Bergin v Queensland Cork & Timber Solutions Pty Ltd [2019] QDC 141

DISTRICT COURT OF QUEENSLAND CITATION: Bergin v Queensland Cork & Timber Solutions Pty Ltd [2019] QDC 141 PARTIES: BERGIN, Christopher William (Plaintiff) v Queensland Cork & Timber Solutions Pty Ltd (ACN 109 658 335) (Defendant) FILE NO/S: DC 0407 of 2018 DIVISION: District Court PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 8 August 2019 DELIVERED AT: Brisbane HEARING DATE: 17-18, 24 June 2019 JUDGE: Loury QC DCJ ORDER: 1. Plaintiff’s claim is dismissed. 2. Judgment for the defendant. 3. I will hear the parties as to costs. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – STANDARD OF CARE – CAUSATION – AS BETWEEN EMPLOYER AND EMPLOYEE – dispute as to liability and quantum – where the plaintiff was employed as a floor sander for the defendant – whether the defendant breached its duty of care – whether the risk of injury to the plaintiff was reasonably foreseeable – whether the injury suffered was caused by the defendant’s breach of its duty WORKERS’ COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – ARISING IN COURSE OF EMPLOYMENT – where the plaintiff had previously injured his left arm in a 2006 workplace accident – where the plaintiff’s right hand suffered an injury – whether the defendant is liable for the plaintiff’s physical injury and psychiatric injury – whether the psychiatric injury was pre-existing -- 1 of 18 -- 2 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305D, s 305E Czatryko v Edith Cowan University (2005) 79 ALJR 839 Meandarra Aerial Spraying Pty Ltd v GEJ and MA Geldard Pty Ltd (2013) 1 Qd R 319, cited Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232, cited Stitz v Manpower Services and Anor [2011] QSC 268, cited Stokes v House with No Steps [2016] QSC 79, cited Vairy v Wyong Shire Council (2005) 223 CLR 422, cited Vozza v Tooth & Co Ltd (1964) 112 CLR 316, cited Wyong Shire Council v Shirt (1980) 146 CLR 40, cited COUNSEL: C Newton for the Plaintiff B Charrington for the Defendant SOLICITORS: Maurice Blackburn for the Plaintiff HopgoodGanim Lawyers for the Defendant Background [1] On 3 November 2006, the plaintiff, then aged 26 years, suffered an injury to his left hand at work in New South Wales. As a result his flexor tendon and radial nerve were lacerated and required surgical repair. He had ongoing problems with the whole of his arm and he was ultimately diagnosed with chronic regional pain syndrome in his left hand and arm. The injury gave rise to a depressive illness. The plaintiff brought a claim for common law damages in New South Wales for both the chronic regional pain syndrome and psychiatric illness on the basis that the injuries resulted in significant incapacity for work. The settlement he received was for a gross amount of $475 000 which was paid to his then solicitors in October 2008. The plaintiff also received amounts of $18 000 for pain and suffering and $21 500 for permanent impairment. The plaintiff spent all of this money by 2012. [2] The plaintiff’s first attempt at returning to work subsequent to the 2006 injury was as a floor sander sometime between 2011 and 2012. He started his own business and did approximately one month of work over the seven months he operated the business. The plaintiff has no records evidencing the existence of this business. [3] At some unknown time within this period of his return to work, the plaintiff worked as a labourer for a bricklayer for one week. [4] The plaintiff’s next attempt at returning to work commenced on 2 July 2012. He worked as a domestic cleaner for three months. [5] On 19 April 2013, the plaintiff commenced working as a floor sander for the defendant, Queensland Cork and Timber Solutions Pty Ltd. He had worked as a floor sander for some 10 years prior to his 2006 injury. On 14 May 2013, three weeks after commencing work for the defendant, he sustained an injury to his right hand. It is this injury and an associated psychiatric condition for which the plaintiff sues the defendant for damages. -- 2 of 18 -- 3 The Incident giving rise to the 2013 injury [6] The plaintiff was employed by the defendant as a floor sander. For the three weeks prior to the injury occurring he was performing floor sanding work. He had not been required to remove any floors. He had no experience in the removal of floors. [7] On the 13 May 2013, the plaintiff attended at the Brisbane offices of Queensland Cork and Timber Solutions Pty Ltd. He was told by Mr Leslie McIntyre (the managing director) that he was to attend a job at 65 Olloway Crescent, Alexandra Headlands, where he was to remove an existing floor as part of an insurance claim. The plaintiff gave evidence that he had not received any training in how to remove a floor. However, he said that he was told that morning by Mr Leslie McIntyre that he should “cut it up into squares” and then pull it up. He was provided with a circular saw and a jemmy bar. The vehicle he was provided to travel to Alexandra Headlands contained a hammer. The plaintiff described the hammer as an ordinary claw hammer without a rubber grip on the handle. [8] Around one hour after he arrived at the house in Alexandra Headlands, the plaintiff started the process of removing the existing floor. He said that he started near the entrance and cut part of the floor with the circular saw. He then tried to lever it up with the hammer, which was vibrating so he asked to borrow a hammer from the owner of the house. The borrowed hammer had a rubber grip on the handle. [9] The plaintiff said that he then started to “whack the jemmy bar underneath” the floor and tried to lever it up. However, it was breaking into small pieces because the floor was dynabolted to the concrete. He said that he used the hammer to hit the jemmy bar five or six times to get the bar under the flooring. He thought this method was wasting his time so he grabbed the jemmy bar and forcefully rammed it under the flooring by using his two arms. He then levered the floor up. [10] The plaintiff said that he got around two squares of flooring up, each being around 5 foot square. Mr Tim McIntyre (the son of the managing director) arrived at the house. The plaintiff told Mr Tim McIntyre that he had no idea what he was doing. He said that Mr Tim McIntyre retrieved some tools from his van and started cutting up the floor using a saw. [11] The plaintiff said that Mr Tim McIntyre cut the floor into pieces a little smaller than he had done (around a 4 foot square). He said that whilst Mr Tim McIntrye was cutting up the floor he got back into “ripping up the floor”. He said that he was having no luck and that it was “pissing me right off”. Mr Tim McIntyre came over and grabbed the hammer and the jemmy bar and said “you do it like this” and showed the plaintiff how to lift the flooring. Mr Tim McIntyre went back to cutting up the floor and the plaintiff continued to remove the flooring using the method shown to him by Mr Tim McIntrye. He said that it (the method) was of no use so he grabbed the jemmy bar and started using it by ramming it under the floor boards. He said that once he got a piece up it was easier to use the jemmy bar in the fashion he described by ramming it under the floor. The plaintiff said that he did this for around another half an hour and was then told to take the van back to the Brisbane office. [12] The plaintiff said that his right palm swelled up in the afternoon but the swelling went down over night. The following day the plaintiff returned to the Brisbane office where he was again told to attend at the house at Alexandra Headlands. The plaintiff said that he told Mr Leslie McIntyre “Look, I’m a floor sander. I don’t rip up floors” to -- 3 of 18 -- 4 which Mr Leslie McIntyre responded “if you want work, you’ll go and do it”. The plaintiff described being annoyed but drove the same van back to Alexandra Headlands. [13] The plaintiff said that when he arrived the entirety of the floor had been cut up but none of it had been lifted. He went back to lifting the floor up for around one hour before his hand swelled up again. He telephoned Mr Leslie McIntyre and told him about his swollen hand. Mr Leslie McIntyre told him to carry the boards he had lifted out to the van. The plaintiff then went to a doctor. He returned to the Brisbane office where he filled in an incident report. He never returned to work for the defendant. Leslie McIntyre’s evidence [14] Mr Leslie McIntyre had worked in the floor sanding industry since 1971. He did not have a specific recollection of the plaintiff. He said that ordinarily his practice was to allocate all his employees a job each morning. He would direct each employee going to a job how to do that job. He didn’t specifically recall any conversations with the plaintiff about the job at Alexandra Headlands. Queensland Cork and Timber Solutions Pty Ltd undertook a lot of insurance work, which included removing old floors and laying new floors. He said that removing existing floors was a job undertaken every day. He could recall no other worker ever sustaining an injury removing a floor. When the plaintiff was injured and could no longer work on 14 May 2013, another team was sent to complete the job at Alexandra Headlands. He couldn’t recall how many staff were sent to complete the job or whether it was completed on time. Tim McIntyre’s evidence [15] Mr Tim McIntyre’s account was that he attended the house and cut the floor up into a checkerboard pattern. He usually tried to cut the floor so that the squares were around 600 millimetre square. The reason, he said, for the flooring to be cut up into squares was because the flooring was heavy and in order to be able to lift it and carry it out of the house it needed to be cut to a size that was manageable. He said that all the vans were stocked with basic hand tools which would include hammers, chisels, bars, a saw and vacuum. [16] Mr Tim McIntyre showed the plaintiff how to lever up the floor by using chisels, hammer and jemmy bar. After having showed the plaintiff what to do he noticed the plaintiff not following his method. He said that he was doing it awkwardly so he showed the plaintiff a second time how to lever the floor up. He showed the plaintiff two or three times. He did not observe the plaintiff performing the task after this as he was focused on what he was doing himself, which was cutting the floor up. He confirmed that the plaintiff did not raise any problem about his hand or wrist or performing the task. The physical injury [17] It is relevant to note that the plaintiff’s evidence was that in the lead up to sustaining the injury to his right hand he was still suffering nerve pain in his left hand (as a result of the 2006 injury). He said “it goes thick, pins and needles, the funny bone nerve”. His account of his treatment needs was that he would just take the odd painkiller for it after work. He denied being on any other medication. The plaintiff’s evidence as to his right hand and arm was that he suffers severe pain all the way up to his shoulder. -- 4 of 18 -- 5 The palm of his hand feels thick and his arm feels enlarged. The palm of his hand was swollen and remained so. The plaintiff said, and I saw, that he regularly raises his right arm above his head to ease the pain. [18] The plaintiff was seen twice by orthopaedic surgeon, Doctor Greg Gillett. Doctor Gillett understood from the plaintiff’s account that he had been using the hammer to hit the jemmy bar, which had caused some jarring. Doctor Gillett opined that the plaintiff did not have an orthopaedic injury nor did he meet the criteria for a diagnosis of chronic regional pain syndrome. Doctor Gillet’s diagnosis was a soft tissue injury, which might have involved some irritation of the median nerve leading to the pain commencing. The symptom complex that the plaintiff described was not explained in organic terms and is more likely, in Doctor Gillett’s opinion, reflective of psychological interpretation of pain and disability. He saw no evidence that the plaintiff was feigning his injury. [19] In cross-examination, Doctor Gillet conceded that the pain the plaintiff described was not capable of objective measure and that there is no way to measure the extent of any pre-existing pain. The plaintiff’s account to Doctor Gillet of his left hand injury (the 2006 injury) was consistent with it having a modest impact on him at the time of the incident. [20] The plaintiff did not reveal the extent of his pre-existing left arm injury to Doctor Gillett when regard is had to the collateral evidence referred to later in these reasons, in particular evidence demonstrating that he was seeking the provision of strong pain medication in late 2012 for his chronic regional pain syndrome. The plaintiff also did not reveal to Doctor Gillett the extent to which his left arm injury had impacted on his social functioning. Doctor Gillett was not aware that the plaintiff had previously been diagnosed with chronic regional pain syndrome in his left arm. He was not aware that the plaintiff had not worked for the six and one-half years prior to the 2013 injury other than for the short periods referred to at paragraphs [2] to [5] of these reasons. The lack of candour as to his pre-existing condition does tend to undermine the plaintiff’s credit. [21] The plaintiff was seen twice by Doctor Don Todman, a neurologist. Doctor Todman understood that the plaintiff had used a hammer to hit the end of a jemmy bar to separate floorboards from a concrete slab. The plaintiff’s account to Doctor Todman of his left arm injury, the 2006 injury, was that he was left with weakness and moderate pain. Doctor Todman diagnosed a pain syndrome in the right hand. There were some features that suggested chronic regional pain syndrome. He considered that the plaintiff was presenting genuinely. [22] Again the plaintiff did not reveal that he had largely not worked for six and one-half years as a result of his left arm injury nor did he indicate that he had, in November 2012, been seeking strong pain medication for the pain in his left arm. These are factors which again impact on the credit of the plaintiff and the reliability of his evidence. [23] The plaintiff was also seen by the defendant’s expert, Doctor Blenkin, an orthopaedic surgeon. The plaintiff told Doctor Blenkin that he sustained the injury when he was forcing a jemmy bar under timber flooring and whacking the curved end of the bar with his right hand. The plaintiff denied illicit drug use to Doctor Blenkin. In his evidence before me the plaintiff said he smoked a bit of marijuana because it helped -- 5 of 18 -- 6 with the pain. Other evidence suggests that the plaintiff’s use of illicit drugs was in fact quite heavy. In January 2012, he told a general practitioner that he smoked around 20 cones of marijuana per day and used alcohol daily. [24] Doctor Blenkin’s opinion is that there was no organic problem affecting the plaintiff’s right hand or arm. He agreed that the plaintiff did not meet the criteria for chronic regional pain syndrome. He opined that the plaintiff’s condition was consistent with being driven by a psychological state, which was pre-existing. In his opinion, the work undertaken by the plaintiff on 13 and 14 May 2013 has given him no lasting problem. In evidence, Doctor Blenkin said that the plaintiff’s claim of sensory deficit did not fit the anatomical distribution of the nerve supply into the hand. He otherwise had no physical signs, no restriction of range of motion and no muscle wastage or dystrophy. Doctor Blenkin would have expected muscular wastage with the level of pain and disability that the plaintiff claimed. The psychiatric injury [25] In addition to the physical injury, the plaintiff says that he also suffered a psychiatric injury as a result of the incident in 2013. An important matter that warrants determination is whether the plaintiff sustained this psychiatric injury as a result of the incident in 2013 or whether it was a pre-existing condition. There are a number of features surrounding this issue, which impact not only on the credibility and reliability of the plaintiff but also impact upon the weight to be given to the expert evidence of the psychiatrist upon which the plaintiff relies in proof of his psychiatric injury. [26] The plaintiff was seen twice by Doctor De Leacy, a psychiatrist. The plaintiff’s account to Doctor De Leacy was that he was using a jemmy bar and hammer without a rubber grip which exacerbated the jarring effect on his right hand. The jemmy bar kept pushing hard into his palm causing considerable pain. The plaintiff told Doctor De Leacy about the injury to his left hand (the 2006 injury). He said that he was depressed following that injury but he had overcome that depression at the time of the injury to the right hand. He told Doctor De Leacy that he did not use illicit drugs. Doctor De Leacy also described the plaintiff as having short term memory issues attributable to his distraction due to his mental illness. The plaintiff told Doctor De Leacy that he used to participate in a lot of sports such as hockey, cricket, ten pin bowling and boxing. However, he could no longer do any of those activities. What he did not tell Doctor De Leacy was that it was in fact the 2006 injury which caused him to stop participating in these activities. [27] Doctor De Leacy diagnosed an adjustment disorder with anxiety and depressed mood. He said that the plaintiff could be classified as having major depression but his preference was an adjustment disorder as that fully explained his symptoms and related them to the causative factors. The plaintiff’s pain, in his opinion, has caused considerable psychiatric disturbance. [28] Doctor De Leacy accepted in cross-examination that he hadn’t been made aware of the limited nature of the plaintiff’s attempts at returning to work subsequent to the 2006 injury. Significantly, Doctor De Leacy was not aware that the plaintiff had reported severe and protracted depression to doctors in late 2012. He also wasn’t aware of the plaintiff having received counselling through a trauma clinic in 2008. He was not aware that the plaintiff had been prescribed Pristiq and Endep for -- 6 of 18 -- 7 depression in 2012. He wasn’t aware of the plaintiff’s reports of low mood, negative rumination and a sense of hopelessness and helplessness in late 2012. Doctor De Leacy accepted that awareness of these factors would impact on assessing the plaintiff’s mental state prior to the 2013 incident. The existence of such symptoms prior to 2013 would impact on what, if any, symptoms could be attributable to the right hand injury. [29] Doctor De Leacy also said that the plaintiff did not indicate that he was self- medicating with alcohol or more particularly with cannabis. The use of cannabis can exacerbate depression. The plaintiff also described a relationship break-down having occurred which Dr De Leacy understood as having occurred after the right hand injury. [30] Doctor De Leacy was unaware that the plaintiff had lost all of the money that he received as a result of his 2006 injury and that he had indicated in late 2012 that this was a stressor in his life as was his homelessness at that time. These are also factors which Doctor De Leacy said would impact upon the assessment of the plaintiff’s psychological state. Doctor De Leacy accepted that if the plaintiff had endured six and one-half years of significant pain and an accompanying severe depressive episode due to that chronic pain, that he was likely to continue in that severe depressive state. In assessing the level of permanent impairment attributable to the right hand injury it was critical to his opinion that he accurately understood the extent of any permanent impairment that pre-existed the subject event. [31] Doctor Alfred Chung, a psychiatrist, saw the plaintiff on one occasion for what he believes would have been between one hour and one-half hours. Initially Doctor Chung diagnosed an adjustment disorder with depressive symptoms. However, he changed his opinion after consideration of further material. That material included medical records of the plaintiff’s attendance upon a number of general practitioners in 2012 and the contents of an application made by the plaintiff for the disability support pension in November 2012. The medical records revealed that the plaintiff had been prescribed Pristiq, an anti-depressant and Endep (used for its sedative effect) in 2012. Dr Chung’s revised opinion as a result of the consideration of that further material was that the plaintiff did not suffer an adjustment disorder associated with the workplace incident. He had pre-existing conditions. In his view, the plaintiff had minimised his past, significant mental health history, which impacted upon the diagnosis he initially made. [32] I accept that the plaintiff is an unsophisticated man with limited education. I did not consider that he was actively setting out to deceive. Whilst I am prepared to accept he was attempting to give an honest account of what occurred to him there are a number of factors which impact upon the reliability of his evidence. His lack of candour to the various doctors affects the weight that I can give to their opinions particularly those opinions on which he relies to prove his case. [33] The plaintiff’s case is that whilst he sustained an injury to his left hand in 2006 and a consequent psychiatric injury, that at the time of the incident in May 2013 life was looking more positive for him and his return to work can be seen as an indicator of an improvement in his psychological functioning. In particular, the plaintiff argues that this was his fourth attempt at returning to work, the first three being his own floor sanding business, one week’s work as a labourer for a bricklayer, and three months of work as a cleaner. -- 7 of 18 -- 8 [34] In January 2012 (15 months prior to his commencing work for the defendant), the plaintiff saw Doctor Hussain at the Caring Medical Centre. On 19 January 2012, the plaintiff said that he was using alcohol and marijuana daily to treat his pain. He would smoke around 20 cones per day and have several drinks per day. He indicated that he was refusing to take any medications and that he had stopped all his pain medications. He reported a depressed mood and anxiety, relationship problems and financial problems. He reported suicidal thoughts. The plaintiff in his evidence accepted that he used alcohol and marijuana to self-medicate. He accepted he might have told Dr Hussain that he was smoking 20 cones a day. However, he said that he wasn’t smoking as many as 20 cones per day. [35] On 23 January 2012, the plaintiff again saw Doctor Hussain. He described experiencing severe depression and again reported heavy alcohol and marijuana use. On 31 January 2012, the plaintiff told Doctor Hussein that he was feeling better as a result of taking antidepressants. His diagnosis at that time was depression/anxiety and chronic pain. He was prescribed Pristiq (an anti-depressant) and Tramal (an analgesic). He was provided another prescription for Tramal on 4 February 2012. Doctor Hussein provided a medical report for the purposes of the plaintiff’s application for the disability support pension. [36] On 17 February 2012, the plaintiff told Doctor Hussain that he was getting better but still had severe pain due to his left hand nerve injury, the 2006 injury. He was prescribed Pristiq and Endep. [37] The plaintiff’s next visit to a doctor was on 10 October 2012, at which time he indicated that he had been on Tramal for six years. He was off Pristiq at the time of the consultation. He was reported as having a depressed mood but was not anxious. He had no relationship problems and no suicidal thoughts. This visit was one week after the plaintiff had finished working as a domestic cleaner. [38] On 18 October 2012, the plaintiff attended at another medical practice, the Family Medical Practice at Kallangur. The purpose of his visit was his chronic regional pain syndrome in his left arm. [39] On 22 November 2012, the plaintiff again saw Dr Hussain for depression and anxiety. He was prescribed Endep and Tramal. On 24 November 2012, the plaintiff was seeking Oxycontin for his pain saying that Endep and Tramal were not really working. He said to the doctor that he was refusing to take any medication that had been prescribed to him as it was not working. [40] On 26 November 2012, the plaintiff attended a medical practice at Burpengary and requested a prescription for Endone and OxyContin. The plaintiff in his evidence could not recall having asked any doctor for these drugs but did not deny it. Two days later, the plaintiff attempted to source Endone and Oxycontin from his doctor at Kallangur. Again he said to the doctor that Tramal wasn’t working. The plaintiff, in his evidence, accepted that he was seeking Oxycontin because he said that he had tried one and it helped with the pain. However, the doctors did not prescribe it to him. Oxycontin and Endone are the strongest pain medication available on prescription. The plaintiff also conceded in his evidence that throughout 2012 his mental health was a problem for him. [41] Important to a consideration of the plaintiff’s psychiatric injury is an application made by the plaintiff for the disability support pension. His application was made, he -- 8 of 18 -- 9 accepted, on the basis of his depression and his left arm problems. He was interviewed on 21 November 2012, by a psychologist in the employment of Centrelink as part of an “Employment services assessment report”. In that report, the plaintiff is described as having told the writer that his attempt at starting his own business in floor sanding failed because he was physically unable to complete work. The plaintiff’s evidence was that his business failed because his van and tools were stolen. He said that he had one employee and performed around one month’s worth of work. He denied that his business failed because he was unable to perform the work. As referred to earlier, despite having an employee, the plaintiff provided no documentation evidencing this business. [42] The plaintiff’s work as a domestic cleaner ended in October 2012, around six weeks prior to the assessment by Centrelink. Doctor Hussein provided a medical certificate, which diagnosed severe depression. The report reveals that at that time, November 2012, the adjustment disorder, which arose due to the left hand injury, had developed into major depression. The plaintiff had indicated that he had received some psychological treatment in October 2012. He didn’t have money to purchase the medication that was prescribed to him. He was said to have presented in a high state of arousal, distressed and agitated. He reported disturbed sleep, low mood with negative rumination and a sense of hopelessness and helplessness. The plaintiff confirmed in his evidence that as at October 2012 this was his psychological state. The report also indicated that the plaintiff was living in his car, his relationship having ended. The plaintiff agreed that he had left his partner a couple of times previously. The plaintiff accepted that he had gambled away his compensation pay-out, received as a result of his 2006 injury. The report referred to that stressor. It also referred to the plaintiff being in debt which he denied. [43] It is this report prepared for the plaintiff’s application for the disability support pension and the medical records of the plaintiff’s attendance upon general practitioners throughout 2012, which led Doctor Chung to change his opinion. [44] The state of the plaintiff’s psychological health in 2012 does appear to be something that he minimised in his consultations with the psychiatrists in particular. When the state of his mental health at the beginning of 2012 and the end of 2012 is considered with his admissions that he self-medicated with marijuana and alcohol, the probabilities favour the view expressed by Dr Chung. The plaintiff’s adjustment disorder developed into major depression, which was pre-existing at the time of the plaintiff’s injury. I have had regard, as argued, to the fact that the medical records revealed periods of time throughout 2012 and 2013 when the plaintiff was not seeing a medical practitioner. However, it is apparent from the multitude of statements that he made that he was not always compliant with his medication, that he was expressing severe pain at the end of 2012 and depressive symptoms at both the beginning and the end of 2012. Given his claims of having self-medicated with alcohol and marijuana, and that the use of cannabis can exacerbate depressive symptoms, the probabilities favour that his depressive illness was pre-existing and that he didn’t in fact develop an adjustment disorder as a result of this 2013 workplace injury. In any event, the opinion of Doctor De Leacy upon which the plaintiff relies in proof of his psychiatric illness necessarily carries little weight as it was not based on an accurate understanding of the state of the plaintiff’s psychological functioning prior to the 2013 injury and the extent of the permanent impairment that already existed as a result of the 2006 injury. -- 9 of 18 -- 10 Legal framework of liability [45] At common law, an employer owes a duty to take reasonable care of its employees to avoid exposing them to unnecessary risks of injury. In Czatryko v Edith Cowan University,1 the court said of that duty: “An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.” [46] There is no issue that in this trial the defendant owed the plaintiff such a duty. The first issue which arises for determination is whether there was a breach of that duty. [47] The relevant statutory provisions which apply are contained in sections 305B – 305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) which provide: 305B General Principles (1) A person does not breach a duty to take precautions against a risk of injury to a worker unless- (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)— (a) the probability that the injury would occur if care were not taken; (b) the likely seriousness of the injury; (c) the burden of taking precautions to avoid the risk of injury. 305C Other Principles In a proceeding relating to liability for a breach of duty— (a) the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and (b) the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. 305D General Principles 1 (2005) 79 ALJR 839 at [12] per Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ. -- 10 of 18 -- 11 (1) A decision that a breach of duty caused particular injury comprises the following elements— (a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation); (b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability). (2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach. (3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach— (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty. 305E Onus of proof In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. Was there a foreseeable risk of injury which was not insignificant? [48] The duty of an employer to take reasonable care for the safety of its employees does not require him/her to safeguard an employee against all injury. [49] In Vozza v Tooth & Co Ltd,2 Windeyer J said: “For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.” [50] In Czatyrko v Edith Cowan University, it was “unnecessary risks” against which the employer must guard. [51] In Stitz v Manpower Services and Anor, McMeekin J said “an employer is not required to guard against all risks of injury”.3 2 (1964) 112 CLR 316 at 319. 3 [2011] QSC 268 at [15]. See also Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 per Bowskill QC DCJ (as she then was) -- 11 of 18 -- 12 [52] The “Shirt calculus” describes the questions to be answered in deciding whether there has been a breach of a duty of care. Mason J said,4 “A risk of injury which is quite unlikely to occur …may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that this conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assess what is the standard of response to be ascribed to the reasonable man placed it the defendant’s position.” [53] The foreseeable risk according to the “Shirt calculus” was one which was not “far- fetched or fanciful”. Consideration of foreseeability must be considered in accordance with section 305B, that is, a risk of injury that is a “not insignificant”. That test has been said to be “somewhat less demanding” than the far-fetched or fanciful test.5 [54] The plaintiff was employed as a floor sander. That necessarily involves manual tasks. The defendant admits that the work activities the plaintiff was directed to perform involved manual handling and activity that had the capacity to be repetitive. I accept (as the defendant concedes) that it also involved heavy activity. Such work necessarily involves a risk of injury. The defendant concedes that manual handling duties, including repetitive, manual handling tasks such as those undertaken by the plaintiff involved a foreseeable risk of injury. A reasonable person in the defendant’s position, that being a company, which had provided floor sanding and demolition services for more than 40 years would have foreseen that the activity that the plaintiff was required to undertake did involve a not insignificant risk of injury. What would a reasonable person in the position of the defendant have done knowing of that foreseeable risk of not insignificant injury? 4 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. 5 Meandarra Aerial Spraying Pty Ltd v GEJ and MA Geldard Pty Ltd (2013) 1 Qd R 319 at [26] per Fraser JA; See also Stokes v House with No Steps [2016] QSC 79 at [66] per Jackson J. -- 12 of 18 -- 13 [55] The next question for determination is whether a reasonable person, in the position of the defendant, would have taken the precautions that the plaintiff alleges should have been taken. I must consider this question prospectively. [56] Because the inquiry is prospective I should not focus exclusively upon the particular way in which the injury occurred. As Hayne J said in Vairy v Wyong Shire Council,6 “Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.” [57] I must determine what a reasonable person would have done to avoid what is now known to have occurred. I must identify what the response would have been by a person looking forward at the prospect of the risk of injury. [58] The plaintiff argues that the defendant: (1) failed to provide him with work assistance; (2) failed to provide any or adequate training; and (3) was negligent in requiring him to attend the workplace after he expressed concerns about his lack of experience in demolition. [59] The plaintiff’s account of how the injury occurred was the subject of much criticism by the defendant. In particular, the defendant argues that the inconsistencies in the accounts the plaintiff gave to the various doctors when considered against his evidence-in-chief demonstrates that he is an unreliable historian. [60] The first and perhaps most significant inconsistency is that which arises in the Notice of Claim for damages declared by the plaintiff on 1 March 2016 and completed in consultation with the plaintiff’s solicitor. In answer to question 40 “Completely describe the details of the event resulting in the injury” an annexure was completed by the plaintiff in consultation with his solicitor. That annexure set out the details of what the plaintiff says he was doing when he sustained the injury. It states: (1) The claimant used the crow bar to attempt to lift the timber flooring but it became obvious that more force was needed as the floorboards were secured with dynobolts and glued to the concrete slab. 6 (2005) 223 CLR 422 at 461. -- 13 of 18 -- 14 (2) The claimant then held the crow bar in his left hand and hit the end of the crow bar with the hammer, using his right hand. (3) A great amount of force was required to separate the floor boards from the floor. (4) The claimant continued in this capacity for approximately 2 hours when the boss’ son arrived who had brought a saw. (5) The claimant noticed his right hand had become swollen and mentioned this to the boss’ son, but received no response. (6) The claimant finished his shift and attended back at the domestic site the next day to finish the job. (7) He continued to work in the same manner as the previous day, hitting the end of the crow bar with the hammer, and noticed his right hand pain continued to increase. He then notified his boss. [61] Significantly, the plaintiff does not allege in the Notice of Claim that he used the jemmy bar in the manner in which he described in his evidence. This account in the Notice of Claim is consistent with that given to Doctor Gillett and Doctor Todman by the plaintiff. The account that the plaintiff gave to Doctor Blenkin is inconsistent again, in that the plaintiff said that was hitting the curved end of the jemmy bar with his hand. [62] The pleaded version of the mechanism of injury was also that “the plaintiff attempted to perform the task with inadequate and unsuitable tools having borrowed a hammer with a proper handle from the owner which he used to try and belt the bar between the concrete slab and the flooring”.7 The pleaded version of what the plaintiff did on the second day was “the plaintiff returned to the workplace and continued the task which involved repeated and repetitive hammering and pushing of the wrecker bar to try and remove the floor and after three hours his hand swelled up”.8 Again, the pleaded version of the mechanism of injury is not consistent with the plaintiff’s evidence before me. [63] The defendant also argues that the description given by the plaintiff in his evidence as to how the injury was sustained was implausible if not impossible. It is argued that it defies logic that from a standing position the plaintiff could take a jemmy bar and ram it into a small gap to get underneath the timber floorboards. I saw the plaintiff demonstrate how he undertook the task and I did not gain an impression that what he demonstrated was implausible. Indeed the account he initially gave and the account that Mr Tim McIntyre gave of undertaking the work required the jemmy bar to be hammered underneath the floorboards. There is nothing more implausible about the plaintiff’s evidence than there is about Mr Tim McIntyre’s evidence. I do not agree that his account in evidence was implausible. However, that factor does not detract from the significant inconsistency in the plaintiff’s account in the Notice of Claim, pleadings and his evidence in court. [64] I am left in a significant state of doubt as to how the injury was sustained. I do not consider that the plaintiff was being dishonest in his evidence. However, to my mind, there is an element of reconstruction to his evidence. He is an emotional man who clearly believes that he has suffered a permanent injury for which his employer is responsible. His evidence does seem to have been tailored to suit his present 7 Paragraph 4(e) Statement of Claim 8 Paragraph 4(h)(iii) -- 14 of 18 -- 15 recollection. I am not able to find that it was more probable that the injury was sustained in the manner in which he demonstrated. This makes assessing the alleged countermeasures that the plaintiff alleges ought to have been taken to avoid injury, difficult. [65] The task the plaintiff was asked to undertake, the removal of the flooring, seemed to me to be a relatively simple task. I accept that it was a physically demanding task but it was not in any way complex. The plaintiff’s evidence was that he was given instructions on how to remove the flooring by Mr Leslie McIntyre, which he followed initially but chose to use what he considered a more effective method because the ineffective method was “pissing him off”. He was provided assistance in removing the flooring by Mr Tim McIntyre from a time not long after he started performing the task. He was shown how to lift the flooring by Mr Tim McIntyre, whose demonstration was consistent with the way in which the plaintiff had been instructed to remove the floor by Mr Leslie McIntyre. The plaintiff’s evidence was effectively that the method he was instructed to employ was making him angry because of the ineffectiveness of it so he chose to utilise a different method. [66] In those circumstances, the plaintiff has not at all established that there was a failure to provide him with work assistance or a failure to provide any or adequate training. As I indicated, to my mind, this was a relatively simple task. The instruction and demonstration provided was sufficient to educate the plaintiff in how to remove the flooring. The magnitude of the risk of injury from performing this simple task was relatively small. The plaintiff was provided with assistance. A reasonable person in the position of the defendant, considering the expense and inconvenience of providing any greater degree of training and assistance, would not have taken any further action. [67] The plaintiff’s third claim of negligence is in the defendant requiring him to attend at the house after expressing his lack of experience in demolition. The plaintiff’s evidence was that on the morning of the second day of the job he complained to Mr Leslie McIntyre that “I’m a floor sander. I don’t rip up floors” to which Mr Leslie McIntyre responded “if you want work, you’ll go and do it”. There is nothing in the complaint made to Mr Leslie McIntyre that suggested anything other than the plaintiff was unhappy about having to perform the task. He did not complain about any injury having been sustained the day prior and he did not complain about any difficulties he was having in removing the floor by the method he was told to employ. Whilst Mr Leslie McIntyre denied having made this comment in response, I did consider Mr Leslie McIntyre to be defensive in his evidence. Even accepting that he gave this response, it is not an unreasonable comment in the circumstances of a general complaint from an employee about the nature of the work he has been asked to perform. A reasonable person in the position of the defendant would not have directed the plaintiff not to complete the task allocated to him on the basis of such a complaint particularly in the absence of any articulated difficulties in completing the task. [68] The general catch-all claims of negligence of failing to take reasonable precautions to avoid foreseeable risk of injury to the plaintiff given his lack of experience; exposing him to a risk of injury which it knew or ought to have known; failing to provide a safe system of work and failing to provide safe equipment do not assist the plaintiff. He argues that a jackhammer ought to have been employed to lift the flooring. No evidence from any person expert in the removal of flooring was called by the plaintiff to establish that a jackhammer ought to have been used. The plaintiff -- 15 of 18 -- 16 on his own account was not experienced in the removal of floors so his suggestion that a jackhammer ought to have been used carries little, if any, weight. [69] Mr Tim McIntyre had worked in the flooring industry for 25 years. At the time of the trial he ran his own business, which involved floor sanding and installation. He considered himself experienced in floor sanding and floor removals. That wasn’t disputed by the plaintiff. Mr Tim McIntyre described the floor at the house at Alexandra Headlands, as a solid timber floor. The timber boards were 18 millimetres thick and were secured to plyboard using adhesive and staples. The ply, which itself was around 15 millimetres thick, was secured to the concrete sub-floor using split pins or anchors. Mr Tim McIntyre said that a jackhammer would only be used if the timber flooring was directly stuck to the concrete slab. It was put to Mr Tim McIntyre that the ply was glued to the concrete slab, which he denied. The plaintiff’s evidence was that he thought that the ply was glued to the concrete, however, it was in fact dynabolted to the concrete. There is no suggestion that a jack hammer was needed to be employed to complete this job. The probabilities favour a finding that the timber boards were glued to the plyboard, which was then attached by bolts or pins to the concrete slab. Consequently on Mr Tim McIntyre’s evidence, which I accept, a jackhammer was not an appropriate tool to use for this job. [70] A further matter raised in evidence was the completion of an incident investigation report signed by Mr Leslie McIntyre on an unknown date. Mr Leslie McIntyre denied filling in the handwritten entries on the report and thought it likely the officer manager did so. However, he accepted that he had signed the report. The handwritten entry in answer to the question “what caused the incident?” was “pulling up floor boards using a pinch bar”. The report confirmed that no similar incidents had occurred in the past. The handwritten entry in answer to the question “what could be done to prevent this from happening in the future?” was “maybe- wear gloves/foam pad on hand”. [71] I must have regard to section 305C of the WCRA in considering whether the use of gloves was a reasonable precaution a person in the position of the defendant would have taken, to avoid a risk of injury. Important to a consideration of this, is that there was no evidence called to suggest that the use of gloves would have prevented the plaintiff’s injury. It wasn’t suggested to Mr Tim McIntyre, who operated his own business and had been working in the same industry for many years, that the use of gloves when undertaking this task was appropriate to avoid a risk of injury. Even taking into account this consideration, had with the benefit of hindsight, it does not lead me to consider that a reasonable person in the position of the defendant would have provided gloves and advised the use of gloves in carrying out this task. [72] Whilst the plaintiff initially pleaded a failure to provide a proper hammer and saw, these failures were ultimately not relied upon as sustaining a claim. [73] Much criticism was levelled at Mr Leslie McIntyre’s evidence by the plaintiff. As indicated earlier in these reasons, he was defensive in his evidence and at times argumentative. It is argued that his incapacity to recollect many aspects of this event is convenient. There is some evidence that suggests Mr Leslie McIntyre was unhappy that a WorkCover claim had been made by the plaintiff, and asked him to withdraw it. As to the essential facts, that is that the plaintiff was given instruction by Mr Leslie McIntyre, there is consistency. Accepting the plaintiff’s evidence as to the nature of that instruction, does not alter the end result. -- 16 of 18 -- 17 [74] The magnitude of the risk of injury to a worker performing a similar task to that of the plaintiff was quite low given the absence of any injury having been sustained by any worker in the 40 years of the operation of the defendant’s business. In any event, on the plaintiff’s evidence, the injury was sustained when he adopted a method of completing the task, contrary to how he was told to do the task and contrary to how he was shown to do the task. [75] I am not satisfied that the defendant breached any duty of care owed by it to the plaintiff. [76] The plaintiff does have some physical condition, which has led to chronic pain. I accept that pain is real. Despite my findings on liability, it is necessary to consider quantum. Quantum [77] None of the doctors were provided an accurate history by the plaintiff. It is apparent that they were all of the belief that the plaintiff had a much higher level of function in his left hand than was the case. The plaintiff’s functioning, as provided to the doctors, really appears to have been his functioning prior to his 2006 injury rather than prior to the 2013 injury. [78] The defendant argues that because there was no organic injury to which an assessment of permanent impairment can attach there should be no award for general damages. I accept that the plaintiff does have some physical condition that has led to a pain syndrome which is a moderate upper right limb injury. [79] I would assess the award for general damages at $10 940. Past and future economic loss [80] The plaintiff had only worked for a few months in the six and one-half years prior to the 2013 incident together with his period of self-employment for which there is no documentation. I have no confidence that the plaintiff would have worked successfully for any lengthy period of time in light of the condition of his left arm, which was still causing severe pain six months prior to the 2013 incident and in light of his psychiatric difficulties, which I have found were pre-existing. Overall, I consider that the plaintiff had poor prospects of continuing long term in manual labour in light of his pre-existing conditions. [81] The plaintiff claims an amount of $175 000 for past economic loss. The defendant submits there should be no award for economic loss, however, if there is to be one it should be a modest global award for both past and future economic loss. The plaintiff’s net income from paid employment in the three years preceding the injury was $7 192. That is as a result of him only having worked some four and one-half months in the six and one-half years preceding the injury. There is real doubt about the plaintiff’s capacity to work in the long term as a result of his injury to his left arm, the chronic pain he suffers as a result of that, his psychiatric condition and the effect of his chronic pain on his psychological functioning. A global award would be appropriate to reflect the plaintiff’s poor prospects of being able to continue working in manual labour due to his chronic pre-existing problems. The global award would recognise that the plaintiff had some limited earning capacity into the future. -- 17 of 18 -- 18 [82] I would award a global amount of $50 000. [83] The plaintiff has incurred past medical and other expenses. The amount paid by WorkCover Queensland for medical, rehabilitation, travel and other expenses was $40 834.87. The amount refundable to Medicare is $7 907.15. The difficulty in assessing both past special damages and anticipated future special damages is that each of the medical experts upon which the plaintiff relies were not fully appraised of the plaintiff’s pre-existing treatment needs for his left arm condition and depression. His costs are associated with the need to take analgesic pain relief. He clearly was and still is in need of analgesic pain relief for the chronic injury to his left arm. Therefore, it is impossible, in the absence of evidence, to properly assess any special damages for the right arm injury. Accordingly, I would not order any further special damages. [84] The amount of the plaintiff’s refund owing to WorkCover Queensland is $149 954.87. The total award that I would make (if I were satisfied that the defendant breached its duty of care) of $60 940 does not come close to exceeding that which is required to be refunded. Accordingly, I dismiss the plaintiff’s claim. [85] Judgement is for the defendant. [86] I will hear the parties as to costs. -- 18 of 18 --