Dance v Jemeas Pty Ltd (No 2) [2019] QSC 303

SUPREME COURT OF QUEENSLAND CITATION: Dance v Jemeas Pty Ltd (No 2) [2019] QSC 303 PARTIES: ROBIN AARON DANCE (plaintiff) v JEMEAS PTY LTD (defendant) FILE NO/S: 256 of 2018 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 11 December 2019 DELIVERED AT: Rockhampton HEARING DATE: 22, 23, 24, 25 October 2019; Final submissions received 5 November 2019. JUDGE: Crow J ORDER: Judgment for the plaintiff against the defendant for the sum of $620,255.97 CATCHWORDS: TORTS – NEGLIGENCE – GENERALLY – where plaintiff was injured lifting a sausage roll mix while employed by defendant – where liability and quantum are in dispute – where defendant alleges contributory negligence - where defendant alleges plaintiff provided false and misleading statements to WorkCover regarding the existence of back injury prior to the accident – whether defendant is liable – whether plaintiff was contributory negligent – whether defendant provided false and misleading statements to WorkCover Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B, s 305H, s 305F, s 306O, S 306P, s 306J, s 306N Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) Civil Liability Act 2003 (Qld) s 55 Uniform Civil Procedure Rules 1999 (Qld) r 5 McLean v Tedman (1984) 155 CLR 306 -- 1 of 58 -- 2 COUNSEL: SOLICITORS: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Guirguis Pty Ltd & Anor v Michel's Patisserie System Pty Ltd & Ors [2017] QCA 83 AAI Ltd v Marinkovic [2017] 2 Qd R 672 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Sharman v Evans (1987) 138 CLR 563 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 Mills v BHP Coal Pty Ltd [2017] QSC 184 Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124 Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 Hopkins v WorkCover Qld [2004] QCA 155 Nucifora & Another v AAI Limited [2013] QSC 338 Paul v Rendell (1981) 55 ALJR 371 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 RM Treston QC and J Sorbello for the plaintiff R F King-Scott defendant Morton & Morton for the plaintiff/respondent Hall & Wilcox for the defendant/applicant Background [1] The plaintiff, Mr Dance, is currently 44 years of age having been born on 5 May 1975. Mr Dance is a trade-qualified baker. He suffered injury to his lower back on 1 November 2016 lifting a bowl with quad-mixture weighing approximately 45.2kg. Liability and quantum are in issue. Liability - Negligence [2] Mr Dance received his trade qualification as a baker on 14 May 20101. Mr Dance then worked for approximately 6 months at the Howard Hot Bread Bakery, before working for several months at the Fraser Island Bakery. In June of 2011, Mr Dance first took up employment with the defendant, Jemeas Pty Ltd, who trades under the name ‘Top of the Bay Bakery’. Mr Steven Sarah is a director of that company and was also Mr Dance’s supervisor. 1 See Exhibit 4. -- 2 of 58 -- 3 [3] Mr Dance says that when he commenced at the Top of the Bay Bakery, he worked for two or three shifts with Mr Sarah and another baker named Murray. On the shifts that Mr Dance worked, there were two persons available to perform the task of lifting the quad-mix bowl. Photographs2 show the quad-mix bowl is a large aluminium bowl, the receptacle for ingredients to be placed in, which are mixed by a Hobart mixing machine. Mr Dance gave evidence that when he commenced work in 2011, Mr Sarah told him that two people ought to lift the large aluminium bowl from its cradle (as shown in Exhibit 1) which was a little above floor level, a vertical distance of approximately 600mm off the ground to a trolley. The bowl would then sit in the trolley which was placed upon wheels and could be moved around the bakery as required. Mr Dance explained that Mr Sarah had a sore back and Mr Sarah said that when there was a heavy pot of mixture inside the aluminium bowl, it ought to be lifted by two persons.3 [4] Mr Dance continued working for Top of the Bay Bakery from June 2011 until approximately mid-2013. From mid-2013 until September 2015 Mr Dance returned to his former occupation working as a labourer constructing cold rooms. In September 2015, Mr Dance returned to work as a baker at Top of the Bay Bakery. When Mr Dance returned to work in September 2015 he was allocated a different shift where he worked by himself. Mr Dance’s evidence that his supervisor, Mr Sarah, told him “do not lift a fiver by yourself”4 was not disputed. [5] No other instructions were provided in respect of lifting and nothing was said about moving the quad-mix. Mr Dance explained that a fiver is five times the standard recipe for the making of any particular product whereas, plainly, a quad-mix is four times the standard mixture. It is an agreed fact that the quad-mix and the aluminium bowl weighed 45.2kg. [6] From September 2015, whilst Mr Dance was working without assistance, he would, on most nights, obtain his orders from a production sheet which was left for him, instructing him as to the amount and type of bakery product that he was required to bake.5 As Mr Dance explained, the production sheet was left on the bench when he came in, he would see what was required, start preparing and then perform his bakery tasks. However, there were standard orders, made on a Sunday night and on a Tuesday night.6 [7] 1 November 2016 was a Tuesday and Mr Dance was directed to make a quad mix of sausage roll fillings.7 Mr Dance explained that he would make up the quad-mix in the large aluminium bowl, he would then activate the Hobart mixer for approximately 10 minutes and at approximately 7pm when the mixture was finished, he would transfer the quad-mix bowl from the cradle or “little trolley”, a distance of 600mm vertically and place it upon the “big trolley” as shown in exhibit 18. This was, according to Mr Dance, standard work procedure. [8] On this occasion, however, whilst performing the lift in the manner shown in the photographs, which requires the bowl to be lifted to approximately stomach height with 2 Exhibit 1. 3 T1-43/35. 4 T1-44/37. 5 T1-46/24. 6 T1-46/30-34. 7 Paragraph 5(c) admitted fact. 8 T1-47/19-20. -- 3 of 58 -- 4 his hands held on the handles of the bowl, Mr Dance heard “a pop crack”9 in his back. He then felt “instant pain” and a “tingly sensation”. [9] Mr Dance continued working for a short period of time10 until it got to the point where Mr Dance couldn’t “reach over the bench” to perform his task of piping, which is laying out the sausage roll meat in the pastry. Mr Dance then left a note in the work diary11. That work diary records an entry of 1 November 2016 which states “INCIDENT REPORT. INJURED BACK LIFTING, QUAD S/R 1900”. Plainly, it is a reference to Mr Dance injuring his back lifting a quad mixture of sausage rolls at 7pm. After he suffered his injury, Mr Dance went to the Hervey Bay Hospital to seek treatment. [10] Exhibit 2 is the emergency department clinical record of the Hervey Bay Hospital. It records that Mr Dance attended at 8:25pm on 1 November 2016. The following history was recorded: “PT AT WORK 19:00HRS WAS LIFTING 40KG MEAT TRAY, FELT A CRACK TO LOWER BACK THEN IMMEDIATE PAIN, 20MINS AFTER ONSET OF BILAT THIGH PARAESTHESIA. NIL ANALGESIA YET. PMH LEFT ARM NERVE PROBLEM.” [11] Mr Dance said that he was x-rayed at the hospital and was prescribed painkillers including a suppository and discharged. The medical records verify Mr Dance’s evidence. [12] Mr Dance gave evidence that the bakery has an internal surveillance camera, which is operational all day but “loops” every 60 days. Accordingly, there was a video of the incident, however it has not been kept. When it was called for, the video was not produced. I infer, given Mr Dance’s evidence, that because of the 60 day loop, the video was not retained. Given that Mr Dance reported his injury immediately both in the diary and by Mr Dance telling his supervisor Mr Sarah12 on 2 November 2016, then, if the defendant had any concern at all as to the circumstances of the injury occurring, it would have retained the CCTV footage. The non-retention of the CCTV footage showing the accident, which is otherwise unexplained by the defendant, allows an inference to be drawn that the defendant’s director, Mr Sarah, was satisfied that the incident occurred as reported. It is unnecessary to draw this inference as Mr Sarah gave evidence on this issue. [13] Mr Sarah’s evidence on this issue is as follows13: “MS TRESTON QC: He reported it right away, didn’t he? MR SARAH: Yes. MS TRESTON QC: And you didn’t have a minute’s doubt that he had reported honestly what had happened? 9 T1-47/21. 10 T1-47/21. 11 Exhibit 5. 12 T3-130/38. 13 T3-130/37-45. -- 4 of 58 -- 5 MR SARAH: No. MS TRESTON QC: No. And because, in fact, you then even went back and checked the CCTV footage of the night and – didn’t you? MR SARAH: I don’t recall checking the CTC – but I’ve got no doubt that it happened. I – I don’t question that.” [14] Mr Sarah’s evidence is important. Prior to 1 November 2016 no employee of the Defendant had suffered an injury in any of the defendant’s bakeries. Mr Sarah was a patently honest witness. Mr Sarah said of Mr Dance that he was “a good bloke who was reliable and punctual”14, that he employed him “without hesitation”15, that Mr Dance was “very efficient”16, that he and Mr Dance “got on very well”17, that he “was meticulous”18, was “very efficient and happy”19, the “stuff he made was very, very good”20 and that Mr Sarah definitely did not have any complaints about Mr Dance as a worker.21 [15] It is important to note that Mr Sarah had known Mr Dance for several years prior to the injury and not only spoke very highly of Mr Dance but also trusted Mr Dance’s honesty so much that he had no recall of checking the CCTV footage. Mr Sarah is, of course, beyond an independent witness; he is the director of the defendant. Mr Sarah was a candid and impressive witness and I have no hesitation in accepting Mr Sarah’s assessment of Mr Dance as an honest and impressive man. [16] Given that the incident was reported in writing on 1 November 2016 and orally by Mr Dance on 2 November 2016, and that Mr Dance immediately attended for treatment at the Hervey Bay Hospital with a consistent reporting of the mechanism of the injury, I am satisfied, as was Mr Sarah, that the injury that Mr Dance suffered occurred in the manner alleged. [17] By paragraph 8(g) of the further amended defence of the defendant (FAD), the defendant asserts that it was not negligent as “[l]ifting or attempting to lift a bowl weighing 45.2 kilograms posed such an obvious risk that it did not require a warning or counselling.” Further, the defendant alleges at paragraph 8(c) of the FAD that it was not negligent as the plaintiff “had demonstrated in the course of his employment with the Defendant, in the previous 5 years, that he was a sensible and competent baker who could be relied upon to work, independently and alone, without the need for supervision”. [18] The defendant’s allegation that the plaintiff was a sensible and competent baker is consistent with the plaintiff’s history of working as a baker both prior to and subsequent to the incident. It is to be noted that when Mr Dance previously worked for Top of the Bay Bakery in 2011, he was working in a different shift and with other bakers. However, 14 T3-119/15. 15 T3-119/20-21. 16 T3-120/2. 17 T3-120/5. 18 T3-120/43. 19 T3-127/44. 20 T3-128/3. 21 T3-128/11. -- 5 of 58 -- 6 when Mr Dance returned to the bakery in September 2015, he was allocated a different shift, working as a single baker and the only instruction provided to Mr Dance in respect of the mixing bowl was “[d]o not lift a fiver by yourself.”22 [19] When injured, Mr Dance was lifting a quad-mix which was within the scope of the instructions provided to Mr Dance by his employer because Mr Dance was shown in 2011 that the bowl was manually lifted, and specifically told in September 2015 not to “lift a fiver by yourself”. The task of making a batch of fill was a common task, Mr Dance had “prepared countless of amounts of batches”.23 [20] It is the defendant’s duty, as employer, to design, establish, maintain and enforce a safe system of work24. In his amended statement of claim (ASC), Mr Dance has made nine particular allegations of breach of the defendant’s duty of care to the plaintiff. [21] Given that the making of the sausage roll mix, including a quad mix, was a standard task to be undertaken by a sole baker, it was incumbent upon the defendant as employer either to provide the plaintiff with assistance to lift the bowl containing the quad mix that weighed approximately 45.2kgs. Alternatively, it was incumbent upon the defendant to design, establish and enforce a system of work that did not require the plaintiff without assistance to lift the bowl containing the quad mix weighing 45.2kgs. [22] The solution suggested by the defendant was to leave the quad-mix bowl in the floor level cradle and fill the sausage rolls “pipes” directly from the bowl. The defendant did not instruct Mr Dance to do that, rather, it expressly pleaded that it had relied upon the plaintiff as “a sensible and competent baker who could be relied upon to work, independently and alone, without the need for supervision”. [23] Having accepted, as I do, Mr Dance’s evidence that he was instructed “do not lift a fiver by yourself”, I find that Mr Dance was acting within the ordinary course of his employment in accordance with his employer’s instructions when he performed the standard work task of lifting a quad mix bowl. I find that the defendant is in breach of its duty of care as alleged in paragraphs 7(h) and 7(i) of the ASC. [24] In terms of s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) I conclude that: (a) the risk of injury to Mr Dance was foreseeable, indeed the defendant has pleaded it was obvious; (b) the risk was not insignificant, as, although quad mixtures were not commonly made up or lifted, it was an occasional (not infrequent) work task as the defendant’s bakery did, from time to time make up quad mix batches (and fiver mix batches); and (c) the lifting of a 45.2 kg quad-mix is well beyond safe lifting limits established by the NOISH Lifting Equation Document25 and the Hazardous Manual Tasks Code of Practice 2011.26 22 T1-44/37. 23 Exhibit 53, paragraph 17. 24 McLean v Tedman (1984) 155 CLR 306, 313 (per Mason, Wilson, Brennan and Dawson JJ). 25 Exhibit 31. 26 Exhibit 30. -- 6 of 58 -- 7 [25] I further conclude in terms of s 305B(1)(c) that in the circumstances, a reasonable person in the position of the defendant would have taken precautions of designing, establishing, maintaining and enforcing a system of work which did not require a single worker to lift a 45.2kg object. This could have been achieved by the provision of another worker to assist with the heavy lift or by filling the sausage roll pipes directly from the bowl as it sat on the cradle at floor level. [26] In terms of factual causation27 all of the medical evidence, as reviewed below, supports the finding that it was the lift of the quad mix bowl on 1 November 2016 which caused Mr Dance to suffer from his L5/S1 disc prolapse and accordingly the breach of duty in failing to provide an assistant to perform the heavy lift, or ensure there was not a single heavy lift was a necessary condition of the occurrence of the injury. [27] In terms of the scope of liability causation (s 305D(1)(b)) I conclude as the defendant was the employer of Mr Dance, and Mr Dance was carrying out his ordinary duties as an employee of the defendant as a baker, it is appropriate for the scope of liability to extend to the injury so caused. I am satisfied Mr Dance has proved negligence. Contributory Negligence [28] The defendant, by paragraph 9 of the FAD, has made allegations the plaintiff is guilty of contributory negligence. The allegations set out in paragraphs 9(a) to 9(g) are as follows: “9. If the Defendant was negligent (which is denied) then the Plaintiff was guilty of contributory negligence. Particular of which are as follows: (a) Failing to lookout for his own safety; (b) Lifting or attempting to lift a bowl weighing 45.2 kilograms, manually, when he knew or ought to have known that it was unsafe to do so; (c) Contrary to s. 305H of the Workers’ Compensation and Rehabilitation Act 2003 undertaking an activity, namely, manually lifting or attempting to lift by hand the said bowl which involved an obvious risk of injury; (d) Failing to take account of an obvious risk of injury, contrary to s. 305H of the Act, when he lifted or attempted to manually lift the said bowl; (e) Lifting or attempting to lift a bowl weighing 45.2 kg, manually in the circumstances where he had been suffering from back pain, had a long history of back problems as referred to in paragraph 7 aforesaid and where he had been warned by his chiropractor to limit his lifting; 27 WCRA s 305D(1)(a). -- 7 of 58 -- 8 (f) Failing to report to the Defendant the matters referred to in paragraph 7 aforesaid and that he should avoid lifting other than light to modest weights; (g) Lifting or attempting to manually lift a bowl weighing 45.2 kg when he was receiving regular chiropractic treatment for back pain and advice about the care of his back including avoiding heavy lifting.” [29] Contributory negligence, like negligence, ought to be judged with foresight and not with the benefit of hindsight. In the present case, as has been established, Mr Dance was carrying out a standard work task in accordance with the instructions provided by his employer. Furthermore, his employer had nightly surveillance upon Mr Dance and was able to see how he carried out his tasks. [30] The allegations made by paragraph 9 of the FAD must be assessed in the circumstances where Mr Dance was a “sensible and competent baker” who carried out a standard work task in accordance with his instructions and in a manner which was easily observable by his employer the defendant for a period of over one year prior to the incident. If the defendant, as Mr Dance’s employer, had any concern about the manner in which Mr Dance carried out his employment, then it was obliged to raise the concern with Mr Dance, to adequately supervise Mr Dance, and to comply with its legal obligation to enforce a safe system of work. I infer that the defendant did not consider, at any time prior to 1 November 2016, that Mr Dance was undertaking the work task of moving the quad bowl in a manner which was inappropriate. As recorded in paragraph [14] above, Mr Sarah had nothing but praise for Mr Dance as a worker and as a man. [31] Mr Dance’s evidence28 was that he was shown and instructed in 2011, when there were two or three “doing the shift” that two people would lift from the smaller trolley to the larger trolley. The extent of the instruction in 2011 was that Mr Sarah said to Mr Dance “[t]wo people lift the bowl up. [g]rab the side of the handle.”29 Mr Dance explained30 that when he returned in 2015 he altered from the midnight shift start, which had a number of persons, to the 6pm shift start in which he was the only person present. When Mr Dance returned in 2015 working as a single worker, the defendant did not give the plaintiff any further instructions as to how to carry out his work with the exception of stating “do not lift a fiver by yourself”31. [32] The defendant’s argument of contributory negligence amounts to a suggestion that Mr Dance ought to have known, absent instruction, that he ought not lift a quad mix and that he ought to have worked out a safe system of work by himself. As the plurality said in McLean v Tedman it is the defendant employer’s obligation to establish the safe system of work; it is not Mr Dance’s obligation as an employee to establish a safe system of work. Furthermore, as the plurality said32 “[a]ccident prevention is unquestionably one of the modern responsibilities of an employer.” 28 T1-41/25-35. 29 T1-43/41-42. 30 T1-46. 31 T1-44/38. 32 McLean v Tedman (1984) 155 CLR 306, 313. -- 8 of 58 -- 9 [33] In Bankstown Foundry Pty Ltd v Braistina33, Mason, Wilson and Dawson JJ said: “A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage” [34] In the present case, the defendant has specifically instructed Mr Dance to perform a manual lift of the bowl but with the assistance of another worker, and then changed the work circumstances to remove the other worker by placing Mr Dance on an earlier shift. The action of Mr Dance lifting the quad mix bowl was in accordance with the system of work he had been instructed to use and was not in contradiction with the only new instruction provided to Mr Dance being “not to lift a fiver by yourself”. This lends to the conclusion that it is proper to characterise Mr Dance’s action in lifting the quad mix bowl as an act of misjudgement, which does not render him responsible for part of the damage. [35] In terms of paragraph 9(a) of the FAD, Mr Dance did not fail to look out for his own safety. In terms of paragraph 9(b) of the FAD, Mr Dance did lift a bowl weighing 45.2kg manually, but at the time he did not think that it was unsafe to do so, as that was the method which had been used to lift quad mix bowls since his commencement on the new shift commencing in 2015. Mr Dance was, in effect, simply doing his job in accordance with the instructions that had been provided to him and he inadvertently did not consider the weight of the bowl when performing the single manual lift. That amounts to an act of misjudgement on behalf of a busy worker who already had the practice of working for many additional hours, for which he was not paid. [36] Paragraphs 9(c) and (d) engage s 305H of the WCRA. Sections 305F and 305H of the WCRA provide: 305F Standard of care in relation to contributory negligence (1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the worker who sustained an injury has been guilty of contributory negligence in failing to take precautions against the risk of that injury. (2) For that purpose— (a) the standard of care required of the person who sustained an injury is that of a reasonable person in the position of that person; and 33 (1986) 160 CLR 301, 310. -- 9 of 58 -- 10 (b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time. 305H Contributory negligence (1) A court may make a finding of contributory negligence if the worker relevantly— (a) failed to comply, so far as was practicable, with instructions given by the worker’s employer for the health and safety of the worker or other persons; or (b) failed at the material time to use, so far as was practicable, protective clothing and equipment provided, or provided for, by the worker’s employer, in a way in which the worker had been properly instructed to use them; or (c) failed at the material time to use, so far as was practicable, anything provided that was designed to reduce the worker’s exposure to risk of injury; or (d) inappropriately interfered with or misused something provided that was designed to reduce the worker’s exposure to risk of injury; or (e) was adversely affected by the intentional consumption of a substance that induces impairment; or (f) undertook an activity involving obvious risk or failed, at the material time, so far as was practicable, to take account of obvious risk; or (g) failed, without reasonable excuse, to attend safety training organised by the worker’s employer that was conducted during normal working hours at which the information given would probably have enabled the worker to avoid, or minimise the effects of, the event resulting in the worker’s injury. (2) Subsection (1) does not limit the discretion of a court to make a finding of contributory negligence in any other circumstances. (3) Without limiting subsection (2), subsection (1)(f) does not limit the discretion of a court to make a finding of contributory negligence if the worker— (a) undertook an activity involving risk that was less than obvious; or (b) failed, at the material time, so far as was practicable, to take account of risk that was less than obvious. -- 10 of 58 -- 11 [37] Objectively speaking, and as made plain by exhibit 31, the NOISH Lifting Equation and Exhibit 30 Hazardous Manual Tasks Code of Practice 2011, the lifting of a 45.2kg object involves an obvious risk of injury. That is not in dispute. The plaintiff has admitted in respect of paragraph 8(g) of the FAD that the lifting or attempting to lift a bowl weighing 45.2kg posed an obvious risk of injury. [38] Section 305H(1)(f) by making reference to an obvious risk raises the possibility of a finding of contributory negligence to be made, however, s 305F engages the same principles in determining contributory negligence that are applied in determining breach of duty. Importantly as provided in s 305F(2)(b) the matters are to be decided on the basis of what the person knew or ought to have reasonably known “at the time”, that is, with reasonable foresight and not with the wisdom of hindsight. Mr Dance simply did not consider the weight of the bowl when he was performing the lift as he was simply doing the job of lifting a quad bowl in the same way as he had previously whilst working on the 6pm shift, that is, by manual lift.34 Mr Dance’s state of knowledge was that such a lift would not injure him. [39] Furthermore, s 305F(2)(b) requires attention to be paid not only to what Mr Dance knew but what Mr Dance ought to have reasonably known. Given that the defendant, as Mr Dance’s employer had specifically instructed Mr Dance not to lift “a fiver” then I cannot conclude that Mr Dance ought to have known he ought not lift a quad mix. [40] Applying the general principles set out in s 305B I would conclude that the risk was foreseeable, that is, although Mr Dance did not know of this risk, it was objectively foreseeable. It is difficult, however, to conclude, from Mr Dance’s perspective, that the risk was not insignificant because Mr Dance had undertaken the task of lifting the quad mix in the same manner on many other occasions. There was no specific evidence as to the number of occasions that Mr Dance was required to make and therefore lift the quad mix in his 6pm shifts commencing from September 2015. Mr Sarah said that quad mixes were made “a couple of times a week, maybe, on the busy periods”35. As mixing a quad bowl was not an everyday task, then it would not be a task which would place Mr Dance at significant risk of injury, particularly in view of the instruction from Mr Sarah “not to lift a fiver”, at least from Mr Dance’s perspective. [41] In determining what precautions a reasonable person would have taken in Mr Dance’s circumstances, the factors in s 305B(2) are engaged. All of the factors favour a finding that Mr Dance has not been guilty of contributory negligence as: (a) the probability the injury would occur if the care were not taken is small, in that Mr Dance had previously undertaken the task on a number of occasions and without suffering injury; (b) the likely seriousness of the injury would probably be considered by Mr Dance as being a strain to his back, as had previously occurred in other circumstances; (c) the burden of taking precautions to avoid the risk of injury, being the filling of the sausage roll pipe from the bowl situated at his feet would have created an inordinate 34 T2-32/41. 35 T3-120/6-7. -- 11 of 58 -- 12 amount of bending for Mr Dance and may well have aggravated his pre-existing back pains. [42] The allegations of contributory negligence made at paragraphs 9(e), 9(f) and 9(g) of the FAD are based upon the premise that Mr Dance had been warned by his chiropractor to limit his lifting as a result of suffering from low back pain and having a long history of back problems. The allegations with respect to the chiropractor are dealt with in detail below. There is no evidence to support the premise that Mr Dance in fact was warned by his chiropractor to limit his lifting, however I accept that Mr Dance had a long history of minor low back problems. I reject the premise that Mr Dance was in fact suffering from low back pain each time he attended upon his chiropractor. As the premise for paragraphs 9(e), 9(f) and 9(g) have been rejected, I conclude that the defendant has not established that the plaintiff was guilty of contributory negligence. Quantum [43] The lifting of the quad mix caused Mr Dance to suffer an L5/S1 disc prolapse36, which caused Mr Dance to suffer “considerable pain”, and have difficulty sitting and mobilising. Associate Professor Richard Williams performed an L5/S1 discectomy in May 2017, after conservative treatment had failed. [44] Following surgery, Mr Dance was able to organise his own return to work light duties with Howard Hot Bread Bakery. Mr Dance says he fully explained his back condition to his employer and the limitations that it had placed upon him whilst working as a baker. It is an admitted fact that Mr Dance returned to remunerative employment with Howard Hot Bread Bakery on 6 September 2017 and has remained in employment with that bakery since that date, remarkably, without having any time off work for back pain. [45] By paragraph 9(d) of the ASC, Mr Dance has alleged his past economic loss for the 44 weeks between 1 November 2016 and 6 September 2017 claimed at a loss of $703 net per week, a total of $30,932. By paragraph 11(d) of the FAD, the defendant had admitted the quantum of the plaintiff’s past economic loss, however, leave was granted for the defendant to withdraw that admission with the defendant pleading in respect to the claim of $30,932 for past economic loss that the defendant: “Admits that the Plaintiff has suffered past economic loss including loss of superannuation entitlements but denies the nature and extent of diminution or impairment claimed as it believes the allegation to be untrue. By way of explanation the Defendant says it believes the Plaintiff has exaggerated the extent to which the injury has cause[d] any impairment and repeats and relies upon the matters pleaded in paragraph 7, 7A and 7B hereof.” [46] In short, the nature and extent of the injury is in dispute because, as the defendant has pleaded in paragraph 7, 7A and 7B of the FAD, that the plaintiff has a long history of low back pain and committed fraud in failing to disclose his significant past back history. [47] Paragraphs 7, 7A and 7B of the FAD provide as follows: 36 Exhibit 9. -- 12 of 58 -- 13 “7. The Defendant admits the Plaintiff reports he suffered an injury to his back at the time and place alleged in paragraph 6 of the Amended Statement of Claim and further admits that the Plaintiff, subsequently, was diagnosed as suffering a disc prolapse at L5/S1 but does not admit the occurrence of the injury and denies its nature and extent as there were no witnesses to the incident and despite making all reasonable enquiries the defendant believes the allegations to be false because: (a) the Plaintiff had a 13 year history of low back and hip pain; (b) the Plaintiff complained of a 15 year history of back ache and stiffness from heavy lifting in 2010; (c) the Plaintiff had numerous attendances (43) upon a chiropractor for lower back pain including adjustments to the L5-S1 disc prior to 1 November 2016; (d) symptoms the Plaintiff complained of when he attended the chiropractor included: (i) chronic mechanical back pain; (ii) back stiffness; (iii) pain running down back of legs to knees; (iv) numbing cold feeling in legs; (v) pain in lower back and hip area; (vi) pins and needles sensation in feet and hands. (e) three days preceding the accident he had sought treatment from the chiropractor for a very sore and stiff lower back with pain running down the back of his legs to the knees; (f) the plaintiff concealed the nature and extent of his injury and symptoms from WorkCover Queensland, the Defendant and the various medical specialists who examined him; and (g) of the matters pleaded in paragraphs 7A and 7B hereof. 7A. Further, the Plaintiff has denied any back injury or symptoms suffered or experienced prior to the alleged incident in statements provided to, and in response to questions by WorkCover Queensland, its servants or agents, as well as in response to questions by independent medical specialists knowing the denials and statements to be false and misleading and made with the intent of maximising his damages claim. Particulars of which are as follows: -- 13 of 58 -- 14 (a) In his application for compensation dated 4 November 2016, in response to the question have you previously suffered any similar injuries or conditions? The plaintiff answered no. (b) In a telephone call with Zac Coolwell, Claims Representatives for WorkCover Queensland on 7 November 2016, the plaintiff was asked to provide further details of the event and injury. The Plaintiff described his symptoms as pain above the hips to the tailbone, stiffness, discomfort and he could not sit for a long period of time. When asked if he had experienced these symptoms prior to the date of injury, the Plaintiff replied no. When asked if he had sustained this injury or a similar injury before, the Plaintiff replied no. (c) On 8 November 2016, during a discussion between the Plaintiff and Carla Pollard, WorkCover Customer Advisor, the Plaintiff was asked to describe the symptoms he was experiencing. He stated that he can walk can sit in car for about 5 mins, can bend to 45 degrees but not 90 degree, has pain in middle of lower back … can’t bend down can squat but can’t pick anything up hurt elbow 3 weeks before that so have been over compensation over terrible… When asked if he had ever sustained this injury/similar injury before, the Plaintiff replied elbow a few weeks ago. (d) On 21 February 2017 the Plaintiff was examined by Dr Richard Williams, orthopaedic surgeon, and reported that he had no prior history of Workers’ Compensation claims for low back pain but did advise of a claim for back pain in 2010 where he was off work for three or four days. In response to a question regarding whether the work related condition was an aggravation of any pre-existing conditions Dr Williams noted there is no prior history of lower back symptoms. (e) On 22 February 2017, the Plaintiff attended an examination with Dr Robert Ivers, orthopaedic surgeon. At the examination the Plaintiff stated that his back was normal prior to the injury. Dr Ivers asked the Plaintiff about his past medical history and whether his back was normal prior to the injury. The Plaintiff advised Dr Ivers that he had no problems at all with his back prior to the injury. He advised he had chiropractic treatment once a month because he felt like it and his wife was getting such treatment. (f) The Plaintiff attended the Orthopaedic Assessment Tribunal on 29 March 2017. In relation to relevant past medical history, the Plaintiff told the tribunal that other than childhood illnesses and minor industrial accidents, he has been well. -- 14 of 58 -- 15 (g) On 21 August 2017 the Plaintiff was examined again by Dr Ivers for the purposes of providing a permanent impairment assessment. The Plaintiff was taken back by Dr Ivers through the history the Plaintiff provided in the initial examination in February 2017 and that the Plaintiff agreed that the history provided was correct. (h) On 23 November 2017, the plaintiff’s solicitor disclosed a copy of a report from Dr Scott Campbell dated 10 October 2017. In relation to past medical history it is recorded that Mr Dance stated that he sustained minor episodes of lower back pain over the years requiring no specific treatment. (i) On 1 June 2018 the Plaintiff solicitor (sic) disclosed the Plaintiff’s statement of loss and damage dated 31 May 2018. In that statement for (sic) the Plaintiff stated the three years prior to the accident, the Plaintiff did not suffer any illness or injury save that the Plaintiff had a right knee injury the details of which have been disclosed to the defendant. (j) On 14 September 2018 the plaintiff solicitor (sic) disclosed a copy of report of Dr Nielsen dated 27 August 2018. In relation to medical history it is noted that there was no relevant past medical history of note. (k) The Plaintiff was again examined by Dr Ivers on 24 January 2019. Again, it was noted in the report that the plaintiff’s past medical history had been related I (sic) prior reports and there had been no change. (l) On 1 April 2019 the Plaintiff through his solicitor was requested to provide details of the name and address of any chiropractor he had attended. By letter dated 4 April 2019 the Plaintiff’s solicitor advised that the Plaintiff has not received treatment from a chiropractor in relation to this injury and that the Plaintiff’s best recollection was that he last saw a chiropractor over ten years ago. (m) Subsequently, on 14 May 2019, the Plaintiff’s solicitor further advised that he may have received a chiropractic treatment in 2016 from Harwood Chiropractic, 8/53 Torquay Road, Pialba, Hervey Bay. (n) The records of Harwood Chiropractic reveal the Plaintiff attended for chiropractic treatment on 43 occasions between 23 December 2013 and 29 October 2016. The Plaintiff disclosed in 2013, a 10 year history of lower back and hip pain, and confirmed his involvement in a motor bike accident, motor vehicle accident x 2 and lots of falls greater than 1 metre. -- 15 of 58 -- 16 (o) The majority of the attendance on Harwood Chiropractic related to lower back pain. In the final attendance on 29 October 2016 the records note lower back very sore and stiff running down the back of the legs to knees. (p) In April 2010 the plaintiff attended the Bundaberg Hospital and was seen by Dr Pradeep Bambery, Staff Physician, to whom he reported a 15 year work history of sustained physical labour which required him to lift considerable amounts of weight. During this period, he reported that he injured his back and tail bone but was told the injuries were mainly muscular. He reported that over the past 15 years and more so in the last 10 years he had the insidious onset but non progressive low back ache with stiffness lasting about 30 minutes. The stiffness tended to disappear after he starts doing some stretching and moving around. 7B. The false and misleading statements by the Plaintiff, denying the existence of any prior back condition, back symptoms and/or back injury, were made with the intent of inducing WorkCover Queensland and the Court to assess the Plaintiff’s damages on the basis that the injury suffered in the incident was the sole cause of his back injury, back symptoms and claimed loss and damage arising therefrom.” [48] The principle issue, therefore, raised upon the pleadings in paragraphs 7, 7A and 7B of the FAD calls for an assessment of the plaintiff’s credit by reference to his evidence and his actions in respect of bringing his personal injury claim and his WorkCover claim. Fraud or Error - Creditability [49] Paragraphs 7, 7A and 7B suggest that there is a strong case for fraud or false and misleading statements being made against Mr Dance. Mr King-Scott for the defendant frankly concedes some of the particulars of fraud are not made out, but argues that the number of questionable or fraudulent circumstances, together with the elbow incident (discussed later) ought to result in a finding that Mr Dance is a man of little credit who has indeed committed fraud. [50] Ms Treston of Queen’s Counsel argues that Mr Dance, by his actions, has shown himself to be a man of credit and that every particular allegation of false or misleading conduct is demonstrably wrong. [51] In order to determine the issues raised in the pleading, it is necessary to have careful regard to the past history. [52] The starting point is exhibit 59, the letter of referral of 22 August 2009 of Mr Dance’s long time general practitioner Dr Da Costa from the Childers Medical Centre to Dr Bambery, physician specialising in rheumatology at the Bundaberg Base Hospital. The letter shows that Mr Dance had some difficulties with “muscle aches and pains”. As Dr Da Costa recorded “[h]e does get back pain but not specifically low back pain waking him at nights.” -- 16 of 58 -- 17 [53] Dr Da Costa raised the concern for Dr Bambery that the pains may be attributable to a “postviral or ? some sort of partial autoimmune disease”. Dr Bambery’s response is exhibit 25 which is his report of 23 April 2010. Dr Bambery considered there was not rheumatological diagnosis. Relevantly in paragraphs 2 and 3 of Dr Bambery’s report, Dr Bambery recorded: “Robin has been generally healthy and for more than 15 years worked very hard with heavy sustained physical labour erecting cold rooms and abattoirs. This required him lifting a considerable amount of weight and fitting large panels. During that period he did injure his back and tail bone. He was investigated in Sydney and told that everything was alright and that the injuries were mainly muscular. Over the last 15 years, and more so for the last 10 years, he has insidious onset but non progressive low back ache with stiffness lasting about 30 minutes. He admits that he often sleeps 10-14 hours in a day and it is after getting out of bed from one of these marathon sleep sessions that he does feel stiff. The stiffness tends to disappear after he starts doing some stretching and moving around. It is certainly not stiff throughout the day and as long as he is moving around he is very comfortable.” (my underlining) [54] Mr Dance said of the history recorded above that he did not have long marathon sleeps. Mr Dance said that he used to work long hours as a construction worker and cannot recall why the suggestion of long marathon sleeps was included in the report. [55] Understandably, Dr Bambery had no recollection of the consultation but did explain that he intended the word “insidious” to mean a slow onset. It is relevant to note that some time prior to April 2010, Mr Dance was investigated in Sydney and told everything was alright and his injuries were mainly “muscular”. It is also important to highlight that Mr Dance had told his general practitioner Dr Da Costa in 2009 that he was having “muscle aches and pains” as the defendant suggested that the description of Mr Dance’s prior back pain as “muscular” was a recent invention contrived by Mr Dance to explain his conduct. Plainly, it is not a recent invention, it was Mr Dance’s recorded view in 2010. [56] Mr Dance’s evidence is that the muscle pains which he suffered were the normal muscle pains for manual workers and that he did not have any time off work except a few days in 2010 as a result of these muscle pains. I accept Mr Dance’s evidence in this regard, not only did he have a few days off work prior to 1 November 2016 because of pain in his back, more impressively, since his return to work in September 2017, he has not had any time off work due to the pains in his back. [57] I conclude that, Mr Dance has had some pain in his back, not specifically in his lower back, he has considered the pains to be of muscular origin since 2010 and he has had medical advice and investigations in Sydney confirmed that the origin of the pain was “mainly muscular”. Having received medical advice that the pains were mainly muscular and being able to continue working without having much time off work due to those pains, there is no reason to doubt Mr Dance when he says he considers the back pains were muscular. Indeed, for Mr Dance to consider the pains were not of a muscular origin it would be illogical as it would be against the medical advice he had received, against -- 17 of 58 -- 18 his experience and in accordance with his general life experience. That is, if you perform heavy manual work, you may feel some muscle pain. [58] On 14 September 2012, Mr Dance attended upon Mr Bradley Staer of Quay Street Physiotherapy. The records are exhibit 42. It is explained in the records and by Mr Staer, that Mr Dance’s principal complaint was of neck pain and thoracic pain. Exhibit 42 does have the curious markings on a pain diagram suggesting some problems in the thoracolumbar spine, however, it was Mr Staer’s clear evidence that Mr Staer was “mostly treating the thoracic spine”37, not the lumbar spine. Exhibit 42 does however contain the recording of a prior history of “prev LBP, not recently”. [59] Accordingly whilst attending for treatment in September 2012 on three occasions, Mr Dance disclosed that he had a prior medical history of low back pain, although it was not recent. Mr Dance made complaints of cervical and thoracic pains. [60] The next piece of important evidence is exhibit 49, the Harwood Chiropractic notes. These notes disclose that on 23 December 2013 Mr Dance attended at Harwood Chiropractic, recording a history of “lower back & hip pain – 10 years”. On page 4 of the exhibit, Mr Harwood has recorded the following history: “The patient presented on Monday, 23 December 2013 complaining of mild intermittent pain more in the right but also across the lowerback. These symptoms radiate to thighs (above knee) (R > L) – numbing/cold feeling… Changing position eases them. The onset of these symptoms has been 10 years plus - more in the last few years. These symptoms were caused by fell into a hole - 1/5 mtrs years ago -- digging trenches just the other week Since the onset these symptoms have been getting worse. This condition is relieved by resting. The condition is aggravated by physical work – lifting and also sleeping. There have been previous occurrences.” [61] On page 9 of exhibit 42 it is recorded that Mr Dance told Mr Harwood that he had been to see the physiotherapist 12 months ago for “LB”. Mr Dance then attended upon Mr Harwood on 30 December 2013 and 7 January 2014. There were numerous other (40 in total) attendances upon Harwood Chiropractic, however it is important to record what occurred on 13 January 2014. [62] On page 4 of exhibit 56, the WorkCover Communications Report for Claim No. S13AW122269, a WorkCover officer, Mr Bateman, specifically records that Mr Dance told him that “I have been seeing a Chiropractor due to lower back pain which was not there prior to event, Dr had prescribed anti-inflammatories.” Further, on page 5, the same WorkCover officer records “GP referred to specialist, went and saw chiropractor myself.” [63] This is clear evidence that Mr Dance twice informed officers of WorkCover on 13 January 2014 that he was in fact receiving chiropractic treatment. The chiropractic treatment was at Harwood Chiropractic. It is plain therefore Mr Dance had never sought 37 T3-80/14. -- 18 of 58 -- 19 to hide from WorkCover Queensland the fact that he was receiving chiropractic treatment. Indeed, he did so years before he suffered the subject injury. The fact that officers of WorkCover, and many others (as will be discussed below), overlooked Mr Dance’s self-reporting to WorkCover that he was receiving chiropractic treatment in 2014 is plain, however, it cannot be disputed that WorkCover has known since 13 January 2014 that Mr Dance has suffered lower back pain and obtained chiropractic treatment for that lower back pain. The particular allegations of fraud must be examined in light of that background. [64] The first of the sixteen particulars of fraud alleged in paragraph 7A(a) are that Mr Dance falsely declared in his application for compensation dated 4 November 2016 that he had not suffered any similar injuries or conditions. The application for compensation is exhibit 40. When confronted with the application, Mr Dance claimed he had never seen it. That is accurate. As explained by Mr Coolwell, the application for compensation is a document generated on the computer system of WorkCover. It is not Mr Dance’s document at all. Furthermore, Mr Dance cannot be held accountable for a failure of a document to be accurately generated to include Mr Dance’s history of back pain and chiropractic treatment that he informed WorkCover of on 13 January 2014. [65] The second particular of the alleged fraud is paragraph 7A(b) and is Mr Dance’s declaration to Mr Coolwell, WorkCover claims representative, that he had not suffered “these symptoms” prior to the date of injury and had not suffered a similar injury. Mr Coolwell, who was called to give evidence, understandably could not recall any information other than that included in documents being exhibits 38 and 55. With respect to the latter question, it is absolutely clear that Mr Dance had never previously suffered from an L5/S1 disc prolapse and so Mr Dance’s answer that he had not suffered this or a similar injury before is accurate. [66] With respect to the question “[h]ave you ever experienced these symptoms prior to DOI?”, and the plaintiff replying, “no”, that must be reference to the symptoms included in exhibit 38 including “pain above the hips to the tailbone, stiffness, discomfort, and can’t sit for a long period of time.” [67] The chiropractic notes, the letter of referral to Quay Street Physiotherapy38, and as was made plain by Mr Dance during his conversation with Workcover on 13 January 2014, by attending for chiropractic treatment on his lower back, he had in fact suffered from discomfort in his lower back in the past. The chiropractic notes also record that Mr Dance had suffered stiffness in his lower back in the past. I have not been directed to, and have been unable to locate, any evidence that Mr Dance suffered pain from above his hips to his tailbone and had difficulty sitting for long periods of time in any of the prior medical records which predate the injury. [68] Literally, the question is not phrased whether Mr Dance had suffered from any of these symptoms prior to the injury which would have accurately required an answer of yes, but rather whether Mr Dance had ever experienced “these symptoms” prior to the date of injury, which collectively, the correct answer is no. The answer therefore is accurate and not fraudulent. 38 Exhibit 43. -- 19 of 58 -- 20 [69] I do not consider the answer to be misleading because although Mr Dance had suffered from discomfort and stiffness in his lumbar spine prior to the date of the incident, it was of a very much different nature and extent to the pain and stiffness he suffered as a result of the incident. Furthermore, Mr Dance had already disclosed to WorkCover he had previous low back pain and was receiving treatment for it in the form of chiropractic treatment on 13 January 2014. [70] The pro forma questionnaire by referring to “these symptoms” and two questions later referring to “this injury/similar injury” suggests to the person answering the question that they compare their current symptoms to any past symptoms. It is made very plain from the evidence of Mr Harwood, as discussed below, that he did not consider that Mr Dance had any significant lumbar injury or symptoms prior to 1 November 2016. That accords with the plaintiff’s long-held view that he had muscular problems, however the L5/S1 disc injury sustained on 1 November 2016 was a new type of injury causing new and completely different types of symptoms of an intense and debilitating pain as described in Dr Williams’ reports39. It is clear that Mr Dance was not in that condition prior to 1 November 2016. [71] The third allegation of false and misleading conduct is contained in paragraph 7A(c) and relates to the 8 November 2016 discussion that Mr Dance had with a WorkCover officer, Ms Pollard. Exhibit 32 is an extract from Mr Dance’s WorkCover file. The false and misleading conduct alleged is that during the conversation, Mr Dance was asked the following question “[h]ave you ever sustained this injury/similar injury before? When?” the answer recorded is “elbow a few weeks ago”. [72] When exhibit 32 is examined in its context, it is plain that this answer is neither false nor misleading. The context of exhibit 32 shows that after the claim was accepted by Mr Coolwell, Ms Pollard, the claims manager, had a discussion with Mr Dance in which Mr Dance explained how he hurt his lower back and explained when lifting the: “Pot, meat, water etc total about 40kg. I hurt my elbow a few weeks ago and think I have been leaning to one side. Picked up the pot and felt a twinge.” [73] It is clear that what has occurred is that when explaining his lower back injury, Mr Dance has made reference to injuring his elbow a few weeks earlier which affected his lifting. There were then some discussions firstly concerning Mr Dance’s back pain, but then a discussion concerning the elbow pain as follows: “hurt elbow 3 weeks before that so have been over compensation elbow terrible – had MRI and xray – doctor says its a nerve issue pot dropped on legs and they got burned Sunburn like symptoms resolved now. feels bruised.” [74] Recording “elbow a few weeks ago” is consistent with information provided by Mr Dance to Ms Pollard, however, it is an answer referable to Mr Dance’s elbow injury and not an answer referable to the lower back injury. Given that Mr Dance had described his back problems to Ms Pollard, the question appears to relate to Mr Dance’s elbow pain 39 Exhibits 9 and 10. -- 20 of 58 -- 21 or injury and not Mr Dance’s back pain or injury. Furthermore, it is absolutely clear that Mr Dance had never previously suffered from an L5/S1 disc prolapse so his answer in respect of back injury is correct. That Mr Dance thought his prior left arm injury effected his lifting was a claim that Mr Dance first expressed at the emergency department of the Hervey Bay Hospital40 immediately after he was injured. This is not suggestive of misleading conduct, but to the contrary, it is indicative of full disclosure. [75] The fourth allegation of false and misleading conduct is paragraph 7A(d) and is curious because the paragraph has been admitted by the plaintiff in its amended reply. What is admitted is as follows: “On 21 February 2017 the Plaintiff was examined by Dr Richard Williams, orthopaedic surgeon, and reported that he had no history of Workers’ Compensation claims for low back pain but did advise of a claim for back pain in 2010 where he was off work for three or four days. In response to a question regarding whether the work related condition was an aggravation of any pre-existing conditions Dr Williams noted there is no prior history of lower back symptoms.” [76] This is a curious allegation of false and misleading conduct against Mr Dance because Mr Dance in fact told Dr Richard Williams he suffered from prior lower back pain and had a claim for lower back pain in 2010 when he was off work for 3 or 4 days. That is, all paragraph 7A(d) proves is that Mr Dance accurately told Dr Richard Williams he did have prior back pain, that he had prior history of workers’ compensation claims accepted for lower back pain, and that Dr Williams has inadvertently recorded in his report “there is no prior history of lower back symptoms” when Mr Dance told him to the contrary. The reason for Dr Williams’ error in reporting was not explored with Dr Williams. [77] Furthermore, as established by Dr Da Costa’s referral to Dr Williams41, Dr Williams was told of a prior history of degenerative disc disease being diagnosed on 4 September 2012 with Dr Da Costa’s recorded opinion being that Mr Dance had suffered “degeneration disc disease with disc bulge at both lumbar and cervical spine”. On 23 February 2017, Dr Williams sent his report42 to WorkCover Queensland. [78] The fifth allegation of false and misleading conduct is set out in paragraph 7A(e) of the FAD and relates to Mr Dance’s attendance upon Dr Ivers on 22 February 2017. Relevantly, as is recorded on page 5 of Dr Ivers’ report43, Dr Ivers recorded “Mr Dance states that his back was normal prior to the injury. He does see a chiropractor regularly for ‘adjustment’ though there does not appear to be a musculoskeletal indication for this.” [79] Exhibit 15 is a USB stick containing audio of the conference with Dr Ivers which was played in evidence and which I have further listened to. Exhibit 16 is a transcript of the recording with Dr Ivers. The transcript concerning the history of prior back pains and chiropractic treatment is contained on pages 4 and 5. As evidenced by the transcript, prior to the description of prior back pains and chiropractic treatment, Dr Ivers took from Mr Dance a full history of his current back symptoms, which was of considerable pain, an inability to sleep on a bed, requiring Mr Dance to sleep on the floor, pins and needles 40 See paragraph [10]. 41 Exhibit 10. 42 Exhibit 9. 43 Exhibit 24. -- 21 of 58 -- 22 and feeling ants crawling over him. After setting out in detail these dire symptoms, the following occurred: “Dr Ivers: Okay, so was your back normal prior to this injury? Mr Dance: Yeah, no, I had no problems with my back before that Dr Ivers: You didn’t have regular treatment with a physio or chiro or anything like that ? Mr Dance: No, no, I had seen a chiro basically I think once a month or something there Dr Ivers: Because of? Mr Dance: Just because I felt like it, the wife was seeing a chiro because she sits in a chair, she is an office worker, she was seeing it, so she said well if you’re going you may as well come with me. Dr Ivers; Each month what would he do to you? Mr Dance: Basically he just, he had me on my belly, belly I think it was, he would check if, oh no my back I can’t remember now, they had me up there he basically just, looking at my legs to see if they were the right length, twist me left, twist me right, give my head a bit of a twist left and right and that was basically it.” [80] A perusal of exhibit 40, the Harwood Chiropractic records, a consideration of Mr Harwood’s evidence as discussed below, and the evidence of Mrs Dance shows that the answers provided by Mr Dance are almost completely accurate. The inaccuracy is with the adverb “no” as it is substantially but not completely accurate. To be completely accurate, Mr Dance should have told Dr Ivers that he had virtually no problems with his back before the date of accident, rather than simply saying he had no problems with his back before the accident. However, by Mr Dance continuing to accurately tell Dr Ivers that he was having monthly chiropractic treatment more than adequately makes up for the poor choice of adverb. Furthermore, the conversation that occurred between Dr Ivers and Mr Dance as is recorded in the audio transcript shows that Mr Dance is a person who speaks broadly and in the vernacular, and does not have a tendency for absolute precision with his adverbs. Taking these matters into consideration, there is not the slightest hint of false or misleading conduct in Mr Dance’s provision of information to Dr Ivers on 22 February 2017. [81] It is to be recorded that Dr Ivers was assessing Mr Dance at the request of WorkCover Queensland. Further, as discussed below, Mr Harwood has characterised many of the consultations with Mr Dance as “maintenance” treatments, which would appear from the records to have undertaken the twisting referred to by Mr Dance in the interview of 22 February 2017. [82] The sixth allegation of false and misleading conduct is contained at paragraph 7A(f). It is pleaded that the recording by the orthopaedic assessment tribunal on 29 March 2017 that Mr Dance “told the tribunal that other than childhood illnesses and minor industrial accidents, he has been well” was false and misleading. Given that Mr Dance had not -- 22 of 58 -- 23 missed any time off work, other than a few days in 2010, for low back pain, the information recorded in the report is accurate. [83] The seventh allegation of false and misleading conduct is contained at paragraph 7A(g) and relates to the re-examination by Dr Ivers on 21 August 2017 where it is recorded that Mr Dance was taken back through his history by Dr Ivers and confirmed the initial history was correct. By confirming the initial history is correct Mr Dance is again guilty of loosely using the adverb “no” but for the reasons expressed in paragraph [80] above, he has not engaged in false or misleading conduct. To the contrary, Mr Dance has made full disclosure of his past chiropractic treatment. [84] The eighth allegation of fraud or misconduct is contained at paragraph 7A(h) is that Mr Dance, informed Dr Campbell that he had “minor episodes of lower back pain over the years”. In my view, that it is an accurate description of Mr Dance’s prior history. The phrase “requiring no specific treatment” is inaccurate as Mr Dance had the history of chiropractic treatment which he had disclosed to WorkCover in January 2014 and to Dr Ivers. Mr Dance has described his chiropractic treatment to Dr Ivers as twisting him to the left and twisting him to the right and both Mr Harwood and Mr Dance describe the treatment as maintenance.44 [85] The question then arises whether twisting adjustments carried out by a chiropractor for maintenance purposes amounts to “specific treatment” within the meaning of that phrase as it appears in Dr Campbell’s report. Given that the twisting as recorded in Mr Harwood’s notes and as described by Mr Dance to Dr Ivers is of all parts of the spine it is difficult to accept a suggestion that that type of treatment is “specific treatment”. In my view, it is fairer to describe the treatment as non-specific maintenance treatment. This is also consistent with the detailed description provided and the manner provided by Mr Dance to Dr Ivers as recorded in exhibit 16, and the manner in which the treatment was described as recorded in the audio in exhibit 15. [86] Mr Dance was cross-examined about the history he provided to Dr Campbell as follows:45 “MR KING-SCOTT: Mr Dance, you saw Dr Scott Campbell, a neurosurgeon. Do you remember him? MR DANCE: No. MR KING-SCOTT: You were sent by your solicitor to see him, and I think you saw him in Brisbane, and I’d suggest you told him that you’d sustained some minor episodes of lower back pain over the years, requiring no specific treatment? MR DANCE: I don’t remember. 44 T3-112/35-45. 45 T2-57/16-35. -- 23 of 58 -- 24 MR KING-SCOTT: You don’t remember. That was on the 10th of October 2017? MR DANCE: I don’t remember. MR KING-SCOTT: Could you have told him that? MR DANCE: I could have, if it was to do with muscle strain before 2016. MR KING-SCOTT: What is this reference to muscle strain, Mr Dance? You never used that word yesterday? MR DANCE: Well, that was basically what - - - MR KING-SCOTT: You thought that up overnight? MR DANCE: It’s basically what the whole problem was. The whole issue with my back was basically muscle. There’s no referral to a skeleton. I’ve had no x-rays, etcetera, on my back. I’ve had no time off work because of my back.” [87] Dr Campbell in his evidence did not state that Mr Dance had told him of his past history of low back pain requiring “no specific treatment”. In exploring the meaning of the phrase “over the years” Dr Campbell did say “that was a general open-ended question and – and that was what he gave.”46 Furthermore, Dr Campbell did not ask specific questions, that is, as to what the phrase “over the years” meant and whether it could have been referring to 10 or 15 years or some other period of time. Dr Campbell then frankly conceded he had overlooked the past history of regular chiropractic treatment contained in Dr Ivers’ report that was in fact provided to Dr Campbell47. [88] Dr Campbell confirmed that he did not ask Mr Dance whether he had received any chiropractic treatment in the past, stating48 “Well, I would have expected him to volunteer that, especially if it’s been bought [indistinct] reminded by another consultant. But sometimes they – sometimes they are genuinely forgetful. But being recently reminded of [indistinct] treatment, you would expect that they would bring that up in an interview.” [89] Dr Campbell was asked about the 43 chiropractic entries and the 56 occasions Mr Dance consulted with a general practitioner Dr Da Costa between 2009 and 2016 without a 46 T3-87/10-11. 47 T3-87. 48 T3-88/6-10. -- 24 of 58 -- 25 single mention of low back pain being contained in the general practitioner records. Of this, Dr Campbell said49: “Well, that would indicate that he’s not reporting back pain to the general practitioner. Yes. So he hasn’t reported it to anyone else, then that would be significant.” [90] The origin of the words “requiring no specific treatment” appear on page 3 of Dr Campbell’s report of 10 October 201750 and can only be traced back to the words being used by Dr Campbell or Mr Dance. Dr Campbell was not expressly asked whether Mr Dance specifically said in respect of his “minor episodes of lower back pain over the years” whether Mr Dance added “requiring no specific treatment” or whether it was an inference drawn by Dr Campbell based on the description of the past back pains as being “minor episodes of lower back pain over the years”. I consider the likelihood is that the phrase “requiring no specific treatment” was an inference drawn by Dr Campbell from the history provided to him by Mr Dance. I consider that likelihood is high because, as Dr Campbell has said, he asked only a general and open-ended question and he expected Mr Dance to have volunteered any treatment such as chiropractic treatment which did not occur. [91] Importantly, as Dr Campbell said51, the time of his examination, the extent of Dr Campbell’s knowledge was that Mr Dance did not have “any pre-existing problems with his lumbar spine of any significance”. If a general, open-ended question was asked, it is highly likely, given that Mr Dance had previously volunteered his past regular chiropractic treatment to Dr Ivers, that Mr Dance answered the open-ended general question in an open and general way by commenting that he had “minor episodes of lower back pain over the years”. [92] However, I cannot accept Mr Dance then added the more particular response of “requiring no specific treatment”. It is illogical for Mr Dance to have added the words “requiring no specific treatment” because he had already told that to WorkCover on 13 January 2014 and to Dr Ivers. [93] Dr Campbell’s open-ended and general questioning may be contrasted with Dr Ivers’ more specific questioning contained in exhibits 15 and 16, which drew from Mr Dance his full history of regular past chiropractic treatment. Furthermore, having observed Mr Dance in the witness box for one and a half days, and having heard the audio of Mr Dance’s consultation with Dr Ivers and the general way in which Mr Dance provided answers to questions, I consider it highly unlikely that Mr Dance would have said in respect of his minor episodes of lower back pain over the years that it required “no specific treatment”. [94] Furthermore, Dr Campbell was provided with Dr Ivers’ report recording the prior history of prior chiropractic treatment. Mr Dance could be forgiven for thinking that Dr Campbell would have read and considered that report prior to writing his own report. 49 T3-88/ 43-45. 50 Exhibit 44. 51 T3-84/9-10. -- 25 of 58 -- 26 In respect to the allegation in paragraph 7A(h) I consider that Mr Dance has not made any inaccurate statement and has provided false or misleading statements. [95] The ninth allegation is paragraph 7A(i) and alleges fraud by inclusion in the plaintiff’s statement of loss and damage dated 31 May 201852 the statement that the plaintiff had not suffered from any prior illness or injury is inaccurate. As the history above has shown, the statement is accurate. The pre-existing occasional muscular pains which Mr Dance received chiropractic treatment for is not properly described as an illness or an injury. [96] The tenth allegation of fraud is in paragraph 7A(j) and is an allegation relating to the disclosure of a report of a Dr Neilson of 27 August 2018. That report was not put into evidence and there is no evidence to support that allegation. [97] The eleventh allegation of fraud is at paragraph 7A(k) and relates to Dr Ivers’ further medical examination of 24 January 2019 and records that there had been no change to the past medical history. This has been dealt with above. It is not false nor misleading. [98] The twelfth and thirteenth allegations are paragraphs 7A(l) and 7A(m) and ought to be considered together. The defendant’s solicitor, in astutely detecting the inconsistencies in medical histories between Dr Ivers’ history of regular chiropractic treatments before the accident of 1 November 2016 and Dr Campbell’s history of “no specific” treatment, sought clarification. On 1 April 2019, the defendant’s solicitor wrote to the plaintiff’s solicitor requesting provision of “details of the name and address of any chiropractor” the plaintiff had attended. The plaintiff’s solicitor’s response53 being the letter of 4 April 2019 replied “[w]e refer to your letter of the 1 April 2019 and advise that our client has not received treatment from a chiropractor in relation to his injury. Our client’s best recollection is that he last saw a chiropractor over ten years ago.” [99] That letter was followed by a further letter of 14 May 201954 in which the plaintiff’s solicitor wrote “[f]urther to your letter of the 1st April 2019 and our reply of the 4th April 2019 our now recollects (sic) that he may have received a chiropractic treatment in 2016 from Harwood Chiropractic, 8/53 Torquay Road, Pialba, Hervey Bay Q 4655 Tel: 4124 2828.” [100] Whilst it was accurate to say that Mr Dance had not received treatment from a chiropractor in relation to the 1 November 2016 injury, it is completely inaccurate to suggest that Mr Dance had “last saw a chiropractor over ten years ago” or that Mr Dance “may have received a chiropractic treatment in 2016 from Harwood Chiropractic.” [101] As exhibit 49 shows, Mr Dance had in fact received 13 chiropractic treatments in 2016 from Mr Harwood. [102] In respect of the startling information contained in the plaintiff’s solicitor’s letter of 4 April 2019, that the plaintiff’s “best recollection is that he last saw a chiropractor over ten years ago” the plaintiff was cross examined:55 52 Exhibit 13. 53 Exhibit 14A. 54 Exhibit 14B. 55 T2-59/32-40. -- 26 of 58 -- 27 “MR KING-SCOTT: And your best recollection was you last saw a chiropractor over 10 years ago? MR DANCE: For a WorkCover injury, yes. MR KING-SCOTT: It doesn’t say WorkCover injury? MR DANCE: No. But my interpretation of it was for a WorkCover injury. MR KING-SCOTT: I see. That’s an interesting addition to it, Mr Dance. You obviously didn’t consider this very important? MR DANCE: That’s – I – I – I was in – in the frame of mind that everything I was given out was for – to – to do with WorkCover.” [103] The “interesting addition” of Mr Dance interpreting a request for chiropractic treatment as being related to WorkCover claims explains the incorrect information provided in the plaintiff’s solicitor’s letters of 4 April 2019 and 14 May 2019. It is, as defence counsel said, an interesting and convenient answer. [104] At approximately 12:40pm on the second day of trial, Mr Dance explained that the information that he provided to his solicitor to answer the questions was based on the premise that he ought only discover chiropractic treatment related to a WorkCover claim56. Mr Dance’s evidence of his actions soon after he had provided the information to Mr Land57 was that: “MR DANCE: I spoke to my partner and she said, “Verify it with them to make sure that they didn’t want to – a history of any chiropractic work at all,” not just under WorkCover. MR KING-SCOTT: Mr Dance, that’s very convenient, isn’t it? MR DANCE: No, it’s the truth. [105] It was unfortunate that Mrs Dance was sitting in the well of the court during the conduct of the trial until Day 2 at 2:46pm, because it was anticipated that she was not to be a witness. However, Mr Dance’s answer as recorded above made Mrs Dance an important witness. After Mrs Dance left the public gallery of the Court, Mr Dance was further cross-examined as to the contents of the letters of 4 April 2019 and 14 May 2019, stating that he did not tell his solicitor that he had a single chiropractic attendance, and did not tell his solicitor the number of attendances he had attended either. [106] Mr Dance was questioned as follows:58 56 T2-60. 57 T2-60/27 – 32. 58 T2-63/9-14. -- 27 of 58 -- 28 “MR KING-SCOTT: Mr Dance, I suggest to you that you wanted to play this – the chiropractic records. You can – want them to come to light. And you had second thoughts when you thought that you might be caught out? MR DANCE: They already come to light when I spoke to Dr Ivers. I already told Dr Ivers that I’d been seeing a chiropractor and when I rang back the second time, I spoke to one of the receptionists at the office. MR KING-SCOTT: Which office? MR DANCE: Morton & Morton”. [107] Mrs Dance gave evidence on day 3 of the trial. Mrs Dance is an accountant with an excellent work history. Mrs Dance has worked as a manager with Target, as an accountant with the Insolvency and Trust Services Australia and as an administration officer with the Queensland Police Service. Since 2008 she has worked as an accountant for a firm in Childers. [108] Mrs Dance’s evidence was that her husband, Mr Dance, told her what he had said to Mr Land about past chiropractic treatment, namely “he had not attended a chiropractor in the last 10 years for any WorkCover injuries.” Mrs Dance, gratuitously described by Mr Hoey as a “loving wife”, replied to Mr Dance “You idiot. Why did you say WorkCover? Why not any chiropractor?” to which Mr Dance replied that “he assumed Mr Land only wanted to know about WorkCover.” Mrs Dance then explained to Mr Dance that the question asked of him was not whether he had attended on a chiropractor for WorkCover but rather it was a general question of whether he had attended a chiropractor so Mr Land “perhaps he asked about all chiropractor visits?” [109] Remarkably, after having received the good common sense guidance from his wife, Mr Dance disagreed, telling his wife she was wrong and that he, Mr Dance, was correct in interpreting the question in the odd way in that he did. [110] On the following day, Mrs Dance again, but more gently, sought to persuade her husband that he was wrong to interpret Mr Lord’s question as being specific only to WorkCover related chiropractic treatment. Her evidence at T3-33 lines 30-35 is: “MRS DANCE: We talked about it the next day or something like that and he still said that he thought Mr Land was just after WorkCover, that he – maybe he didn’t have a copy of the WorkCover files, because they wouldn’t be attached to his medical history from Dr Da Costa. And that he should have all of our other medical information so he was imagining only the WorkCover information was the only thing that Mr Land didn’t have. -- 28 of 58 -- 29 MS TRESTON QC: And did you repeat to him your view about it? MRS DANCE: Yeah. I said to him that the question didn’t say specifically what he was after and it was very general and I said that because the chiropractor is not claimed under Medicare, that it wouldn’t appear on Dr Da Costa’s files but should appear on our Peoplecare file.” [111] Mrs Dance provided her evidence in an open and candid fashion. I consider her to be an honest witness. Indeed, it was not suggested to Mrs Dance that she was not an honest witness. Whilst it would have been preferable if Mrs Dance had not sat in the Court and heard the evidence of Mr Dance, I consider that she is a credible and reliable witness. Indeed, Mrs Dance provided far more detail than Mr Dance did concerning the provision of the incorrect information to Mr Land. [112] The plaintiff’s solicitor, Mr Land, obtained instructions to waive privilege in respect of the letters of 4 April 2019 and 14 May 2019. Mr Land swore an affidavit which was read into evidence and Mr Land was cross-examined. Mr Land frankly and properly conceded he had made a number of errors in the conduct of his client’s case. Firstly he overlooked obtaining instructions from Mr Dance in relation to the previous chiropractic treatment which was referred to in Dr Ivers’ report of 23 November 2017. Accordingly, when Mr Land received the request for information from the defendant’s solicitor on 1 April 2019, he did not have in his mind the clear disclosure by Mr Dance of having regular chiropractic treatment. That was an error. Mr Land did not discuss with Mr Dance the attendance on any chiropractor at all until 2 April 2019 when he obtained instructions from Mr Dance that “he had not seen a chiropractor in relation to his current injury and that he could not recall seeing a chiropractor for over 10 years”.59 [113] As discussed above, Mr Dance had provided those instructions to Mr Land on the assumption that Mr Land was seeking only chiropractic treatment related to WorkCover claims. In relation to the history provided by Mr Dance to Mr Land on 2 April 2019, Mr Land’s best recollection was that he asked a general and open question if Mr Dance had ever seen a chiropractor in the last 10 years, to which Mr Dance responded “I haven’t seen a chiropractor in relation to this injury.”60 [114] It is apparent that Mrs Dance’s repeated attempts to persuade Mr Dance to telephone his solicitor and inform the solicitor that he had received prior chiropractor treatment succeeded. [115] Exhibit 28 is the file note taken by Mr Land’s office manager recording that on 9 April 2019 “Robin Dance phoned and said that Melissa reminded him that he did see a chiropractor in about 2016 but it was prior to the accident and it was just a maintenance thing.” 59 Affidavit of Adrian Scott Land filed 30 May 2019. 60 T3-27. -- 29 of 58 -- 30 [116] Mr Land admits his further error in not following up the telephone message of 9 April 2019 to obtain further and better information. Rather, what occurred was that simply on 14 May 2019, Mr Land telephoned Mr Dance and asked him the identity of the chiropractor he attended. Mr Dance accurately answered that it was Harwood Chiropractic in Hervey Bay. Mr Land frankly and in accordance with his duties to the Court and to his client, explained his uncharacteristic behaviour as being due to the pressure of workload and the intervention of public holidays including the Easter public holidays, the Anzac Day public holiday, Labour Day public holiday, and the absence of staff. [117] Mr Land considered that the phrasing used in Exhibit 14B letter of 14 May 2019 of “may have received a chiropractic treatment in 2016” was his own misinterpretation of information that he had been provided with and failed to independently verify. [118] As recorded by Mr Land61, although Dr Ivers’ report of 23 September 2017 clearly recorded regular past attendances on a chiropractor, that was not in Mr Land’s mind when he drafted the correspondences of exhibits 14A and 14B, nor when the notice of claim for damages62 was drafted. It is important to note that Mr Dance’s unusual response to Mr Land on 2 April 2019 disclosing only WorkCover related past back claims is consistent with Mr Dance’s answer to Dr Campbell to a similar generally-expressed question. It is also consistent with Mr Dance’s own strongly held personal belief, despite his wife’s accurate and repeated attempts to have Mr Dance see the requests for information as being a more broad and general request for all chiropractic treatment, not just WorkCover related chiropractic treatment. [119] That can be contrasted with the more specific questions asked by Dr Ivers, which gained an accurate response. The evidence of Mrs Dance, which I accept, corroborates that it was the genuinely held (but mistaken) view of Mr Dance that he was being required to disclose only WorkCover related past chiropractic attendances. Furthermore, Mr Dance took positive steps, eventually accepting his wife’s reasonable advice to correct the record by telephoning his solicitor on 9 April 2019. In an uncharacteristic and unfortunate oversight, Mr Land did not further investigate and explore the information provided by Mr Dance on 9 April 2019. Mr Dance, having corrected the record on 9 April 2019, by provision of information to his solicitor that he had been attending upon a chiropractor in 2016 for maintenance was sufficient and reasonable action to correct Mr Dance’s genuinely-held erroneous belief that he was required to disclose WorkCover related chiropractic visits only. [120] At paragraph 7 of the defendant’s written outline of submissions, the defendant identified ten “key circumstances” argued to be pertinent to the plaintiff’s credibility. Seven of the ten are dealt with above and loosely align with some, but not all, of the sixteen allegations of fraud set out in paragraph 7A of the FAD. The three new “key circumstances” are identified in paragraphs 7(d), (i) and (j) of the defendant’s outline of submissions.63 [121] In paragraph 7(d) of the defendant’s written outline of submissions the defendant particularises a key circumstance pertinent to the plaintiff’s credibility as being the circumstances surrounding Mr Dance’s WorkCover claim for an elbow injury. Then by 61 T3-28. 62 Exhibit 12. 63 Exhibit 61. -- 30 of 58 -- 31 paragraphs 29 to 39 of the defendant’s submissions, defence counsel submits that Mr Dance’s credit has been found wanting by including in the bakery diary a fraudulent entry of 25 September 2016 claiming Mr Dance had suffered on an elbow injury on that date. The defendant’s bakery diary, exhibit 23, does contain in red ink notation above Sunday 25 September 2016 “incident report injured left elbow lifting 15kg boiled thickened meat. 1900. Incident report Sunday.” [122] The use of red ink would appear to be a relatively common practice. It appears on many pages of the diary with red notations at the top in capital letters also are included on 25 July 2016, 6, 7, 9, 13, 14, 18, 28 and 29 August 2016, 2, 3, 4, 6, 7, 8, 9 and 11 September 2016 and 4 October 2016. Accordingly the inclusion of the red ink being the injury report is of itself entirely unremarkable. The defendant’s submission is that Mr Dance has fraudulently included the entry on Sunday 25 September 2016. It is difficult to entertain given the unchallenged evidence is that Mr Dance did not return to the bakery after 1 November 2016 and accordingly has not had access to the book since 1 November 2016. Therefore, I conclude that the entry was included by Mr Dance prior to 1 November 2016. [123] A difficulty for the defendant in respect of the left elbow, is that the claim arises from the discussion that Mr Dance had with Ms Pollard on 8 November 2016. I conclude that the entry recorded on 25 September 2016 is a genuine entry. Whilst it is true, as pointed out by the defendant’s written submissions that Mr Dance did have some difficulties with his left elbow prior to 29 September 2016, having attended upon his chiropractor with left elbow adjustments on 3 and 17 September 2016, that does not prove that Mr Dance did not suffer an elbow injury prior to 1 November 2016. [124] All that shows is there was some difficulty with the left elbow prior to 29 September 2016, not that an incident did not occur on that date. It is relevant that Mr Dance, when making report to WorkCover on 9 November 2016 was unsure with the date of the incident being 25 September 2016 or 29 September 2016 which he claimed to be a Friday, but was in fact a Thursday. Mr Dance did, so it is recorded, tell WorkCover on 9 November 2016 that the date of the incident was probably 11 September 2016 because he had attended at a doctor on 29 September 2016. [125] In fact, as the Childers Medical Centre records show, Mr Dance did attend on 30 September 2016 but reported that there had been pain in the elbow for a few weeks. Again all that shows is that there was some complaint of elbow pain in early September 2016. Whilst the Childers Medical Centre records on 30 September 2016 do not relate any part of the elbow pain to any work incident, the difficulty for the defendant is that inconsistency was not squarely raised with the plaintiff so as to obtain his considered response. [126] The incontrovertible method of proving whether an incident occurred or not on Sunday 25 September 2016 was to examine the CCTV footage of the bakery which remained in existence for 60 days, i.e. until 25 November 2016. That is, definitive proof one way or the other was available as to whether an elbow injury occurred on 25 September 2016 at the time a claim for left elbow compensation was first raised on 9 November 2016. In fairness to Mr Dance it must be recorded that the so-called left elbow claim did arise out of a discussion that he had with Ms Pollard as detailed in paragraphs [72] to [75] above. That is, the so-called left elbow injury claim came about only as a result of a discussion about the lifting involved on 1 November 2016. -- 31 of 58 -- 32 [127] It is important also to record that Mr Dance’s left elbow claim was rejected by WorkCover on the basis that on the original date of the incident, Sunday 25 September 2016 and the latter nominated date of injury 11 September 2016 were both Sundays and the defendant’s roster showed that Mr Dance did not work on a Sunday. Whilst it may be accepted that the defendant’s records show that Mr Dance did not work on a Sunday, that does not mean that Mr Dance did not in fact work on a Sunday. Indeed, it is common ground that Mr Dance did work on Sunday. As explained by Mr Sarah64 Mr Dance did normally work from Sunday afternoons through to Thursday afternoons, however Mr Dance was not paid Sunday penalty rates despite working on a Sunday. As Mr Dance said, and he was not contradicted65 he was instructed by Mr Sarah to fill out the time sheets by entering the time he worked on Sunday as time worked on Monday so the defendant did not have to pay the Sunday penalty rates. I conclude that Mr Dance did have some minor left elbow pain in early September 2016, that he did suffer from a further minor strain of his left elbow on Sunday 25 September 2016, and wrote the entry recorded in exhibit 23, the original diary, on Sunday 25 September 2016. [128] Mr Dance did provide a history of pain in his left elbow “since a few weeks” to his general practitioner Dr Da Costa on 30 September 2016, there is a referral for an x-ray an ultrasound of the left elbow on 21 October 2016 but no further mention of left elbow pain in Dr Da Costa’s notes despite consultations on 3 November 2016, 15 November 2016, 29 November 2016, 18 January 2017, 23 January 2017, 15 February 2017, 20 February 2017, 9 March 2017, 21 March 2017, 30 March 2017, 12 April 2017, 26 May 2017, 9 June 2017, 23 June 2017, 14 July 2017, 24 July 2017 and 31 August 2017. The last entry in which left elbow was mentioned is the entry of 4 January 2017 with Dr Da Costa recording “review to get workcover certificate and ortho ref/left elbow sore and swelling”. [129] I conclude that the left elbow issue does not suggest that Mr Dance had engaged in any dishonesty. It would appear to be a minor and short term injury that was mentioned by Mr Dance to the Hervey Bay Hospital staff66 and to Ms Pollard67 of WorkCover in order to provide a complete history. [130] By paragraph 7(i) the defendant argues that a key circumstance pertinent to the plaintiff’s credibility is the claim for special damages unrelated to the subject injury. The plaintiff had unsuccessfully attempted to tender a quantum statement, however did tender exhibit 8, a schedule of special damages which he swore was prepared “in conjunction” with his solicitors and the plaintiff further gave evidence that “these are all related to the expenses” that he had incurred for his back. Unfortunately the schedule included expenses for unrelated treatment which can be plainly demonstrated by review of the records of the physiotherapist Physikal. [131] In a case where a plaintiff’s credit is attacked, the claiming of special damages which are in fact not related to his claim can be a major obstacle to a finding that a plaintiff is a credible witness. The fact that exhibit 8 contains special damages which are truly unrelated is somewhat lessened by the plaintiff’s later concession, deducting a larger percentage of unrelated items than in fact is the case (see discussion at paragraphs [207] 64 T3-120/20-35. 65 T2-90/1-50. 66 See paragraph [10]. 67 See paragraph [71] – [74] above. -- 32 of 58 -- 33 to [220] below). The troubling part of it all is that the schedule is plainly inaccurate when compared to the medical records, yet it was tendered as being accurate and prepared “in conjunction with your solicitors”. In a case where special damages cannot be agreed, and ordinarily they ought to be agreed, particular care must be taken to ensure that only expenses which in fact relate to the injury are claimed. This had not occurred in the present case. Again, it is not unreasonable for Mr Dance to rely upon his legal advisors and Mr Dance did swear that he relied on his legal advisors with respect to the accuracy of his documentation. Despite the issue being directly raised68, and despite the fact that it ought to have been addressed, by specific identification of the unrelated entries, the errors in over claiming special damages to a minor extent do not cause me to doubt Mr Dance’s credit. [132] In paragraph 10(j) and paragraphs 77 to 79 of the defendant’s written outline of submissions, the defendant identified other alleged misleading statements as key circumstances pertinent to the plaintiff’s credibility. There was no misleading statement identified, but rather the submission is “the Plaintiff continued to mislead the Court during his evidence, insinuating he has sustained a reduction in hours due to performance issues, namely him being too slow in completing his work.” [133] The defendant’s submission is made by reference to Mr Dance’s evidence when questioned “but you worked more than that because you were a bit slow, is that what you are trying to say? --- Yes”69 [134] Mr Dance’s evidence on the reduction in shifts is at T1-79 line 30 to T1-80 line 30. There is no evidence by which it could be concluded that the plaintiff insinuated his hours were being reduced because he was being slow. [135] In assessing the credibility of a witness it is necessary to “test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives”70. [136] Mr Dance had on 13 January 2014 in fact informed WorkCover that he was receiving chiropractic treatment, and again told Dr Ivers on 22 February 2017 that he was in fact receiving regular chiropractic treatment. Accordingly, I conclude that Mr Dance did not seek to defraud or mislead WorkCover or any other person. Furthermore, the objective facts of Mr Dance’s remarkable efforts at rehabilitation, his obtaining of his own return to work scheme, and demonstrated incredible work ethic, as discussed below, lead me to conclude that Mr Dance is an honest and credible man. If Mr Dance’s motive was to defraud to increase his claim for damages, then he should have stopped work and claimed a complete incapacity. Mr Dance has acted in a completely contrary fashion, and has done as much as is possible to reduce his claim and damages. General Damages [137] Sections 306O and 306P of the Workers’ Compensation and Rehabilitation Act 2003 require an assessment of an ISV (injury scale value) to be undertaken applying the 68 T1-88/35. 69 T1-64/5. 70 Guirguis Pty Ltd & Anor v Michel's Patisserie System Pty Ltd & Ors [2017] QCA 83 [50]. -- 33 of 58 -- 34 Workers’ Compensation and Rehabilitation Regulation 2014 (WCRR). Relevantly, Schedule 8, Sections 7, 9, 11 and 12 provide: “7 Aggravation of pre-existing condition (1) This section applies if an injured worker has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV. (2) In considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury. 9 Court may have regard to other matters In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case. Examples of other matters— •the injured worker’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life •the effects of a pre-existing condition of the injured worker •difficulties in life likely to have emerged for the injured worker whether or not the injury happened •in assessing an ISV for multiple injuries, the range for, and other provisions of schedule 9 in relation to, an injury other than the dominant injury of the multiple injuries 11 Medical report stating DPI If a medical report states a DPI, it must state how the DPI is decided, including— (a) the clinical findings; and (b) how the impairment is calculated; and (c) if the DPI is based on criteria provided under AMA 5— (i) the provisions of AMA 5 setting out the criteria; and (ii) if a range of percentages is available under AMA 5 for an injury of the type being assessed—the reason for assessing the injury at the selected point in the range. Notes— 1 It is not a function of a doctor to identify— -- 34 of 58 -- 35 (a) the item in schedule 9 to which an injury belongs; or (b) the appropriate ISV for an injury. 2 A medical report tendered in evidence in a proceeding for a claim for personal injury damages must comply with the Uniform Civil Procedure Rules 1999 , chapter 11, part 5. 12 Greater weight to assessments based on AMA 5 (2) This section does not apply to a medical assessment of scarring or of a mental disorder. (3) In assessing an ISV, a court must give greater weight to a medical assessment of a DPI based on the criteria for the assessment of a DPI provided under AMA 5 than to a medical assessment of a DPI not based on the criteria.” [138] Items 90 and 91 provide: 90 Serious thoracic or lumbar spine injury Comment  The injury will cause serious permanent impairment in the thoracic or lumbar spine.  The injury may involve— (a) bilateral or multilevel nerve root damage; or (b) a change in motion segment integrity, for example, because of surgery. Example of the injury A fracture involving at least 25% compression of 1 thoracic or lumbar vertebral body Comment about appropriate level of ISV  An ISV at or near the bottom of the range will be appropriate if— (a) the injured worker has had surgery and symptoms persist; or (b) there is a fracture involving 25% compression of 1 vertebral body.  An ISV in the middle of the range will be appropriate if there is a fracture involving 50% compression of a vertebral body, with ongoing pain.  An ISV at or near the top of the range will be appropriate if the injured worker has had a fusion of vertebral bodies that has failed— (a) leaving objective signs of significant residual nerve root damage and 16 to 35 -- 35 of 58 -- 36 ongoing pain, affecting 1 side of the body; and (b) causing a DPI of 24%. 91 Moderate thoracic or lumbar spine injury— fracture, disc prolapse or nerve root compression or damage Comment about appropriate level of ISV  An ISV at or near the top of the range will be appropriate if— (a) there is a disc prolapse for which there is radiological evidence at an anatomically correct level; and (b) there are symptoms of pain and 3 or more of the following objective signs, that are anatomically localised to an appropriate spinal nerve root distribution— (i) sensory loss; (ii) loss of muscle strength; (iii) loss of reflexes; (iv) unilateral atrophy; and (c) the impairment has not improved after non-operative treatment.  An ISV of about 10 will be appropriate if there is a fracture of a vertebral body with up to 25% compression, and ongoing pain.  An ISV at or near the bottom of the range will be appropriate for an uncomplicated fracture of a posterior element of 1 or more of the vertebral segments, for example spinous or transverse processes, without neurological impairment. 5 to 15 [139] Paragraph 9 of the ASC pleads a claim of $25,800 damages for pain and suffering said to be an ISV of 15 based on Item 91 of the WCRA. The sum of $25,800 is in fact an ISV calculated under the Civil Liability Regulation 2014 (Qld) which differs in an incremental value with respect to the quantification of an ISV under the provisions of the WCRA. An ISV of 15 under the WCRR for an injury suffered between 1 July 2015 and 30 June 2017 quantifies general damages in the sum of $25,150. By paragraph 35 of the plaintiff’s written submissions71 an ISV of 20 is sought which equates to an award of $36,250. The submission is made that “[g]eneral damages ought to be assessed in accordance with item 90 of the WCRR with a range of 16 to 35.” An award for a head of damage in excess of that particularised in a statement of claim may be allowed where the evidence permits, and relevant issues to the quantification of the head of damage are sufficiently explored in evidence, such that there is no procedural disadvantage to the defendant72. 71 Exhibit 60. 72 AAI Ltd v Marinkovic [2017] 2 Qd R 672 [89] – [108]. -- 36 of 58 -- 37 [140] In my view there is no doubt as to the nature of Mr Dance’s injury. Exhibit 9 is Associate Professor Richard Williams’ report to WorkCover dated 21 February 2017. Associate Professor Williams records that on examination on 21 February 2017 Mr Dance was “in considerable pain” and “the diagnosis is work related right L5/S1 disc prolapse … [i]n my view Mr Dance would benefit from a right L5/S1 discectomy procedure.” [141] In his follow up letter of 16 June 201773 Associate Professor Williams said “I saw Robin today five weeks after right L5/S1 discectomy. He has improved vastly compared with his pre-operative status when he was largely unable to walk.” [142] Also in exhibit 9 is the conference note signed by Associate Prof. Williams on 2 September 2019 recording “We discussed the annotations and the records of Harwood Chiropractic and also the letter from Dr Bambery, Rheumatology clinic at Bundaberg Base Hospital in 2010, detailing the plaintiff’s reported history of back pain”. Associate Professor Williams concluded “this history revealed the plaintiff was a man with intermittent, symptomatic back symptoms prior to this work event.” [143] Dr Robert Ivers, orthopaedic surgeon, examined Mr Dance on 22 February 2017 for the purpose of providing a medicolegal report to WorkCover Queensland. Dr Ivers diagnosed an “aggravation of L5/S1 disc degeneration with disc prolapse” and in his later report of 4 February 2019 diagnosed “L5/S1 disc prolapse requiring surgery”. Dr Ivers accepted that the neuropathic pain that Mr Dance was suffering from was attributable to the L5/S1 disc injury. In his report of 23 May 2019, Dr Ivers quantified an overall 12% whole person impairment then, utilising GEPI 2 guidelines, deducted one-tenth of the assessment of permanent impairment, thus reducing the whole person impairment attributable to the L5/S1 disc prolapse to 11%. Dr Ivers considered the chiropractic and other health records, and commented on the effect of pre-existing lumbar degeneration, “[w]ithout the original work injury and the requirement for surgery, it is likely that some symptoms, similar to those described by the chiropractor, would have remained.” [144] Dr Scott Campbell, neurosurgeon, examined Mr Dance on 10 October 2017 and diagnosed a right L5/S1 disc protrusion requiring discectomy surgery. Dr Campbell categorised Mr Dance’s injury as a DRE Category III injury and assessed a 13% whole person impairment. As discussed above, although Dr Campbell had been provided with Dr Ivers’ report recording that Mr Dance had regularly received chiropractic treatment, Dr Campbell, in common with many others, had overlooked that when forming his initial opinions concerning permanent impairment. [145] After considering the chiropractic record, Dr Campbell advanced an opinion he did not “feel strong about” based on his “gut feeling”74 that between 30% to 50% of the degree of permanent impairment ought to be attributable to the pre-existing degenerative condition. [146] Professor Richard Williams’ report was tendered by consent without any cross- examination being required. Both Dr Ivers and Dr Campbell were cross-examined as to the content of their reports and file notes. In summary, Dr Ivers considered that Mr Dance’s past history of symptoms of low back pain and ache would have continued, absent the subject injury. Dr Ivers considered, because Mr Dance was a highly motivated 73 Exhibit 9. 74 T3-84/39. -- 37 of 58 -- 38 individual, he would continue to work notwithstanding his symptoms as long as Mr Dance had considerable assistance from co-workers and an empathetic employer. Dr Campbell considered that it was unwise for Mr Dance to continue to work with his back in its condition having suffered from an L5/S1 disc prolapse, however, he conceded that he would “not stand in the way” of any person determined to work and to put up with the considerable pain that they would suffer as a result of performing the work. [147] The apportionment issue – that is whether 10%, 30% or 50% or some other figure ought to be deducted for the effects of the pre-existing spondylosis occupied much of the cross- examination of both experts. Dr Ivers explained in theory that what was required was an assessment of permanent impairment according to GEPI or AMA hypothetically to be made on the day prior to the incident, rendering a hypothetical impairment that needed to be deducted from the current impairment, carefully measured by the physician conducting an examination in accordance with the AMA guides. Dr Ivers considered because of the impossibility of an accurate analysis of the pre-existing disability, that the GEPI guides had arbitrarily accepted a 10% reduction for all pre-existing degeneration as long as it was “not at odds with the available evidence”. That, in essence, is an arbitrary choice of an assessment in respect of spinal injuries in most cases as a DRE Category I injury, that is, with a 0% to 3% impairment. [148] Dr Campbell, on the other hand, did not apply the GEPI-endorsed arbitrary 10% deduction, preferring an even more arbitrary assessment based on “gut feeling”75 in accepting that ordinarily, a patient who had ongoing lower back pains ought to be more properly classified as a DRE Category II injury, that is with 5% to 8% impairment, rather than a DRE Category I injury with 0% to 3% impairment. Thus, for the L5/S1 disc prolapse which was certainly a DRE Category III injury, Dr Campbell thought it was appropriate to deduct 30% to 50%. It must be acknowledged that on careful cross- examination both experts exposed their reasoning process, as is required by Dasreef Pty Ltd v Hawchar76 with each expert selecting a different arbitrary method. Dr Ivers was, however, consistent in his view, whereas Dr Campbell altered his view between 30% and 50%. [149] On the issue of the level of permanent impairment, which is relevant only to the assessment of an ISV, I prefer Dr Ivers’ opinion because it is consistent, accords with my reading of the Harwood Chiropractic records77, and the evidence of the chiropractor Mr Harwood that Mr Dance had in fact improved in 2014 over 2013. Accordingly, I prefer Dr Ivers’ opinion concerning the level of permanent impairment attributable to the incident at 11%. [150] Although pleaded as an Item 91, I consider the plaintiff’s written submission is correct that the injury ought to be quantified as an Item 90, serious lumbar spine injury. In particular, I note from Item 91 that an ISV at or near the top of the range is appropriate if “the impairment has not improved after non-operative treatment.” In the present case there has been operative treatment and, whilst Mr Dance’s symptoms have improved significantly, it cannot be said that his impairment has improved. Mr Dance’s impairment is, as a result of the L5/S1 disc prolapse. 75 T3-84/39. 76 (2011) 243 CLR 588. 77 Exhibit 49. -- 38 of 58 -- 39 [151] Item 90, on the other hand, mentions surgery twice, and in particular Mr Dance’s injury falls within the first example under the comment about the appropriate level of an ISV in Item 90 namely “the injured worker has had surgery and symptoms persist”. I would consider that Mr Dance’s injury is properly quantified as a serious lumbar spinal injury but with an ISV at or near the bottom of the range. Taking into account Mr Dance’s age of 44 years, the considerable pain that he suffers, notwithstanding his extraordinary rehabilitative efforts, I consider it appropriate to find an ISV of 18 quantifying general damages at $31,810. Interest is not allowable on general damages (section 306N). Past economic loss [152] The quantification of the 44 weeks’ loss from 1 November 2016 to 6 September 2017 at $703 per week giving a total of $30,932 is not disputed. The defendant does, however, rely upon authority78 to deduct the travel that Mr Dance would have taken in reduction of economic loss. On principle, which works both ways79, that is correct. Accordingly, from the quantified sum of $30,932, which of itself is less than the amount of weekly benefits WorkCover paid Mr Dance, it is necessary to deduct travel expenses for travel 5 days per week at 82kms at the agreed rate of $0.66/km, a further sum of $11,906. Past economic loss is quantified at $19,026. [153] Whilst I accept the defendant’s argument that travel ought to be deducted from the Mr Dance’s claim for past economic loss, I cannot accept the defendant’s argument that there ought not be any award for past economic loss. In a detailed calculation set out in paragraphs 132 to 143 of the defendant’s written outline of submissions, the defendant argues that, notwithstanding Mr Dance is a fraudulent plaintiff, the fact that he has found his own return to work scheme which in fact turned into employment at Howard Hot Bread Bakery on 14 September 2017 and with an increased wage of approximately $1100 npw and without taking any time off work for back injury or any other illness or sickness, mathematically, past economic loss is nil. The defendant argues that there has been no past economic loss because the combined effect of Mr Dance increasing his average net weekly income by over $300 per week and the saving of the travel expenses. Whilst I consider it in accordance with principle and fair to deduct the travel expenses, as Mr Dance ordinarily worked his shift alone, and thus there was no reasonable prospect of a reduction of expense through sharing of travel expenses, and because Mrs Dance worked in Childers, I do not accept it is reasonable to deduct the plaintiff’s increased earnings consequent upon his return to work at Howard Hot Bread Bakery. [154] As set out above, it is Mr Sarah’s evidence that Mr Dance is a meticulous baker, a good worker, and that there is a high demand for qualified bakers. In view of Mr Dance’s high work ethic and fine personal characteristics as attested to by Mr Sarah, the high demand for qualified bakers, the fact that Mr Dance was able to find his own return to work scheme and then obtain full time employment, together with Mr Dance’s history of altering his employment from time to time, I consider it likely that Mr Dance would have sought other and higher paying employment or self-employment had he not been injured on 1 November 2016. Whilst from September 2015 until 1 November 2016, Mr Dance was prepared to work numerous unpaid hours and not be paid penalty rates for working 78 Sharman v Evans (1987) 138 CLR 563, 577; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 490 – 495; Mills v BHP Coal Pty Ltd [2017] QSC 184 [27]. 79 Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124 [47]. -- 39 of 58 -- 40 on Sundays, I do not accept Mr Dance would have been prepared to work under those conditions indefinitely. [155] There is no interest allowable as the award is significantly less than the WorkCover benefits that have been paid. [156] Superannuation is agreed at the rate of 9.25%. The parties agree that the loss of past superannuation benefits ought to be allowed at 9.25% of the total of the past economic loss of $30,932 not reduced by the saved travel expenses, a sum of $2,861. Loss of Economic Capacity [157] In Heywood v Commercial Electrical80 Muir JA, with whom Morrison JA and Margaret Wilson J agreed, said: “The proper basis for quantification of damages for loss of earning capacity was explained by McHugh J in Medlin v State Government Insurance Commission, as follows: ‘In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because ‘an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss’. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s preaccident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.’” (citations omitted)” [158] Counsel for the defendant submits that the Court ought to compare pre-accident and post- accident income in making a small global award of $100,000 for loss of economic capacity. The plaintiff was earning approximately $770 npw pre-accident and after having been unable to work for 44 weeks as a result of the accident, the plaintiff has returned to full time employment and in the last financial year, earned an average of $1,101 npw. Plainly, Mr Dance’s economic capacity has been diminished as a result of the L5/S1 disc prolapse. That diminished capacity has been productive of economic loss 80 Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 [52]. -- 40 of 58 -- 41 for the first 44 weeks after the accident and is, in the future, highly likely to be productive of financial loss. [159] The proper quantification of damages for loss of economic capacity and the effect of the pre-existing degenerative spinal condition was considered by Mackenzie J (with whom McMurdo P and McPherson JA agreed) in Hopkins v WorkCover Qld81 where his Honour said: [27] The learned trial judge accepted that there was evidence of a pre- existing degenerative spinal condition at the time of the first injury. The appellant had discharged the onus of proving its existence. [28] The learned trial judge went on to review the medical evidence on the issue of whether the effects of the degenerative condition would have reduced the plaintiff to the condition in which he was after the first incident within a predictable time or even within his working life. She summarised this step in the following way: ‘[51] It was common ground between the parties that, relying on the approach in Watts v Rake (1960) 108 CLR 158, as explained in Purkess v Crittenden (1965) 114 CLR 165, 168, there was an evidential burden on the defendant to show that the plaintiff’s incapacity was wholly or partly the result of his pre-existing degenerative spinal condition and that his incapacity would, in any event, have resulted from that pre-existing condition which requires evidence to ‘establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be’.’ [29] The quotation in that passage comes from the joint judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden at 168. She went on to say that the appellant had failed to show what the future effects of the pre-existing condition were likely to have been if the plaintiff had not been injured in the three incidents with the required reasonable measure of precision. She said that each of the doctors conceded that the exercise could not be undertaken with a reasonable measure of precision. She concluded: “[53] As the defendant has failed in discharging the evidential burden in respect of the role of the pre- existing condition on the plaintiff’s symptoms, I am satisfied that the plaintiff has shown that his low back injury from which he has continued to suffer since February 1998 was caused by the subject incidents. I also accept that it has been 81 [2004] QCA 155. -- 41 of 58 -- 42 reasonable in the light of the plaintiff’s continuing pain and lack of educational qualifications for him not to endeavour to find alternative employment since 14 June 2000. I accept Dr Niven’s assessment of the plaintiff’s being unlikely to return to the workforce.” [30] Purkess v Crittenden (and Watts v Rake as explained by it) are concerned with the situation where the plaintiff has made out a prima face case that the condition in which he or she is was the result of the defendant’s negligence but the defendant wishes to rely on an alternative internal cause as the reason for the incapacity or as a condition that would have caused at least the same level of incapacity at some definable future time. As the joint judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden puts it, in the absence of such evidence, and if the plaintiff’s evidence is accepted, no issue will arise as to the existence of a pre-existing condition or its prospective results or its relationship to the disabilities complained of at the trial. [31] A defendant who wishes to rely on such matters carries an evidential onus, one of adducing evidence, in the plaintiff’s case or his own case, of a present existing condition and its future probable effects or its actual relationship to the incapacity. While the persuasive onus of causation remains on the plaintiff, the evidence adduced by the defendant must establish with some reasonable measure of precision what the pre-existing condition was and what its future effects, both as to its nature and their future development and progress were likely to be. [32] The first sentence of paragraph [53] of the learned trial judge’s reasons (quoted above) articulates a conclusion that, because the doctors were unable to prophesy when the pre-existing degeneration of the spine would probably have reduced the appellant to the same condition as he was following the incidents, the persuasive onus of proving causation by those incidents of the level of disability suffered had been discharged. It was submitted that the learned trial judge had erred by requiring a higher standard of precision than required by law. Reliance was placed on Wilson v Peisley (1975) 7 ALR 571 as an example of a case where a latent psychological condition that could or might have been triggered by not unusual or not unlikely events in the ordinary course of life should be taken into account in assessing damages. Barwick CJ said that that case was not one where, as had been the case in Watts v Rake and Purkess v Crittenden, the question of onus of proof arose. The existence of the pre-existing condition and the propensity for harm had been fully made out. [33] In the present case, it is apparent from paragraph [51] of the learned trial judge’s reasons (quoted above) that it was accepted by both sides that Watts v Rake and Purkess v Crittenden were -- 42 of 58 -- 43 relevant. The learned trial judge found, as in my view she was entitled to do on the evidence, which she reviewed carefully, that the appellant failed to prove with sufficient precision the point at which liability for the respondent’s condition should cease because natural causes, without acceleration caused by the incidents, would have in any event caused him to be in the same condition by then. [34] As Wilson v Peisley and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643 say, it is necessary, in the situation where proof is necessarily unobtainable, to assess the degree of probability that an event would have occurred or might occur and adjust damages to reflect the degree of probability. It will therefore be necessary to give consideration to whether this principle was given effect to, and if so, to an extent within a proper exercise of discretion, in assessing damages in this case. [35] It was accepted by the learned trial judge that it was probable that without the subject incidents, the plaintiff’s degenerative condition of his spine would have interfered at some point with his capacity to continue with his work as a tyre fitter and his capacity to undertake alternative forms of employment. She said that that probability had to be assessed against his work history that showed that he was a good and conscientious worker and that the degenerative spine was asymptomatic until the incident in February 1998. The appellant had submitted that the discount for the future economic loss component should be in the vicinity of 50% to take into account the contingency that the plaintiff may have become unemployable as a tyre fitter and also to take into account that the plaintiff had a residual earning capacity for sedentary work. (The existence of residual earning capacity was expressly rejected by the learned trial judge.) [36] It had been submitted on behalf of the respondent (who was 44 years of age at trial) that future economic loss should be calculated on the basis of reducing the termination date of his working life to 60 years of age instead of 65 and using a particular sum per week, which did not allow for what was said to be a trend of the respondent’s earnings increasing, and then discounting by one third. The submission was that no further discount was required as that approach adequately allowed for the vicissitudes of life and the probability that at some time in the future the degenerative spine would have affected the respondent’s capacity to work in whole or in part. [37] It will be necessary to return to this issue later since the sum proposed as the rate at which weekly loss of earnings should be adopted for calculation purposes was itself attacked. It is sufficient to say at this point that the learned trial judge took the view that the respondent retained no residual working capacity and otherwise adopted the respondent’s methodology. -- 43 of 58 -- 44 [160] Mackenzie J concluded: [50] With regard to future economic loss, the reduction of the respondent’s future period of earnings by 5 years and reducing the sum derived by applying the 5% tables by one-third is equivalent to a reduction of almost 45% for contingencies if the sum had been calculated on the assumption of a working life until the respondent was 65 and then reduced for contingencies. The evidence is that there was a degree of uncertainty when any of the effects of the pre-existing asymptomatic degeneration of the respondent’s back would manifest themselves. The learned trial judge accepted that the respondent’s methodology allowed adequately for the vicissitudes of life and the probability that at some time in the future the degenerative spine would have affected his capacity to work in whole or in part. Further, on this basis, the reduction according to the respondent’s methodology is not far removed from the reduction of about 50% contended for by the appellant. In my view the award for future economic loss was within the range of a proper exercise of discretion. [161] Section 306J of the Workers’ Compensation and Rehabilitation Act 2003 ( provides: 306J When earnings can not be precisely calculated (1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. (2) The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. (3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. (4) The limitation mentioned in section 306I (2) applies to an award of damages under this section. [162] Of its analogue in the Civil Liability Act 2003 (Qld), section 55, McMeekin J said in Nucifora & Another v AAI Limited82: [29] It may be doubted that the provision has affected any change to the position at common law. The effect of the section has been considered in Ballesteros v Chidlow, Reardon-Smith v Allianz 82 [2013] QSC 338 [29]-[30]. -- 44 of 58 -- 45 Australia Insurance Ltd and Allianz Australia Insurance Ltd v McCarthy. The usual principles continue to apply. [30] At least since Graham v Baker it has been well established that a plaintiff must demonstrate that his or her earning capacity has been diminished by the accident-caused injury and that that diminution ‘is or may be productive of financial loss’. Those requirements plainly continue: McCarthy. In determining the ‘may be’ issue relevant in this case the principles explained in Malec v JC Hutton Pty Ltd apply. There is the ‘double exercise in the art of prophesying’ involved – what the future would have been if the injury had not occurred and what it is now likely to be. As usual the fact finder must state the factual findings underpinning the award and display the reasoning behind the award sufficiently at least for the parties, and the Court of Appeal if called on, to comprehend the result, although the methodology need not include an explicit statement of a formula: Reardon-Smith. An ‘experienced guess’ has been held to be a sufficient response to the facts presented: Ballesteros. (footnotes omitted) [163] Undertaking the “double exercise in the art of prophesying” as it was put by Lord Diplock in Paul v Rendell83 requires the court to consider the evidence as far as possible in order to assess in the case of any injured plaintiff, what the future would have been if the injury had not occurred. That is, as McMurdo P said in Hopkins v WorkCover Qld, a: “… difficult task of assessing the degree of probability of the occurrence of associated future or hypothetical events and must correspondingly decrease the amount of damages otherwise to be awarded: Malec v J C Hutton Pty Ltd. This principle applies alongside those principles set out in Watts v Rake as explained in Purkess v Crittenden.” [164] Hopkins has some factual similarities to the present case in that Mr Hopkins was 44 years of age at trial, had suffered a back injury, had a pre-existing degenerative condition in his spine and Mr Hopkins, like Mr Dance, also had a good work history. There are many differences of fact, the most important of which is that Mr Hopkins did not return to work. [165] The experienced spinal surgeon, Associate Professor Richard Williams has diagnosed a work related right L5/S1 disc prolapse. Associate Professor Williams was provided with the MRI examination of the lumbar spine and proffered no diagnosis of any pre-existing degenerative condition. Oddly enough, Associate Professor Williams recorded in his report “there is no prior history of low back symptoms” whereas in fact by the admission of paragraph 7A(d) of the defence, it is an admitted fact that Mr Dance did in fact tell Assoc Prof Williams that he did have past back pain, namely he had a claim for back pain in 2010 and that Mr Dance was in fact off work because of the back pain for 3 or 4 days. I note in the letter of referral to Dr Williams84, Dr Da Costa, general practitioner 83 Paul v Rendell (1981) 55 ALJR 371, 372. 84 Exhibit 10 -- 45 of 58 -- 46 did state her opinion that Mr Dance did suffer from “degeneration disc disease with disc bulge in both lumbar and cervical spine.” [166] Dr Robert Ivers, orthopaedic surgeon, did consider that on the radiology and the history provided to him of regular prior chiropractic treatment, that Mr Dance did suffer from pre-existing degeneration at the L5/S1 level in the form of desiccation of a disc. [167] As discussed above, Dr Campbell records a history from Mr Dance that he “sustained minor episodes of lower back pain over the years”. On the basis of the radiology, which was not available for Dr Campbell to view, Dr Campbell formed the opinion in his report of 10 October 201785 that Mr Dance suffered from a right L5/S1 disc protrusion requiring discectomy surgery. As stated above, Dr Campbell had overlooked the history provided in Dr Ivers’ report that Mr Dance had obtained regular chiropractic treatment. [168] Dr Campbell accepted86 that Mr Dance “didn’t have any significant degeneration in his lumbar spine prior to the injury on 1 November” and added further “well, I think any degeneration there would be normal for a 44 year old gentleman, so you can come to that conclusion, yes.” [169] With respect to the state of Mr Dance’s spine prior to the injury on 1 November 2016, I accept Dr Campbell’s opinion that he did not have any significant degeneration in his lumbar spine and that any degeneration there “would be normal for a 44 year old gentleman”. I accept Dr Campbell’s opinion in this regard as it is consistent with the CT scan of the lumbar spine of 3 November 201687, consistent with Associate Prof Williams’ opinion88 and consistent with Dr Ivers’ opinion of pre-existing lumbar spondylosis or degeneration. There is nothing in Dr Ivers’ opinions to support the view that the degeneration shown in Mr Dance’s spine was anything other than normal age-related degeneration. [170] The chiropractor, Mr Harwood, emphasised that Mr Dance had improved in 2014 and that Mr Dance’s condition was more severe at the end of 2013. Mr Harwood said:89 “Certainly towards the end there, there are more frequent mentions of lower back, but it doesn’t talk about normal symptoms that we would tend to see – or we don’t see entries that we would expect to see with a deteriorating disc to the point of sciatic – major sciatic issues. Again, it’s still at once a fortnight, and if we had a severe – severe case, it’s more likely to be two or three times a week.” [171] Of the effect of the normal age-related lumbar spinal degeneration, Dr Campbell’s evidence was90: 85 Exhibit 44. 86 T3-93. 87 Exhibit 48. 88 Exhibit 9. 89 T3-113/10 to 15. 90 T3-101/11-22. -- 46 of 58 -- 47 “DR CAMPBELL: I’m taking 100 people, that there’s a spectrum of outcomes. On average, you know, I – maybe someone with a chronic lower back complaint, they’re going to strike when they’re – when they’re 50, and – and most likely move into the type – if they can get that work – and get into their sixties – you know, sixty – retirement age 67 – early sixties, they maybe want to give it – give the work away, rather than work to 67. So that would be an average. So you – you can – you raise the point that he does appear motivated, and I – I adjust that upwards, based on that – on that – on his motivation and how he’s going at the moment. MS TRESTON QC: So that’d probably get him through to about 65, you think? DR CAMPBELL: That – before – yes, I – yeah, that would be reasonable.” [172] Dr Campbell then modified that opinion to provide a range of potential retirement dates from age 62 at the bottom to 65 at the top. Dr Campbell did however accept that Mr Dance was “clearly highly motivated”91. [173] As Mackenzie J said in Hopkins v WorkCover, the evidential onus upon the defendant is to adduce evidence that “must establish with some reasonable measure of precision what the pre-existing condition was and what its future effects, both as to its nature and their future development and progress were likely to be.” [174] If it is accepted that normal age-related degeneration is a diagnosis of a pre-existing condition with some reasonable measure of precision, there remains the difficulty of the defendant in discharging its evidential onus that some reasonable measure of precision as to the likely future effect as to the future development and progress of the pre-existing condition, had the accident not occurred. [175] In this regard, Dr Campbell’s evidence is of a spectrum between ages 62 to 65. A difficulty with this, is that there is no evidence to suggest that normal age-related degeneration or spondylosis could be diagnosed with any greater level of precision, particularly where there is, as Dr Campbell puts it, a “spectrum of outcomes”. [176] In Watts v Rake92 Dixon CJ said of the defendant’s onus that: 91 T3-101/6. 92 (1960) 108 CLR 158 at 160. -- 47 of 58 -- 48 “[T]he defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.”. [177] Whilst I have concerns as to the evidential basis, namely, the reasoning proffered by Dr Campbell in support of his opinion93, I conclude that the defendant, through Dr Campbell, has proved satisfactorily the nature of the pre-existing condition, being normal age-related degeneration, and that such condition cannot be more specifically established with any greater measure of precision. [178] As to the second matter, Dr Campbell has proffered a range between age 62 and 65 that natural age-related degeneration would have caused Mr Dance to cease working in manual occupations.94 [179] On the transcript I have noted at T3-101 line 27 the words “[indistinct]” prior to Dr Campbell’s opinion of the condition having onset earliest at age 62. I have listened to the audio recordings and am unable to determine the words used, however, it is consistent with Dr Campbell’s evidence that it is likely that Dr Campbell had arrived at the age of 62 years as the bottom marker by deducting 5 years from the normal retirement age of 67. I therefore consider that Dr Campbell’s opinion is that absent the subject injury, Mr Dance would have, because of his normal age-related degeneration most probably ceased work in manual occupations such as a baker somewhere between ages about 62 and age about 65. [180] I note that in Purkess v Crittenden95 Barwick CJ, Kitto and Taylor JJ considered that Dr Sutherland’s evidence concerning the plaintiff that “from the state of the degeneration of her spine, one could expect that the plaintiff would be in some trouble within at least the fifty to sixty range” was insufficient to discharge the onus with their Honours stating at page 168 to 169: “In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be.” [181] Although a 10 year estimate may not be “a reasonable measure of precision” I accept in the present case that a 3 year window of doom is satisfactorily a reasonable measure of precision. Within the 3 year prediction of age 62 to 65, I accept Dr Campbell’s opinion that Mr Dance was “clearly highly motivated” and that it is reasonable to accept that had he not been injured, Mr Dance would have continued working as a baker or in another manual occupation to age about 65. That is also consistent with the evidence of Dr Ivers who predicted, absent the injury, that Mr Dance’s back problems would have continue in the future more or less as they had in the past. Using the past as the only available guide, it can be seen that, despite having some troubles with his lumbar spine, they were not from Mr Dance’s chiropractor, Mr Harwood’s perspective, of any great moment and nor did they require Mr Dance to take any time off his usual and arduous occupation as a baker. I conclude therefore that as a result of the pre-existing normal age-related 93 Dr Campbell frankly conceding his opinions are not based upon any specific scientific reasoning but rather, experience. 94 T3-101/25-29. 95 (1965) 114 CLR 164. -- 48 of 58 -- 49 degeneration, had the incident of 1 November 2016 not occurred, Mr Dance would have had the capacity to continue working as a baker through to the age of 65. [182] In short, the evidence convinces me that a proper conclusion on the first aspect of the double art of prophesying as referred to by Lord Diplock in Paul v Rendell, that it was likely absent the injury that Mr Dance would have worked to age 65. [183] The more difficult issue for determination is the second part of in the art of prophesying, that is, to determine the likely future of Mr Dance given that he has sustained an L5/S1 disc prolapse requiring surgery. Dr Campbell’s evidence96, is that it is not wise for Mr Dance to continue working full time hours in a job as a baker. Dr Campbell specifically said that he was “on the pessimistic side”97 before adding “but I would never discourage someone who’s motivated to remain employed.” [184] Dr Campbell then explained that Mr Dance was at risk of re-injury in his current occupation and that he would need to assess the risks of injury in his occupation or obtain another more suitable form of employment. Dr Campbell explained his pessimism with reference to Mr Dance’s past history of employment, opining that Mr Dance could not work as a deck hand or a security guard or a bouncer, but perhaps could do monitoring security work, or other sedentary work, that is work in an office or computer work “but whether anyone would give him a job is another matter.”98 [185] Dr Campbell’s evidence was that there was a possibility Mr Dance could work as an Uber driver but only “in a reduced capacity” but there is no evidence of any Uber drivers in the town of Howard (a town of some 500 people). [186] Dr Campbell also opined99 that with Mr Dance’s high motivation and with the assistance of a co-worker such as an apprentice Mr Dance may be able to work in his current capacity “into his 50s and then after that – so his mid-50s, and then after that, on the balance of probabilities he’ll probably move into a light duties or sedentary-type work.” [187] The evidence of Dr Ivers concerning future work prognosis must be considered in light of the evidence in the case, which I accept. I accept the plaintiff’s evidence that he has considerable pain performing his duties as a baker on each and every shift after working for as little as 3 hours of his 8 or 9 hour shift. The fact that he has pain is confirmed by the apprentice, Mr Williams, who provides significant assistance to Mr Dance in the performance of his duties. Mr Williams estimated that he had observed that 75% of the time that he is at work with Mr Dance, he observes him to be in pain100. That is with Mr Williams performing virtually all of the heavy work in the bakery. It is to be noted that plain flour bags are delivered to the bakery in 12.5kg weights and wholemeal flour bags in 25kg weights. Dr Ivers, who admits to not having a full understanding of the duties required of a baker, thought that with a lifting limit set at 12kgs, Mr Dance could continue to work through to retirement101. 96 T3-101/30-35. 97 T3-101/35-36. 98 T3-102/1-9. 99 T3-103. 100 T3-11/16. 101 T2-103/46 - T2-104/3. -- 49 of 58 -- 50 [188] The literal acceptance of Dr Ivers’ restriction to 12kgs results in the conclusion that Mr Dance is a baker who cannot lift any bags of flour, as the lightest is 12.5kg. That is, he is unemployable as a baker. Despite the considerable pain that he suffers, Mr Dance admits to lifting 12.5kg bags of flour, and on occasion, one in each arm. Mr Dance is caught in a classic ‘catch-22’. Namely, if he slows his work, to reduce his pain as is suggested by Dr Ivers, he will need to extend his working hours to beyond a 9 hour shift to an indeterminate time period (for which he will not be paid beyond 8 hours) and as Mr Dance says, his pain commences 3 hours into his shift. [189] It is not a satisfactory nor humane conclusion to conclude that Mr Dance ought to be able to continue working as a baker until normal retirement age. Despite undertaking an extraordinary amount of rehabilitation, Mr Dance is, I accept, suffering considerable pain with an onset setting in within 3 to 4 hours from the commencement of every shift at work. Prior to the injury, as Dr Ivers points out102, the natural history of the normal age- related degeneration of Mr Dance suffering from episodic back pain from time to time would not have prevented his continuation of employment. [190] Dr Campbell’s dire warning that it is unwise for Mr Dance to continue employment as a baker must be balanced against the fact that Mr Dance has, since September 2017 continued to work as a baker without taking a single hour off for back pain, but rather persevering in a most stoic fashion and continuing to work full time. [191] I accept the opinion of occupational therapist Mr Hoey that the duties required of Mr Dance in the bakery are contraindicated on standard occupational therapy tests. Mr Hoey’s report103 records that “Mr Dance is completing occupational activity in excess of his current capacities” [192] Mr Hoey has also opined, in paragraph 30: “[30] Whilst in much pain, he remains interactive. His work ethos is exemplary. I doubt that he will ever allow himself to be out of work for extended periods, but (as I have stated above) his working future will certainly not be in full-time work. He is more likely to see out his working life conducting up to twenty-five hours per week of employment. His current employer is ideal. This is (in my experience) a minority on the open labour market. He will struggle to find employers who will overlook his significant back injury and associated compensation claim. If he were to seek out alternate part time work, it would be commensurate only with the award wage (which is far lower than that which he has enjoyed in his profession for many years to date). [31] As a general guide, the Australian award net weekly wage of a counter attendant working at a bakery (working twenty-five hours per week) is $465 (gross hourly rate is $20.08).” [193] I accept Mr Hoey’s evidence in this regard. 102 T2-104/3 - 9 and T2-113/15-23. 103 Exhibit 6, paragraph 26. -- 50 of 58 -- 51 [194] If Mr Dance were to move from full time employment to part time employment as a counter attendant at the bakery, his loss may be measured as the difference between his income earning capacity of $1,100 npw less $465 per week, a sum of $635 per week for the next 21 years (to age 65) (discount factor 686), a sum of $435,610. Subtracting a normal discount for vicissitudes of 10% would quantify the loss at $392,049. [195] The hypothetical calculation however presumes a move from full time to part time employment immediately, which is inconsistent with Mr Dance’s efforts thus far as being a stoic and valued employee. On the other hand, the evidence is that there is only one bakery in Howard and there is no evidence of a position available at the bakery as a part time counter attendant. There are other bakeries in the Maryborough area, however, there is no evidence as to the availability of work at those bakeries for injured bakers. Furthermore, there is potentially additional significant travel costs in obtaining that work, as discussed above, which would exceed $200 per week. [196] Another method of quantifying future economic loss is to adopt Dr Campbell’s opinion that as a result of the injury Mr Dance may only make it through to age 52 in his current occupation and thus has lost 13 years’ employment between ages 52 and 65. Theoretically, if Mr Dance were able to continue working without any loss at all in the next 8 years to age 52, then lose the balance of the 13 years between ages 52 to 65, his loss would be measured at $1,100 npw less the 21 year 5% discount factor less the 8 year 5% discount factor (686 – 346), which is a sum of $374,000. [197] Mr Dance currently usually commences work at 1:00am and finishes work between 9:00am and 10:00am. That is, he generally works 8 to 9 hours per day, 6 days per week, a total of 48 to 54 hours per week104. In addition, on market day (the first Saturday of every month) Mr Dance works a 14-16 hour day105. The problem for Mr Dance is that his “pain starts setting in about three or four hours into [his] shift and then slowly gets worse”.106 [198] From Mr Dance’s perspective he thought that he could work without an unreasonable level of pain for 3 to 4 hours per shift for 3 to 4 days a week. Mr Dance felt obliged to his apprentice, Mr Williams, to continue working full time to enable Mr Williams to complete his apprenticeship in February 2021 and has spoken to his employer about that.107 To allow him to work until February 2021, Mr Dance was asked108: “MS TRESTON QC: Do you think you can continue to work the 45 or 50 hours a week that you are working at the moment for the next year or two years? MR DANCE: No. No, the pain is getting to me. The – basically, it’s just – it’s the pain and the pins and needles, and numbness is getting to me. The exhaustion is getting to me. The fact that I am not getting a sleep, or 104 T1-63/20. 105 T1-64/19. 106 T1-83/9. 107 T1-82 - T1-83. 108 T1-82. -- 51 of 58 -- 52 having any family time, or anything else, it’s just – it’s not working.” [199] I accept Mr Dance as a witness of credit. I accept he is suffering the pains he describes in his work. I do not accept Mr Dance will cease all work within 2 years. I do accept, however, that it is more probable than not that Mr Dance will move from full time to part time employment at an indeterminate point somewhere between the next 2 and 3 years. I note that if Mr Dance were to cease all employment in 2 years’ time, then his economic loss would be quantified as $1,100 npw x 21 year, 5% discount factor (686) less 2 year 5% discount factor (99), a sum of $645,700. [200] In the present case, I consider that s 306J of the WCRA is engaged. That is, given the imponderables, it is inappropriate to make an award for damage for loss of economic capacity to be precisely calculated by reference to a defined weekly loss. In particular, whilst the medical evidence convinces me that within the next 2 to 3 years Mr Dance will need to cease full time employment, it cannot be reasonably predicted what, if any, part time employment Mr Dance will secure, and what, if any, income Mr Dance will receive net after travel expenses are taken into account as a result of working in that part time capacity. Whilst an unmotivated manual worker may, having suffered from an L5/S1 disc prolapse have little prospect of return to employment, I accept Mr Hoey’s opinion that Mr Dance, because he is so highly motivated, has a much higher chance than an ordinary person of obtaining suitable sedentary part time employment. [201] This then needs to be balanced against Mr Dance’s chosen residential location of Howard and the limited opportunities that presents a person with his condition, taking into account Mr Dance’s education, experience and training, namely, that he is a trade qualified baker who otherwise has worked in heavy manual employment as a cold room construction labourer. [202] I accept that Mr Dance has suffered a significant loss of economic capacity. Mr Dance is currently 44 years of age. He has a history consistent with heavy manual employment. Mr Dance has not suffered any loss of earnings other than the 44 weeks immediately post-accident, however, he has suffered from an 11% whole person impairment (which, as Mr Hoey acknowledges, does not directly impact upon an assessment of work capacity, but nonetheless is referred to in s 306J(2)). [203] The other relevant matters are Mr Dance’s significant pain that he suffers, namely, within 3 hours of an 8 to 9 hour shift Mr Dance is in considerable pain. [204] I consider that it is appropriate to award Mr Dance a significant global sum for future economic loss based on underlying assumptions. The assumptions are that Mr Dance will continue working full time despite his pain for the next 2 to 3 years, then will cease working full time and will obtain part time employment. I consider that Mr Dance has suffered a loss of two-thirds of his economic capacity. That is, he is unsuited for all of his past occupations other than monitoring security guard work, of which there is no evidence that such work is available in Howard. I accept Mr Dance’s evidence that within 3 hours of a 9 hour shift, he is capable of working without pain, but beyond that he suffers a significant and unreasonable level of pain. [205] I conclude Mr Dance has lost two-thirds of his economic capacity, that is 6 hours of 9 hours of his usual manual work capacity and that such a loss of capacity will not be -- 52 of 58 -- 53 productive of financial loss until 2 to 3 years hence. These assumptions quantify damages for loss of economic capacity in the sum of $1,100 x two-thirds, a loss of $734 per week which will be suffered 3 years hence and continue for the balance of Mr Dance’s probable working life of 21 years (21 year discount factor 686 less 3 year discount factor 146) a sum of $396,360, which is rounded up to a global sum of $400,000. [206] I assess loss of future superannuation benefits at 11.33% in accordance with Heywood v Commercial Electrical Pty Ltd109. Special Damages [207] Since his return to work in September 2017, Mr Dance has attended for physiotherapy with Physikal on 143 occasions, has travelled to and undertaken swimming and exercise at the Hervey Bay Aquatic Centre on approximately 130 occasions and has, at his physiotherapist’s suggestion, attended upon and received massages on 39 occasions, as detailed in exhibit 8. Of the 143 attendances upon Physikal, only 5 attendances do not record treatment to the lumbar spine. Those treatments are set out in exhibit 41 and are the treatments provided on 25 September 2017, 20 November 2017, 23 November 2017, 15 January 2018 and 16 February 2019. [208] Having attended upon several physiotherapists from Physikal on 143 occasions, Mr Dance cannot reasonably be expected to recall what occurred on each of these visits. Whilst it certainly accords with r 5 of the Uniform Civil Procedure Rules 1999 (Qld) that special damages be proven by a schedule other than the tendering of 143 receipts, it is extremely important that those who draft the schedules ensure they are accurate. As one would expect, Mr Dance did swear to the accuracy of the schedule, that is, of all the expenses in the schedule that he had “incurred for [his] back since [he] had the injury”110 but this is not so. Five of the 143 or 3.5% of the Physikal attendances are unrelated. [209] Whilst solicitors experienced in the conduct of personal injury litigation ought to be familiar with the usual shorthand deployed by Allied Health experts such as physiotherapists, and thus be in a position to decipher notes and to discern whether treatment was rendered to the lumbar spine, it is a task which is difficult if not impossible for a layman such as Mr Dance. The claiming of expenses which are not related to the injury can adversely affect the credit of the plaintiff who claims such unrelated expenses. In the present case, however, being that only 5 out of 143 are not related, I do not draw any adverse inference against Mr Dance’s credit in this regard. [210] A careful reading of the records show that Mr Dance’s physiotherapists have recommended that he continue with swimming, home exercises, massage therapy, yoga and attend at a pain clinic. The physiotherapist’s notes record the difficulties that Mr Dance is having at work and suggest solutions to allow Mr Dance to continue his employment. An example is the entry of Ms Peters of 16 April 2019 recording of Mr Dance “back and shoulders are very tight from squatting and lifting goods out of the ovens. [H]e is in a fair amount of pain lower back.” On 8 May 2019, Ms Peters recorded that Mr Dance had irritated his right sacroiliac joint “from loading in kneeling position at work.” Ms Peters then provided education and advice to Mr Dance regarding safe posture and positions and advised him that he “[s]hould not be kneeling on floor for 109 [2013] QCA 270. 110 T1-87/6-7. -- 53 of 58 -- 54 extended periods, ie no more than 5min and should have protective padding.” In that same consultation Ms Peters advised Mr Dance “not to kneel frequently at work – find alternative positions, ie instead of cleaning mixing [bowl] on the floor, bring up onto the bench.” [211] On 27 May 2019 Ms Peters advised Mr Dance “[p]atient to change work load – discussed with boss to reduce time using ovens and not rushing to keep up with other staff members – no use to working with others and a change in pace.” I conclude that the amount of effort that Mr Dance has put into his rehabilitation to allow him to continue working beyond full time hours is extraordinary. [212] In addition to working between 46 and 54 hours most weeks, Mr Dance has undertaken one to two hydrotherapy sessions at the Hervey Bay Aquatic Centre each week, and has attended a physiotherapist one to two times each week until June 2019 when Mr Dance attended a physiotherapist approximately once per month. [213] At Physikal, Mr Dance was treated by the physiotherapists Gautam, Archers, Van Den Beuken, and Peters. During his cross-examination Mr Dance was criticised, not because he had failed to perform his exercise routines each week as recommended by his physiotherapist, but rather he was not performing the most recent exercises suggested by his most recent physiotherapist. Mr Dance explained that that was not true but rather, he was not receiving the emails from his physiotherapist detailing the new exercise regime and accordingly he was undertaking his old exercise regime.111 Mr Dance felt he was unfairly criticised because, as explained, the physiotherapist Spurway made notes that Mr Dance was doing the old exercises recommended by his past physiotherapist and not the new exercises recommended by the physiotherapist Spurway. Mr Dance did complain that “Every time I get a new physiotherapist, they say delete the ones you got before, and they start again. And you start again with what they’ve given you.”112 [214] Mr Dance then explained that the new exercise programs that Ms Spurway was criticising him for not undertaking were the exercise programs that she had sent to him by email, however, he did not receive the emails because of computer problems at the physiotherapist’s practice. As Mr Dance said “I do my exercises.”113 I accept Mr Dance’s evidence in this regard. [215] In summary Mr Dance works beyond full time hours, 46 to 54 hours each week, attends for appropriate swimming exercises once to twice a week, has attended for a great deal of physiotherapy but now attends once per month and undertakes his home exercise program four times a week as recommended by his physiotherapist. In addition, at his physiotherapist’s recommendation, Mr Dance receives massage approximately twice per week, with the massage being increased and the attendances upon the physiotherapist being decreased in accordance with the physiotherapist’s advise. [216] The only criticism that can be laid at the feet of Mr Dance is that he has not undertaken a chronic pain program. A pain program will require Mr Dance to have six weeks off his employment and cost him approximately $3,770. The closest pain program recommended is the one at the Sunshine Coast which will cost Mr Dance a further $2,760 111 T2-20. 112 T2-80/13-14. 113 T2-81/34. -- 54 of 58 -- 55 in accommodation expenses114. Mr Dance is a married man with three children and two mortgages who earns the sum of $1,100 npw as a result of working 46 to 54 hours per week working six nights a week. [217] WorkCover, who have statutory obligations which they have met in the present case, to provide rehabilitation to Mr Dance, and having the advice of multiple experts, did not suggest nor pay for a pain program. Mr Dance takes only a small amount of Advil, an over the counter analgesic, to assist him in dealing with the pain that he suffers when working more than full time hours and additionally coping with the rigorous exercise and rehabilitation program which he undertakes. [218] Whilst the pain program has been recommended by Mr Hoey115 and by Mr Dance’s physiotherapist, it has not been explained why such a program will assist Mr Dance. I therefore reject any criticism of Mr Dance on the basis that he has failed to engage in a pain program. [219] Page 16 of exhibit 60, the plaintiff’s outline of submissions, contains a schedule of special damages referenced directly to the evidence claiming a total of $60,365.35. [220] It is necessary to deduct Fox v Wood damages of $8,423 which is properly a separate head of damage. In addition, the total of $60,365.35 discounts the physiotherapy, hydrotherapy and remedial massage. The physiotherapy expenses are reduced from $8,720 to $8,000. A reduction of $720 is double the $360 costs of the six unrelated physiotherapy visits and is conservative given that both the hydrotherapy and remedial massage was recommended by the physiotherapist. Further, there has been a discount from the travel claims to reflect any attendances for unrelated complaints. Accordingly, I find special damages proven in the sum of $51,941.32 ($60,365.35 as per exhibit 60 less $8,423). [221] Interest is payable at the statutory rate at s 306N WCRA of 0.07% for 2 years on that portion of the special damages expended by Mr Dance. From the total of $51,941.32, WorkCover has paid $30,423.11, Medicare is $399.50 and Mr Dance’s health provider, People Care, has paid for physiotherapy, hydrotherapy and massage in the sum of $1,745. Accordingly interest is to be allowed on the balance of the amount actually expended by Mr Dance and not refunded by any other organisation in the last two years, namely a sum of $19,374.71. Interest is assessed at $271. Future Expenses [222] With respect to the future, I consider it likely, as set out above that Mr Dance will continue to work his more than full time hours for the next 2 to 3 years. In that time, I consider it reasonable for Mr Dance to continue with his current regime of treatment, that is, attending upon a physiotherapist once per month at a cost of $72 ($16.61 per week) and twice per week for remedial massage at a cost of $50 per session, and continue to perform his swimming exercises, swimming pool entry fee being $7.20 per week. [223] The travel associated with this regime is two trips at 82km per return trip to the Hervey Bay Aquatic Centre (164kms with respect to hydrotherapy) and two trips to Physikal per 114 Exhibit 6, paragraph 34. 115 Exhibit 6, paragraph 34. -- 55 of 58 -- 56 week to obtain the massage therapy at 60km per round trip (120km) and one trip each month for physiotherapy at 60km per round trip, a total of 299km per week for the first two years at the agreed rate of 66c per kilometre (exhibit 3) a sum of $197 per week. [224] Accordingly for the first two years I find the likely expenses to be: Remedial massage - $100 per week Physiotherapy - $16.60 per week Swimming pool entry - $7.20 per week Travel - $197 per week Total - $321.80 per week [225] The sum of $321.80 per week ought to be allowed for the next two years (5% discount factor 99) a sum of $31,759. [226] As stated above, I think it likely that 2 to 3 years hence Mr Dance will move from full time employment to part time employment, and will, despite his great motivation, be out of employment from time to time. In this period where Mr Dance is unable to work full time, his need for treatment is likely to reduce from two attendances for remedial massage per week to one attendance per week at least for the foreseeable future, that is, well beyond the next 21 years. [227] Mr Dance is fortunate that he enjoys his rigorous exercise regime and therefore is likely to continue it for as long as he is able. Mr Dance has a life expectancy of a further 38 years but there is an absence of evidence to provide any guidance as to when Mr Dance may cease his exercise regime and so I consider there ought to be a substantial discount of 50% on the quantification of damages through to Mr Dance’s life expectancy of a further 38 years. In the period beyond 2 years, reducing the remedial massage from two attendances to one attendance, but, as I find likely, with Mr Dance keeping up his swimming and hydrotherapy twice per week and attending at the physiotherapist once per month. Travel expenses are calculated at $158 per week (239 kms at $0.66c/km). I calculate the likely weekly expenses as: Remedial massage $50.00 Physiotherapy $16.60 Swimming pool entrance fees $7.20 Travel $158.00 Total per week $231.80 [228] A sum of $231.80 per week is to be allowed for the next 36 years delayed 2 years (902 – 99) less 50% for contingencies, a sum of $93,068. -- 56 of 58 -- 57 [229] I consider therefore the likely future expense for physiotherapy, remedial massage, swimming and hydrotherapy and associated travel costs to be $124,827. [230] In addition to that, Mr Dance consumes Advil, costing $15 every 4 weeks116 a sum of $3.75 per week which ought to be allowed for the remainder of his life, 38 years (5% discount factor 902) with a discount of 20%, a sum of $2,706. [231] Attached to the plaintiff’s written submissions117 is a schedule of future aids and equipment and which is costed from exhibit 6, Mr Hoey’s report in the sum of $11,906.57. Of that, almost one-third relates to electric lift and modulation chair, which Mr Dance may need when he is in advanced years. However, given his great level of motivation, I think it unlikely he will need that any time within the next 20-30 years. The balance of the expenses relate to a disabled shower which is recommended by Mr Hoey. Mr Dance currently uses a disabled shower at the downstairs of his home and reasonably, particularly as he ages, ought to be entitled to use his normal upstairs shower which requires modification. I consider that it is reasonable to allow $4,500 for future aids and equipment, being approximately half of the lifetime costs of the installation of a disabled shower. [232] As set out in exhibit 8, Mr Dance has attended upon his general practitioner Dr Da Costa on 7 occasions since January 2017 to seek treatment in respect of his lumbar spine. The costs shown in exhibit 8 is $37.05 per consultation. There is no evidence as to how often Mr Dance may attend upon his general practitioner, Dr Da Costa, because of his lumbar spine, however there ought to be some allowance made for future attendances which may involve referrals for radiology, involving further expense. Furthermore, I accept Dr Ivers’ evidence that with Mr Dance’s increasing pains it may be necessary to have him referred to a spinal surgeon. A conservative sum of $2,500 ought to be allowed to cover future general practitioner consultations and referrals for radiology and referrals to specialists. [233] In summary I quantify Mr Dance’s future medical expenses as: Future physiotherapy, remedial massage, hydrotherapy and swimming pool fees and associated travel $124,827 Future analgesics $2,706 Future aids and equipment $4,500 Future general practitioner expenses $2,500 Total $134,533 [234] I observe that Mr Dance has expended by himself and with the assistance of his health insurer $21,519 in medical expenses in the approximately 2 years since he commenced employment in early September 2017. That is an average of approximately $207 per week. If that were allowed for Mr Dance’s life expectancy of 38 years (902) that is a sum of $186,636 which, even if discounted by 20%, amount to a sum of approximately 116 T1-84/5. 117 Exhibit 60. -- 57 of 58 -- 58 $150,000. In those circumstances, I consider it reasonable to allow $131,831 for future medical expenses. [235] In summary, I see Mr Dance’s award along the following lines: General damages – s 306O WCRA [Item 91, ISV 18] $31,810.00 Interest – s 306W $0 Past economic loss 01.11.16 to 06.09.17 (44 weeks) x $703 = $30,932 Less travel – 44 weeks x 5 x 82kms x 0.66 $11,906 $19,026.00 Interest s 306W $0 Loss of superannuation benefits (past) $2,861.00 Loss of economic capacity $400,000.00 Loss of superannuation benefits (future) @ 11.33% $45,320.00 Fox v. Wood (Exhibit 3) $8,423.00 Special damages (Exhibit 60) $60,365.35 - $8,423 $51,942.32 Interest on $51,942.32 - $30,423.11 - $399.50 - $1,745 @ 0.7% for 2 years $271.00 Future medical expenses $134,533.00 Subtotal $694,186.32 Less Refund to WorkCover $73,930.35 TOTAL $620,255.97 -- 58 of 58 --