said:[12]

It was disappointing to hear your problems with the fitting of your angle bench.

Regarding the gap to the wall we fitted it and I actually took some pics to show the guy who made it how good it fitted.

I will forward these to you.

When we delivered it to site we had 5 people in the initial lift to get it into the room.

It needs to be treated carefully, you mentioned that the persons who moved it into another room have cracked the bench, it would have been good if it was leaned against the wall in the same room.

You will note we had it packed up level because if you do not it will cause the splashback to not follow the wall closely.

Any way I am happy to call in one day after work to see what your concerns are, but I feel we did  a great job, and unfortunately it appears that some issues have come about after we left it in place.

  1. [17]
    Mr Stanbridge did not appear to recall going to the premises after sending that email, but rather said he “would’ve had to react.  I would’ve gone on the job.”[13]  However, he went on to have the following exchange with Mr Kup-Ferroth’s counsel:[14]

Do you remember what you saw when you got to the job?‑‑‑There was nothing there.

What, the cabinet was gone?‑‑‑It was missing.

Okay?‑‑‑It wasn’t there.

Okay.  Do you know where ‑ ‑ ‑?‑‑‑It wasn’t there.

Do you know where it was?‑‑‑No, I don’t.  No.

Did you go into other storerooms and things like ‑ ‑ ‑?‑‑‑There were other rooms.  The place was an absolute – a junk pile, and it certainly wasn’t back where it was when we left it.  It was gone.

Now, did you go back to the store at any stage before workers were arranged to go back and fix the situation?‑‑‑I never actually saw the damage to the bench.

Yes?‑‑‑I never saw that, and I never actually saw the bench put back in the room.  I never saw that. 

  1. [18]
    It seems from that evidence that Mr Stanbridge does not recall when he went to the Aussie Roosters premises to look at the benchtop, but he does recall being there and being unable to find it.  Clearly, when he went back to the premises in response to the owner’s complaint, the benchtop was not on the cupboards where it had been installed.

Events at Aussie Rooster, 18 July 2016

  1. [19]
    I turn now to determine what occurred at the Aussie Roosters premises on 18 July 2016.  Those events are crucial to the outcome of this claim.  I shall consider each event in sequence.

Travel to and arrival on site

  1. [20]
    Mr Kup-Ferroth, Mr Powell and Mr McDade went to the premises that morning.  Their evidence differed in several respects. 
  2. [21]
    Mr Kup-Ferroth said that Mr Powell travelled there in his own vehicle, while Mr Kup-Ferroth and Mr McDade followed Mr Powell in a separate vehicle.  That was necessary because Mr Kup-Ferroth did not know where the premises were and Mr Powell would be returning to the workshop after assessing the damage and instructing Mr Kup-Ferroth what to do.  On their arrival they went into the premises together.
  3. [22]
    Mr Powell said that he went out to the site after Mr Kup-Ferroth and Mr McDade.  They were parked outside when he arrived.  On his arrival, they went in together.
  4. [23]
    Mr McDade said he went to the site with Mr Kup-Ferroth.  He did not remember whether he and Mr Kup-Ferroth were following Mr Powell on the way there.[15]  However, he agreed that he had not been asked about the events of that day until around July 2019 and he did not have a good memory of it.[16]  He also said that he did not have the greatest memory of that day and did not tend to remember single days.  In particular, there was nothing to stand out about that day, so far as he could recall.[17]
  5. [24]
    Who arrived at the site first and whether the two vehicles were together are not particularly important.  However, I think it unlikely that Mr Powell would have a better memory about that than Mr Kup-Ferroth, as it is unlikely that it was important to him.  It is more likely that Mr Kup-Ferroth would recall that he did not know the address and had to follow Mr Powell there.  I have no reason to doubt Mr Kup-Ferroth’s evidence on this inconsequential matter and I find that his description of following Mr Powell reflects what happened.

The location and moving of the benchtop – Mr Kup-Ferroth’s evidence

  1. [25]
    Mr Kup-Ferroth said[18] that, when they went inside, the benchtop was in the storage room near the kitchen, leaning up against a wall with the splashback down.  He said that it was necessary to move it back to the position where it was first installed.  He and Mr Powell went to carry it.  Mr McDade also went into the storage room, but Mr Powell said to him something along the lines of, “Fuck off out of the way, this is fucking heavy and we need to get it on.”  Mr McDade asked, “Well, where do you want me to go? and Mr Powell said, “Go unload the fucking truck.”  Mr Kup-Ferroth and Mr Powell then lifted the benchtop, manoeuvred it out of the store room and into the kitchen and placed it on top of the cupboards where it was supposed to be.  In moving it, Mr Kup-Ferroth described where he and Mr Powell each held it to carry it.  He said he walked backwards with it.  He said it was very heavy and a struggle to move. 
  2. [26]
    Mr Kup-Ferroth said[19] that, after they put the benchtop onto the cupboards, Mr Powell instructed him to lift one end of the bench (the left hand end in exhibit 2), to enable Mr Powell to put a piece of timber under the benchtop near the join between the dry and wet areas.  This was so that the corner of the bench near the timber was lifted off the cupboards to enable work to be done under the benchtop.  He said that the benchtop, when in place, was about 900mm from the floor and he lifted it to about chest height to enable that to be done.[20]
  3. [27]
    After Mr Powell had inserted the chock, he left the premises.  Mr Kup-Ferroth and Mr McDade remained and repaired the benchtop.  To do that, Mr Kup-Ferroth had to get inside the cupboards, lean backwards and look up to dig out the wood and glue underneath the stainless steel of the benchtop and then straighten and weld the top.  The whole job took about four to five hours.[21]
  4. [28]
    Mr Kup-Ferroth said that, after he had lifted the benchtop with Mr Powell, put it down and then lifted it again, he started to feel a little bit of pain (maybe three to four on the scale), but it was bearable so he continued working.[22]

The location and moving of the benchtop – Mr Powell’s evidence

  1. [29]
    Mr Powell said that, on 18 July 2016, Mr Kup-Ferroth and Mr McDade went to the site in one vehicle and he followed them a short time later.  He parked near their vehicle, which was adjacent to the back door.  They all went inside and looked at the benchtop, which was in place in the kitchen but which no longer fitted snugly against the wall.  He had a look underneath the bench and it looked like it had been dropped because the timber underneath it had been fractured.[23]
  2. [30]
    Mr Powell said that he then worked out a way to repair the bench by separating the wet and dry parts of the bench along their join, effectively swinging it whichever way it needed to move to fit the angle of the wall and then rewelding and repolishing it.  He told Mr Kup-Ferroth what to do.  Then he left the premises, leaving Mr Kup-Ferroth and Mr McDade to do the job.[24]
  3. [31]
    Mr Powell said that there was no need to lift and move the benchtop from one room to another and to put it onto the cupboards beneath.[25]
  4. [32]
    In cross-examination, Mr Powell:
    1. (a)
      agreed that it would seem about right for five people lifting the benchtop into the room when it was first installed, although he was not there;[26]
    2. (b)
      denied that the benchtop was in the store room when he arrived, said it was on top of the cupboards (“in situ”) and denied that he and Mr Kup-Ferroth moved it from the storeroom to the kitchen;[27]
    3. (c)
      reiterated that he looked at the benchtop and told Mr Kup-Ferroth how to go about repairing it;[28]
    4. (d)
      agreed that his business had no documents or procedures for training employees in safe manual handling practices, nor any risk assessments in writing.[29]

The location and moving of the benchtop – Mr McDade’s evidence

  1. [33]
    Mr McDade, who was called for the defendant, could not remember Mr Powell being at the Aussie Roosters site.
  2. [34]
    Mr McDade said that, on 18 July 2016, he worked for the first time for the defendant.  When asked what he did that day, he said that he and Mr Kup-Ferroth went to Aussie Rooster,

And from what I remember is that we got there and we had to fix the bench, because it was cracked in one of the corners and we – not too sure if we peeled the wood back, but we cut – cut the crack in and I just had to lift the edge up just enough to just level it out while he welded it and did a few other things there.  I – honestly, it’s been five years, but from what I know, did other – a few other things and just went back to the shed and it was my first day.[30]

  1. [35]
    Mr McDade said that, when he and Mr Kup-Ferroth got there and went inside, the total fitout was half unfinished.  He was shown a photograph of the benchtop in its place.  He said that, when they arrived, the benchtop was “From my memory, like that.” When asked by counsel for the defendant, “Was the benchtop stored in some other room and had to be transported from that other room to sit on top of the cabinets?” he replied, “Not while I was there.  Not from my memory.”[31]
  2. [36]
    The work they did on the benchtop was that, “we had to chop the cracked area out, lift it up a bit to get the wood glue from underneath it, and then for it to be welded.”  The benchtop was not lifted off the bench, it was “just flexed up just so that the corners could meet to be welded.”  He lifted one edge by about 10 to 20 centimetres, while Mr Kup-Ferroth welded it.[32]
  3. [37]
    In cross-examination, Mr McDade agreed that he did not have a particularly good memory of that day.[33]  He said that he had no recollection of looking at the benchtop in the storeroom, nor of being told by Mr Powell, “Fuck off out of here.  Go and unload the fucking ute,” although he agreed that Mr Powell sometimes used “colourful language” and may have said that to him.[34]  He agreed that, as the junior person there, he would have unloaded some of the tools from the ute.[35]  He said that he had no memory of Mr Powell and Mr Kup-Ferroth moving the benchtop from the storage room to the location where it was to be fixed.[36]  He had no memory of seeing the benchtop in the storeroom, nor of Mr Kup-Ferroth and Mr Powell moving it to the kitchen, nor of it being anywhere but in the kitchen.[37]  But he could not even remember if Mr Powell was there.[38] 

Events on return to workshop, 18 July 2016

  1. [38]
    Mr Kup-Ferroth said that, after completing the job, he and Mr McDade returned to the workshop.  In the car on the way there, the pain in his lower back started getting worse.  On their arrival, he took some Panadol or Nurofen, helped unload the tools from the ute and then welded and polished a set of double bowls for the rest of the afternoon.  The pain subsided into an irritation that was like he had pulled a muscle.[39]
  2. [39]
    Later that afternoon, while he was polishing one of the bowls, one of his co-workers said goodbye.  Mr Kup-Ferroth stood up and twisted toward him and waved goodbye, at which moment he felt excruciating pain in his lower back.  He then lay on the bench and called his wife to pick him up.  While he was lying there another worker, Jared Shepard, came in and asked him what was up.  He told Mr Shepard that he had hurt his back.  According to Mr Kup-Ferroth, he told him that, “When I was welding the bench, I waved to say bye to Steve and as I twisted, I got an excruciating stabbing pain.” [40]
  3. [40]
    Mr Shepard gave somewhat conflicting evidence.  While he said he did not recall that day, he said he had a conversation with Mr Kup-Ferroth when he was at home.  Mr Kup-Ferroth told him that he fucked his back, that he had moved a bench with Mr Powell from one part of the building to another and that’s when he hurt his back.[41]
  4. [41]
    In cross-examination, Mr Shepard confirmed that he was at home and the conversation was by telephone, either on 18 July 2016 or the day after.  He denied that he had made up the conversation, although he and Mr Kup-Ferroth are “good mates”.  He agreed that he had given a statement on 22 October 2021, in which he said:[42]

I recall [Mr Kup-Ferroth] telling me something to the effect, “Colin made me lift this bench and I stuffed my back.”  I remember Michael telling me that he and Colin had to relocate the bench from one area of the worksite to another.  I remember Michael telling me that it was very heavy and awkward and that he hurt his back while doing it.

Subsequent attempts to work

  1. [42]
    Mr Kup-Ferroth has not subsequently worked for the defendant.  He said that he did go in on 19 July but, after 45 minutes, he went home because of the pain he was in and he has not returned to work there since then.[43]
  2. [43]
    He did subsequently work for two other employers for some periods.  However, he found that he was mostly unable to work full days or to perform all his duties.  He stopped working because he found it too painful and he was unreliable as a consequence.[44]  It is unnecessary to set out the details of this evidence.

Medical evidence

Dr Don Todman

  1. [44]
    Dr Don Todman, a neurologist, provided five reports and was called by the plaintiff to give evidence.  He also had conversations with the plaintiff’s solicitors on 1 November 2018 and 21 October 2021, file notes of which were tendered.
  2. [45]
    I describe below[45] Dr Todman’s record in his first report (dated 18 January 2017[46]) of what Mr Kup-Ferroth told him had happened.  In that report, Dr Todman said that he had reviewed an MRI scan of Mr Kup-Ferroth’s lumbar spine taken on 1 September 2016,[47] which showed a disc protrusion with marginal osteophytes  at the L5/S1 level, with some narrowing in the intervertebral foramen bilaterally but more pronounced on the right.  Dr Todman concluded that it was likely that the incident at work had caused a disc injury to the L5/S1 level, which accounted for the ongoing pain.  The symptoms appeared to have stabilised and to represent a permanent state of affairs that he considered to be an 8% whole person impairment.
  3. [46]
    In his second report (dated 11 October 2017[48]), Dr Todman said he had been provided a copy of a CT scan of Mr Kup-Ferroth’s lumbar spine made on 18 July 2012.[49]  That showed small disc protrusions at L4/5 and L5/S1.  In the light of that scan, he concluded that it was likely that the disc protrusions shown in the MRI scan of 1 September 2016 were longstanding but may have been aggravated by the incident at work on 18 July 2016.  Dr Todman subsequently confirmed that he still considered that the 8% impairment was related to the incident in 2016.[50]
  4. [47]
    In a file note of a conversation between Dr Todman and the plaintiff’s solicitor on 1 November 2018,[51] with which Dr Todman agreed, Dr Todman is recorded as having expressed the view that the biomechanical forces that would have been placed on Mr Kup-Ferroth’s spine when having to lift the benchtop were consistent with the injury he had sustained and were compounded by the twisted and bent-over positions he had to adopt while performing his work that day.  The symptoms of a disc injury often become more prominent over time as the body cools down and becomes less mobile.  When Mr Kup-Ferroth turned to say goodbye, he would have already sustained the injury.
  5. [48]
    In a report dated 6 October 2021,[52] Dr Todman reviewed Mr Kup-Ferroth following a further examination of him.  He had also reviewed a number of other medical reports, but they did not include the CT scan from 2012 and he did not mention it.  He concluded that Mr Kup-Ferroth sustained an injury on 18 July 2016 from lifting a heavy metal bench as originally described to him by Mr Kup-Ferroth.  The incident was consistent with causing trauma to the lumbar spine and a disc protrusion at L5/S1 was likely to be related to the incident.  The symptoms had stabilised and were likely to be permanent and they represented a 7% whole person impairment.  Future work would be dependent on improvement in symptoms with ongoing therapy. Surgery was not indicated, but rather a rehabilitation program with physiotherapy, exercise physiology and specialist reviews.  He may also benefit from lumbar facet joint blocks or lumbar nerve root blocks at the L5 level, which would cost up to $1500 per treatment.
  6. [49]
    In a file note of a telephone conference with Dr Todman on 21 October 2021,[53] which was confirmed by Dr Todman as correct, the plaintiff’s solicitor records reading to him paragraphs 5 to 9 of a statement by Mr Kup-Ferroth that was said to have been made to the solicitor on 21 December 2016.[54]  The last paragraph read to him was as follows:

9 As I straightened at my bench, someone from up the front called out to say goodbye.  I turned clockwise to the right and felt immediate extreme pain in my lower right side.

  1. [50]
    Dr Todman commented that the scenario (that is, as I understand him, that severe pain may be felt some time after an injury occurred) was not unusual.  A person can have an injury through lifting but, whilst the body was still warm, could manage the pain but, at the end of the day, when the person slows down and the body cools, the pain can hit to a greater degree.  Here, he considered that the increased pain when the plaintiff turned to say goodbye was related to the original lifting incident.  He considered that lifting the heavy bench was the cause of the plaintiff’s pain throughout the day and the increased pain as he turned to wave goodbye.
  2. [51]
    In his oral evidence, Dr Todman said that, when he produced his first report, he had Mr Kup-Ferroth’s statement which, although then unsigned, was subsequently signed and dated 21 December 2016.[55]
  3. [52]
    In cross-examination, Dr Todman was asked if it is possible for someone with Mr Kup-Ferroth’s history of a back injury in 2007 and a flare up of that injury in 2012 all of a sudden to suffer extreme pain in the lower back when turning and twisting.  He agreed that it is possible, but it is rare.  It could happen without first doing any heavy work, although with a low probability.[56]
  4. [53]
    Dr Todman said that, if he had examined Mr Kup-Ferroth before 18 July 2016, knowing his prior history, he would have concluded that he had a zero whole person impairment.[57]
  5. [54]
    Dr Todman was referred to the CT scan of 18 July 2012, another CT scan of 16 July 2016[58] and the MRI scan of 1 September 2016 and was asked if he agreed that there had been no change in the dimensions or position of the lumbosacral disc protrusion since 2012.  He said that it was very difficult to compare the size of the disc with certainty, especially between different types of scan, but he considered the important point to be that Mr Kup-Ferroth had been mostly symptom-free since 2012 until the incident in July 2016.
  6. [55]
    In re-examination, Dr Todman was read paragraph 10 of the statement that had been read to him on 21 October 2021.  In that paragraph, Mr Kup-Ferroth said:

I started to experience pain in my lower back which was worsening approximately one hour into the first job that I was doing at the café.  I felt worsening back pain still when I stood up from doing the job with the two stainless steel sink bowls towards the end of the work day

  1. [56]
    Dt Todman said that it did not alter the opinions expressed in the file note of 21 October 2021.  He was asked what was the relevance of experiencing pain about an hour after doing the first job.  His response was:[59]

Well, where there is back injury related to a lifting or mechanical issue, sometimes the pain is immediate, but sometimes, for various reasons, it may be only modest or a low level and increase as time goes by.  Sometimes it’s after relaxing or body temperature perhaps going back to normal after heavy physical work that the pain becomes more evident.

Dr Bruce McPhee

  1. [57]
    Dr Bruce McPhee is a spinal surgeon.  He was called by the defendant to give evidence, having provided reports dated 20 September 2017 and 19 September 2020.[60]
  2. [58]
    As with Dr Todman, I describe below[61] Dr McPhee’s record of what Mr Kup-Ferroth told him about the circumstances of the injury.  Mr Kup-Ferroth did not mention any lifting or earlier pain before he suffered severe pain on turning to wave goodbye to a colleague.  Therefore, Dr McPhee’s opinions were based on there having been what he described as a relatively trivial incident (turning and waving). 
  3. [59]
    In his first report, Dr McPhee said he had reviewed the CT scans and the MRI scan.  He noted that the 2012 CT scan showed a moderate sized central disc protrusion that abutted the thecal sac.  The July 2016 CT scan was reported to show multi-level mild lumbar spondylosis and “prominent changes” reported at L5/S1, with a mild to moderate diffuse disc bulge and moderate bilateral facet joint arthritis and the protrusion indenting the thecal sac.  The September 2016 MRI showed signal changes of degeneration only in the lumbosacral disc. There was a more focal central disc protrusion at L5/S1 that indented the thecal sac and “butts the adjacent right S1 nerve root.”  Notwithstanding these differences, he concluded that there had been no change in the disc protrusion since 2012.
  4. [60]
    Dr McPhee opined that it was probable that the incident in 2012 caused the initial damage to the lumbosacral disc and protrusion, while the twisting incident at work was relatively trivial, did not involve any extraneous loading and, although not specifically work related, caused a soft tissue strain on the lumbar spine with aggravation of pre-existing spondylosis.  But for that condition, it would be unlikely that Mr Kup-Ferroth would have injured his lower back or developed low back pain from that movement.
  5. [61]
    Dr McPhee described the incident as relatively trivial, being nothing more than twisting while bent and not involving any extraneous loading.  He went on to note that Mr Kup-Ferroth’s symptoms were consistent with his history of back pain and observed radiological findings.  Mr Kup-Ferroth had no objective indications of any neurological deficit or nerve root tension.  He said:

the action of twisting in a bent position would not under normal circumstances cause sufficient stress to injure the back.  The pre-existing degenerative changes assume substantial significance as it predisposes the claimant to back pain and injury.  But for the pre-existing degenerative changes, it is unlikely that the incident on 18 July 2016 as described would have caused any injury to the lumbar spine or back pain.  Accordingly the pre-existing degenerative changes and the incident on 18 July 2016 are apportioned equal significance in the onset of the claimant’s back symptoms.  Thus 4% whole person impairment is apportioned to the significance of the pre-existing degenerative changes in the lumbosacral disc and 4% to the effects of the incident at work on 18 July 2016.

  1. [62]
    In his second report, Dr McPhee said that, at a recent consultation, Mr Kup-Ferroth had reaffirmed that he injured his lower back when he turned to the right to say goodbye to a work colleague.  On doing so, he felt an acute pain in his lower back.  He confirmed that the injury did not occur in the performance of his work although his job as a sheet metal worker was heavy.  Dr McPhee concluded that the incident was not related to the performance by Mr Kup-Ferroth of his work, but was a casual event of minor significance which would not have caused injury if the back was healthy.  There was a long history of chronic recurrent low back pain following a work place injury in 2007.  There had been no radiological change in the disc since the CT scan in 2012.  The history of recurrent low back pain testifies to the relative fragility of the disc to injury, however minor.  The pre-existing condition was of greater significance than the incident in the causation of back pain.  He concluded that Mr Kup-Ferroth has an 8% whole person impairment, of which 5% was due to his pre-existing injury and back condition and 3% resulted from the incident in July 2016. 
  2. [63]
    In his evidence in chief, Dr McPhee said he had checked the disc protrusion shown in the two CT scans and the MRI.  They all showed that it measured 5mm, so there had been no change.[62]
  3. [64]
    In cross-examination, Mr Kup-Ferroth’s counsel put to Dr McPhee that the medical records showed only two mentions of back pain and that Mr Kup-Ferroth had never complained to his employer of back pain over about six years.  Dr McPhee agreed that that history is not a significant history of back pain that necessitated medical attention.[63]
  4. [65]
    Dr McPhee also said that, in questioning Mr Kup-Ferroth in September 2020, he checked that there had been nothing during the day that he’d done to trigger the pain, because:

it’s a sort of odd situation that the back pain occurred.  And I wanted to be certain that the back pain actually came on acutely at the time that he stood up and turned to wave a colleague or a worker goodbye.  And, you know, I checked that there had been nothing during the day, or nothing that he’d done, to trigger it off.

He said he probably would have asked what he was doing when the pain suddenly came on.[64]

  1. [66]
    Despite that evidence, it was apparent to me that Dr McPhee, not surprisingly, had no real recollection of his actual conversations with Mr Kup-Ferroth.  He seems not to have kept any notes of his consultations other than as recorded in his reports.  He had earlier responded to a question about his recollection of his discussion with Mr Kup-Ferroth in 2017 by saying, “I defy anyone four years later knowing exactly the circumstances”.[65]  Although, on this occasion, he was referring to a discussion only 13 months before he gave his evidence, it seems to me unlikely that he could recall this discussion among many patients he had seen.
  2. [67]
    Dr Cross put to Dr McPhee the events of the day as described by Mr Kup-Ferroth and suggested that, on that scenario, the whole events of the day, the activities from lifting the substantial weights through to the end of the day, were all causative of the acute event occurring.  Dr McPhee agreed that, on that scenario, there was some contribution from work that was material and significant. [66]

Issues of credit

  1. [68]
    The most important issues are whether, as Mr Kup-Ferroth said, he and Mr Powell moved the benchtop from the storage room to the kitchen and whether Mr Kup-Ferroth then lifted the end of the benchtop (and to what height) for Mr Powell to chock it up; or whether, as Mr Powell said, the benchtop was already in place when they arrived and Mr Kup-Ferroth did not have to lift it.  As their evidence is diametrically opposed, it becomes necessary to determine who, of Mr Kup-Ferroth and Mr Powell, is telling the truth about what happened.  Their evidence about these matters is so completely at odds that only one can have been truthful.
  2. [69]
    To determine this, it is necessary to compare their evidence with that of other witnesses and, in the case of Mr Kup-Ferroth, with other statements he has made to a number of people about what happened.  The medical evidence is also relevant to whether the injury he has suffered (if I find it occurred) is consistent with lifting the benchtop or could have occurred without such an event happening.

Inconsistencies in Mr Kup-Ferroth’s statements

  1. [70]
    Mr Kup-Ferroth’s evidence was, not surprisingly, tested at length in cross-examination, particularly about inconsistencies in what he had told various people about the relevant events.
  2. [71]
    Mr Kup-Ferroth agreed that he met with the mechanical engineer, Mr Kahler, and described the events to him.  That must have been some time before September 2017, when Mr Kahler produced his first report.[67]  It appears from that report that Mr Kup-Ferroth then told Mr Kahler that the benchtop was L-shaped (not Z-shaped) and that, once it was in position, he was required to lift the long end above his head height in order for Mr Powell to do some “levering activities to straighten metal.”  It was only in his second report that Mr Kahler recorded Mr Kup-Ferroth relating events consistent with his evidence.
  3. [72]
    When this was put to Mr Kup-Ferroth, he said he could not recall what he told Mr Kahler, but he was under the influence of Lyrica on the day he first saw Mr Kahler.  He did not lift the benchtop above head height, but closer to chest height, although he could not remember the final position.[68]  Mr Kup-Ferroth’s statement that he was under the influence of Lyrica appears to be supported by his description of the bench as L-shaped, which was clearly wrong and indicates confusion.
  4. [73]
    The more serious attack on his credit concerned what he had told a number of doctors about the cause of his pain that day.  The defendant contends that his statements to a number of doctors are inconsistent with his evidence, which (together with other evidence) should lead the court to disbelieve his version of the events at the Aussie Rooster premises on 18 July 2016.
  5. [74]
    I shall start by briefly summarising what he told various people about the incident, as recorded in their documents.[69]
    1. (a)
      Mr Kup-Ferroth saw a general practitioner, Dr Champaneri, in the morning of 19 July 2016.  He was asked how he injured his back and he told the doctor that he had stood up and twisted and waved goodbye to a colleague.  He said, in his evidence, that he did not mention any of his prior activities because, as he got the excruciating pain when he twisted, he thought that was the cause of the injury, so he described what he was doing at the moment he felt that pain.[70]  The doctor recorded his description as, “On 18 July 2016 he undertook a minor movement and has been having pain since.”
    2. (b)
      On 25 July 2016, he saw Dr Myla Stevens.  She recorded that he told her, “Recurring injury last Monday on back.”  She referred him for a CT scan.
    3. (c)
      On 26 July 2016, he saw Dr Takavada Mapfumo, who records the Mr Kup-Ferroth reported, “Low back pain.  Occasional pins and needles both sides.  Lateral aspect of knees.  Was aggravated at work on Monday.  Was under a bench welding and twisted.  CT scan 2012 reported noted almost similar to recent one.”
    4. (d)
      On 26 July 2016, he saw a radiologist for a CT scan.  That doctor recorded, “recurring back pain.  Nil trauma.”
    5. (e)
      On 4 August 2016, he saw Dr Stevens again for review following the CT scan.  She recorded:

I have reviewed Michael Kup-Ferroth today, who complains of persistent back pain despite anti-inflammatories and strong analgesics.  He had an aggravated backpain on 18/07/16 which happened without warning as he was just turning at work.

He states he had the same injury in 2007 which just waxed and waned from that time.

  1. (f)
    On 11 August 2016, he saw Dr Florin-Tibi Rupa, who recorded:

Seen GP here before. Back pain. Work-related. Turning on side. Developed.  Pain not from lifting however known with back issues in the past.  …  Consider back pain an aggravation from work/at work.

  1. (g)
    On 2 September 2016, he saw Dr Andre Nadler, who recorded:

C/O constant pain in the lower back with a bruised feeling … Has been intermittent for about 10 years.

At work was welding a bowl into a sink facing the bench, turned to say goodbye to a colleague.  Developed excruciating pain in lower back unlike any previous pain.

  1. (h)
    He gave similar accounts to Dr Gregory Day on 7 October 2016, Dr Geoff Harding on 27 October 2016 and Dr R Williams on 6 April 2017.
  2. (i)
    In a letter dated 26 November 2016 from the plaintiff to WorkCover,[71] he said:

I firmly believe that my condition is and has been a continuing result of my initial injury back in 2007 and over the last 9 years the condition has just got progressively worse to the point that when I suffered the injury in July 2016.  It may seem like a minor event but obviously this was just the straw that broke the camel’s back.

  1. (j)
    On 21 December 2016, he signed a statement that was apparently prepared for submission to WorkCover.[72]  In that statement he said:

The repair at the café was in relation to an L shape wet deck.  …  The L shape wet deck was 2.5 metres long on one side and when it turned back it was approximately 1.5 metres long on the other side of the L shape. …  I had to lift the L shape wet deck, which weighed approximately 70-100kg.  I had to cut the bench, re-weld it, sand and polish it.  This took me about 5 hours to do.  In doing the job I was required to:

  • Lift the bench;
  • Climb underneath it adopting an awkward position; and
  • Bend over it in an awkward position for extended periods of time.

…

I started to experience pain in my lower back which was worsening, approximately one hour into the first job I was doing at the café.  I felt worsening back pain when I stood up from doing the job with the two stainless steel sink bowels (sic) towards the end of the work day.

  1. (k)
    On 18 January 2017, he saw Dr  Todman, who reported[73] that Mr Kup-Ferroth told him that:

…he had to go out to a site to deal with a heavy metal bench.  This weighed up to 100kg.  As he lifted it he felt moderate pain.  He had to climb underneath it and adopt an awkward position.  He had to bend over it for an extended period of time.

He came back to the factory and was working on another job with two stainless steel bowls.  He had to bend over the benches whilst doing this and as he stood he developed more serious back pain with pain extending to his left leg.

  1. (l)
    He told Dr Karen Chau, psychiatrist, on 14 September 2017 about his turning to say goodbye and did not mention any earlier lifting.[74]
  2. (m)
    On 19 September 2017 he saw Dr Bruce McPhee, a spinal surgeon.  Dr McPhee records that Mr Kup-Ferroth told him that he was bent over welding a sink bowl into a bench.  When he twisted to say goodbye to a workmate who was leaving, he felt a sharp pain in his lower back.[75]  Dr McPhee later said that Mr Kup-Ferroth confirmed that description when he saw him a second time, on 15 September 2020, and confirmed that the injury did not occur in the performance of his work although his job was heavy.[76]  Dr McPhee said in his evidence that he had checked with Mr Kup-Ferroth that there had been nothing that he had done during the day to trigger it off, half expecting that it would be related to some sort of lifting, but that was not confirmed by Mr Kup-Ferroth at the time.[77]  In re-examination, Dr McPhee repeated that Mr Kup-Ferroth had not told him the history that is now the subject of his evidence, although he was specifically asking him about activities on the day and he was aware that he had been handling fairly heavy stainless steel basins.[78]
  1. [75]
    In cross-examination, Mr Kup-Ferroth was tested at some length about the fact that he had told so many people that he had injured himself by turning and twisting to wave goodbye to his colleague and he did not mention any prior lifting to them.  He agreed that that was so.  Of most relevance was this exchange with counsel for the defendant:[79]

From what you’ve said already about the earlier statements that you made, you’re not denying that, in fact, you did tell a number of the doctors about the twisting and turning to say goodbye as being the cause to your pain; do you agree with that?‑‑‑I agree with that, because that’s what I thought was the causation.

And you didn’t say anything to quite a number of doctors who saw you earlier in the piece that you, in fact, were engaged in heavy lifting on that day?‑‑‑Correct.  Until later on when a doctor asked me what I’d done previously that day.

  1. [76]
    Later in his cross-examination, counsel having referred Mr Kup-Ferroth to the reports of Dr McPhee, this exchange occurred:[80]

At no stage did you ever say to him that you had these major lifting exercises you tell us about?‑‑‑Correct, because I didn’t realise that that was actually what caused.  I didn’t realise that the twisting – I was already aggravated before I did it.  Or ‑ ‑ ‑

So ‑ ‑ ‑?‑‑‑All I’ve ever told anyone was when I actually felt the sharp pain.

So by the time of the examination on the 15th of September 2020, we’re now more than four years after the event.  You still weren’t telling a doctor who examined you, such as Dr McPhee, about this significant lifting exercise?‑‑‑Because I didn’t believe it was significant until I was actually explained that if I was already in pain during the day, come back, taking pain killers, then continued working through and then I’ve twisted I’ve aggravated it more to the point that it was excruciating sharp pain and had to lay down on the bench and take more painkillers, the only bit that I thought of was actually when I felt the extreme pain. 

  1. [77]
    All these answers appeared to be spontaneous and had the ring of truth about them.  Except when he was asked about his earlier activities, he did not think to mention them as a possible cause as he related his injury to his movements at the moment when he felt the “excruciating pain.”  That explanation is not necessarily inconsistent with Dr Rupa’s records in August 2016, nor with his statement for WorkCover in December 2016.  The former does not necessarily record what Mr Kup-Ferroth told the doctor, but her conclusion.  The latter appears to have been drawn with the assistance of a solicitor who may, on that occasion, have advised him to think through and relate the entire day’s work.[81]  Notwithstanding that, when he saw doctors in the following year, he still mentally related the pain with the turning motion and so again he only mentioned that movement.  I consider that to be understandable for a tradesperson without any legal or medical training or experience.
  2. [78]
    Therefore, I do not consider that the apparent differences between Mr Kup-Ferroth’s statements to other people about the cause of his injury and his evidence in court necessarily adversely affect his credit.  However, before determining whether to accept his evidence, it is necessary to consider and compare it with the evidence of other witnesses and medical evidence of the nature of the injury and its likely cause.

Other witnesses’ evidence

  1. [79]
    Comparison of Mr Kup-Ferroth’s evidence of what occurred on the day with that of the other witnesses demonstrates glaring inconsistencies between a number of them.  The greatest inconsistency is, of course, between Mr Kup-Ferroth and Mr Powell.  Each of them purports to have a good memory of the events, but their memories (or at least their evidence) are diametrically opposed.
  2. [80]
    Mr McDade’s evidence, on its face, supports that of Mr Powell, in that he could not recall the benchtop being anywhere other than in place on the cupboards in the kitchen and he had no recollection of it being in the storeroom or being moved by Mr Kup-Ferroth and Mr Powell.  However, he did not remember that Mr Powell was there at all.  In my view, he had so little recollection of the events of the day that his evidence was of little use.  Although he did recall going there and doing work on the benchtop, it is quite feasible that he was outside at the work vehicle, unloading it, while Mr Kup-Ferroth and Mr Powell moved the benchtop into place in the kitchen and Mr Powell looked under it to decide how it should be repaired..
  3. [81]
    Mr Stanbridge’s evidence was clear that he could not find the benchtop when he went back to Aussie Roosters to look at it after receiving the complaint that it did not fit properly against the wall.  It seems that, for Aussie Roosters to be in a position to see that it did not fit, having been removed by its contractors, it must have been replaced by them.  For it to be in the store room when Mr Kup-Ferroth went there, they would have had to have moved it again, which seems unlikely.  However, Mr Stanbridge’s clear recollection is that the benchtop was not in place and was nowhere to be seen when he visited after the complaint.  It seems, therefore, that it had been moved off the cupboards.  That being so, it is likely to have been returned to the store room before Mr Stanbridge visited.  That means it is likely to have remained there until Mr Kup-Ferroth and Mr Powell arrived to undertake the repairs.
  4. [82]
    Mr Shepard’s evidence[82] that Mr Kup-Ferroth told him, on 19 July 2019, that he had hurt his back lifting a benchtop with Mr Powell is inconsistent with Mr Kup-Ferroth’s evidence that he told Mr Shepard that he had hurt his back twisting to say goodbye.  Mr O'Sullivan submitted that I should not accept Mr Shepard’s evidence.  He is a good friend of Mr Kup-Ferroth and would be inclined to tailor his evidence to suit Mr Kup-Ferroth’s claim.  It is also inconsistent with Mr Kup-Ferroth’s repeated statements to doctors that he had hurt his back twisting and his evidence that he only mentioned the prior lifting when he was expressly asked about any prior lifting activities.
  5. [83]
    I do not accept Mr Shepard’s evidence about the alleged conversation.  While I accept that he and Mr Kup-Ferroth had a conversation on 19 July 2019 in which Mr Kup-Ferroth told him he had hurt his back at work the previous day, I do not accept that Mr Kup-Ferroth told him then that he had been made to lift a heavy bench earlier on 18 July.  I consider that Mr Shepard has reconstructed that explanation from later conversations with Mr Kup-Ferroth in which the latter had explained the basis for his claim in this proceeding.
  6. [84]
    However, that does not mean that Mr Kup-Ferroth did not injure himself by lifting the benchtop, as he now claims.  It simply means that Mr Shepard’s evidence is of no real assistance in determining that issue.

The medical evidence

  1. [85]
    The medical evidence about Mr Kup-Ferroth’s injury has a bearing on determining whether to accept Mr Kup-Ferroth’s evidence of lifting the benchtop.  Dr Todman’s evidence was, of course, based on his having taken a history from Mr Kup-Ferroth that was broadly consistent with Mr Kup-Ferroth’s evidence in court.  Dr Todman considers that the injury is consistent with that history and it was unlikely that the pain caused upon twisting was the result of a pre-existing injury rather than the heavy work performed that day.[83]  Dr McPhee considered that the injury was so unusual a result from its apparent immediate cause (twisting) that it must have been more significantly the result of the prior condition.  However, he agreed that, if Mr Kup-Ferroth’s evidence of what occurred that day was correct, then all of Mr Kup-Ferroth’s activities that day would have been significant contributors to the injury.

Conclusions on credit

  1. [86]
    Mr Kup-Ferroth appeared to me to be a generally credible witness, who was doing his best to remember things that had happened.  His evidence about the occurrences on 18 July 2016 had a ring of truth about it.  It is supported by other evidence, particularly the medical evidence that the injury was more consistent with being the result of heavy lifting than of twisting and Mr Stanbridge’s evidence that the benchtop was not in place when he visited the premises some time between 6 and 18 July 2016. 
  2. [87]
    As to the medical evidence, I consider that it supports Mr Kup-Ferroth’s history of the events of the day.  Not only did Dr Todman conclude that the lifting described by Mr Kup-Ferroth caused the injury, but Dr McPhee repeatedly expressed surprise that such a “trivial” incident could have caused such a significant injury.  He attributed it to the pre-existing or degenerative condition because, in the history he had taken from Mr Kup-Ferroth, there appeared to be no other explanation.  But, as I have recorded above, he agreed that events of the day along the lines of Mr Kup-Ferroth’s evidence would have been significant and material contributors to the injury.
  3. [88]
    As to Mr Stanbridge’s evidence, it supports the following conclusions about what was done to the benchtop by Aussie Rooster or its contractors:
    1. (a)
      after the defendant installed the benchtop and the cupboards below it, Mr Stanbridge took photographs of it to show the completed installation;
    2. (b)
      subsequently, Aussie Rooster or its contractors removed the benchtop, presumably so that other work could be done (it was speculated that tilers may have needed it to be moved);
    3. (c)
      that work having been completed, Aussie Rooster or its contractors replaced the benchtop, but it did not fit properly, leading to the owner complaining to Mr Stanbridge;
    4. (d)
      in fact, it did not fit properly because, in moving it, the contractors had damaged it;
    5. (e)
      after speaking to Mr Stanbridge and before he went to the premises, Aussie Rooster had the benchtop moved back to the storage room, which is why Mr Stanbridge could not find it;
    6. (f)
      the benchtop remained in the storage room until Messrs Kup-Ferroth, Powell and McDade arrived to repair it, necessitating that it be moved back into position in order to repair it properly.
  4. [89]
    Mr McDade did not, in my view, have any real memory of the events that morning, so his evidence that, so far as he could recall, the benchtop was in place when they arrived, could be mistaken.  He accepted that Mr Powell may have told him to go and unload the ute.  As a new employee in his first day on a new job, his recollection is likely to be mostly of the work that took the time – that is, repairing the benchtop – and not other matters surrounding it.  I do not consider that his evidence casts any substantial doubt on that of Mr Kup-Ferroth.
  5. [90]
    Mr Shepard’s evidence was inconsistent with Mr Kup-Ferroth’s insistence that he did not tell anyone about the earlier lifting unless they asked him and that he associated his injury with standing and twisting to wave goodbye to a colleague.  It is inconsistent with Mr Kup-Ferroth’s evidence of what he told Mr Shepard (and that Mr Shepard was at the workshop when the conversation occurred).  However, I do not consider that it adversely affects Mr Kup-Ferroth’s credit.  As I have said, I do not accept Mr Shepard’s evidence. 
  6. [91]
    Mr Powell struck me as the sort of person who would not let anything stand in the way of getting a job done as efficiently as possible.  This job, in particular, was no doubt frustrating, as it resulted from other people having damaged the good work that had been done by his employees.  There is no evidence whether the defendant charged Aussie Rooster for effecting the repair but, even if it did, Mr Powell’s preference would, I am sure, have been to return the employees to productive manufacturing work rather than to spend more time (and more employees) on a repair job.  He did not know, before getting to the premises, where the benchtop was.  If, as Mr Kup-Ferroth said, it was only on their arrival that they discovered it in the storage room, it seems to me to have been a natural response by Mr Powell not to delay effecting the repairs by putting them off to a time or day when more people could attend to move the benchtop.  Rather, his inclination would have been just to get on with the job by moving the benchtop back into its proper place so that it could be repaired that day.
  7. [92]
    Mr Kup-Ferroth said that he had no contact from his employer after he stopped work due to his injury.  There was also evidence that the defendant gave no substantive training to its employees in safety measures and procedures.[84]  These facts are indicative of an attitude in the business of disregarding the welfare of employees and disregarding safe procedures if they would limit the work that could be done.  That attitude is consistent with the approach that Mr Kup-Ferroth said Mr Powell had to getting the repair job done by moving the benchtop on 18 July 2016.
  8. [93]
    In the circumstances, I prefer Mr Kup-Ferroth’s evidence of what happened that day to the evidence of Mr Powell and Mr McDade.

What caused Mr Kup-Ferroth’s back injury?

  1. [94]
    I find that Mr Kup-Ferroth and Mr Powell found the benchtop in the storeroom, moved it from there to the kitchen and placed it on top of the cupboards.  Mr Kup-Ferroth then lifted one end of the benchtop to enable Mr Powell to chock it up and look under it to decide how Mr Kup-Ferroth should then repair it.

Mr Kup-Ferroth’s evidence

  1. [95]
    Mr Kup-Ferroth said that he first experienced a little bit of pain, feeling tight in his back, after lifting the benchtop for Mr Powell to put the wooden chock underneath it.  The pain remained at that level throughout his work on the job, but started to get a little bit worse sitting in the vehicle on the way back to the workshop.[85]

The mechanical engineering expert

  1. [96]
    I have mentioned Mr Kahler’s reports.  On the basis of what Mr Kup-Ferroth told him about the benchtop and what he and Mr Powell did with it (which was ultimately broadly consistent with my findings), in his second report Mr Kahler calculated that the benchtop itself weighed about 120kg.  In carrying it at the end near the bowls, the load for Mr Kup-Ferroth was about 66kg.  When he lifted the opposite end to enable Mr Powell to chock up the benchtop, the load for Mr Kup-Ferroth was about 58kg.
  2. [97]
    Mr Kahler referred to guidelines for allowing ergonomic assessments of lift that are referred to in the Hazardous Manual Tasks Code of Practice – 2011 published by Workplace Health & Safety Queensland, which refers to a number of studies on which the guidelines are based.  One of those studies is a report from the United States of America’s National Institute of Occupational Safety and Health (NIOSH), which published a Lifting Equation.  That report recommends 23kg as a recommended weight limit to be lifted by one person standing erect with the hands close to the body.  From that weight, a lifting index (that is the ratio of the weight lifted to the recommended weight limit) can be calculated.  In this case, the lifting index for Mr Kup-Ferroth carrying the benchtop is 2.9 and for lifting the end of the benchtop is 2.5.
  3. [98]
    Mr Kahler said that, as the lifting index increases beyond one, injury rates increase.  Nobody should be asked to lift when the lifting index is three or higher.  Mr Kahler explained the rationale behind the lifting index by quoting the following extract from the NIOSH report:

The NIOSH Recommended Weight Limit (RWL) equation and Lifting Index (LI) are based on the concept that the risk of lifting-related low back pain increases as the demands of the lifting task increase.  In other words, as the magnitude of the LI increases, (1) the level of the risk for a given worker would be increased, and (2) a greater percentage of the workforce is likely to be at risk for developing lifting-related low back pain.

  1. [99]
    Based on Mr Kahler’s report, I find that there was a considerable risk of injury to Mr Kup-Ferroth’s lower back, even if he had not previously been injured there, from the lifting activities that he was required to undertake at the Aussie Rooster premises. 
  2. [100]
    In order to determine whether that lifting was in fact the cause of (or a material contributor to) his injury, it is necessary to consider the medical evidence, which I have described above.  Dr Todman and Dr McPhee both agreed that the injury was consistent with having been caused by heavy lifting.

Conclusion

  1. [101]
    I find that the injury that Mr Kup-Ferroth has suffered to his back was caused by his lifting the benchtop with Mr Powell, carrying it from the storage room to the kitchen and putting it into place.  It was no doubt exacerbated by then lifting one end of the benchtop and by the work that he then had to do to repair the benchtop.  It all came to a head when he twisted his back toward the end of the day.

Mr Kup-Ferroth’s psychiatric injury

  1. [102]
    Mr Kup-Ferroth claims that he has also suffered a psychiatric injury as a result of the incident.  The incident caused him ongoing severe back pain, rendering him generally unable to work and to earn an income, resulting in financial and marital stress and ongoing anxiety and adjustment disorder. 

The medical evidence

  1. [103]
    Dr Karen Chau, a psychiatrist, was engaged on behalf of Mr Kup-Ferroth and saw him on 14 September 2017.  She produced two reports following that consultation.[86]  She saw him again on 21 October 2021 and produced a further report the next day.[87]  In that report, she also considered and commented on reports by Professor Harvey Whiteford, a psychiatrist engaged by the defendant’s solicitors.
  2. [104]
    Dr Chau expressed the opinion that Mr Kup-Ferroth suffered from an adjustment disorder with mixed anxiety and depressed mood, social phobia and generalised anxiety disorder.  The reported stressors of financial concerns with increased arguments with his wife and parents were secondary effects of the incident.  The major significant contributing factor to the development of his psychiatric injuries was the lifting incident on 18 July 2016.  The reported long-term and widespread effects of pain on his life are consistent with having led to hopelessness, helplessness and the development of psychiatric injury.[88]
  3. [105]
    Dr Chau opined that Mr Kup-Ferroth had a whole person impairment (WPI), on the psychiatric impairment rating scale (PIRS), of 13%, but ultimately she concluded that 5% of that was caused by non-work injury related factors.  Therefore she assessed him as having a 12% WPI.  In contrast, she considered that, before July 2016, he had a 0% WPI.[89]
  4. [106]
    In her last report, she opined that he is best suited to a low-stress job in a supportive environment working part-time hours.[90]  In cross-examination, Dr Chau agreed that, from a psychiatric perspective, Mr Kup-Ferroth can work.  She disagreed that there are no restrictions on the type or hours of work that he can do.[91]  She also disagreed that his WPI is 4% on the PIRS.  In re-examination, she said that the adjustment disorder is closely linked to the severity of the pain being felt by Mr Kup-Ferroth and so if a job were to aggravate the pain (from the activities or the hours) the disorder would be aggravated.[92]
  5. [107]
    Dr Chau recommended that Mr Kup-Ferroth receive at least 10 sessions of mindfulness training, cognitive behavioural therapy and adjustment to injury counselling with a clinical psychologist, at a likely cost of $150 to $250 per session.  He should also have anti-depressant medication (costing $40 to $80 a month) for at least five years, under the supervision of a psychiatrist over a minimum of eight sessions (at $280 a session).
  6. [108]
    Professor Whiteford saw Mr Kup-Ferroth on 19 February 2019 and on or shortly before 8 September 2021.  He produced two reports.[93]  In his first report, he opined that Mr Kup-Ferroth had an adjustment disorder with depressed mood.  If his current level of pain and disability were caused by the lifting incident on 18 July 2016, then the adjustment disorder was due to that incident.  His WPI at the time was 4%, but it fluctuated and was not permanent, as he had not had any mental health treatment.  He considered that the disorder did not prevent Mr Kup-Ferroth from working or limit the type of work he could do.  He required 10 sessions of cognitive therapy from a clinical psychologist as part of a pain management program.  He would not benefit from anti-depressant medication.
  7. [109]
    In his second report, Professor Whiteford opined that Mr Kup-Ferroth’s condition and level of psychiatric impairment remained 4%, although by then the stress of the breakdown of his marriage was a contributing factor.  He reiterated his earlier recommendations for treatment and his conclusion that, from a psychiatric perspective, Mr Kup-Ferroth can work, with no restrictions on the type or hours of work from the adjustment disorder.
  8. [110]
    In cross-examination and in answer to my questions, Professor Whiteford disagreed that Mr Kup-Ferroth had a PIRS rating of 12%.  He explained[94] that that rating would apply to a person who could not engage in vocational or other responsibilities on a full time basis and would be struggling to care for a disabled child, but Mr Kup-Ferroth was able to care for his daughter despite some behavioural issues, as well as caring for his son part time.  That would reduce Mr Kup-Ferroth’s impairment to class 2, which reduces 13% to 7%.  Allowing for other contributions, as Dr Chau did, that brings the impairment from pain down to six.  Professor Whiteford considered that 4% was accurate.

Does Mr Kup-Ferroth have a psychiatric impairment and why?

  1. [111]
    It is clear from both the psychiatrists’ evidence that Mr Kup-Ferroth suffers from an adjustment disorder with depressed mood.  I also accept Dr Chau’s evidence that he has a generalised anxiety disorder.  Although he has had other significant stressors in his life since July 2016, the most significant stressor that has contributed to his disorders is the chronic pain that he suffers as a consequence of the lifting incident.  That pain has itself led to some of the other stressors, such as financial and marital difficulties.
  2. [112]
    Having regard to all the evidence, I conclude that Mr Kup-Ferroth’s disorders were predominantly caused by the chronic pain that has been a consequence of his spinal injury caused by the lifting incident.  However, other stressors, particularly familial stressors, have contributed in part to his conditions.  But his conditions are not as severe as Dr Chau opines, as I accept Professor Whiteford’s evidence that Mr Kup-Ferroth’s demonstrated ability to care for his children shows that he is able to cope better than a person with a serious mental disorder[95] could do.  In the circumstances, I consider that he has a moderate mental disorder,[96] although toward the top of the injury scale value (ISV) range.
  3. [113]
    Mr Kup-Ferroth has not undertaken any treatment (apart from a program of anti-depressive medicine that Professor Whiteford opined was unnecessary and of no material benefit).  In particular, he has not undertaken any pain management and other psychological treatment, as both doctors recommend.  Professor Whiteford said that, in the absence of such treatment, Mr Kup-Ferroth’s condition cannot be considered permanent.  Clearly it would be to Mr Kup-Ferroth’s benefit to engage in the recommended courses of treatment.  If he is able to alleviate his pain, at least to some extent, it is likely to reduce his psychiatric impairment.  That has some relevance to his future ability to undertake some form of remunerative employment.

Was the defendant negligent?

  1. [114]
    Given the clear risk to Mr Kup-Ferroth’s health – whether or not he had a pre-existing back injury – from lifting and moving the heavy and unwieldy benchtop, in requiring him to perform those tasks the defendant, by Mr Powell, breached its admitted duty to take reasonable care for his safety in the workplace by providing a reasonably safe system of work.[97]  This is because:
    1. (a)
      having regard, particularly, to the approximate weight of the benchtop, as well as to its irregular and unwieldy shape, the risk of harm to Mr Kup-Ferroth if he and only one other person were to move it and the risk to him if he were to lift one end of it were entirely foreseeable;
    2. (b)
      the risk of that harm was not insignificant, given the weight of the benchtop and the lifting equation involved in the activities;
    3. (c)
      if harm occurred, there was a significant risk that it would constitute serious injury to Mr Kup-Ferroth’s back;
    4. (d)
      the obvious way to avoid the risk of injury from the lifting and moving was to have more people or appropriate lifting equipment (or both) come to the Aussie Roosters premises to help lift and move it – while that may have involved waiting for their arrival or returning with enough people and equipment to lift and move the benchtop safely, that was not an overly burdensome manner of alleviating the risk of serious injury by only two people lifting and moving it;
    5. (e)
      the obvious way to avoid the risk of injury from lifting the end of the benchtop was, again, to have someone else assist him in doing so (in particular, Mr McDade was available to assist) or to bring appropriate lifting equipment to make or help in the lift;
    6. (f)
      therefore, a reasonable person in the defendant’s position would have taken some or all of those steps to avoid the risk and injury.
  2. [115]
    I find that the defendant was negligent in requiring Mr Kup-Ferroth to undertake those tasks.

Was there contributory negligence by the plaintiff?

  1. [116]
    In cross-examination, counsel for the defendant had the following exchange with Mr Kup-Ferroth:[98]

And can I put it to you in a broad way that ever since that time you have had, at the very least, intermittent pain in your lower back as a result of various work activities and also other activities?‑‑‑Correct. 

And you would have realised, sir, that with that history of back pain since about 2007, you needed to take care for your back to ensure that you did not cause further injury to it.  Did you – do you agree with that?‑‑‑I do agree with that, although Colin Powell would tell me just to get it done or I wouldn’t have a job. 

  1. [117]
    That was followed shortly after by the following exchange:[99]

Would it be fair to say that, consistent with the training you’d had back as an apprentice with that business, you would never have performed the lifting exercise as we’ve just discussed?‑‑‑If I was not forced to;  correct.

Yes.  All right.  And by lifting as you’ve done, would you agree that you knew it was likely or possible to cause you injury to your back?‑‑‑Yeah, I could agree to that.  Like, it – it is likely.  You can – you can trip over something at work and hurt your back.  Like, in all honesty, in a sheet metal factory, there’s lots of ways you can injure your back bending a sheet metal, like, benchtop and lifting your hands above your head on the press brake.  That’s just one of them, like. 

They pale into insignificance ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ when you compare it against these lifting activities;  you agree with that?‑‑‑In – in a way, yes.

  1. [118]
    Mr Kup-Ferroth also agreed that, in his training as an apprentice and in an earlier job, he had been taught not to lift anything weighing more than 20kg without human or mechanical assistance.[100]
  2. [119]
    Defence counsel then put to him that he knew that he should not have done either of the lifts that he said he did.  He answered:[101]

Correct.  And I said that to Colin and he told me to fuck off and just get it up there.

  1. [120]
    It is clear that Mr Kup-Ferroth was well trained and experienced in safe lifting and handling methods and weight limits.  He also knew that, in 2007, he had injured his back by lifting a heavy metal sheet.  When he was told by Mr Powell to help him lift and move the benchtop, he must have known that to do so involved a high risk that he might again injure his back.  On that basis, the defendant submitted that he was negligent for his own safety and therefore contributed to his injury.  His contributory negligence should lead to a reduction in damages of 100% or some lower proportion.[102]
  2. [121]
    Counsel for the defendant submitted that, as the plaintiff did not plead (in response to the allegation of contributory negligence) that he acted under duress in picking up the benchtop and carrying it, it is not open to him to rely on an assertion that he felt pressured or under duress.  I agree.
  3. [122]
    The situation facing Mr Kup-Ferroth at the time of the lifting incident was that:
    1. (a)
      he knew that he had previously injured his back;
    2. (b)
      he was well trained in lifting requirements and safe maximum lifting weights;
    3. (c)
      he did not know the exact weight of the benchtop, but it was clearly very heavy and he subsequently estimated that it was over 100kg;
    4. (d)
      therefore he knew that it was not safe for only him and Mr Powell to lift it, or at least it was an obvious risk to him;
    5. (e)
      however, he was instructed by Mr Powell – effectively, his employer - to help him to lift and move the benchtop;
    6. (f)
      he knew that Mr Powell was the sort of person who insisted on just getting the job done;
    7. (g)
      Mr Powell had not brought sufficient manpower or machinery to lift and move the benchtop safely, nor did he arrange for more workers or machinery to be brought to the site when faced with the need to lift and move it;
    8. (h)
      the defendant’s failure to bring sufficient manpower or machinery (or to call for it when faced with the situation) put Mr Kup-Ferroth into the position of having to lift and move the benchtop with Mr Powell.
  4. [123]
    Mr Kup-Ferroth did not discuss with Mr Powell the risk of them lifting and moving the benchtop, nor ask if they could get more help.  He appears to have considered that Mr Powell would just tell him to get on with it.  That appears to have been how Mr Kup-Ferroth approached his work generally with this employer.  If that belief were correct then, if he had raised it (as he said he did when questions in cross-examination[103]), he would most likely have been placed in the position of obeying his employer or potentially losing his job.  It would only be at that stage that he may have been placed under some form of duress.  But, as I have recorded, there is no pleading of duress.
  5. [124]
    Section 305F of the WCRA provides to the effect that the standard of care that an injured person must have for that person’s own safety is that of a reasonable person in that person’s position.  The matter must be decided on the basis of what that person knew or ought reasonably to have known.
  6. [125]
    Section 305H relevantly provides that a court may make a finding of contributory negligence if the worker, among other things, undertook an activity involving obvious risk or failed, so far as was practicable, to take account of obvious risk.  “Obvious risk” is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the worker.
  7. [126]
    In Kabic v AAI Ltd [2019] NSWCA 247, at [115] the Court said:

A finding of contributory negligence can only be made if it was reasonably practicable for [the plaintiff] to have taken an alternative course of conduct which would have obviated the risk of injury.  The primary judge acknowledged that someone in [the plaintiff’s] position may have been reluctant to refuse (in effect) to work.  An employee is not guilty of contributory negligence by following orders …

  1. [127]
    Mr Kup-Ferroth was complying with the duties that he understood his employer required him to undertake, in the only way open to him in the circumstances that he was facing.  Although he should have appreciated that the task involved a risk of injury, he was placed in the position that, in order to complete the task required of him, he needed to take on the risk and undertake the task that he was instructed, by his employer, to do.  It was not reasonably practicable for him to have insisted on an alternative way to do the job.
  2. [128]
    Mr Kup-Ferroth was placed in the position he faced because of his employer’s failure to have sufficient manpower or machinery to lift and move the benchtop safely.  Mr Stanbridge knew that it had taken four or five people to lift and move it on installation and also knew that, when he visited the site, the benchtop was not in place in the kitchen.  It would have been simple for Mr Powell to have discussed the repair job with Mr Stanbridge, including where the benchtop was and how best to move it safely (and, indeed, to lift it in situ in order to repair it, if it were in place on arrival).  Mr Powell’s failure to make any enquiries, his failure to call for more help and his insistence that he and Mr Kup-Ferroth move it were the causes of the injury to Mr Kup-Ferroth.
  3. [129]
    In the circumstances, I do not accept that Mr Kup-Ferroth’s conduct in carrying out that task in accordance with his instructions amounted to contributory negligence on his part.
  4. [130]
    If I were wrong in this respect, for the same reasons I would attribute only a 10% contribution to his injury by Mr Kup-Ferroth’s own negligence.

Damages

  1. [131]
    The amount of damages to which Mr Kup-Ferroth submits he is entitled was not the subject of considerable disagreement, should I accept his evidence of how his injuries occurred and how they have affected him.  In his supplementary written submission, counsel for the defendant submitted simply that, if I were to assess damages having accepted the general tenor of the claim set out in the plaintiff’s counsel’s written submission, the claim for future economic loss should be discounted by 50% to take account of the facts that Mr Kup-Ferroth had returned to work (at different places of employment) after the incident and his colleague gave evidence that he was able to perform difficult work activities, with some assistance, on a full-time basis.  As I have said, he also submitted that damages should be reduced by 30% for contributory negligence.  Otherwise Mr O'Sullivan expressed no issue with Dr Cross’ submissions on quantum.  Nevertheless, I must consider whether I am satisfied, on the evidence, that the amounts claimed have been proved.

General damages

  1. [132]
    The amount of general damages for pain and suffering must be determined pursuant to ss 306O and 306P of the WCRA and ss 129 and 130 and schedules 8, 9 and 11 of the WCRR.  That amount is dependent (relevantly) on the extent of impairment, pain and suffering and loss of amenities of life that Mr Kup-Ferroth has suffered as a result of his injuries.
  2. [133]
    In determining general damages under the Act and Regulation, I respectfully adopt the approach described by McMeekin J in dealing with the same regulation.[104]
  3. [134]
    The plaintiff pleaded that the dominant injury was the spinal injury.  Mr O'Sullivan appears to have agreed, submitting that any psychiatric injury is secondary to the physical injuries.[105]  I find that it is the dominant injury.
  4. [135]
    Referring to the differing WPIs assessed by Dr Todman and Dr McPhee, Dr Cross submitted that they agreed that the injury was a moderate lumbar spine injury falling within item 92, with an ISV of 5 to 10.  In my view, although moderate, Mr Kup-Ferroth’s injury is so serious and affects him so substantially that it merits an ISV of 10.
  5. [136]
    I have already found that Mr Kup-Ferroth’s psychiatric injury is a moderate mental disorder toward the top of the range.  However, as he has not undertaken appropriate treatment, I cannot be satisfied that it is permanent.  I assess it as having an ISV of 6.
  6. [137]
    There being multiple injuries, in order to reflect the level of adverse impact of both injuries, this court may assess the ISV for multiple injuries as higher in the range of ISVs for the dominant injury than it would assess for the dominant injury alone.[106]  Given that I have assessed the ISV for Mr Kup-Ferroth’s spinal injury at the top of the range for that injury, it is appropriate to allow an additional component to take into account the psychiatric injury.  Dr Cross submitted that an appropriate ISV is 12.  Mr O'Sullivan did not disagree and I agree with that submission.  That results in general damages of $19,270.[107]

Past economic loss

  1. [138]
    Given that the defendant has not disputed most of the plaintiff’s damages claim, I do not propose to go through the details of the justifications and calculations for those items not the subject of dispute.  They include past economic loss.  In his written submission, Dr Cross set out the justifications and calculations for a claim of $229,300.15, interest for 5.3 years of $4,908.71 and Fox v Wood damages of $6,618, plus $21,874 for superannuation.  Based on the evidence of Mr Kup-Ferroth’s pre- and post-injury income to date, I am satisfied that those figures are proved but, in calculating the interest, I shall allow $5,171.11 to take account of the period to judgment of about five years and seven months.

Past special damages

  1. [139]
    Again, there is no dispute about this component.  It is demonstrated on the evidence and amounts to $14,065.51, plus interest to judgment of $111.67.

Future economic loss

  1. [140]
    As I have said, the defendant submits that I should discount future economic loss to take account of the plaintiff’s past history of working since the incident.  I take that submission to mean that that history indicates that the plaintiff will be able to work, at least part time in some manual occupation, over the course of his anticipate working life.
  2. [141]
    Although I have not given details of the evidence, there are in evidence two reports of an occupational therapist, Mr Lee Ng, who was also called to give oral evidence.  Mr Ng opined that Mr Kup-Ferroth has the capacity to work in the order of 15 hours a week in a relatively sedentary occupation, such as a gate guard or a weigh bridge operator, earning about $22.10 per hour (or $331.50 a week).[108]  In July 2016 Mr Kup-Ferroth was earning $1,081.25 net per week.
  3. [142]
    Dr Cross submitted that, allowing for a residual capacity for employment at net $300 a week, Mr Kup-Ferroth would be out of pocket $781.25.  Rounding it down to $700 a week for 35 years, amounts to $656,700.  Discounting by 30% for exigencies and previous injuries, the claim is $459,690.
  4. [143]
    To my mind, the manner in which Dr Cross has calculated the claim adequately takes into account Mr Kup-Ferroth’s residual employment capacity, including that his psychiatric injury may not be permanent and his pain management may improve.  Indeed, the calculation may be generous to the defendant, given Mr Ng’s pessimism that, despite being theoretically employable, there is much, if any, real opportunity for Mr Kup-Ferroth to find and to retain alternative employment.
  5. [144]
    I shall therefore allow $459,690 for loss of future earnings, plus lost future superannuation of $52,854.

Future special damages

  1. [145]
    This component is not opposed by the defendant and appears to be justified on the evidence, so I shall allow the amount claimed in Dr Cross’ submission: $17,799.50.

Total damages

  1. [146]
    I find that Mr Kup-Ferroth is entitled to the following amounts in damages:

General damages

19,270.00

Past economic loss

229.300.15

Past superannuation

21,874.00

Fox v Wood

6,618.00

Past special damages

14,065.51

Future special damages

17,799.50

Future economic loss

459,600.00

Future superannuation

52,854.00

Sub-total

821,381.16

Less WorkCover refund

(52,035.69)

Total damages

769,345.47

  1. [147]
    Additionally, he is entitled to interest on past economic loss and past special damages of $5,282.78.
  2. [148]
    This court’s jurisdiction to determine personal actions is limited to those in which the amount, value or damages sought to be recovered does not exceed $750,000 plus interest.[109]  Dr Cross expressly stated that Mr Kup-Ferroth does not claim any more than a sum within the court’s jurisdiction.[110]  That is, he has abandoned the excess.
  3. [149]
    Therefore I shall give judgment for $755,282.78, including interest of $5,282.78.
  4. [150]
    I shall hear the parties on costs.

Annexure A – Diagram of Bench-top

Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd [2022] QDC 3

Footnotes

[1]T1-14:24-27.

[2]T1-14:29-30.

[3]T1-16:35 to T1-17:37.

[4]T1-66:21-24.

[5]Exhibit 4.

[6]T1-64:46 to T1-65:7; T1-70:12-26.

[7]T1-79:13-15; exhibit 1, p3.

[8]The diagram can be found in exhibit 1 at p598. (Exhibit 1 is a trial bundle of relevant documents, to which I shall refer by page numbers as, for example, “TB598”.)

[9]T2-84:36 to T2-85:17.

[10]TB593-596.

[11]Mr Powell and Mr Stanbridge each said that the other told him about the phone call, so it is not clear who spoke to the owner, but that does not matter.

[12]Exhibit 7.

[13]T2-85:33-39.

[14]T2-85:41 to T2-86:11.

[15]T2-73:33-37.

[16]T2-73:22-26.

[17]T2-74:22-32.

[18]T1-25:3 to T1-29:32.  Mr Kup-Ferroth identified and referred to diagrams of the benchtop and the location (respectively exhibits 2 and 3) to assist in identifying what occurred.

[19]T1-29:34 to T1-31:11.

[20]He demonstrated that height in a photograph forming part of a report of mechanical engineer, Roger Kahler. The photograph is at TB564.

[21]T1-31:27 to T1-32:4.

[22]T1-31:13-25, T1-32:13-20.

[23]T2-48:1 to T2-49:5

[24]T2-50:9 to T2-51:6.

[25]T2-51:8-10.

[26]T2-56:33-37.

[27]T2-60:30-38; T2-61:10-36; T2-62:9-27; T2-63:8-9; T2-65:36-41.

[28]T2-62:42 to T2-63:6.

[29]T2-63:36-37, 44-47; T2-64:1-5.

[30]T2-68:44 to T2-69:4.

[31]T2-69:37 to T2-70:9.

[32]T2-70:12 to T2-72:33.

[33]T2-73:31.

[34]T2-74:14-18; T2-75:33-34.

[35]T2-75:45 to T2-76:4.

[36]T2-76:6-8, 40-42.

[37]T2-75:30 to T2-76:10; T2-80:28-35.

[38]T2-74:14-24.

[39]T1-32:16-42.

[40]T1-33:4 to T1-34:34.  Mr Shepard later gave evidence of what Mr Kup-Ferroth had told him, to which I shall refer when discussing the witnesses’ credit.

[41]T2-40:30-46.

[42]T2-44:22-42.

[43]T1-36:5-13.

[44]T1-38:21 to T1-40:45.

[45]At [74](k).

[46]TB41-45.

[47]A report of that scan, although not scan itself, is at TB188.

[48]TB46-47.

[49]A radiologist’s report on that scan is at TB186.

[50]TB48.

[51]TB57A.

[52]TB49-53.

[53]TB56-57.

[54]The statement itself is not in evidence.  Paragraphs 5 to 8 of the statement read to Dr Todman are identical to paragraphs 5, 6, 7 and 9 of a statement of the same date that is exhibit 5, relevant parts of which are set out at [74](j) below.  Paragraph 9, as read out to Dr Todman and set out here, does not appear in exhibit 5.

[55]T1-76:30-45.

[56]T1-78:17-28.

[57]T1-78:46 to T1-79:2.

[58]A radiologist’s report of that scan is at TB187.

[59]T1-82:30-38.

[60]TB18-27 and TB28-40 respectively.

[61]At [74](m).

[62]T3-15:34-45.

[63]T3-17:8-40.

[64]T3-17:3-14. 

[65]T3-15:1-3.

[66]T3-18:16 to T3-19:7.  The transcript at T3-19:7 records, “Yeah, it’s material [indistinct] significant.”  The indistinct word was “contribution”.

[67]The first report begins at TB526.  Mr Kup-Ferroth’s description is recorded particularly at TB533-535.

[68]T1-49:22-46.

[69]Most of his statements are recorded in an agreed schedule that became exhibit 8.  My summary is taken from that exhibit except where I state otherwise.

[70]T1-35:41 to T1-36:3.

[71]Exhibit 4.  As I have recorded earlier, Mr Kup-Ferroth says that his father-in-law wrote this letter, which is incorrect in this passage, and Mr Kup-Ferroth did not read it before he signed it.

[72]Exhibit 5.  He appears also to have made a slightly different statement on the same day: see [49] above.

[73]TB41.

[74]TB60.

[75]TB19.

[76]TB29.

[77]T3-18:5-10.  (The transcript says “not concerned”, but it must have been “confirmed”.)

[78]T3-19:23-30.  As I have said above (at [66]), I doubt that Dr McPhee actually remembered asking him about this, although he believes he would have done so.

[79]T1-59:22-29.

[80]T1-73:33-46.

[81]A version of that statement was given to Dr Todman in January 2017.

[82]See [40] and [41] above.

[83]See [52] above.

[84]Mr Kup-Ferroth: T1-14:24-30, T1-14:35 to T1-15:10; Mr Shepard: T2-41:7-15

[85]T1-31:22-25, T1-32:16-20.

[86]The first, dated 27 September 2017, is at TB58-75.  The second, dated 2 November 2018, is at TB76-81.

[87]TB115-146.

[88]TB67, 79, 135.

[89]TB70, 73-74, 140-141, 144-145.

[90]TB139.

[91]T2-18:46 to T2-19:4.

[92]T2-20:5-16.

[93]25 February 2019: TB82-99; 21 September 2021: TB100-114.

[94]At T3-7:43 to T3-8:33.

[95]Workers’ Compensation and Rehabilitation Regulation 2014 (WCRR),  Schedule 9, item 11.

[96]Schedule 9, item 12.

[97]I have expressed this duty in the precise terms admitted by the defendant in its second further amended defence, [3](a).  See also Work Health and Safety Act 2011, s 19 and Workers’ Compensation and Rehabilitation Act 2003, ss 305, 305B.

[98]T1-50:23-30.

[99]T1-52:4-18.

[100]T1-52:26-47.

[101]T1-53:1-3.

[102]In his supplementary written submission, counsel submitted that a 30% “discount for contribution” is appropriate in this case.

[103]See [119] above.

[104]Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190 at [102].

[105]Statement of claim, [34]; defendant’s submissions, [26].

[106]WCRR, schedule 8, s 3.

[107]WCCR, schedule 12, Table 6, item 2.

[108]TB169, report dated 18 October 2021, [35].

[109]District Court of Queensland Act 1967, s 68.

[110]T3-40:13.

Close

Editorial Notes

  • Published Case Name:

    Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd

  • Shortened Case Name:

    Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd

  • MNC:

    [2022] QDC 3

  • Court:

    QDC

  • Judge(s):

    Barlow QC DCJ

  • Date:

    21 Jan 2022

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
Kabic v AAI Ltd [2019] NSWCA 247
2 citations
Jump To
Cite 1 - [2019] NSWCA 247
Cite 2 - [2019] NSWCA 247
Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190
2 citations
Jump To
Cite 1 - [2017] QSC 190
Cite 2 - [2017] QSC 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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