Sneddon v Petts[2023] QDC 49

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is the owner of a hobby farm comprising of approximately 160 acres at Rosedale (‘the property’). The plaintiff was assisting him to spray herbicides to treat noxious regrowth on his property in late July 2019 when he fell on a rock and broke his right leg. He claims to have suffered permanent injuries to his right leg because of the fall.
2. [2]
   In September 2021, the plaintiff commenced this proceeding against the defendant for damages and other orders. The claim is in contract and tort. Liability and quantum are in dispute.
3. [3]
   This matter was heard before me over two days. At a pre-trial mention, pleading deficiencies in paragraph 6 of the statement of claim were identified. Essentially the particulars of negligence were not in fact particulars at all. They were a generic pro forma list of alleged failures in the vaguest of terms without consideration of the facts and circumstances said to give rise to the defendant’s breach. For example, the alleged failure to put in place a system of work did not identify the system which it was alleged the defendant should have had in place for the work to be carried out. Similarly, the alleged failure to provide instructions, training and/or supervision did not identify the instructions, training or supervision it was alleged ought to have been provided to the plaintiff. A direction was made for the filing of a further pleading. However, unfortunately some of the deficiencies remained in the amended statement of claim and the amendments that were made were unnecessarily convoluted and repetitive. For example, in paragraph 6(a)(i), the particular provided relevant to the alleged failure to put in place a system of work was that “the Defendant did not establish a system of work to complete the task utilising the Defendant’s tools that was safe”. The trial was stood down for a short period for counsel for the plaintiff to properly plead the particulars of negligence in a redrafted further amended statement of claim (‘the statement of claim’). The defendant opposed the amendments to several subparagraphs of paragraph 6 namely, (a)(i), (c)(ii) and (d)(i) and (iii)-(vii). I delivered ex tempore reasons allowing the amendments pursuant to r 380 of the Uniform Civil Procedure Rules 1999 (Qld) and giving the defendant leave to file the further amended defence (‘the defence’) which was provided on 8 March 2023. Subsequently, the plaintiff filed a reply on 20 March 2023.

Pleadings

4. [4]
   It is pleaded in paragraph 4 of the statement of claim, that on or around 27 July 2019 the defendant was using a brushcutter with a metal cutting blade to cut regrowth on his property. It is alleged that the plaintiff had been directed by the defendant to use a spray hose to apply herbicides to the stems after they had been cut by the defendant. The hose was connected to a 300 litre drum owned by the defendant. It is further said that the plaintiff had completed some spraying and was walking up a slope between a dam and a fence line, in an area containing a high concentration of scattered rocks on the ground. He was carrying the hose. He walked along the left side of a large eucalyptus tree while the defendant moved to the right side of the tree to where the plaintiff could not see him, before moving back into the plaintiff’s line of sight. It is alleged the defendant approached to where the plaintiff was standing, moving the brushcutter close to the plaintiff. It is further alleged that the plaintiff then stepped backwards to avoid contact with the brushcutter and in doing so lost his balance on a rock beneath his foot and fell to the ground.
5. [5]
   In the defence, it is admitted that the plaintiff was using the spray hose, which was connected to the drum, to apply herbicides to the cut stems. It is further admitted that the brushcutter had a metal blade attached to a spinning head and that the plaintiff was holding the hose at the time that he stepped on the rock and lost his balance. It is denied that there was a high concentration of scattered rocks on the ground. It is also denied that the brushcutter was near the plaintiff and that he stepped backwards to avoid it. It is alleged that the plaintiff had assisted the defendant with the spraying on the two previous Saturdays.
6. [6]
   In paragraph 3 of the defence, it is pleaded that the defendant did not employ the plaintiff. However, in the written submissions, the defendant conceded that the plaintiff was a “worker” as defined by s 11 of the Workers Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’).
7. [7]
   As to the plaintiff’s pleaded case on breach of duty, in summary it is alleged that the defendant had not:

1. (i)
   established a safe system of work for the defendant’s equipment, that enabled the plaintiff to spray while maintaining a distance of at least 15 metres from the spinning head of the brushcutter;

2. (ii)
   identified a path of travel which involved the plaintiff following the defendant through the area being sprayed;

3. (iii)
   instructed, supervised and/or trained the plaintiff:

1. (a)
   as to how to move the hose through the paddock for the purpose of spraying the cut stems;
2. (b)
   to keep a distance of at least 15 metres from the spinning head of the brushcutter;
3. (c)
   as to how to spray the cut stems within the time frame required, while keeping a distance of at least 15 metres from the brushcutter;
4. (d)
   as to the path of travel he should follow in spraying the cut stems;

4. (iv)
   provided appropriate plant and equipment, in that:

1. (a)
   it was difficult for the plaintiff to manage because of the presence of the hose attached to the static device and the limited time available to spray the stems;
2. (b)
   the equipment was not a Stihl brushcutter FS 450 and a 2.5 litre spray tank strapped to the plaintiff, which was equipment the plaintiff owned;

5. (v)
   undertaken a risk assessment of the task of cutting the regrowth which would have identified that:

1. (a)
   it was necessary for a distance of at least 15 metres to be maintained between where a person was standing and the spinning head of the brushcutter;
2. (b)
   the defendant’s tools were not appropriate.

8. [8]
   It is further alleged by the plaintiff that the defendant did not:

1. (i)
   take reasonable care when using the brushcutter so that it did not come close to the plaintiff, in that:

1. (a)
   he failed to control the brushcutter in a manner that permitted the plaintiff to remain at least 15 metres from its spinning head;
2. (b)
   the brushcutter came close to him without warning and in an unpredictable manner, causing him to step back in an unplanned way out of concern for his safety;

2. (ii)
   keep a proper lookout for the presence of the plaintiff while turning with the brushcutter activated, meaning that the plaintiff had to step back to avoid it and maintain a safe distance of at least 15 metres.

9. [9]
   To the extent that any duty of care was owed to the plaintiff, it is alleged by the defendant, that the duty was complied with in that:

1. (i)
   a dynamic risk assessment was undertaken, which led to the instructions provided to the plaintiff and the system of work implemented;

2. (ii)
   the same system of work had been used on the two Saturdays prior to the incident;

3. (iii)
   the brushcutter was never brought in close proximity to the plaintiff;

4. (iv)
   adequate time was allowed for the work to be completed in a safe manner;

5. (v)
   appropriate equipment was provided;

6. (vi)
   no further instruction or warning from the defendant was required.

10. [10]
    Contributory negligence is also pleaded by the defendant.

Plaintiff’s credibility and reliability

11. [11]
    The plaintiff’s credibility has been called into question. For example, under oath in cross-examination he admitted having given deliberately false evidence about his cannabis use.^[1] He was initially emphatic in his evidence that prior to the incident he had never used it.^[2] His untruth came to light when it was pointed out to him that this was inconsistent with the information he had previously provided to a treating doctor. It was also inconsistent with his response to question 15 in the Notice of Claim, which he had signed on 6 November 2019, to the effect that he had been smoking cannabis in the 12 hours prior to the incident. The plaintiff told Dr Sharwood in August 2020 that he was using cannabis intermittently for his leg pain. I do not accept this given his previous history of cannabis use. Further, in respect of the plaintiff’s alcohol consumption, he told the court that his report to Dr Sharwood may well have been an exaggeration.^[3]
12. [12]
    It was also my distinct impression that the plaintiff was not an overly reliable witness. One such example relates to the internal inconsistency in his evidence about the initial conversation he had with the defendant in relation to helping with the spraying of the regrowth. In evidence in chief, he said it occurred at the entrance to another property owned by the defendant. He said he drove by as the defendant and his wife were coming out of the property. Later in cross-examination, he said that the conversation had in fact occurred on the telephone.
13. [13]
    Another example relates to the plaintiff’s responses to questions regarding the photographs comprising exhibit 1. While these were taken approximately six months after the fall, I accept the defendant’s evidence that they depict the general area and the terrain where the plaintiff fell, with the only significant difference being that the land was not as dry at the time when the plaintiff fell. However, it was the plaintiff’s evidence that “It’s different country as far as I’m concerned. Looks nothing like it.”^[4] This sentiment was repeated on numerous occasions. Further, the diagram attached the plaintiff’s Notice of Claim refers to the gradient of the hill depicted in some of the photographs in exhibit 1 to have been 45 degrees. While gradients can be difficult to capture in photographs, I am not satisfied that the hill was anywhere as steep as this.
14. [14]
    The plaintiff also did not consider the spraying equipment depicted in exhibit 16 was the equipment that he was using on the day. However, I am satisfied that it was. It was his recollection that the drum was red and not blue and that it didn’t have “this big monstrosity above it.”^[5] This is a reference to the retractable hose reel.
15. [15]
    Yet another example of the unreliability of the plaintiff relates to his evidence that he had only worked on one Saturday prior to the day of the incident. I prefer the evidence of the defendant that the plaintiff had in fact worked on two prior Saturdays and that the work undertaken on those previous two days is as indicated on the satellite map of the property.^[6]
16. [16]
    One final example can be found in his evidence that he was earning $1,200 per week while working for Chamwood Grazing^[7]. It is agreed by the parties that his average weekly income was substantially less than this.
17. [17]
    While these matters have caused me to exercise caution in relation to the plaintiff’s evidence, it does not mean that I do not accept anything he has said. I have made other findings of fact below which are necessary to determine the issues between the parties. In doing so I have approached it by reference to the exhibits and other uncontroverted facts, or to the inherent probabilities of the case. Where this has not been possible, it has been necessary to resort to concepts of onus of proof.

The incident

18. [18]
    There is no factual dispute about the following matters:

1. (i)
   The Saturday the plaintiff fell was not the first Saturday that he had assisted the defendant with the spraying of the regrowth.

2. (ii)
   The task of spraying the cut stumps was not new to the plaintiff. He had over a decade of forestry experience, which had involved cutting back and praying regrowth. The defendant knew the plaintiff was experienced with this type of work.

3. (iii)
   The equipment being used belonged to the defendant. It included a 300 litre drum containing the herbicides. The drum had a retractable hose with a nozzle attached to it to spray the herbicides. The nozzle weighed approximately 800 grams. The drum and retractable hose device were positioned on a trailer which was secured to a quad bike that could be moved around the property as necessary.^[8] The brushcutter had a razor-sharp tungsten spinning head on it that could be used to cut through four inch thick saplings. It measured approximately 1.83 metres in length.

4. (iv)
   The plaintiff owned his own equipment that he had used when he had previously undertaken other spraying work. It included a Stihl brushcutter FS 450 (also with a razor-sharp tungsten spinning head on it) and a 2.5 litre spray tank that could be strapped to the person using it.

5. (v)
   The work being done involved the defendant using a brushcutter to cut the noxious regrowth and then the plaintiff coming in behind him with the herbicide to spray the cut stumps with the nozzle attached to the hose. The plaintiff would carry with him the remote control to operate the retractable hose.

6. (vi)
   The distance between the plaintiff and defendant just prior to the plaintiff stepping back and falling was about five metres.

19. [19]
    There remains differences between the plaintiff and defendant in relation to the events leading up to the incident. Relevant to this, as the Court of Appeal in Victoria said in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2)^[9]:

“The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the Court's conclusions. The Court need not deal in terms with evidence when its importance falls away because of the manner in which the Court disposes of the case.”

20. [20]
    It is difficult to accept that the plaintiff or defendant are entirely right or wrong in their recollection of what happened in the time immediately prior to the plaintiff falling. It is of course unsurprising that neither of them had perfect recollections, given that they were attempting to recall details of events that had occurred more than three and a half years ago. Further, the incident happened quickly and ultimately resulted in a broken leg. In addition, it is entirely plausible that the defendant misunderstood what the plaintiff was intending to do as he stepped back and that the plaintiff misunderstood what the defendant was proposing to do after he had finished cutting the regrowth. It would seem likely that in the aftermath of what occurred, each of them has persuaded themselves about how and why the plaintiff fell as he did.
21. [21]
    One factual contest that requires resolution is whether, just prior to the plaintiff stepping back, the defendant had turned and faced him with the operating brushcutter. It is the plaintiff’s case that he did. I am not ultimately persuaded that he has discharged his onus in this regard. There are several reasons for this. First, in the plaintiff’s written submissions, reliance is placed on the fact that on the numerous occasions the plaintiff has recounted the circumstances of the fall. There has been a measure of consistency in what he has said. The consistency though, is limited to the fact that he fell over a rock. There is no mention in the ambulance, hospital or general practitioner records to it having occurred, in circumstances where the reason he had stepped back was because the defendant had turned towards him with the operating brushcutter.
22. [22]
    Second, attached to the Notice of Claim is a drawing of the circumstances leading up to the fall. It was completed by a lawyer for the plaintiff on his instructions. Part of the drawing depicts the plaintiff and defendant standing a distance apart with the defendant holding the brushcutter in a horizontal position and pointing it in the direction of the plaintiff. As to this part of the drawing, there was the following exchange in cross-examination between counsel for the defendant and the plaintiff:

“… And then you say something to the top right-hand corner about how the accident happened. The point I put to you of course is that Allan didn’t have the cutter faced at you at any time. It was faced the other way. That is a ‑‑‑?

Yeah, that’s wrong. Yeah, that’s wrong.

So you agree with me he had the cutter?

Yeah, the cutter – yeah, he had his back to me. That’s right.

And so the cutter’s always faced away from you?

It was, yeah. That’s correct.”^[10]

23. [23]
    A further point worth observing about the plaintiff’s Notice of Claim under the heading ‘Give a brief description of the incident’ is that it is said that the defendant “almost hit” the plaintiff with the brushcutter tool.^[11] This is reiterated in paragraph 6(g)(i) of the statement of claim where it is alleged that the plaintiff had to step back to avoid it. This is of course inconsistent with the plaintiff’s evidence where he said:

“I wasn’t close enough to get hit by it, but I just took a step back because … – it’s just a thing you do. You take a step back to just make sure you’re giving enough room between work and dangerous objects spinning in front of you, and I just took a step back, and … – my arch of my foot ended up on top of a rock…”^[12]

24. [24]
    Third, as the plaintiff said, it would have been surprising for the defendant to have faced towards him with the brushcutter operating. The principal reason for this is that the plaintiff needed to move in quickly behind the defendant to spray the cut stems. The defendant of course knew this. If he had turned towards the plaintiff in the manner alleged, it would have impeded the plaintiff’s ability to spray the stems that he had just finished cutting.
25. [25]
    Fourth, there was no logical reason for the defendant to have turned in this direction. For example, there was no further regrowth to be cut in the vicinity of where the plaintiff was standing. As the defendant explained “that was the end of the job” before they had to go back down and move the drum and other spraying equipment to a different location.^[13] This is consistent with the plaintiff’s evidence that they were working their way back down the hill towards the dam.

Liability

26. [26]
    The general proposition is that liability in tort depends upon proof of fault through the negligent infliction of harm. It does not depend on the prevention of injury.^[14] It follows that the defendant was not required to guard against all risks of injury or to safeguard the plaintiff completely from all perils.^[15] Rather, the defendant’s duty was to take reasonable care to avoid exposing the plaintiff to unnecessary risks of injury.
27. [27]
    For the plaintiff to succeed, he must show that the defendant unreasonably failed to take measures reasonably open in the circumstances which would have protected him from the dangers of his task, without unduly impeding its accomplishment.^[16] The duty extended to giving the plaintiff directions in the performance of the work, where directions might reasonably be thought to be required to secure him from danger or injury.^[17] The defendant was required to have regard that a risk of injury may occur because of some inattention or misjudgment by the plaintiff when performing the work.^[18]
28. [28]
    It is well established that what is a reasonable standard of care for the safety of an employee is ‘not a low one’.^[19] It is a question of fact.^[20] It is in that context that issues of obviousness of a risk and the experience of the relevant employee may be relevant.
29. [29]
    The statutory framework provided for in the Act must also be considered. Pursuant to s 305B(1), an employer does not breach a duty to take precautions against a risk of injury to a worker unless the risk was foreseeable, not insignificant and in the circumstances a reasonable person in the position of the employer would have taken the precautions. The effect of this legislative provision is to direct the court’s attention to the level of risk that needed to be guarded against, when considering whether an employer has breached its duty of care. It requires an objective enquiry.
30. [30]
    Pursuant to s 305B(2) of the Act, in determining whether a reasonable person would have taken precautions against a risk of injury, the considerations include the probability that the injury would occur if care were not taken, the likely seriousness of the injury and the burden of taking precautions to avoid the risk of injury. These factors reflect the common law’s approach as explained by Mason J in Wyong Shire Council v Shirt.^[21]
31. [31]
    A court must identify what a reasonable person would have done, rather than using hindsight to identify what would have avoided the injury. A finding of negligence does not inevitably flow from a failure to eliminate a risk of injury that was reasonably foreseeable and preventable.^[22] The fact that a risk of injury could have been avoided by doing something in a different way, does not of itself give rise to or affect liability for the way in which the thing was done.^[23]
32. [32]
    The onus of proof in respect of a breach of duty by the defendant rests on the plaintiff. In demonstrating negligence on the part of the defendant, he is required to establish the following matters:

1. (i)
   The task involved a foreseeable risk.

2. (ii)
   The plaintiff’s injury belonged to the class of injury to which the risk exposed him.

3. (iii)
   There were reasonably practical means of obviating the risk.

4. (iv)
   The defendant’s failure to eliminate the risk showed a want of reasonable care for the plaintiff’s safety.

33. [33]
    Foreseeability of the risk of injury and the likelihood of that risk occurring are two different things and are relevant at different stages of the inquiry into breach.^[24] Foreseeability is concerned only with the identification of those risks of injury in relation to which the defendant's general duty of care extends. In assessing whether a risk of injury is foreseeable, it is sufficient if the harm is of the same kind or type as that which was reasonably foreseeable.^[25] It is also not necessary for the precise sequence of events by which the harm came about to have been foreseeable. It is sufficient if the consequence of the same general character as that which followed the negligence, was reasonably foreseeable.
34. [34]
    According to the plaintiff, the risk that was foreseeable was the risk of being physically injured when spraying the cut stumps with the defendant while he was using the brushcutter. The objective test for whether a risk of injury is foreseeable is relatively undemanding and, in my view, has been met. A foreseeable risk is simply one that is not far-fetched or fanciful. I also accept that the risk of harm would have been real and not insignificant. In reaching this conclusion, I am mindful that this test is more demanding than the common law test of ‘not far-fetched or fanciful’.^[26]
35. [35]
    Breach is shown only if a reasonable person would have taken the suggested precautions after bringing into account the probability and seriousness of the potential injury as required by s 305C(2) of the Act.
36. [36]
    It was incumbent on the defendant to take reasonable measures to meet the risk of injury. This calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have. When evaluating the response of a reasonable person to a foreseeable risk, the court is more concerned with the probability or the likelihood of the relevant harm, than with its foreseeability.^[27]
37. [37]
    Two relevant, although not determinative considerations in the assessment of what a reasonable person would do in response to the risk, are the obviousness of the risk and the experience of the employee.^[28]
38. [38]
    The case for the plaintiff is not that he should have been warned by the defendant that if he came too close to the operating spinning blade, that he might suffer an injury. Rather it is alleged that the defendant created the risk by failing to adopt a safe system of work. Therefore, the question of reasonableness is to be answered by reference to the defendant's duty to provide a safe system of work and his capacity to instruct the plaintiff to use that system and to enforce those instructions.
39. [39]
    In that context, it is the plaintiff’s case that a reasonable employer would have taken the steps referred to in paragraph 7 above in the discharge of the duty. I have addressed each of these in turn below.

Distance of 15 metres

40. [40]
    It is pleaded by the plaintiff that the system of work that would probably have protected him from the risk of injury, is one that enabled him to spray the cut stumps while remaining a distance of at least 15 metres from the spinning head of the brushcutter. It is further alleged that he ought to have been given instructions and training to this effect and how this could be achieved. It is further alleged that the defendant’s supervision of him ought to have ensured that this was complied with.
41. [41]
    The plaintiff has led no evidence of the practice of others in spraying regrowth on rural properties. The relevant evidence is limited to his own. The following exchange occurred between his counsel and himself in evidence-in-chief:

“Do you have a view about what would be a safe distance to stay away from him while he’s operating the brush cutter?

Well, I know what a safe distance is, but … it wouldn’t be doing the job. It’d be 15 metres.

And what was the problem with doing the job with that distance?

I wouldn’t be able to spray the regrowth quick enough.”^[29]

42. [42]
    This was again confirmed in cross-examination.^[30] He explained that the reason for this is that in order for the herbicide to effectively treat a stump, it needed to be sprayed within 15 seconds of it being cut. Any more time would allow the sap seeping from the cut regrowth to cover over the stump, reducing the effectiveness of the application of the herbicide.
43. [43]
    It is true that a system of work, where there would be greater distance between the plaintiff and defendant, might have decreased the risk that the plaintiff waiting behind to spray the cut stumps, might suffer injury. The problem of course is that the totality of the evidence is that such a system would have unduly impeded the plaintiff in effectively performing the spraying work. There is therefore an incongruence between the plaintiff’s pleaded case on this issue and the uncontroverted evidence. For this reason, I am not persuaded that the defendant was negligent in failing to implement a system and provide training, instructions or supervision of the kind suggested.

The hose

44. [44]
    It is alleged that the plaintiff should have been instructed and trained as to how to move the hose through the paddock when spraying the cut stems. What this means is not entirely clear. The genesis of it seems to come from the plaintiff’s evidence. He said he preferred to spray the cut stems with his own 2.5 litre portable spray tank strapped to his back, rather than the retractable hose he was using, that was attached to the drum sitting on the trailer some distance away.
45. [45]
    When consideration is given to the circumstances surrounding the plaintiff’s fall as detailed in paragraphs 18 and 21 to 25 above, the irrelevance of this allegation is exposed. There is no suggestion in the evidence that any difficulties that the plaintiff may have experienced in managing the hose, on account of it being attached to the drum, in any way contributed to his fall. He was not using it at the time. Just prior to stepping back, losing his balance and falling, he was simply standing still holding onto the nozzle while waiting for the defendant to finish cutting the regrowth. Therefore, any failure to provide the plaintiff with such training and/or instruction is causally irrelevant. It is also of note that the plaintiff did not plead the training or instruction it alleged ought to have been given about this, even though he bears the onus and his counsel was given ample opportunity to properly plead the case in this regard.

Staying behind the defendant

46. [46]
    It is pleaded that a system ought to have been put in place and then implemented by way of training, instruction and supervision, for the plaintiff to follow the defendant through the area being sprayed. This is precisely what the plaintiff was doing. It was necessitated because his job was to spray the stumps after the defendant had cut them. He was about five metres behind the defendant when he lost his balance and fell. There is no substance in this allegation.

The equipment

47. [47]
    As to the criticism regarding the appropriateness of the equipment, it is also limited to the evidence of the plaintiff. He said “mine’s what you should be using…^[31]
48. [48]
    It is claimed by the plaintiff that the equipment was difficult to manage because of the presence of the hose attached to the drum. For the reasons addressed in paragraphs 44 and 45 above it cannot be accepted that the nozzle of the hose the plaintiff was holding in any way contributed to the fall. Further and contrary to this allegation, it is admitted in paragraph 4(a) of the reply, that the hose was reasonably safe to use for the spraying work.
49. [49]
    The plaintiff owns different equipment, including a portable spray pack that he had used for previous unrelated jobs when spraying cut stumps. Just because the plaintiff would have preferred to have used his own equipment, does not establish that the equipment he was using was not appropriate. Further, it is significant that the plaintiff did not adduce evidence of the ways in which his own equipment, in particular having the 2.5 litre spray tank attached to his body, might have secured him from the danger of injury.
50. [50]
    In paragraph 6(d) of the statement of claim, it is pleaded that the defendant’s equipment could not be used if 15 metres was to be maintained between the plaintiff and the defendant. Even if there was some merit in the maintenance of such a distance, the plaintiff has not identified the equipment that could have been used that would have enabled this to have occurred.
51. [51]
    I am not satisfied that in all the circumstances of the case, the taking of reasonable care by the defendant involved him ensuring that equipment of the type owned by the plaintiff was used to perform the work.

Risk assessment

52. [52]
    According to the plaintiff’s pleading, a risk assessment would have identified that it was necessary for a person to maintain a distance of at least 15 metres from the spinning head of a brushcutter. First, I am not satisfied that a risk assessment would have identified the need for such a distance to be maintained. This was simply the distance that the plaintiff nominated in his evidence. Further, while the risk of a person encountering the spinning head of a brushcutter is very likely to have been identified as a hazard in the performance of the spraying task, maintaining such a distance was unlikely to have been a recommended control measure. This is because of the impracticalities of complying with it, as discussed above.
53. [53]
    It is further contended by the plaintiff that a risk assessment would also have highlighted a problem with “the tools he was using”^[32]. This cannot be accepted for the reasons set out in paragraphs 47 to 51 above.

Actions of the defendant

54. [54]
    This particular of negligence is premised on the court being satisfied that the circumstances surrounding the plaintiff’s fall are those pleaded in paragraph 4 of the statement of claim. However, as explained in paragraphs 21 to 25 above, I am not satisfied that the fall occurred in the circumstances alleged. Relevantly I am not persuaded that the defendant approached to where the plaintiff was standing, nor that he unpredictably moved the brushcutter close to the plaintiff. I am also not persuaded with the allegations in the plaintiff’s reply to the effect that the bruscutter was near enough to the plaintiff, sufficient to fear the possibility of its spinning metal head causing him personal injury. Flowing from this, I am also not satisfied that the defendant failed to control the brushcutter or that he failed to keep a proper lookout for the plaintiff.
55. [55]
    Rather, the defendant was positioned approximately five metres from the plaintiff just prior to the plaintiff stepping back. As to why he stepped back, the plaintiff’s evidence in essence was to make sure that he stayed out of the way of the brushcutter. However, in my view the distance between the plaintiff and defendant was sufficient for a reasonable person in the position of the defendant not to have been concerned that the plaintiff may have perceived that there was an issue of safety in terms of his proximity to the brushcutter. There was of course a risk posed to him if the spinning head was to come too close to him while he was assisting the defendant. The risk was obvious enough and was known to both he and the defendant. This is in circumstances where the plaintiff was not without experience in the kind of spraying work he was doing. He had the necessary experience to know how to avoid it and he did avoid it, by remaining a sufficient distance from the defendant while the brushcutter was being used.
56. [56]
    Further, it is alleged that keeping a proper lookout for the plaintiff and taking reasonable care for him, required the defendant to ensure that a distance of at least 15 metres was maintained between he and the plaintiff. However, this contention cannot be accepted for the reasons detailed in paragraphs 40 to 43 above.

Miscellaneous matters

57. [57]
    In paragraph 39(a) of the plaintiff’s written submissions, it is said that the defendant could have explained to the plaintiff the risks presented by the undulating ground or debris on the surface. There are two points to be made about this. First, this allegation has not been pleaded and no application was made for leave to amend the statement of claim to include it. Second, even if it had been pleaded, I would not have been persuaded that in all the circumstances of this case, any failure by the defendant to provide such explanations showed a want of reasonable care for the plaintiff’s safety. Considering the plaintiff’s extensive experience in working on rural properties and in forestry areas, it would not have been reasonable to expect that the defendant would provide an explanation to him about the obvious risks of these usual and expected features of rural properties.
58. [58]
    Further, in paragraph 41(a) of the plaintiff’s written submissions, it is said that the defendant did not explain sufficiently to the plaintiff the means of operating the equipment. It is not clear what is meant by this. Having said this, nothing turns on it in that it is causally irrelevant to the circumstances in which the plaintiff came to fall.

Conclusion on breach

59. [59]
    The combination of circumstances was not sufficient to require the defendant to take further steps to avoid the risk of injury to the plaintiff. In my view, to say he was, is to carry the matter beyond reason.
60. [60]
    Given this conclusion, I need not decide the issue of contributory negligence.

Quantum

61. [61]
    The plaintiff was born on 15 December 1960. He was 58 years of age at the time of the incident. He is currently 62 years of the age. He is a widower with four adult children. He has had a very limited formal education, not extending beyond his primary school years. He finds reading a challenge. His main hobby is fishing.
62. [62]
    The records from the Discovery Coast Dental and Medical Service Centre (‘the GP records’) are exhibit 4. They record attendances by the plaintiff between August 2001 and March 2021. His attendances upon general practitioners have been for various reasons, including back and left shoulder pain. The plaintiff also told Dr Price in August 2020 that he had a cardiac condition that was under review. Further, in the weeks prior to the incident, the plaintiff complained that he had experienced loss of vision over the previous two years, to the point that he was totally blind in the left eye and had a cataract forming on his right eye. In evidence, he also complained of hip pain and sciatica which could extend down to his ankle and was particularly problematic when driving. There is no further evidence about any of these medical conditions.

General damages

63. [63]
    Following the fall, the plaintiff was taken by ambulance to Bundaberg Hospital. He had sustained a spiral fracture of the distal tibia and a tibial nail was surgically inserted. He also had a proximal fracture of the fibula which required no intervention. He remained in hospital for three days and was discharged on 31 July 2019. He was followed up in outpatients at the hospital for the subsequent eight months. The fracture slowly progressed to union.
64. [64]
    Dr Kelly Macgroarty examined the plaintiff at the request of WorkCover on 17 March 2020. He has provided a report dated 27 March 2020. At the time of the examination, the plaintiff complained of ongoing pain in his right ankle with radiation up his leg. He said that his symptoms had remained unchanged since the incident. Dr Macgroarty’s examination demonstrated an altered gait. The plaintiff was tender over the distal tibia. He had altered sensation in a glove and stocking distribution, involving the entire foot up to the mid shin region. This did not follow any dermatomal distribution.
65. [65]
    WorkCover subsequently arranged for the plaintiff to be examined by Dr Peter Sharwood, orthopaedic surgeon on 13 August 2020. The plaintiff reported that he needed assistance with prolonged driving. He was unable to do outside work because of ongoing constant leg pain which he rated as 8 out of 10. His ankle would swell if he did activities such as chopping wood. His walking distance was restricted to about 60 metres, after which he had to sit down and rest. He used a cane to support himself while walking. His symptoms were waking him at night but would settle when he changed position.
66. [66]
    Dr Sharwood’s examination revealed tenderness to the proximal right tibia adjacent to the scar where the nail had been inserted. There was some disturbance of sensation around the scar. The plaintiff was still tender in the mid-shaft and complained of pain on axial compression of his leg. There was reduced range of motion in his ankle. He had a two centimetre loss of circumference of the right calf compared to the left. He was unable to do a squat.
67. [67]
    The plaintiff was examined by Dr Brett Halliday, orthopaedic surgeon, at the request of the defendant’s solicitors on 13 May 2021 and he has provided a report dated 26 May 2021. The plaintiff complained of ongoing weakness in his right leg, a constant ache in that leg from the mid-shin level down and swelling of his calf and ankle. He reported that his lateral three toes were numb. He was finding it difficult to walk on uneven ground, his walking distance was limited and he had a limp.
68. [68]
    It was observed by Dr Halliday that the plaintiff had a swagger when he walked, with a shortened stance phase on the right. He found that there was two centimetres of calf wasting, which was 10 centimetres below the tibial tubercle. The ankle was stable. Range of motion of the ankle on dorsiflexion was mildly reduced. He was unable to fully squat because of his limited dorsiflexion. He was able to walk on his heels and toes.
69. [69]
    Dr James Price, orthopaedic surgeon, examined the plaintiff at the request of his solicitors on 25 May 2021 and has provided a report dated the same. The plaintiff had an ongoing ache in his right leg, in particular on the anterior aspect of his knee at the insertion point of the nail and also over the site of the fracture. It was increased in response to activity. It would also swell. On occasions, he would experience a throbbing pain at the end of the day and the pain would wake him at night. He needed to take stairs slowly and use the handrail and lead with his left leg. Squatting was painful. His walking tolerance had been reduced. He also complained of some numbness on the lateral side of the foot and the lateral three toes.
70. [70]
    When Dr Price examined the plaintiff, he noted a six centimetre scar over his patellar tendon of the right knee. There was some wasting in his thigh and calf. The circumference of the right thigh was 44.5 centimetres on the left leg, compared with 47 centimetres on the right leg. The circumference of the plaintiff’s right calf was also smaller than his left, measuring 35.6 centimetres and 38.5 centimetres respectively. There was a slight loss of sensation just lateral to the scar. The plaintiff’s range of motion in his right ankle was reduced compared to the left, apart from eversion. He had reduced sensation over the dorsolateral foot and the lateral three toes.
71. [71]
    It was the plaintiff’s evidence that his right leg continues to be symptomatic. He said that he has a limp and extreme pain in his ankle and under his knee cap. He feels that he cannot move his foot sideways, as it cannot take the pressure. He cannot stand for long periods of time and his limp becomes worse as the day goes on.
72. [72]
    In paragraph 11(b) of the statement of claim, general damages are claimed in an amount of not less than $39,050. This equates to an ISV of 20. Reliance is placed on Item 134 of the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) (‘the Regulation’) with an uplift having regard to the adverse impact of the plaintiff’s injuries. Item 134 is for a moderate lower limb injury. The ISV range is 11 to 20. Examples of factors affecting the ISV assessment are the period of non-weight-bearing, the presence or risk of degenerative change, the imperfect union of the fracture, muscle wasting, limited joint movement, unsightly scarring and permanently increased vulnerability to future damage. It provides that an ISV at or near the top of the range will be appropriate if there is a DPI for the injury of 15%. Examples of injuries that would fall within this Item include multiple fractures of the femur, tibia or fibula and a fracture with delayed union or infection.
73. [73]
    Chapter 17 in the American Medical Association Guide to the Evaluation of Permanent Impairment 5^th Edition (‘the AMA Guide’) provides criteria for evaluating permanent impairment of the lower extremities. Dr Halliday has assessed a five percent whole person impairment, whereas Dr Price’s has assessed 11%. The difference in the assessments is that Dr Price has included an additional four percent for thigh muscle wasting and two percent for sensory problems with the superficial peroneal and sural nerves.
74. [74]
    As to the thigh muscle wasting, the difference between the experts’ assessments stems from the different examination findings, which were conducted less than two weeks apart in May 2021. Dr Halliday found no thigh wasting on the right leg, whereas Dr Price found the circumference of the plaintiff’s right thigh to be two and a half centimetres less that his left thigh. The reason for the difference in the relatively contemporaneous examination findings is not clear. Dr Price explained that thigh measurements are not necessarily identical but would be expected to be relatively close. Table 17.6 of the AMA Guide details the impairment due to unilateral leg muscle atrophy. A two to 2.9 centimetre difference in thigh circumference equates to a three to four percent whole person impairment. I have assessed it as four percent.
75. [75]
    Dr Price has attributed a further two percent whole person impairment to sensory problems with the plaintiff’s superficial peroneal and sural nerves. This is based on Table 16-10 of the AMA Guide.
76. [76]
    Dr Halliday’s report records that the plaintiff’s three lateral toes on his right foot were numb but not the foot itself. Dr Price’s report records that the plaintiff had developed some numbness on the lateral side of the foot and his three toes. Dr Halliday was unable to explain why the left side of the plaintiff’s foot would have had some numbness at the time of Dr Price’s examination, but not when he examined the plaintiff less than two weeks earlier. I am not persuaded by Dr Price’s evidence that this altered sensation ought to attract a whole person impairment. This is because I prefer the evidence of Dr Halliday that sensory problems to the plaintiff’s peroneal and sural nerves, resulting in numbness to his three lateral toes, are unlikely to be caused by fractures and the subsequent treatment. Dr Halliday explained that the plaintiff’s fractures were near his knee and the superficial peroneal nerve is usually injured at the level of the ankle. He went on to explain that while a proximal fracture of the fibula can cause a nerve injury, it is unlikely to have done so here, as there was no motor component to the plaintiff’s injury. He opined that it would be unusual for a patient nearly two years post a leg fracture, to experience no numbness on his lateral foot and then to have it present less than two weeks later. For these reasons I have not made an allowance for sensory disturbance in relation to the determination the appropriate ISV for the purpose of assessing general damages.
77. [77]
    Considering the ongoing symptoms the plaintiff experiences, I agree with the parties that Item 134 is appropriate. In my view an ISV of 15 is warranted to reflect the adverse impact of the leg fracture and its physical consequences to the plaintiff. Schedule 12 of the Regulation produces a figure of $27,050.
78. [78]
    Pursuant to s 306N(1) of the Act, a court cannot award interest on general damages.

Past economic loss

79. [79]
    The plaintiff’s claim for past economic loss is in the sum of $125,000. It is said that this is to an extent globalised and reflects a loss of income identified by reference to the plaintiff’s previous earnings in the 2018 and 2019 financial years. It roughly equates to $680 per week for the 189.5 weeks since the incident. The defendant contends that no allowance should be made for this head of damage.
80. [80]
    The approach to the assessment of economic loss is to compensate the plaintiff for loss of earning capacity. The plaintiff must not only establish a diminution of earning capacity but also that the diminution is or may be productive of economic loss.^[33]
81. [81]
    Prior to the incident the plaintiff had worked in heavy outdoor type occupations. These included working in a sawmill and doing fencing work and forestry and pastoral management type work. It would sometimes involve him camping in the bush for months on end.
82. [82]
    The parties agree that prior to the incident, the plaintiff earned a net weekly income of $136.75 in the 2016 financial year, $570.90 in the 2017 financial year, $731.12 in the 2018 financial year, $250.75 in the 2019 financial year, and nil in the first few weeks of the 2020 financial year.^[34] The nature of the work he was performing, meant that he was only working for about eight months of each year. Further, in the 2019 financial year the plaintiff applied for an early lump sum payment from his superannuation fund. He was successful and was paid $20,598.
83. [83]
    At the time of the incident, the plaintiff was in between work contracts and his income was limited to that derived from some intermittent cash in hand type work. He was also in receipt of Centrelink benefits in the form of a Newstart Allowance.
84. [84]
    Following the incident, the plaintiff did not return to work in the 2020 financial year. Since the 2021 financial year, the plaintiff has been continuing to receive Centrelink benefits. He had also been earning a net weekly income of $75 working as a caretaker on various properties. He has been undertaking light chores and smaller maintenance type work such as watering, mowing lawns and fence mending. It is the plaintiff’s understanding that if he is to earn more than $75 per week, the amount of his Centrelink benefit will be reduced. In the next month or so, he is leaving his current caretaking role and relocating to another property north of Winton, where he will also be working as a caretaker. In each of these roles, he has been provided with free accommodation and food. There is apparently no shortage of work. The plaintiff said that when he was recently looking for work, he had three offers within three days.^[35] However these roles have involved him working in more remote locations than where he used to work before the incident.
85. [85]
    It was the plaintiff’s evidence that he experiences pain or starts to limp if he walks too far. He can no longer work in the cattle yards, as his symptoms prevent him from reacting quickly if he needs to manoeuvre himself around the yards. He cannot lead with his right leg when stepping down from a fence. Because he can only walk short distances, he tends to drive if he needs to mend a fence. He is unable to carry around equipment with any significant weight.
86. [86]
    The experts concur that the work the plaintiff was engaged in prior to the incident was very physical and involved him navigating rough and uneven terrain. Further, they agree that on account of his leg injury he can no longer perform such work. I accept the plaintiff is now limited to light to moderate duties. Dr Price considered that he can continue working in caretaker roles indefinitely, provided that he can work at his own pace and is not required to perform heavy duties.
87. [87]
    Cross-examination of the plaintiff was to the effect that he was intentionally limiting his income to ensure that he can continue to receive the full Centrelink benefit. While I accept that there may be some truth in this, the difficulties of persons aged in their 60’s obtaining employment are well-known. This is compounded by the plaintiff’s limited education and the fact that his previous jobs have been in heavy manual type roles, which he is now precluded from doing.
88. [88]
    In these circumstances, I have assumed that but for the plaintiff’s right leg injury that he could have continued earning an average net weekly income of $420. This figure represents the average that he earned in the four financial years prior to the incident. Allowing this since the time of the incident, being a period of approximately 3.63 years equates to approximately $80,000. I have allowed the difference between this and the income he has actually earnt. The resulting figure is approximately $73,000.
89. [89]
    The discount, if any, to be applied to an award for economic loss in the past involves considerations that are different to those that are appropriate for the future.^[36] The principal reason for this is that the past is certain while the future is of necessity less certain.
90. [90]
    I have applied a 10 percent discount here, resulting in a figure of approximately $65,000. The reasons for this are:

1. (i)
   The reality of the ageing process is such that the plaintiff was going to be unlikely to continue performing this heavier outdoor type or work.

2. (ii)
   His unrelated hip and sciatica pain were so problematic at the time of the trial that he was lying down outside the court room while waiting to resume his evidence.

3. (iii)
   His current income of $75 per week is illusory in the sense that his employment package includes accommodation and food.

4. (iv)
   Prior to the incident the plaintiff had applied for early access to his superannuation fund and was in receipt of Centrelink benefits.

Interest on past economic loss

91. [91]
    The plaintiff has received approximately $5,200 from WorkCover by way of gross weekly compensation from 2 March to 26 July 2020. Therefore, interest should be awarded on the shortfall of past economic loss of $59,800 at an agreed rate of 1.89%. The resulting figure is approximately $3,770.

Fox v Wood

92. [92]
    There is no Fox v Wood component.

Past loss of superannuation

93. [93]
    The parties agree that the appropriate rate is 9.5%. In these circumstances, the allowance for loss of past superannuation is $6,175.

Future economic loss

94. [94]
    In determining the appropriate allowance for future economic loss, it is necessary to consider what would have happened to the plaintiff had he not been injured and what will happen now.^[37] It is unnecessary for theplaintiff to establish that his injury will be productive of financial loss. It is sufficient to prove that there is a chance of that loss occurring.^[38]
95. [95]
    Given the relatively reclusive lifestyle the plaintiff is living, his financial needs are modest. He was asked in evidence about his future plans and he said “… nothing at my age, just to make it to the end, next 10 years.”^[39]
96. [96]
    In the statement of claim, future economic loss is claimed in the sum of $100,000. This claim is maintained in the written submissions. The defendant contends that the allowance for this head of damage ought to be limited to $11,500, which equates to a net weekly loss of $50 until age 65.
97. [97]
    In my view, it is beyond dispute that the plaintiff’s earning capacity has been diminished by reason of his ongoing symptoms referable to his right leg fractures. I assess the plaintiff’s loss until age 65, being a period of three years at $345 per week. This results in a figure of approximately $50,000. Applying a discount of approximately 15 percent for the sorts of reasons identified above, gives a figure of approximately $42,500.
98. [98]
    Beyond the age of 65, I consider that the assessment can only be on a global basis, rather than by reference to a defined weekly loss. I am satisfied that the plaintiff will suffer loss having regard to his age, work history, actual loss of earnings and permanent impairment. While the risk of ongoing loss of earning capacity is real enough, there are imponderables not capable of calculation. Pursuant to s 306J of the Act, I am required to state the assumptions on which the award is based and the methodology used in arriving at it. It is necessary to form an estimate of the possibility of ongoing loss occurring, ignoring the possibilities that have a less than one percent chance of coming to be.^[40] This assessment should not be based merely on intuition and should adopt a transparent and reasoned approach based on the evidence.^[41]
99. [99]
    The following are the major assumptions that I make on which I base the global award:

1. (i)
   Those matters referred to in paragraph 90 above.

2. (ii)
   The plaintiff’s right leg symptoms will not prevent him from continuing to work as a caretaker.

3. (iii)
   Jobs as a caretaker will continue to be readily available.

4. (iv)
   There is a real prospect that the plaintiff would not have continued performing the type of heavy manual outdoor work that he was doing prior to the incident beyond age 65.

5. (v)
   His future irrespective of the incident probably lies in outdoor type work.

100. [100]
     To the extent that I am required to set out the methodology used for arriving at a global figure, an ongoing loss of $345 per week until age 70 (deferred for three years) and applying the 5 percent discount tables gives a figure of approximately $69,000. Applying a discount figure of 50 and 75 percent gives rise to calculations of $34,500 and $17,250 respectively. Having regard to the artificial precision of those calculations, I allow $25,000.
101. [101]
     The total allowance for future economic loss, including superannuation is $70,000.

Special damages

102. [102]
     Special damages are agreed in the sum of $11,252.69. This is comprised of WorkCover expenses in the amount to $6,973.82, the refund to Medicare in the amount of $500 and $3,778.87 for out-of-pocket expenses.

Interest on out-of-pocket expenses

103. [103]
     The parties agree that the interest component on this head of damage is $257.15.

Future out of pocket expenses

104. [104]
     In the written submissions, the plaintiff claims a total of approximately $10,000 for future expenses.
105. [105]
     Both experts concur that the plaintiff will require ongoing analgesics in the long term. At the time the plaintiff gave evidence, he said that he was taking six Nurofen per day. He explained that prior to the incident he would use pain killers approximately once per month, mainly for his teeth.
106. [106]
     Dr Price raised the possibility that at some point in the future the plaintiff may need the metal fixation device surgically removed. He thought the plaintiff may require about two months off work if this eventuates and the cost would be in the order of $10,000. The plaintiff said that while he had not thought about having further surgery on his leg, he was “horrified” at the prospect of having the fixation device surgically removed. The reason for this was said to be that he was worried that his leg would not hold up in the absence of the fixation device and he could not see how the surgery would help him. I consider that there is no more than a 30 percent chance that the plaintiff will undergo this surgery at some point in the future.
107. [107]
     I have allowed $7,500 on a global basis for infrequent attendances upon general practitioners, medication, travel for the purposes of receiving further treatment and the prospect that the plaintiff may undergo this further surgery.

Summary of damages award

Orders

108. [108]
     There will be judgment for the defendant.
109. [109]
     I direct that any submissions in respect of costs (not to be longer than four pages) or alternatively a proposed draft order if the parties are agreed, be filed within seven days.