Hartin v Rigel Constructions Pty Ltd
[2013] QSC 320
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- Unreported Judgment
- Hartin v Rigel Constructions Pty Ltd[2013] QSC 320
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Hartin v Rigel Constructions Pty Ltd[2013] QSC 320
Hartin v Rigel Constructions Pty Ltd[2013] QSC 320
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Claim |
ORIGINATING COURT: | |
DELIVERED ON: | 21 November 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 – 25 October 2013 |
JUDGE: | Applegarth J |
ORDER: |
|
CATCHWORDS: | Damages – measure and remoteness of damages in actions for tort and/or breach of contract – measure of damages – personal injuries – general principles – where the plaintiff was employed by the defendant as a delivery driver – where the plaintiff was injured when unloading a roller door from his truck – where the plaintiff was subsequently injured when driving a bus – where liability is admitted by the defendant in relation to the first incident – where medical evidence apportions the contribution of injuries to the plaintiff’s impairment as 75 per cent to the first incident and 25 per cent to the second incident – where medical evidence suggested the plaintiff had a pre-existing degenerative spine condition – whether there is a casual link between the two incidents Allwood v Wilson [2011] QSC 180, cited Bell v Mastermyne Pty Ltd [2008] QSC 331, cited Cameron v Foster [2010] QSC 372, cited Corkery v Kingfisher Bay Resort Village Pty Ltd [2010] QSC 161, cited Fishlock v Plummer (1950) SASR 176, applied Hosmer v Cook Shire Council [2012] QSC 91, cited Krieger v Bundaberg City Council [2009] QSC 412, cited Luck v Civil Mining and Construction Pty Ltd [2009] QSC 413, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, cited McDonald v FAI General Insurance Company Limited [1995] QCA 436, cited McMillan v Kissick [2006] QSC 202, cited Snell v BP Refinery (Bulwer Island) Pty Ltd [2013] QSC 284, cited State Government Insurance Commission v Oakley [1990] Aust Torts Reps 81-003, applied Workers’ Compensation and Rehabilitation Act 2003 (Qld), 306F, s 306H |
COUNSEL: | A L Marks for the plaintiff D M Cormack for the defendant |
SOLICITORS: | Michael Cooper Lawyers for the plaintiff Gadens Lawyers for the defendant |
[1] In 2008 the plaintiff was employed by the defendant as a delivery driver/labourer. On 22 February that year he was injured when he was required to manually unload from the tray of his truck and carry a roller door that weighed at least 50 kilograms. The defendant did not provide the plaintiff with any manual or mechanical assistance to enable him to undertake this work safely. At the start of the trial the defendant admitted that these injuries (“the initial injuries”) were caused by its negligence.
[2] The plaintiff claims, and the evidence of the jointly-appointed expert, Dr Gillett, is, that the initial injuries included a derangement of the L4/5 vertebral disc with associated sciatica. The defendant denies there was such a derangement with associated pain.
[3] After time away from his usual duties, the plaintiff returned to work with the defendant in early March 2008. He was retrenched in January 2009 and obtained work driving a school bus in late January 2009. On 23 March 2009 while driving the bus along a narrow, damaged road the bus hit a pothole and the plaintiff was jolted. This resulted in his sustaining further injuries which aggravated his pre-existing spine condition. He experienced severe pain and spasms that travelled down his right hip to his toes. He was not able to resume any significant work after his injury on 23 March 2009. He underwent an L4/5 laminectomy on 8 July 2009. He has been on a disability support pension since 2010.
Issues
[4] The substantial issues to be determined are:
1.Did the defendant’s admitted negligence for the first incident cause a derangement of the L4/5 vertebral disc with associated sciatica?
2.Was the subsequent injury that resulted from the second incident caused by the defendant’s negligence because the injury would not have been so severe if the plaintiff had not been injured in the first incident?
3.What is the nature and extent of the loss and damage that was caused by the first incident, and in what amount should such loss and damage be assessed?
The expert evidence
[5] The jointly-appointed independent expert, Dr Gillett, concluded that the plaintiff sustained a discal derangement at L4/5 in the 22 February 2008 incident and a further discal derangement in the incident of 23 March 2009. He concludes that the first incident caused the most significant injury and that if it had not occurred the plaintiff would not have required surgery as a result of the second incident.
[6] The substance of Dr Gillett’s evidence was captured in the course of his re-examination when he stated:
“There’s no doubt that the disc deranged in the bus incident because that’s when he gets significant nerve root compression. So anatomically I would suggest that there is in the – if you could look inside this man’s back, you would see that there would be a nerve root which eventually gets compressed and requires surgery. Near that nerve root is a disc. When he was a young man there would be plenty of space between the nerve root and the disc. As he gets older and starts to degenerate, then there probably becomes a little less space – just part of the aging process. We know he’s had an episode in ’05 where [he] had symptoms [in] the back to his buttock so perhaps at that time, you know, there was a little bit of a bulge or something. Then he has an episode which is February where he gets pain into his leg which I think is nerve root. And I think what happened then is the disc protruded, irritated the nerve root, gave him the pain in the leg. Why the leg pain gets better is that the swelling associated with that subsides. And then the eventual event is there’s nowhere for the nerve to go because the bus incident, it probably protrudes a little bit more, there’s not much space in his spine and there’s nowhere for the swelling to resolve and he’s got the terrible symptomatology. I think the 22.02.08 is a significant event.”
[7] Dr Gillett was jointly briefed by the parties as the sole expert. In his expert report dated 8 March 2011, Dr Gillett recorded the plaintiff’s history after the 22 February 2008 incident as having developed pain in the lower back of the right leg, and of having physiotherapy treatment. The plaintiff had a reduction of leg pain but still had residual symptoms associated with the radiation of pain into the right leg. When Dr Gillett examined the plaintiff on 8 March 2011, which post-dated the surgical procedure undertaken by Dr Webster to decompress the L4/5 disc after the second incident, the plaintiff reported lower back pain and right leg pain from the knee down, with numbness in the foot. Based upon his review of the briefed documents and the plaintiff’s history (which included a lower back complaint in 2004-2005 but no leg pain for which he received physiotherapy), Dr Gillett concluded that the first incident caused a derangement of the L4/5 disc and the second incident involved further derangement. It was probable that the first incident produced discal protrusion producing sciatica and then the second incident caused the disc to “derange further with compression requiring surgery.” Dr Gillett assessed the plaintiff’s incapacity as a ten per cent impairment of the whole-person function.
[8] On the basis of x-rays taken in 2009 he reported that the plaintiff had some pre-existing degeneration of the lumbar spine which had been aggravated when the disc was deranged. The first incident was an event that would produce discal derangement in a person who was “so-called normal for age.” Dr Gillett concluded that without the work events it was more likely than not that the plaintiff would still be working in 2011, but that the pre-existing degenerative condition would become symptomatic in the future. He thought that heavy work would eventually have been problematic for the plaintiff and that this would have occurred within a period of four to six years from the date of the first incident.
[9] As to the plaintiff’s capacity for work, Dr Gillett noted that the plaintiff was not able to do the types of work he previously did and that in “an ideal world part-time sedentary employment may be within his capabilities but he is disadvantaged in the open-labour market related to obtaining employment.”
[10] In a further report dated 16 April 2013 Dr Gillett advised that the first incident had caused the most significant injury in comparison to the second incident. If the second incident had occurred without the first incident, the plaintiff would not have required surgery. When asked to apportion the contribution of each injury to the plaintiff’s level of impairment Dr Gillett thought that 7.5 per cent out of the 10 per cent impairment related to the first event and 2.5 per cent to the second event. In other words, part of the “second event impairment” under the relevant guidelines was contributed to by the first event. The plaintiff was predisposed to that injury because of the first event.
[11] Dr Gillett was asked to review additional material including a file note of a meeting between Counsel and Dr Webster of 4 April 2013. After reviewing the material Dr Gillett reported on 27 August 2013 that a discal derangement occurred on 22 February 2008. This opinion relied, in part, on the history provided by the plaintiff, and that the mechanism of the event was consistent with producing discal derangement. The symptoms included radiation of pain to the right leg, electric-type symptoms, tingling symptoms and a numb foot. The leg pain did not cease before the second incident, but the pain increased with the second event.
[12] Dr Gillett was required for cross-examination by the defendant, and in his oral evidence he explained that before the first event the plaintiff had “moderate degeneration” which, if pressed to express in percentage terms by way of a pure estimate would have been 20 to 30 per cent or perhaps 40 per cent at the time of the first incident.
[13] Dr Gillett noted that although the plaintiff’s general practitioner, Dr Wong, did not record reference to any leg pain after the first incident, the physiotherapist’s records did and those records suggested that there were neurological symptoms in the plaintiff’s leg. The cause of those symptoms would be a disc protrusion, which is the most common cause of neurological symptoms in the leg. The nature of such a disc protrusion is that the neurological symptoms in the leg subside. Dr Gillett confirmed his view that the February 2008 event was the most significant and that, in terms of mechanical forces, a significant force was applied to the spine. The force could hurt a person who had no degeneration. The second event of hitting a bump was a “minor event in relation to forces on the spine.” These points were further developed in the re-examination evidence which I have earlier quoted.
Did the defendant’s admitted negligence for the first incident cause a derangement of the L4/5 vertebral disc with associated sciatica?
[14] In seeking a finding that the first incident caused a derangement of the L4/5 vertebral disc the plaintiff relies upon Dr Gillett’s opinion, the physiotherapist’s notes which record leg pain after the 22 February 2008 incident and the plaintiff’s oral evidence.
[15] The defendant’s position is that the injury sustained as a result of the first incident was limited to a minor aggravation of the plaintiff’s pre-existing and underlying spondylitic spinal condition, and that the derangement of the L4/5 vertebral disc with associated sciatica was caused by the second incident. The defendant resists a conclusion based upon Dr Gillett’s expert evidence on four principal bases:
(a)the absence of reference to leg pain in the general practitioner’s notes after the first incident;
(b)the plaintiff’s return to work in 2008 and the lack of reports in the notes of the general practitioner or of the physiotherapist after May 2008 of leg pain;
(c)the plaintiff’s evidence of ongoing leg pain should not be accepted; and
(d)the evidence of Dr Webster who treated the plaintiff after the second incident.
As to (d) there is an apparent conflict between the evidence of Dr Gillett and Dr Webster (who placed particular reliance upon the general practitioner’s notes). I say “apparent conflict” because Dr Webster has not referred to the physiotherapist’s notes.
[16] In light of the parties’ submissions, the physiotherapist’s notes assume some importance since they constitute contemporaneous evidence of leg pain caused by an L4/5 derangement as a result of the defendant’s negligence.
[17] The plaintiff saw his usual doctor at the first practical opportunity to do so after the incident which occurred on Friday, 22 February 2008. The plaintiff saw his GP on Monday, 25 February and again on 26 February. He was referred by his GP for physiotherapy and prescribed pain relief medication. The physiotherapist, Mr Bassingthwaite, saw the plaintiff on 27 February 2008 and recorded a complaint of “low back pain, right leg pain and intermittent parathesia, ...”. The plaintiff saw Mr Bassingthwaite for treatment over the following weeks and months. Mr Bassingthwaite’s notes record leg pain on a number of occasions between March and May 2008. By 12 May 2008 there had been an improvement of leg pain.
[18] I turn to each of the grounds upon which the defendant resists a finding based on Dr Gillett’s expert evidence.
The absence of reference to leg pain in the general practitioner’s notes
[19] The plaintiff’s general practitioner, Dr Wong, was not called as a witness. Exhibit 1 includes computer-generated print outs of records of visits which the plaintiff made to his general practitioner. The first relevant entry of Monday, 25 February 2008 records the reason for the visit as “Back Strain.” Later entries in February and March record the same reason for each visit and contain summary notes of the consultation. There is no reference in these records to leg pain.
[20] The defendant relies upon the lack of recording of right leg pain in Dr Wong’s records as indicating an absence of leg symptoms. The absence of any record by Dr Wong of leg symptoms may be due to an omission on the part of the plaintiff to complain about them in the context of his back injury or because Dr Wong did not record them in the short summary which he made of the consultation. These matters were not explored in evidence with Dr Wong. Even if one was to assume that the plaintiff did not complain to Dr Wong about leg pain, since the focus of his concern was in relation to his back injury, as the plaintiff submits, the absence of such a complaint does not, without more, support a finding that, on balance, there were no leg symptoms after the 22 February 2008 incident.
[21] At trial the defendant did not put to the plaintiff in cross-examination that he did not report leg symptoms to Dr Wong. His evidence-in-chief about what he said to Dr Wong was vague and one might not have expected the plaintiff to recall precisely what he said to Dr Wong in early 2008.
[22] The absence of reference in Dr Wong’s notes to leg symptoms does not satisfy me that the plaintiff did not have leg symptoms after the incident on 22 February 2008. First and foremost, this is because leg pain was recorded in the physiotherapist’s notes commencing on 27 February 2008. In addition, the plaintiff’s evidence, which I accept, is that he suffered leg symptoms. The history which he gave to Dr Gillett is consistent with his sworn evidence.
The plaintiff’s return to work in 2008
[23] The plaintiff was certified by Dr Wong as being unfit to return to his work between 22 February and 2 March 2008. During this period the plaintiff was able to undertake other activities. After resting on Saturday, 23 February 2008 he was able to attend a performance by a band with which he was associated, despite being in pain, and earned $25.00 for doing so. Later that week he attended at his former employer, Bus Queensland, and undertook two and a half hours training in relation to its systems. He did some further work for it the following week. On 3 March 2008, the plaintiff returned to light duties with the defendant, with Dr Wong recommending that he avoid any lifting, bending, twisting or squatting. Over time he was permitted to lift light objects, but still had to avoid bending, twisting and squatting. He undertook tasks such as photocopying, driving, checking loads and other activities which did not involve any heavy lifting. He was certified to resume normal duties after 6 May 2008 and was provided with an assistant when undertaking deliveries. But he continued to experience difficulties. He could not bend and had to place items on beams rather than on the ground. Because of his physical problems he had difficulty putting any item down below knee height.
[24] The fact that his physiotherapist’s notes do not specifically refer to leg pain after May 2008 does not mean that he did not continue to experience difficulty with both his back and his leg. His evidence, which I accept, is that he did. He took painkillers.
[25] His ability to return to work, with limitations, does not disprove the occurrence of a derangement of the L4/5 vertebral disc with associated sciatica as a result of the 22 February 2008 incident. The fact that he required treatment from a physiotherapist for his back and leg pain in early 2008 suggests that the leg pain (which he had not experienced before the incident) was caused by a derangement of his disc. The fact that his pain subsided with time and after treatment is unremarkable, and Dr Gillett explained that leg pain reduces because swelling associated with the disc protrusion subsides and there is less irritation with the nerve root which causes leg pain.
The plaintiff’s evidence
[26] The plaintiff was somewhat combative during parts of his cross-examination, for example, in contesting the relevance of the work that he did for Bus Queensland shortly after the incident. The defendant submits that he was somewhat selective in his recollection, and points to the fact that his original application for compensation nominated the place of the incident as Warner (the location of the last job of the day) rather than Stafford. I do not consider that this entry affects the plaintiff’s reliability and there is no evidence to contradict his evidence that after suffering the injury at Stafford, he was directed to make a final delivery. The defendant also seeks to make something of the fact that the plaintiff only recorded a few entries in his 2008 diary about back problems, whereas there were more entries in his 2009 diary about his back problems. I fail to see the significance of this evidence. The relevant diaries were more in the nature of appointment diaries than extensive contemporaneous notes about his problems. If there are more references in 2009 than 2008, then that is understandable because the 2009 incident was more consequential and resulted in the plaintiff requiring surgery for the reasons explained by Dr Gillett.
[27] I accept the plaintiff’s evidence of ongoing symptomatology in both his back and leg after the initial incident. He experienced problems with both, and took painkillers to treat them.
Dr Webster
[28] The plaintiff was referred to Dr Webster after the second incident. Dr Webster advised that the plaintiff would benefit from an interlaminar decompression and rhizolysis. This procedure was performed.
[29] The defendant relies upon a file memo of a discussion with Dr Webster on 4 April 2013 as supporting the view that the plaintiff did not suffer a discal derangement as a result of the initial incident. The file note records Dr Webster’s disagreement with Dr Gillett’s view and reports Dr Webster saying that in order to make the diagnosis which Dr Gillett did, he would need objective findings such as a scan that showed the prolapse. Dr Webster had regard to Dr Wong’s notes and the improvement in the plaintiff’s symptoms by May 2008 as suggesting that the February 2008 injuries were musculoskeletal.
[30] Like Dr Gillett, Dr Webster was not in a position to have regard to results of x‑rays and scans taken between the first and second incident, since none were apparently taken.
[31] Dr Webster relied upon the GP notes and said that they were “quite telling.” He also assumed that there was a period of nine months before the second incident when the plaintiff did not have any pain at all.
[32] Whilst Dr Webster understandably had regard to the GP’s notes, the views that he expressed to the defendant’s legal representatives on 4 April 2013 were made without reference to the physiotherapist’s notes. He was not asked to express a view about the matter in light of the physiotherapist’s notes and their contemporaneous record of leg pain. Dr Webster considered the absence of any leg pain as a factor in concluding there was no discal derangement as a result of the first incident. He noted the absence of radicular pain which he described as “a symptom of something more serious” than musculoskeletal injury. He said that to be persuaded that there was disc prolapse he would have needed objective findings. However, the physiotherapist’s notes provided evidence of pain suggestive of a disc prolapse. The defendant did not chance its hand by seeking to lead expert evidence from Dr Webster about his views in the light of the physiotherapist’s records and whether they, in conjunction with other evidence, persuaded him that there had been a disc prolapse.
[33] The file memo of the discussion with Dr Webster on 4 April 2013 was not an expert report which complied with the requirements of the rules. The letters which he wrote to the general practitioner record his history of treatment. The opinions recorded in the file note of 4 April 2013 do not comply with the rules for admission of expert evidence, and the defendant does not rely upon them as admissible opinion evidence. It relies on Dr Webster’s material as recording the plaintiff’s history and Dr Webster’s observations of him during treatment.
[34] In any event, Dr Webster’s letters are not in a form which are appropriate for the reception of expert evidence in accordance with the principles discussed in Makita (Australia) Pty Ltd v Sprowles.[1] If, however, they were admissible as opinion evidence, I would accord very little weight to them. The letters were not specifically directed to the question of whether the first incident caused a disc derangement. To the extent that they or the opinions expressed on 4 April 2013 did so, they were made without the benefit of the physiotherapist’s notes. It is not clear whether Dr Webster asked the plaintiff about the presence of leg symptoms after the first incident. Dr Webster’s concern was to treat the plaintiff for the consequences of the second incident. I accept the plaintiff’s submission that the fact that Dr Webster’s letters happen to comment on matters that are in dispute between the parties and appear to express an opinion that is contrary to Dr Gillett’s opinion is not sufficient justification to afford those letters the weight of a properly-prepared and considered expert report.
[35] I do not accept the defendant’s submission that, having treated the plaintiff and performed surgery, Dr Webster was best placed to assess whether there was a prior discal derangement or sciatica. As the plaintiff’s treating surgeon after the second incident, Dr Webster may have been well-placed to assess the degree of pre-existing degeneration. However, his assessment of whether there was a prior discal derangement or sciatica depended upon consideration of additional information, including the benefit of the physiotherapist’s reports. The fact that he was the treating doctor did not put him in a better position than Dr Gillett to opine about whether there was a prior discal derangement with associated sciatica.
[36] To the extent that there is a conflict between the opinions of Dr Gillett and the opinions of Dr Webster, I prefer the opinion of Dr Gillett who, as jointly-appointed expert witness, had regard to relevant matters including both the general practitioner’s records and the physiotherapist’s notes.
[37] Dr Gillett and Dr Webster agree about the significant consequences which flowed from the second incident. The second incident caused a discal derangement, with significant consequences.
Conclusion - did the first incident cause a derangement of the L4/5 vertebral disc with associated sciatica?
[38] The defendant’s arguments about why Dr Gillett’s expert opinion should not be accepted are unconvincing. I accept his evidence that the first incident caused a derangement of the L4/5 disc and the second incident a further derangement. I accept his opinion because:
(a) He was the only expert to express an expert opinion on that matter in a form which complied with the requirements for an expert report and also in a form which exposed the information and assumptions upon which it was based. In particular, the opinion was made on the basis of a history about the symptoms of leg pain experienced by the plaintiff between the first and second incidents. Unlike Dr Webster, he had regard to the physiotherapist’s notes.
(b) The plaintiff’s symptoms in respect of his right leg persisted after May 2008. The fact that he did not see his doctor or his physiotherapist in late 2008 for treatment for leg pain does not mean that he did not experience leg symptoms of the kind he gave sworn evidence about and which he reported to Dr Gillett. I find that he did.
(c) His return to work is not inconsistent with his having suffered a derangement of the L4/5 disc as a result of the first incident. It simply meant that his back and leg pain abated. This is consistent with the evidence of Dr Gillett, which I have earlier quoted, that the leg pain would reduce if the swelling associated with the disc protrusion subsided.
[39] I find that the plaintiff suffered a discal derangement at the L4/5 level and associated sciatica as a result of the incident on 22 February 2008.
Was the additional injury that resulted from the second incident caused by the defendant’s negligence?
[40] To recover loss and damage in respect of the consequences of the second incident, the plaintiff must establish that the second injury was causally linked to the first injury. There is no contest between the parties about the governing principles in a case in which a party who has been injured as a result of another party’s negligence sustains a further injury. In such a case, the plaintiff may allege that the further injury was caused by the defendant’s negligence because the first injury predisposed the plaintiff to the second injury, and the damage sustained in the second incident is greater than it would have been had the first incident not occurred.
[41] The relevant principles are summarised by Professor Luntz, citing the authorities of Fishlock v Plummer[2] and State Government Insurance Commission v Oakley:[3]
“The relevant rules where a plaintiff sustains further injury in a distinct subsequent accident have been conveniently restated as follows:
1.where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
2.where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
3.where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”[4]
[42] The defendant acknowledges that the plaintiff’s case on causation depends on acceptance of Dr Gillett’s opinion.
[43] As noted, his evidence is that the discal derangement that occurred on 22 February 2008 predisposed the plaintiff to further injury and that a further discal derangement occurred on 23 March 2009. This further injury is unlikely to have occurred in the absence of the first incident. The second incident was a minor event compared to the first in terms of the force applied to the spine. But because of the plaintiff’s predisposition to further injury, its consequences were more severe. In his report dated 16 April 2013, Dr Gillett expressed the opinion that without the first incident the plaintiff would not have required surgery as a result of the second incident. His evidence that the plaintiff was predisposed to injury because of the first event and his other evidence, which I accept, establishes a causal connection between the defendant’s negligence and the consequences of the second incident. The injury loss and damage sustained by the plaintiff as a result of the second incident was greater because of the injury sustained in the first incident. The additional damage that was suffered by the plaintiff because of the effects of the first incident should be treated as having been caused by the defendant’s negligence.
[44] As previously noted, Dr Gillett apportioned 75% of the defendant’s impairment to the first incident.
[45] I find that the additional injury that resulted in the second incident was caused by the defendant’s negligence. Expressed differently, the injury would not have been so severe if the plaintiff had not been injured in the first incident. The mechanism by which the second incident caused a further discal protrusion with severe consequences were explained by Dr Gillett and captured in his oral evidence which I have earlier quoted: there was nowhere for the swelling to resolve and the plaintiff then had “terrible symptomatology.”
[46] Although the plaintiff was able to return to work with assistance and undertake other activities such as attending rock and roll events with which he was associated, the incident on 20 February 2008 caused an L4/5 disc prolapse and made him vulnerable to further injury from a relatively minor incident, like being jolted when the bus he was driving hit a pothole on 23 March 2009. The additional damage that resulted from the second incident should be treated as caused by the defendant’s negligence in accordance with the principles discussed in Fishlock v Plummer[5] and later authorities.
The nature and extent of the plaintiff’s loss and damage
[47] Before turning to specific heads of loss and damage it is appropriate to address:
(a) in some additional detail the plaintiff’s history before and after the 20 February 2008 incident; and
(b) the likely course of events if the incident had not occurred.
[48] The plaintiff was born in September 1958, and is now aged 55. He finished school at the age of 16, and worked on a family farm until 1987-1988 when he left the farm and did general labouring work. He did occasional work as a welder. He obtained a security licence in January 2008 but has never been employed as a security guard or security officer. Between 2004 and 2005 he worked as a storeman with Ikea. Later he was employed as a truck driver by St Vincent de Paul, and in 2006 was employed by Bus Queensland. He acted as carer for his mother before she entered a nursing home and he received an allowance for doing so between August 2005 and November 2007. He commenced employment with the defendant in about December 2007.
[49] Over the years since around 2003 he has worked assisting a 1960’s cover band. The work involves handing out guides and flowers and liaising between the crowd and band members. The show’s producer described the plaintiff’s tasks as “menial and certainly not physically demanding.” Presently the plaintiff does that work about six to ten times a year and on each occasion he is employed for about two and a half to three hours.
[50] The plaintiff was employed by the defendant on casual rates, but worked a minimum of 30 hours and sometimes more than 38 hours per week, working five days a week.
[51] After the February 2008 incident and after he came off light duties, the plaintiff experienced difficulties doing the required work of delivering sheds, even with an assistant.
[52] In September 2008, his leg became infected and he had to spend time away from work. After he came out of hospital he learned that his mother, who was then living in a nursing home, was deteriorating in health and she passed away in early December 2008.
[53] The plaintiff’s employment with the defendant formally ended on 16 January 2009. In his evidence he said that he finished work with the defendant in November 2008, but this must refer to the last time he actually worked for it. At about the time his mother passed away, the plaintiff was told by a manager that due to recessionary conditions he was not required back at work. He was the only casual driver employed at that stage. He did not do any further work for the defendant after that phone call. A letter from the defendant to the defendant’s solicitors which forms part of exhibit 1 states that a decision was made to make the plaintiff redundant on 16 January 2009 and this decision was based on the effects which the economic downturn had on the business. Sales had declined by more than 25% during the period January 2008 to December 2008.
[54] After stopping work with the defendant, the plaintiff obtained employment as a bus driver with Bus Queensland with that job to start at the beginning of the school year in late January 2009. The work at that stage consisted of school runs in the morning and afternoon and involved about four and a half hours work a day.
[55] The plaintiff applied to another bus company which would offer him longer hours through longer trips and charters. He applied for that job and was successful in the interview. He was supposed to start only a few days after the incident that occurred on 23 March 2009. The plaintiff gave no further details in his evidence-in-chief about this job offer, and he was not cross-examined about it. No document was tendered evidencing the job offer or its terms. Still, I accept the plaintiff’s evidence about it, but the deficiency in detail does not permit any conclusion to be drawn about the hours which the plaintiff might have worked or the security of his employment with that new employer.
[56] By 23 March 2009 the plaintiff’s back pain from the first incident had not gone away and his leg pain had not completely resolved. He explained that there was still a heaviness or solidness with part of his leg with tingling or twitching on the inside of the shin area as if there was a knife point on it.
[57] The incident on 23 March 2009 caused an extreme response, including severe spasms in his right hip and right leg. The plaintiff was unable to work after 23 March 2009, other than on a limited basis associated with the band. He underwent surgery in July 2009, but continued to experience a tightness in his back and pain sensations in his leg. He received workers compensation until December 2009.
[58] In his evidence, he described his present condition as if someone was hitting his leg with a “little hammer” and that he has a strange feeling inside his right leg. He experiences back pain. Movements, including getting in and out of a standard passenger vehicle, make his back pain worse. He cannot stand for extended periods otherwise his back locks up. He cannot stand for more than about half an hour and has to move to get his mobility back.
[59] He cannot work for more than four hours a day, doing light work, provided he is allowed breaks. But he doubts he could sustain that for five days per week. He takes anti-inflammatory drugs and strong painkillers two to three times a week.
[60] In recent times he has paid an individual to come to his house to do cleaning and some gardening. Because of his physical condition he cannot clean certain areas. He pays $30.00 per fortnight, which equates to one and a half hours work, for this cleaning assistance.
[61] The plaintiff has applied for numerous jobs, without success. In 2011, he obtained job placement assistance with an organisation involved in occupational rehabilitation. There was no functional assessment of the extent of his impairment and disability. In July 2011 an occupational therapist, Ms Harris, suggested a job search strategy to find work that would allow the plaintiff to vary between sitting and standing to assist in management of his back condition. This work might include “patrol based security work.” Ms Harris expressed the opinion in her 15 December 2011 report that the plaintiff was a suitable candidate to obtain security work as a “static guard or patrol officer” and to work 20 hours per week. She also canvassed the possibility that he might undertake courtesy bus driving, subject to assessment and approval by an appropriately qualified occupational therapist and modification of his driving technique to overcome his reported leg numbness. Ms Harris gave evidence and was not in a position to say whether a doctor would be satisfied with the plaintiff’s capacity to drive a bus. As for patrol based security work, it involved shift work of between six and 12 hours and would not be of a duration which the plaintiff could tolerate. In any event, Ms Harris accepted that the plaintiff, without any background in security, would have to compete with retired police officers and other people with a background in security for such a position. She also accepted that his age would count against him. She said that it was hard but not impossible for someone aged 55 to obtain a job in a field in which they had not worked in before.
[62] I conclude that the plaintiff’s prospects of obtaining patrol based security work or work as a static guard are more theoretical than real. With his background, education and experience, and even with an appropriate licence, he would be at a disadvantage against other applicants in obtaining a job interview and at any job interview he would present with a noticeable limp and be required to disclose his physical limitations. He has no real prospect of obtaining work as a security guard.
[63] As Dr Gillett observed, in an ideal world part-time sedentary employment may be within the plaintiff’s capabilities, but he is disadvantaged in the open-labour market in obtaining employment.
[64] His disadvantage is not simply the injuries which he sustained and which affect him in a wide range of activities, including being able to bend down to pick up even light loads. His disadvantage arises from his age, lack of education and limited range of work experience.
[65] I turn to consider the likely course of events if the incident had not occurred on 22 February 2008.
[66] As noted, the plaintiff would have had the capacity to carry out the kind of work that he was undertaking at the time of the incident, but eventually such work and other heavy labouring work would have become problematic. Dr Gillett thought that these problems would have occurred within a period of four to six years from the date of the first incident. Adopting a period of five years as a mid-way point, one arrives at around February 2013 as the best estimate of when the plaintiff would have had to give up such heavy work.
[67] The plaintiff submits that if he had not been injured on 22 February 2008, then he would have continued to undertake work with the defendant or with a similar employer undertaking delivery type work on a full time basis. I accept this general proposition, however, the plaintiff was at a significant risk of being made redundant in January 2009, even if the incident had not occurred. He might have found delivery type work with another employer after leaving the defendant’s employment and, had the incident not occurred, he would not have been as physically restricted as he was in January 2009 in undertaking lifting and other tasks without assistance. I think it likely that he would have sought delivery type work if it rewarded him more than bus driving, and if he could not find delivery work he would have obtained employment as a bus driver. This may have been initially the kind of work that he obtained in January 2009 with Bus Queensland, progressing as opportunities arose with that employer or with another employer to extend his hours. The plaintiff had a house with a mortgage to repay. As matters transpired, he was forced to sell it and to downsize.
[68] The plaintiff had some general health problems, including hypertension. But this did not apparently affect his ability to work, save for occasions when he had to undergo tests. I find that if the plaintiff had not injured his back in February 2008 then he would have continued in employment with either the defendant or another employer and sought full time employment as a truck driver, bus driver or tour driver. He contemplated doing a bar course to enable him to work in a hotel in conjunction with a school bus run. He said that he wanted to maintain an active life and probably would have worked full time until he was about 62 or 63, by which time he would have sold the property on which he lived and moved into a retirement village. After retiring from full time work at about 62 or 63 he would revert to part-time work of 20 to 25 hours if he could and try to obtain part-time bar work and other work while travelling.
[69] I find that if the first incident had not happened the plaintiff may have injured his back and sustained a discal derangement or similar serious injury whilst lifting a heavy load or through some other application of force or accident. His back would have become increasingly symptomatic and by February 2013 he probably would not have been able to undertake heavy work. He probably would have continued to work as a driver until he was aged 62 or 63, which is in about seven or eight years time.
General damages
[70] The plaintiff is entitled to be compensated for the pain, suffering and loss of amenities that have been caused by the defendant’s negligence. This does not include pain and suffering which he would have sustained had the first incident not occurred through an increasingly symptomatic back or from a discal derangement of the kind which he sustained in March 2009. He is entitled to be compensated for the additional pain and suffering and loss of amenity that was caused to him by the 23 March 2009 incident by reason of the defendant’s negligence. The injuries that the plaintiff suffered as a result of the defendant’s negligence have restricted his ability to take part in recreational activities although, as noted, he is able to hand out guides and flowers and act as a general support to a band that performs from time to time. He cannot dance and he requires assistance with ordinary tasks that require him to bend, such as floor cleaning and gardening.
[71] Counsel cited a number of authorities relating to general damages in broadly comparable cases. They included Bell v Mastermyne Pty Ltd,[6] McMillan v Kissick,[7] Corkery v Kingfisher Bay Resort Village Pty Ltd,[8] Cameron v Foster,[9] Krieger v Bundaberg City Council,[10] Luck v Civil Mining and Construction Pty Ltd[11]and Hosmer v Cook Shire Council.[12] I have had regard to those authorities by way of guidance. To these may be added the recent decision in Snell v BP Refinery (Bulwer Island) Pty Ltd[13] in which the whole person impairment of the 52 year old plaintiff was at least 21%, and resulted in an award of $80,000. The plaintiff submitted that an award of general damages of $60,000 would be appropriate to reflect the injuries sustained as a result of the 22 February 2008 incident, which required the plaintiff to undergo surgery and the pain and symptomatology which he continues to experience. The plaintiff further submitted that the authorities supported an award of $80,000 in respect of Dr Gillett’s assessment of the his impairment at 10% which would need to be adjusted to reflect the damage suffered as a consequence of the 23 March 2009 incident. The 75% attributed by Dr Gillett to the first incident to a figure of $80,000 yields general damages of $60,000.
[72] The defendant submitted that an appropriate allowance would be $50,000 if the causal link is established, as I found it to be, and to take account of the plaintiff’s pre‑existing condition.
[73] I consider that an appropriate award of general damages is $55,000.
Interest on general damages
[74] I take account of the fact that the most severe symptoms postdate 23 March 2009. Still, the plaintiff experienced pain and other consequences after the 22 February 2008 incident. I attribute one half of the general damages to the past. Interest should be awarded on this half at a rate of 2% for a period of five years and nine months. This amounts to a figure of $3,162.
Past economic loss
[75] The plaintiff is not able to do the kind of work he did in the past. He has a small residual earning capacity of up to 20 hours per week but has trouble finding jobs that will allow him to work with his physical limitations. I have already made findings about the likely course of events if the plaintiff had not been injured in February 2008. Past economic loss needs to be assessed up to around February 2013, at which time the plaintiff would have been unlikely to undertake heavy, manual work, and thereafter on the basis that he would have been able to undertake work as a driver, bus driver or tour driver.
[76] The defendant points to the plaintiff’s taxation records, as identified in his statement of loss and damage, which indicate his historical earnings. It advances the following table.
Income Source | From | To | Weeks | Gross $ | Tax $ | Net $ | Weekly |
Ikea Pty Ltd | 1/07/2004 | 30/06/2005 | 52.2 | $29,378 | $6,523 | $22,855 | $437.84 |
Bus Qld Pty Ltd | 1/07/2005 | 30/06/2006 | 52.2 | $6,949 | $868 | $6,081 | $116.49 |
St Vincent de Paul | 1/07/2005 | 30/06/2006 | 52.2 | $1,292 | $164 | $1,128 | $21.61 |
Bus Qld Pty Ltd | 1/07/2006 | 30/06/2007 | 52.0 | $16,924 | $2,007 | $14,917 | $286.87 |
Rigel Constructions P/L | 1/07/2007 | 30/06/2008 | 52.2 | $26,031 | $5,477 | $20,554 | $393.75 |
Bus Qld Pty Ltd | 1/07/2007 | 30/06/2008 | 52.2 | $12,188 | $1,829 | $10,359 | $198.45 |
Net weekly over 4 years |
|
|
|
|
|
| $363.75 |
However, this table includes periods between August 2005 and November 2007 when the plaintiff was caring for his mother, in receipt of a carer’s pension and working limited hours as a bus driver. Therefore his average historical earnings of approximately $365 net per week from employment to 30 June 2008 may not be entirely reflective of his likely net earnings, on average, between February 2008 and trial.
[77] Also the periods of employment with specific employers were not always 52 weeks. He worked for Ikea for less than 11 months (adjusted weekly average $486); for St Vincent de Paul for about two months, for Bus Queensland for five months in late 2007 and for the defendant for seven months prior to 30 June 2008.
[78] Taking account of his time away from work through injury and having regard to his pay records, he appears to have been able to net $20,554 from six and a half months employment or an average of about $730 per week.
[79] The plaintiff points to the 2007-08 financial year, when he earned gross income of $38,219. This was for work undertaken with Bus Queensland and the defendant. The plaintiff submits that average weekly earnings between February 2008 and February 2013 have increased by a factor of 28.7% which represents an average annual increase of about 6%. The plaintiff claims past economic loss adjusted annually by a factor of 4% to reflect movements in wage rates. However, I am not satisfied that such an increase is justified. First, increases in earnings for all Queensland employees may not be representative of movements in income for truck drivers and bus drivers. A better point of reference would have been any increases in awards for truck and bus drivers. The plaintiff was a casual employee and vulnerable to being retrenched (as occurred in January 2009) or being offered reduced hours with the defendant. I regard the figure of $38,219 as something of a high point, given the plaintiff’s employment history. His earnings with Bus Queensland in early 2009 as a part-time driver on school runs were between $158 and $404 net per week, and on a typical week were around $375 net per week.
[80] After deduction of income tax and the Medicare levy, the plaintiff’s gross income of $38,219 for the financial year 2007-2008 reduces to $31,580 or $607 net per week. One might apply a modest increase of 2% to such a figure to reflect possible movements in wage rates. However, there is insufficient evidence about the relationship between the plaintiff’s earnings and award rates. He was not guaranteed an increasing annual income if he had remained in employment with the defendant. His hours were at the risk of being reduced even if his casual hourly rate was increased slightly.
[81] The notional income that the plaintiff would have earned for the period after 23 March 2009 needs to reflect a number of factors. One is the historic pattern of his earnings. Another is the opportunity to earn an income comparable to the one he earned as a truck driver with the defendant when fully employed. But there was no guarantee of secure employment. He had insecure employment and was at a high risk of being unemployed for periods or under-employed. If he had not been injured in February 2008 and affected by the limitations which he had in undertaking work with the defendant without assistance, he was at a high risk of being made redundant, as occurred in January 2009, due to prevailing economic conditions which affected his employer’s business. The plaintiff had pre-existing spinal degeneration which may have flared and reduced his capacity to work. He had other health complaints. I am not persuaded that he would have been in consistent full time employment after 23 March 2009. He may have obtained other employment as a bus driver but there is no evidence that it was secure or how much it would have paid him, for example if he had been employed by the employer who offered him a job in March 2009. Presumably it would have paid him more than he was earning as a part-time driver with Bus Queensland Pty Ltd at the time of the second event.
[82] Over the relevant time the plaintiff has received WorkCover payments, Newstart allowance and a disability support pension. He has also earned some income with work associated with supporting the band and this income reflects his residual earning capacity. But he would have earned this small income in any event. He would have been able to do that work on weekend evenings in addition to his day job if he had not sustained injuries as a result of the defendant’s negligence.
[83] The plaintiff lost $1,603 in income prior to the second incident due to time off work in early 2008. I adopt as a starting point a figure of $600 net per week for the period commencing 29 March 2009 or $31,200 per annum. I adopt the same net figure for the years ending 29 March 2011, 29 March 2012 and 29 March 2013. This yields a figure of $124,800 up to the approximate date upon which the plaintiff would have been unable to undertake heavy manual work. For the ensuing nine months I adopt a figure of $470 net weekly income which takes account of his income as a part-time bus driver in early 2009 (which averaged about $375 net per week) and the prospects of progressing from working longer hours as a bus driver. This yields a figure of $18,330 or a total amount of $143,130 for the period after March 2009.
[84] This figure should be discounted to reflect the fact that only 75 per cent of the economic loss can be attributed to the defendant’s negligence. This entails a discount of 25 per cent. There should also be a substantial discount to reflect vicissitudes including unemployment, ill health and injury, including the risk of significant spinal injury given the plaintiff’s pre-existing spinal condition. Overall, I consider that the figure of $143,130 should be discounted by 40 per cent. Sixty per cent of $143,130 is $85,878. To this figure I add the amount of $1,603 being the amount of income the plaintiff lost prior to the second incident. The total figure for past economic loss is $87,481.
[85] I recognise that the plaintiff has a residual earning capacity of about 20 hours per week. However, apart from the small amount which is earned assisting the band from time to time, he has not been able to exploit this residual earning capacity since he became unemployed in March 2009. The defendant submits that the plaintiff has not mitigated his loss. I am not persuaded by this argument. The plaintiff has applied for employment. His inability to obtain employment of any consequence is attributable to his injuries and the general disadvantage which he is at on the open labour market.
Interest on past economic loss
[86] The plaintiff has obtained WorkCover payments, Newstart allowance and disability support pension payments which amount to $86,270.94. In the circumstances, I will award interest on the amount of $1,210 at the rate of 3.82 per cent for five years and nine months. I allow $266 for interest on past economic loss. The figure of 3.82 per cent was agreed by the parties as an appropriate figure for interest on the plaintiff’s past economic loss.
Past loss of contributions to superannuation
[87] The past loss of employers’ contributions to superannuation should be calculated at the figure of nine per cent of the award for past economic loss. This yields a figure of $7873. Interest on past superannuation should be calculated at 3.82 per cent over a period of five years and nine months, yielding a figure of $ 1,729.
Impairment of future earning capacity
[88] Impairment of future earning capacity should be calculated over a period of eight years. After the plaintiff turns 63 he would not have pursued full time employment and any employment he pursued after that date would have been no more than 20 hours per week which reflects his residual earning capacity.
[89] As previously addressed, the plaintiff might have been earning $470 net per week at the present time if he had been working as a bus driver. The plaintiff has a residual earning capacity but his experience in employment, age and physical impairments count against his prospects of obtaining substantial employment over the next eight years. His residual capacity for employment is no more than about 20 hours per week. He has very poor prospects of securing full time employment. He is unlikely to find an accommodating employer with a position that will suit him.
[90] Before discounting for the separate contribution of the March 2009 incident and a variety of contingencies, I adopt a net weekly loss of $470 per week. This figure must be discounted at five per cent per annum over a period of eight years (multiplier 346), yielding a figure of $162,620 .
[91] Given the contingencies that I have previously discussed, including unemployment, ill health and injury, and the further discount of 25 per cent to recognise the contribution of the March 2009 incident, I consider that this figure should be discounted by 45 per cent, which results in an award for impairment of future earning capacity of $89,441.
Future loss of employers’ contribution to superannuation
[92] Applying a figure of nine per cent and disregarding possible increase in employer contributions in the future, one arrives at a figure of $8,050 .
Special damages and out of pocket expenses
[93] The plaintiff claims the following expenses in relation to the 22 February 2008 incident only:
Head of Claim | Amount |
WorkCover Queensland medical expenses | $431.00 |
WorkCover Queensland rehabilitation expenses | $946.00 |
Medicare Australia charge | $902.15 |
Pharmaceutical expenses at 75% | $219.86 |
Travel expenses claimed globally | $500.00 |
Refund to Department of Education, Employment and Workplace Relations | $2,410.51 |
Physiotherapy and other complementary therapies | $3,317.20[14] |
| $8,726.72 |
These claims are established by the evidence, and some of them are conceded. I should note that the WorkCover medical expenses are claimed in the amount of $431 (being medical expenses incurred in 2008 as a result of the first incident). The defendant conceded a higher amount, being $1,412 which included items in 2011. If these additional items are included (subject to refund) then the special damages should be increased by a further $981, giving a total of $9707.72.
[94] Interest on special damages and out of pocket expenses ought to be calculated at the agreed rate of 3.82 per cent over five years and nine months on an amount of $4,037.06 (less refunds).
[95] The Fox v Wood component is agreed as being $233.
Future expenses
[96] The plaintiff claims future expenses in the following amounts:
Nature of expense | Basis of Calculation | Cost |
Future gap expenses, travel expenses | Claimed globally | $1,000.00 |
Future pharmaceutical expenses | Claimed at $3.00 per week to age 69 on the 5% tables (multiplier 834), discounted then by 75% | $1,161.00 |
Physiotherapy and other complementary therapies | Claimed globally | 10,000.00
|
Future lawn maintenance | Claimed at $10.00 per week[15] for not less than 13.5 years (multiplier 516) discounted by 15% and then discounted by 75% | $3,289.50 |
Future cleaning | Claimed at $15.00 per week for 13.5 years (multiplier 516), discounted by 15% for contingencies and discounted by 75% | $4,934.25 |
|
| $20,384.75 |
The defendant submits that no allowance should be made for contract cleaning or lawn mowing on the basis that the plaintiff does not satisfy s 308C or 308E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). It cites the decision of Cameron v Foster.[16] That case considered the relevant provisions before they were relocated and renumbered ss 306F and 306H. Applying that decision, and having regard to the facts of this case, the claim for future lawn maintenance and future cleaning is not precluded by either section. The relevant services, namely gardening and cleaning that have been provided to the plaintiff in recent times, and after he sustained the injury, are not “gratuitous services.” They are services for which he paid the service-provider.
[97] I do not accept that the plaintiff is precluded from advancing such claims. A supplementary statement of loss and damage was filed on the morning of the first day of the trial, but I was informed that the present claim was foreshadowed in an earlier statement of loss and damage. The defendant complained that the relevant receipts were not previously included, but could point to no prejudice in that regard. The receipts relate to services provided in 2013, and I allowed the plaintiff to give evidence about the services and his need for them.[17] Because the plaintiff’s need for future gardening and cleaning services had been previewed in an earlier statement of loss and damage, he did not require leave pursuant to r 548(4) to give this evidence. To the extent that he gave evidence about the cost to him of these services in recent times, there is good reason to allow him to give this evidence, and the defendant was not prejudiced by his doing so.
[98] I consider that future expenses should be the subject of an award. The global claim of $10,000 for physiotherapy and other complementary therapies is justified. The plaintiff has required regular physiotherapy over the last five years as a result of the defendant’s negligence and has expended almost $5,000 in receiving it. The plaintiff has a need for such therapy in the future as a result of the injuries he sustained because of the defendant’s negligence. The approach to assessing heads of loss where damage is not capable of precise proof was considered by Thomas JA in McDonald v FAI General Insurance Company Limited.[18] Given the lengthy period over which therapy will be required and its probable annual cost, a global award of $10,000 is justified. The plaintiff’s claim for future gap expenses, travel expenses and pharmaceutical expenses is slightly less than the amounts conceded by the defendant in its submissions. Recognising the global nature of some of the plaintiff’s claims, an appropriate award for future expenses is $20,000.
Refund to WorkCover
[99] The plaintiff’s submissions contended that the damages award involve a WorkCover refund of $2,294.10, whereas the defendant’s submissions contended for a refund of $3,275.30. The figure of $3,275.30 represents the total of medical expenses ($1,412.20) and rehabilitation expenses ($946) together with weekly benefits paid by WorkCover in respect of his 2008 claim. In correspondence subsequent to the hearing parties agreed $3,275.30 is the appropriate figure.
Conclusion
[100] I conclude that damages ought to be assessed as follows:
Head of Claim | Amount |
General damages | $55,000 |
Interest | $3,162 |
Past economic loss | $87,481 |
Interest | $266 |
Past loss of superannuation contributions | $7,873 |
Interest | $1,729 |
Future impairment of earning capacity | $89,441 |
Future loss of employers’ contributions to superannuation | $8,050 |
Future expenses | $20,000 |
Special damages and out of pocket expenses | $9707.72 |
Interest | $886.74 |
Fox v Wood | $233 |
Sub Total | $283,829.46 |
Less WorkCover refund | $3,275.30 |
Total | $280,554.16 |
[101] There will be judgment for the plaintiff in the amount of $280,554.16. I will hear the parties in relation to costs.
Footnotes
[1] (2001) 52 NSWLR 705.
[2] (1950) SASR 176.
[3] (1990) Aust Torts Reps 81-003 at 67,577.
[4] Luntz, H, Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, Sydney 2002 at [2.5.2].
[5] Supra.
[6] [2008] QSC 331.
[7] [2006] QSC 202.
[8] [2010] QSC 161.
[9] [2010] QSC 372.
[10] [2009] QSC 412.
[11] [2009] QSC 413.
[12] [2012] QSC 91.
[13] [2013] QSC 284.
[14] Calculated by removing attendances 29/09/08 to 24/10/08 inclusive, and attendance of 17/09/13, and 20/09/13, then discounting to 75 per cent.
[15] The plaintiff having incurred $120.00 for four hours of garden maintenance.
[16] [2010] QSC 372 and on appeal [2011] QCA 48.
[17] cf Uniform Civil Procedure Rules 1999 (Qld), r548(3).
[18] [1995] QCA 436 and more recently applied by McMeekin J in Allwood v Wilson [2011] QSC 180.