Baig v AWX Pty Ltd [2017] QSC 325

SUPREME COURT OF QUEENSLAND CITATION: Baig v AWX Pty Ltd & Anor [2017] QSC 325 PARTIES: RAHMATULLAH AHMAD BAIG (Plaintiff) v AWX PTY LTD (ACN 095 222 263) (First Defendant) AND TEYS AUSTRALIA CENTRAL QUEENSLAND PTY LTD (ACN 105 563 255) (Second Defendant) FILE NO/S: S24 of 2013 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 20 December 2017 DELIVERED AT: Rockhampton HEARING DATE: 28, 29, 30 November, 1 December 2017. JUDGE: McMeekin J ORDER: 1. Judgment for the Plaintiff against the First Defendant in the sum of $921,083. 2. Judgment for the Plaintiff against the Second Defendant in the sum of $964,254.11 3. The parties have liberty to apply with respect to any issue of arithmetical error in the judgment sum 4. The question of costs be reserved for further submissions if not agreed. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff was employed at Teys Australia Central Queensland Pty Ltd in the paunch room – where the plaintiff claims damages for a back injury that he says he suffered on 5 July 2010 in the course of his employment – whether the event alleged to have occurred on 5 July 2010 actually occurred -- 1 of 43 -- 2 TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – where the defendants contend that the plaintiff has failed to prove there was any breach of the duty of care owed to the plaintiff – where the defendants submit the work system was safe – where it was common ground that if the work was performed at the pace and in the manner as shown in the workplace video, with adequate rotation of staff, then the work system was safe – where it is the plaintiff’s case that the video did not represent the usual pace and manner of work – whether the video represented the usual pace and manner of work – whether there was any breach of the duty of care owed to the plaintiff TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – CAUSATION – where it is not in issue that the plaintiff has a prolapsed disc – where it is not in issue that plaintiff complained of symptoms a few days after the incident – whether there exists a relevant causal connection between his work duties and the alleged injury - whether the plaintiff has any ongoing impairment relating to any work-related injury TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGES – GENERAL DAMAGES – where the defendants allege that the plaintiff suffered from a pre-existing injury that would have impacted on his future wellbeing – whether Mr Baig would have ended up in the same condition had the incident of 5 July 2010 not occurred TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – ECONOMIC LOSS – where the plaintiff has not worked since the incident save for a few days on light duties – where the plaintiff’s aim pre-injury was to work at his place of employment for some months and do further study – where the plaintiff’s residual earning capacity is very limited – where the defendants argue the plaintiff has a residual earning capacity that he has not utilised – whether the plaintiff will restore his residual earning capacity Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B, 305C Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited Cameron v Foster & Anor [2010] QSC 372, considered EMI (Australia) Ltd v Bes [1970] 2 NSWR 238, cited Heywood v Commercial Electrical [2013] QCA 270, cited Locher v Turner [1995] QCA 106, cited -- 2 of 43 -- 3 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, cited McClintock v Trojan Workforce No 4 Pty Ltd & Anor [2011] QSC 216, considered McQuitty v Midgley [2016] QSC 36, cited McLean v Tedman (1984) 155 CLR 306, cited Paskins v Hail Creek Coal Pty Ltd & Anor [2017] QSC 190, considered Purkess v Crittenden (1965) 114 CLR 164, cited Seltsam Pty Ltd v JC Hutton Pty Ltd [2005] NSWCA 208, cited Syben v Mackay TFS Pty Ltd [2009] QSC 367, considered Vozza v Tooth & Co Ltd (1964) 112 CLR 316, cited Watts v Rake (1960) 108 CLR 158, cited Wyong Shire Council v Shirt (1980) 146 CLR 40, cited COUNSEL: G F Crow QC with J M Harper for the Plaintiff G W Diehm QC with S Cilento for the Defendants SOLICITORS: Maurice Blackburn Lawyers for the Plaintiff BT Lawyers for the Defendants McMEEKIN J: Introduction [1] Rahmatullah Baig claims damages for a back injury that he says he suffered on 5 July 2010 in the course of his employment. [2] The defendants say that he is a deceitful man. That was the focus of the trial. Liability and quantum of damages are in issue. [3] It is necessary to say something of Mr Baig’s background to understand my response to the issues. [4] Mr Baig is an Hazari, a member of an ethnic group found at one time in central Afghanistan. He witnessed the Taliban execute his aunt and uncle when a small boy. The family fled to Pakistan where Mr Baig received an education for five or six years. He does not know his age. He thinks that he was about five or six years old when he left Afghanistan and 12 or 13 when his finished his schooling. He worked when at school and after he left school. In 2007 he moved to Iran and worked as a tiler. [5] His journey here was a long one. Quetta to Karachi, to Kuala Lumpur, to Jakarta, to Port Town, to Surabaya. He was at sea for six or seven days heading to Christmas Island when our Navy picked him up. [6] He arrived in Australia in 2009. Because his birth date was unknown he was given a birthday on arrival here of 1 January 1991, so making him around 18 years old.1 His 1 I will refer to Mr Baig as having the adopted age even though there is some doubt about that. It is the best indication that we have and his friend Mr Ali supported it. -- 3 of 43 -- 4 English was poor. He was sent to Perth after about 10 weeks in detention. He attended a high school but wanted employment. A friend suggested there was work in Rockhampton. [7] On about 30 May 2010 he obtained work at the meatworks in Rockhampton conducted by the second defendant, Teys Australia Central Queensland Pty Ltd. He was employed on a labour hire contract with the first defendant, AWX Pty Ltd. [8] Mr Diehm of Queens Counsel appeared for the defendants with Mr Cilento. He advised me that the defendants had a common interest in the litigation, that if one was liable so the other, and that I need not concern myself with any distinction in the assessment of damages. I shall proceed accordingly. LIABILITY [9] The defendants contend that the plaintiff has failed to prove that: (a) the event alleged to have occurred on 5 July 2010 actually occurred; (b) if it did occur, there was any breach of the duty of care owed to the plaintiff; (c) there exists a relevant causal connection between his work duties and the alleged injury; and (d) if (a) to (c) are established, that he has any ongoing impairment relating to any work-related injury, though he plainly has ongoing injury. The plaintiff’s case [10] Mr Baig worked in the paunch room. He occupied the position nominated in the evidence as “Man 2”. His task was to remove the “bible” (more technically the omasum) from the paunch. The bible is a small sack that was sliced off the paunch and then slid by Man 2 further along to another worker (variously Man 3, 4, 5 or 6). The paunch came to Man 2 from the person at “Man 1”. Man 1’s task was to place the paunches onto a hook facing in a particular direction to facilitate the slicing process. The hooks ran along two chains. The chains operated at a constant speed. Mr Baig was expected to deal with every paunch i.e. on both chains. “Chain 2” was further away from him than “chain 1”. While the chains operated at a constant speed the rate at which paunches could come to him did not. That depended on how many paunches came to Man 1 and the rapidity with which that occurred and how quickly he could hook them. [11] It was common ground that 1603 beasts a day were slaughtered. Mr Baig was required to repeat his tasks 1603 times each day save for beasts that might be condemned - perhaps 5 to 10 beasts. Given the hours of work, that required that a paunch be dealt with on average once every 19 to 20 seconds. [12] It was common ground too that if the work was performed at the pace and in the manner as shown in a video supplied by the defendants, with adequate rotation of staff, then the work system was a safe one with the workers exposed to manageable forces. However Mr Baig and his co-worker Mr Mohannadi said that the video did not represent the usual pace and manner of work. Mr Mohannadi said (and English plainly is not his first language): -- 4 of 43 -- 5 “Now, did you notice on that DVD also that there were O-rings attached to each of those two chains?---Not true because it sometimes is true, but sometimes it’s busy. For every hook they’re going to put one paunch – on every hook is one paunch. There’s no gap between their hook – their paunch. Okay. So what you’re saying is that – is it, that you would have them on every hook, not every second or third hook?---Yeah, every hook. Every hook. One hook, yes. Okay. Is that different from what you saw on the DVD?---Yeah, is different. A hundred per cent is different. Okay. All right?---Not – I say it’s not all the time for one day shift. Not all the time. Sometimes if maybe is there some problem on the update, the paunches come in late. The guy just puts it on the one hook, maybe four – two, three, or four hook is empty. Another paunch come in. But the time is busy – is the most time it’s busy, every hook, one paunch. Every hook, one paunch. Okay?---Not gaps between the hook. One paunch.”2 … “Okay. Can I just ask, when you looked at the DVD which was provided to you by Mr Baig’s lawyers? Yes. Are you able to comment upon the speed at which the work was being performed in that DVD, compared to the speed which you experienced in the busier times in the paunch room? Yeah, I watched the DVD. I’d say it’s – no, it’s not true. It doesn’t take – not true. Not all the time. It maybe – maybe the time the job is very slow you take a picture like that DVD.”3 [13] I see no reason not to accept Mr Mohannadi’s evidence. He had no interest in the matter. It accords with Mr Baig’s evidence. [14] At about 4pm on 5 July 2010, Mr Baig was processing bulls. The paunches of bulls were substantially larger than those of cows. Mr Baig’s account (and his evidence was provided through an interpreter) is that 4 or 5 paunches were in front of Man 1 who was hooking every hook. Mr Baig was working at speed. A large paunch was on the second chain and had not been presented in the correct manner. This meant that Mr Baig had to turn it and so slowed him. The effect of the chain’s movement was to take the paunch away from Mr Baig’s position. In order to reach the paunch Mr Baig says he was lying across the table. He had to reach and pull at the paunch after cutting the paunch one or two times in an effort to separate the bible. He said that as he pulled on the paunch he felt immediate pain in his back and buttock. 2 T2-22/29-46 – my emphasis. 3 T2-23/28-35 – my emphasis. And see T2-25/35. -- 5 of 43 -- 6 [15] Subsequent radiological investigations have shown that Mr Baig has an L5/S1 disc prolapse. So much is not in issue. His case is that it occurred in this incident. The defendants say that is not shown. [16] Mr Roger Kahler, an engineer specialising in workplace health and safety, supplied a report on the work system. He was not cross examined. On Mr Baig’s description of the incident he opined that Mr Baig was required to exert significant musculoskeletal forces at extremes of posture. This carried with it a well-recognised risk of injury of the type Mr Baig complains of. [17] Mr Kahler says that there were procedural and engineering controls available to the employer that would have prevented or minimised the risk of injury and which were not adopted. Mr Baig’s credit [18] The defendants argue that the crucial evidence concerns the onset of injury at the time alleged. That depends entirely on Mr Baig’s evidence of symptoms and the defendants say Mr Baig cannot be believed. This is the crucial point in the case and I will spend some time on it. [19] The defendants rely on the following to assert a lack of candour on the part of Mr Baig. I here set out the submissions not my findings. [20] On 3 July he attended on a general practitioner, Dr Mohan. The plaintiff says that the attendance was for shoulder pain with a mention of minor back pain. The doctor’s notes record no complaint of shoulder pain but a complaint of back pain and a referral for an X - Ray. A medical certificate issued by Dr Mohan that day4 referred to the symptoms having been present since 25 June – so over a period of 10 days. The certificate issued on a Saturday and certified him unfit for work until the following Wednesday. The subject incident occurred on the Monday afternoon, two days after the attendance on Dr Mohan. [21] Mr Baig did not reveal this attendance for prior back pain to doctors retained to examine and report on him in the medico-legal context. He said that he had no symptoms of back pain prior to the subject incident to Dr Licina. [22] Mr Baig has given various inconsistent versions of the problems he was having at the meatworks. In his evidence he spoke of complaining to his supervisors of shoulder troubles and not back troubles on more than ten occasions before the subject incident. In his answer to a question in the Notice of Claim form5 he referred to a complaint of back trouble made twice about five days before the subject incident. The supervisors denied that any such complaint had been made and it was submitted that their evidence should be preferred. [23] It was discreditable of Mr Baig not to advise his employer of the episode of back pain when he returned to work on the Monday, or on the occasion of the onset of pain that Monday afternoon of the subject incident. 4 Ex 21. 5 Ex 19. -- 6 of 43 -- 7 [24] It was discreditable of Mr Baig not to advise the general practitioner that he saw on the Monday afternoon, Dr O’Regan, of this prior episode of back pain. [25] Mr Baig gave evidence that was inherently not credible. For example he said that Dr O’Regan did not examine him and did not look up from his desk. The doctor’s contemporaneous notes6 and usual practise suggest that was most unlikely. [26] The versions of events surrounding the injury given in the PIPA Form 1 Notice7 and the WCRA Notice8 are inconsistent with the version given at trial. There the emphasis was not on excessive reach distances but rather on the chain speeding up. The pleaded causes differ from the version there set out. [27] The version of events given to Mr Kahler9 does not match the version given at trial. [28] Mr Baig gave inconsistent versions concerning his authority to use the “Stop” button to halt the chain. His version to Mr Kahler10 was very different to his version to the Court. The supervisors’ evidence was more in accord with the probabilities and the version to Mr Kahler and should be preferred. [29] Mr Baig claimed to have left sided sciatica to Dr Campbell from the moment of the subject incident. His own evidence11 and contemporary records12 are inconsistent with that claim. His oral evidence was that pain extended into his buttock on the day which is contrary to Dr O’Regan’s records.13 [30] His claims for care are inconsistent with his claimed improvement in his condition. [31] His evidence concerning the induction process and the limited nature of his training was contrary to the unchallenged evidence of the supervisors and inherently improbable. [32] The references to practitioners at the Inala Medical Centre to the effect that he was “working” are inconsistent with his evidence. [33] Finally, Mr Baig was evasive in cross examination. Examples given were: (a) His apparent sitting tolerance over two days in Court cf. the evidence of limited tolerance; (b) The plaintiff conceded that his signature appeared on the Teys Induction Training record. However, initially, he vaguely suggested that he did not sign the document; (c) He denied attending Dr. Mohan for lower back symptoms and instead, stated positively, that he attended for his shoulder; (d) He denied Dr. Mohan giving him an x-ray referral; 6 Ex 24. 7 Ex 20. 8 Ex 19. 9 Ex 1.1 at pp 34-41. 10 Ex 1.1 at p 35. 11 T1-19/42-45. 12 Exhibits 24 and 33. 13 T3-17/13-21. -- 7 of 43 -- 8 (e) He denied telling Dr. Mohan that his lower back problem began on 25 June 2010; (f) He denied getting a prescription from Dr. Mohan of Mobic; (g) He denied getting a medical certificate from Dr. Mohan; (h) Upon attendance on Dr. O’Regan on 6 July 2010, the plaintiff failed to tell the doctor of his attendance on Dr. Mohan on 3 July 2010. His reason for this, and other such matter, that he was not asked, is itself discreditable. (i) Although claiming to not to not know much English at the time, “only a few words”, the plaintiff asked Dr. O’Regan for an x-ray referral; (j) The plaintiff lied to Dr. Young to get a medical certificate. The plaintiff attended upon Dr. Young (GP at Inala Clinic) on 29 July 2015 for a mental health check-up and told Dr. Young that he was working every day. Initially, the plaintiff said that he was referring to time off from class but then he conceded that he was not attending TAFE in July 2015; (k) The plaintiff deliberately did not tell his supervisors about his attendance on Dr. Mohan on 3 July 2010, in which he received a medical certificate, referral for x-ray and a prescription for Mobic. His only excuse for that was that there was not much time; (l) In evidence he stated that he wanted to work at the meatworks for a few months and then go and study, but then denied it in cross- examination; (m) The plaintiff denied having completed a Certificate III in English and having completed 510 hours of study – when the TAFE notes clearly show he has; (n) The plaintiff’s Notice of Claim for Damages asserts that the problem with performing his job was the speed of the chain and that it was sped up in 3 particular occasions – that was not the plaintiff’s pleaded case, his evidence was again evasive; (o) The plaintiff’s Notice of Claim for Damages (question 38) fails to mention a build-up of paunches in front of Man 1; (p) The plaintiff’s PIPA Notice of Claim fails to mention a build-up of paunches in front of Man 1; (q) The plaintiff did not to tell Mr. Kahler that there was a build-up of paunches in front of Man 1; (r) The plaintiff did not to tell Mr. Kahler about the number of cuts; (s) The plaintiff had no good explanation for the discrepancies in the PIPA Notice of Claim and the WorkCover Notice of Claim for Damages on the one part and his evidence; (t) He said that he did not know who Man 1 and Man 2 were until speaking with Mr. Kahler but question 8 of the PIPA Part 1 Notice (diagram) shows Man 1 and Man 2, labelled, in the appropriate positions; (u) In Exhibit 1, Mr. Kahler stated that the plaintiff told him that workers were authorised to use the Stop button. The plaintiff denied this in cross-examination. Discussion -- 8 of 43 -- 9 [34] Self-evidently the various complaints double up to a large extent. [35] An important feature of the case is that Mr Baig was not fluent in English in 2010 and he is not fluent now. Nor was he familiar with Australian habits and practices. When comparisons are made with what solicitors, doctors and engineers have reported there are more than the usual problems with ensuring that his meaning has been accurately understood and recorded. And it needs to be borne in mind that he may not have understood them. When it is said that his conduct was discreditable I see no reason to think that it was from his perspective. I am not sure that many Australian born workers would necessarily act as the defendants urge Mr Baig should have acted. But cultural differences and the pressures on a refugee immigrant provide a very different background against which to judge the actions and motivations of Mr Baig. [36] Some of these complaints ignore the fact that they reflect creditably on Mr Baig. For example why remain stoical when in Court but complain in your evidence if your aim is to deceive? Why alert the Court to improvements in your condition14 if that is your aim? If your intent is to deceive why tell a neurosurgeon that you have sciatic symptoms immediately after the subject incident but not maintain that to the Court? I think it fair to say that the experience of lawyers used to these sorts of claims over the years has been that on many occasions plaintiffs have been distracted by the intense concentration required when giving evidence and sat or stood for longer periods than they and others report is normal for them. That people have differing recollections of precisely when symptoms come on and how severe they were is a feature of almost every personal injury case. When the evidence that is given by the plaintiff goes against his case (e.g. not insisting on the presence of sciatic symptoms from the very first moment), and where that must be obvious to the plaintiff, then that is a usually taken as a good sign of reliability. It certainly goes a long way to meeting a claim of deliberate dishonesty. Dr Mohan on 3 July [37] By far the most cogent point made is that concerning the attendance on Dr Mohan on 3 July. I accept that it is hardly credible that the main point of the visit was about shoulder problems where the doctor made no record of any such complaint and yet recorded in some detail the supposed minor complaint. Quite apart from the improbability of the doctor misunderstanding entirely the point of the visit, the doctor’s record is consistent with the reference in the Notice of Claim form to back complaints made about five days before the subject incident. The converse of course may be true – that the doctor thought that the principal discussion was about the back problems with a mention of shoulder problems. If the doctor thought the shoulder symptoms inconsequential given the narrative nothing may have been recorded. That would not be the first time that has occurred. Locher v Turner15 provides an example that resulted in an award of damages for negligence against a medical practitioner, the plaintiff’s case being that numerous complaints of symptoms had not been recorded with consequent failure to make a timely diagnosis resulting in the premature death of the patient due to cancer. 14 That is the submission. The reference given at footnote 83 of the submission (Ex 38) is to Ex 25, an affidavit of service. I assume the reference intended is to Ex 2 paragraphs 65-67 although that does not quite say that there was an improvement after two years. 15 [1995] QCA 106. -- 9 of 43 -- 10 [38] Dr Mohan’s record establishes that there had been ongoing symptoms at some level in the lower back that had prompted the visit to the doctor. The complaint was of back pain on the left side of the lumbosacral region. Bending down was restricted. An X- Ray request form was provided to Mr Baig. He was given samples of Mobic. The diagnosis was of soft tissue strain.16 A certificate for three days off work was provided. [39] While I reject Mr Baig’s recollection of what occurred at this visit that does not logically require a wholesale rejection of his evidence. It needs to be kept steadily in mind that Mr Baig is being asked about an attendance on a doctor seven years before. The doctor has no recollection of what occurred. That is unsurprising. Had it not been that there is this litigation context it would be entirely unremarkable that a patient does not recall accurately something that took place over a very short time seven years before. Discreditable conduct? [40] Mr Baig says that the pain settled by Monday morning and so he went to work. He says that he felt fit to carry out his work. He is criticised for not telling his superiors about the visit to the doctor. If his account be true then why should he? The doctor thought that he was dealing with a minor back strain. Presumably he told his patient that opinion. Mobic is a drug intended to assist in settling symptoms. While Mr Baig says he took no medication, his recollection is that he did not receive any. The defendants say that is wrong because of the doctor’s record – and it probably is – but the defendants say that I should accept Mr Baig is right when he says he took none. Why should I assume that the tablets were not taken if proffered and if taken were not effective? It is an undoubted fact that he then worked from 6 am to 4 pm in a reasonably demanding job. No report is made of him having any difficulty through the day in keeping up with the chain. [41] The defendants’ assumption is that his report of feeling fit to work on Monday morning is a lie. Yet everything that he did is consistent with that claim. He did not follow up on the x-ray. He did not take advantage of the three days off. He did show up for work. He did work for 10 hours. He was a very long way through his 1603 beasts for the day when the subject incident occurred. Quite evidently Mr Baig was performing his work satisfactorily – slackness there is one thing the supervisors would notice and record. As well, the submission ignores that while Mr Baig gave the doctor the impression that the symptoms had come on over the previous 10 days there is no indication at all that the symptoms were disabling. Mr Baig had attended work every day. He was entitled to go to the medical centre and did not. I see nothing at all remarkable in his attending work as usual on the Monday and getting on with his work. [42] The further point is that the defendants assume that it is a lie when he says that he had earlier reported having difficulties to his supervisors. If that be true – that he had twice asked to be moved to an easier section about five days before and had been rebuffed as recorded in the Notice of Claim forms completed about nine and 18 months after the events – why see any point to again complaining? The defendants say that his supervisors were caring and would have responded to such complaints. I am not so sure about the premise. But the notion that his supervisors would have necessarily 16 T4-8/32. -- 10 of 43 -- 11 responded to any such request would depend very much on how it was couched and their perception of how serious it was. [43] It is interesting to note that Mr Kahler had a different understanding of the point behind the complaint of shoulder pain. Whether the difference comes about because of some misunderstanding by Mr Kahler, or by solicitors earlier, or because of the way Mr Baig gave his evidence is a moot point. Mr Kahler’s understanding was this: “[After referring to the men at Man 3, 4, 5 and 6] [t]heir inexperience would create more problems for him in his position. He states that at least 10 times he requested his supervisor to correct the situation as he was experiencing pain in his fingers and his shoulder was hurting.”17 That at least raises the possibility that the supervisors may have perceived his complaints to be about the inexperience of the men around him and that they do something about them rather than that the problem was with Mr Baig and they do something for Mr Baig. Their possible perception of the complaint may have meant that they saw no need to be concerned about Mr Baig. Dr Licina – a hiding of symptoms? [44] The complaint that there was no report to Dr Licina of the prior back complaints – Mr Baig ticked a box indicating as much – is essentially a complaint of an attempt to hide the existence of those complaints. The defendants might have made the same submission regarding the information supplied to Dr Campbell, the neurosurgeon asked to report on Mr Baig by his solicitors four months earlier. He records: “Mr Baig denied any prior history of lower back pain”.18 The trouble with the argument is that a month after the attendance on Dr Campbell Mr Baig did report the existence of lower back symptoms to the defendants in his WorkCover Notice of Claim form completed in December 2011. He had done the same nine months before in his PIPA claim form.19 Perhaps the explanation for the difference is the notion of what period of time constituted “prior history”. Both Dr Campbell20 and Dr Licina21 recorded that they assumed that this was an over period of time injury from 30 May to 5 July. So the “prior history” logically related not to the time leading up to 5 July which is now the focus, but rather the period prior to commencing work at the meatworks on 30 May. [45] As well, the notion that Mr Baig was endeavouring to hide these earlier symptoms is hardly borne out by Dr Licina’s recounting of the history that he obtained from Mr Baig set out in his report: “Mr Baig explained to me that three or four days before the incident of 05 July 2010 he felt left shoulder pain and some back pain.”22 [46] That is the problem with many of the complaints that are made about Mr Baig. It is essential to know what he thought people were enquiring in to. He has a significant language barrier. He was educated to, at best, a grade 7 standard in a country foreign to him. He was entirely unfamiliar with the processes here. There are undoubtedly cultural differences. And he is being asked to recall events from long ago. 17 Ex 1.1 at p 38. 18 Ex 3 – report dated 18 November 2011 at p 3. 19 See Ex 20 at p 7 paragraph 19. 20 Ex 3 at p 1. 21 Ex 27 at p 3. 22 Ex 27 at p 3. -- 11 of 43 -- 12 [47] What strikes me as significant is that those who originally dealt with Mr Baig assumed this was an over period of time injury, or possibly so. It is evident that the solicitors, when they first obtained instructions, were not sure whether this was properly classed as an over period of time case or a single incident case. It was not relevant for them to focus exclusively on what occurred on 5 July. Sometimes no distinction was drawn between the events that occurred at around 4pm that day and the events that may have been relevant to the entire system of work. That problem certainly infected the PIPA and Workover Notice of Claim forms. That is not to say that the facts would differ but that the solicitors would deal with the facts in a very different way and with different emphasis. And there is a ring of truth to Mr Baig’s claim that it was not until he spoke with the engineer that there was a better understanding of his case and what he sought to convey. Discrepancies between Notice of Claim forms, reports to Mr Kahler and evidence? [48] Mr Baig is criticised for discrepancies between these initiating claim forms and his evidence. There are two principal complaints. One is that he failed to speak of a build- up of paunches at his table. The other is that he spoke of the chain speeding up which was not his pleaded case. [49] As to that latter point, it is common ground that the chain moves at a constant speed. What changes is the speed at which the paunches come to the worker to be sliced. If the paunches come down the chute from the slaughter floor at a faster rate and Man 1 hooks them onto the chain more quickly then the work becomes more rapid for Man 2 and possibly considerably more rapid. The range seems to be from 19 to 20 seconds down to 12 to 13 seconds. Even a native English speaker might well refer to the latter circumstance as the chain speeding up. That is certainly the perception for the worker. To expect a meat worker new to the job and from Afghanistan with a limited command of English to draw the distinction between the two concepts is expecting far too much. [50] As to the claimed failure to mention the build-up in paunches in the pre-litigation initiating documents this is the account given in the PIPA form signed on 30 March 2011: “13. When the chains move more quickly my job is more difficult. I then often have to reach for the paunches near and at the point where the chains separate. When I have to reach a paunch that is moving along the table on the chain furthest away from me, I have to bend forward and reach about a metre, sometimes a metre and a half, across the table to cut off the bible. Sometimes I have to dive across the table to reach the paunch to remove the bible. This is very difficult. 14. My job was also difficult when an employee further along the table pushed a button to stop the chain. The paunches continue to drop onto my table from the kill floor. At this time my table becomes full of paunches and my job of separating the bibles is very difficult because with the paunches drop on top of one another and I have to find the bible to separate it. This involves a lot of reaching across the table and pushing and pulling. -- 12 of 43 -- 13 15. On 5 July 2010, at approximately 4pm, in the course of bending forward and reaching across the table to grab a bible attached to a paunch hooked to the chain furthest away from you at the point where the chains separate I felt a severe bout of back pain.”23 [51] So Mr Baig related that a build-up of paunches occurred from time to time. The complaint appears in the paragraph immediately preceding his report of the 5 July incident. The complaint becomes that it is not made clear that such build up occurred on this day, the 5th July. Notably he does not there say that there was no build up. At paragraph 17 of that PIPA form Mr Baig recounts that he then could not recall what the reason was for him having to work “at a much faster rate”. From his account it would be perfectly consistent with a need to work at a faster rate that there might be a build- up. Given the language difficulties and the confusion over what type of case was being run I cannot accept that this reflects adversely on Mr Baig’s credit, in the sense of honesty. So far as reliability is concerned I am not persuaded that it matters a great deal whether there was a build-up of paunches immediately before the subject incident. [52] It is said that his evidence departs from his account to Mr Kahler. This is the account given to Mr Kahler, according to Mr Kahler’s report: “Quite specifically, on 5 July 2010 there were not any incidents of paunches on the floor, but Mr Baig states that he does recall having to carry “bibles” on that day. He states that, at the time of the incident, he was reaching over to remove a bull’s paunch that was on Chain 2. He states that he put a cut in the “bible” and placed his left fingers therein. He was cutting tissue at the same time as pulling towards himself. He was pulling the “bible” with his left hand to stop/prevent the “bible” from removing away into the system while, at the same time, cutting with his knife to assist in freeing it. He states that, on occasions, he would pull the “bible” with 2 hands but not on this occasion. He states that his stomach was against the table and he had time for 1 cut only and then had to pull towards himself. He states that he was trying to tear the tissue of the paunch/ “bible” connection and he felt pain and let it go.”24 [53] Again Mr Baig is criticised about the minutiae of his account – the build-up of paunches and the number of cuts made. There is no discrepancy of any significance that I perceive in this recounting of the incident and his evidence: “INTERPRETER: The paunch was on the second chain. I did the first cut; it was far away from me. I cut it once or two times. It was far away from me. I was reaching the paunch, because it wasn’t cut properly. When I pulled it, it was very heavy and I had very – I felt very bad pain in my back. If there is a – if you’re not – if we manage to cut the specific area, then it’s easy to remove the fat. But if we don’t cut it, we won’t be able to tear that.” … 23 Ex 20 at p 6. 24 Ex 1.1 at p 38 paragraph 8.2. -- 13 of 43 -- 14 MR CROW: After you had put your fingers into the cut and you were pulling, could you tell us, firstly, what was your body posture. INTERPRETER: Yes, there’s the table. I was standing against the table and I was reaching the bible which was far away. It was like I was lying on the table. My stomach was on the table and my other foot was behind. There was a pipe that I was holding onto that. MR CROW: And, secondly, could you tell us the amount of force or amount of pressure that you felt as the paunch was being pulled away. INTERPRETER: When I – when I pulled it, it didn’t came apart. My back hurt. I – I let it go so do you want me to roughly say how many kilos do you think I thought it was? MR CROW: Yes. INTERPRETER: Approximately – approximately – sorry, I just [indistinct] approximately 15 to 20 kilos, I felt that much.” 25 [54] As to the number of paunches there are several references in Mr Kahler’s report to Mr Baig reporting that a build-up occurred from time to time: “He describes the situation where, if the people on Chain 1 or Chain 2 were too slow, the chain would be stopped and this would pressurise Mr Baig and the person who hooked the paunches as the paunches and “bibles” would continue to be received from the Slaughter Floor.26 With respect to the training of the person who hooks up the paunches, Mr Baig states that it is by coaching from an experienced person for several days. With respect to the person who hooked up the paunches, Mr Baig cannot remember how experienced the man was at the time of the incident. He states that the table can become quite crowded with paunches and, therefore, the person hooking the paunches simply hooks them to keep the paunches moving, leaving Mr Baig with the job of rotating them and presenting the “bible”. He refers to occasions where he has had to help the person at position of Man 1 by hooking up which further altered the capacity for him to do his work in a controlled manner. … Validating Mr Baig’s information given at interview, Figure 60 (taken from a video supplied by the Defendant) shows that there are 25 T1-19/32 – 20/37. 26 Ex 1.1 at p 34 -35 paragraph 8.1. -- 14 of 43 -- 15 times where the person at the position of Man 2 may hook up, as per Mr Baig’s recollection.27 … Mr Baig further describes that if they returned precisely on time from a break, there would not be a backup of paunches but it was not uncommon for the person at the position of Man 1 to be 1 or 2 minutes late, resulting in paunches piling up and him having to assist that man in that task. Alternatively, he would hook up himself and complete the cut. He states that in any one day there would have been a pile up of paunches after a break. This wold occur more so at the 30 minute and 20 and 15 minute breaks described in Section 2 of this report.28 [55] Mr Baig’s evidence in chief of the build-up of paunches on 5 July was: “MR CROW: Immediately prior to being injured, are you able to say how many paunches were received down the paunch shute and in front of man 1? INTERPRETER: At that moment when I was hurt, there was four or five other paunches in front of the other person. MR CROW: Did the number of paunches, four or five paunches, have any effect on where you were able to do your work? INTERPRETER: Yes. MR CROW: And could you explain that. INTERPRETER: When there are many paunches in front of number – person number 1, he doesn’t hook it only in front of himself, he also hooks it in front of me and I don’t have much space. I have to also hurry up, do my work because otherwise they will be gone. He was hooking in every hook. There were no other empty hooks so that he could hook and get rid of them. MR CROW: Did that happen immediately before you were injured? INTERPRETER: Yes, there were a number of paunches there.” 29 [56] In my view all this is more or less consistent. In any case the issue in the case is not whether there was a build-up of paunches. That merely goes to explain one circumstance in which Mr Baig says he was required to work at a faster pace. It was not essential to what occurred. Mr Baig might link the two together but there was no 27 Ex 1.1 at p 35 paragraph 8.1. 28 Ex 1.1 at p 38 paragraph 8.1. 29 T1-21/41 – 22/16. -- 15 of 43 -- 16 need for Mr Kahler to do so or for the lawyers to do so. The issue is whether Mr Baig had to lean across the table adopting an extreme posture and exert a significant pulling force. The faster the pace of work the more likely it becomes that the awkward posture might be required and adopted. But it is by no means essential that there be a build-up of paunches. The Inala Medical Centre records [57] It is said that there are references in the Inala Medical Centre Records which show Mr Baig to be working. The submission is: “His statements to general practitioners at the Inala Medeco Medical Centre that he was working, compared to his oral evidence and quantum statement that claimed he has not worked is a matter of considerable moment. This cannot be explained away by claims about being a student. Firstly, there are three separate references that would need to be explained away as involving misstatements in the record. Secondly, one of those references in the records, refers to him “working every day”. Finally, at that time the plaintiff was not attending TAFE at all, according to his quantum statement. The plaintiff has not produced medical certificates from the custody of TAFE in response to this issue.”30 [58] The point I take it is to assert that Mr Baig is being dishonest with the Court in claiming that he does not work and has not worked since he left the defendant’s meatworks. [59] The records read in part: “02/11/17: Took today off work – wasn’t feeling well – needs a medical certificate” 11/05/17: “unable to go to work due to pain” 29/07/15: “working every day” 31 [60] No practitioner was called to assert that what appears in the notes accurately reflects whatever may have been said by Mr Baig. The notes are not his notes. They are the doctor’s notes and reflect what the doctor thinks he is being told, which is not necessarily the same thing as what was meant to be conveyed. [61] For the 2015 entry the issue is whether the doctor has confused an attendance at TAFE every day with an attendance at a workplace every day. I do not mean to say that the fault for such a mix up necessarily lies with the doctor. However there is no question but that in 2015 Mr Baig was attending the TAFE. He requested a suspension for “health reasons” for the period 11 May to 18 May; 27 July to 4 August (the record reads “sick”32) and 31 August to 7 September. The entries in the Inala medical centre records show attendances at around each of those periods. The entries are for 12 and 14 30 Ex 38 paragraph 65. 31 See Ex 34. 32 Ex 11 p 18. -- 16 of 43 -- 17 May 2015 (coccydynia), 29 July, and 9 September 2015 (“back playing up”). The entry for 29 July suggest that he was indeed sick. While mostly incomprehensible the record on that date indicates that he was prescribed several medications and had dosages changed. None of this proves that he was not working but it does raise the distinct possibility that whatever term he used to convey to the doctor that he was expected to turn up somewhere he may have meant nothing more than his expected appearance at the TAFE college. [62] It is true that Mr Baig was not at TAFE in 2017. He was looking for work. Did he intend to convey that his illness or injury interfered with that activity? The defendants say that the occurrence of the word three times makes their point. I cannot see why. It is evident that what Mr Baig was after was a certificate of type that you get when you need to justify your time away from your “work”. If he used the word “work” to describe the certificate that he needed – and it seems he did need such a certificate to explain absences from TAFE and would need one with Centrelink – on one occasion then why not each time? [63] The difficulty with the defendants’ proposition is that there is not one skerrick of evidence to otherwise support the allegation. No question was put to his friend, Altaf Ali, who was called, and who sees him from month to month, about him working. And there is evidence that suggests that the proposition that he was working is hardly likely. There is no dispute that he has a prolapsed disc in his spine. He quite evidently has a number of other health issues – e.g. the records for November 2017 refer to a renal ultra sound being required for “prob renal stones” on the 13th and on the 20th “pilonidal sinus”. There are numerous entries in the same medical records of him needing treatment for his back. If he is working through all this he is at least very stoical. And it is evident that he did attend TAFE regularly enough through 2015-16. It would be difficult to imagine a much slimmer basis for asserting that a witness is perjuring himself than these records. Stop button [64] It is said accurately enough that Mr Baig’s evidence concerning the use of the “Stop” button to halt the chain has not been consistent. Mr Baig’s account to Mr Kahler in July 2014 (and for the purposes of the submissions it was assumed that Mr Kahler accurately recounted this) was: “Mr Baig states that workers had the authority to stop the chain. With respect to the frequency of pushing STOP buttons, Mr Baig says that, for himself, it could be as low as 1-2 times a day or 2-5 times a day. This would allow others to catch up. Essentially, between Mr Baig and others, the chain would stop on multiple occasions throughout the day (say 8-15 times in a day) with the frequency of stoppages being higher in the afternoons. However, as stated previously, this then was not followed by paunches and “bibles” being held or diverted from the Slaughter Floor.” 33 33 Ex 1.1 Section 8.1 at p 35. -- 17 of 43 -- 18 [65] There was no mention there of any restriction on a worker’s right to stop the chain. That was not his account in evidence. Mr Baig’s evidence in chief was: “MR CROW: Did anyone tell you at that time to use the stop button to stop the chain? INTERPRETER: Next to me, the other person who was senior person or my supervisor, when they told me to stop it, that’s when I pressed the stop. On my own, I cannot stop it for myself because they would be – they would be cursing me.” 34 [66] I cannot reconcile these two accounts. The discrepancy supports a submission that Mr Baig’s reliability on the issue is questionable. It would be hard to think that Mr Kahler, who is very experienced and I am sure conscious of the importance of accurately recording the information he received, would get something so wrong. [67] However, as a fact finding exercise the interesting aspect of the evidence is that to a very considerable extent Mr Baig is supported by Mr Mohannadi. Mr Mohannadi worked at the Teys’ meatworks and in the paunch room (at Man 3) for two or three months around the time that Mr Baig worked there. He said: “Could I ask, in your time working in the paunch room? Yes. Do you recall the chains – the two chains – ever being stopped? Stop the chains? Yes? No. The people – maybe sometimes it’s very – quickly paunch coming. Push the button to stop the chains, but the supervisor is coming after. He say it is not allowed. Okay? You don’t push the button for the stop the chains. All right? But maybe they’re busy, you’re quickly working, and down at the job. Not push the button for stop the chains. So did you get told by a supervisor? Yes, I told the supervisor, he say, I’m working you like this. You working quickly and don’t stop the chains, because it make a problem for the chains. So he said not to stop the chains – the chain? Not to stop the chains, yeah. Maybe some people they stop the chains [indistinct] it’s very very [indistinct] Okay? It’s quickly coming and they stop the chains.” 35 [68] And in cross-examination:36 34 T1-22/18-23. 35 T2-23/5-26 – my emphasis. 36 T2-24/15 – 25/23. -- 18 of 43 -- 19 “In the paunch room there were quite a number of stop buttons located at different places along the chain. Do you agree? Sorry? In the paunch room - - -?---Yes. There were quite a number of stop buttons located at different places along the chain? Yes. But is it your evidence to his Honour that the supervisors instructed you not to use those stop buttons ever? Yeah, every time supervisors told you’re not to stop the button for the chain to stop it. Just move it. Just watching the chain. … Okay. Is it your evidence to his Honour that in your observation, if any worker along that chain pressed the stop button they would get in trouble off a supervisor? Yes. The all worker. Mr Mohannadi - - -?---Yes. I put it to you that, in fact, it was a regular occurrence in any given day for workers along that chain to press the stop button when there was a problem? If the supervisor would say the chains may be broken or something. He say it’s from the factory is not good. I’m not talking about when the chain was broken, but whenever there was a problem, particularly one that might give rise to a safety issue, or to other difficulties with the work, a worker - - -?---I - - - No, please wait. A worker - - -?---Yes. - - - would press the stop button without getting into trouble for doing so?---Yes, finished the question? Yes, thank you?---Yeah, if the supervisor – not safety for the worker. He say it’s problem with the factory, or the chain may be broken. Not safety for the worker. Problem for the company. Well, I suggest to you – just – sorry, just bear with me, please, a moment. The chain that – the chain may be stopped along – anywhere along it during the course of any given day, anywhere between maybe 10 and 15 times?---Yeah, chain stop – they stop the chain? Yes?---I’m not sure because if the people is coming – maybe it’s busy. People, they stop the chain, but the supervisor is looking at job to start the chain. Maybe sometimes it’s more, maybe sometimes less.” [69] It was not suggested to Mr Mohannadi that he had conspired with Mr Baig to give false evidence. Indeed no suggestion was put that they had ever met since they each left the -- 19 of 43 -- 20 meatworks in 2010. He lives in Victoria, Mr Baig in Brisbane. So far as the evidence shows Mr Mohannadi has not the slightest interest in the outcome of the case. I see no reason not to accept him. That vindicates Mr Baig’s position, albeit leaving unexplained why Mr Kahler got it so wrong. Induction [70] Mr Baig indicated that his induction was very brief – a matter of hours. The defendant called extensive evidence of the induction process. I am confident that Mr Baig’s evidence is wrong and that his induction involved more training than he now recalls. There are several reasons for that conclusion. [71] One is that the manager of the works, Mr Wasantha Mudannayake, was an impressive witness. He said that the practice was for a new worker to have a “buddy” for days, sometimes weeks, until they were considered proficient. I am confident that he expected that to occur. [72] A second reason is that it would remarkably foolish for the employer to let a worker loose with a knife in relatively confined circumstances and adjacent to fellow workers unless they had demonstrated proficiency. [73] A third reason is that in discussing training with Mr Kahler - in context referring to the Man 1 position – Mr Baig agreed that the training was so long: “With respect to the training of the person who hooks up the paunches, Mr Baig states that it is by coaching from an experienced person for several days.”37 Mr Baig was the one armed with a knife. I cannot conceive that he would receive any less training. [74] A fourth reason is that despite calling a fellow worker, Mr Mohannadi, that worker was not asked to support this aspect of his evidence. [75] A fifth point is that it is always a possibility that Mr Baig demonstrated sufficient expertise within a relatively short time to be trusted to perform the work on his own. [76] I do not think that this point necessarily destroys Mr Baig’s credit. It can be explained as a faulty recollection over time rather than deliberate dishonesty allied with an understandable, perhaps, disenchantment with the defendants. The case hardly turned on the question of training in the induction process. The defendant did not put to Mr Baig that he had been trained not to do what he says he did – reach out at an extreme of posture to exert significant pulling force on a paunch. Indeed Mr Baig’s account was that this was commonplace. Dr O’Regan [77] The only remaining matter to deal with is the effect on Mr Baig’s credit from his dealings with Dr O’Regan. There are three points made. The first is that he failed to tell the doctor of the visit to Dr Mohan the previous Saturday. His explanation was that he was not asked about that. It is said that it would be obvious that the doctor would want to know about such a visit. That might depend on a number of things. One is the confidence that Mr Baig may have felt in communicating. Another is the time that the 37 Ex 1.1 at p 35/19-20. -- 20 of 43 -- 21 doctor may have spent with him. A third is that Mr Baig has always maintained that the onset of pain after this incident at the meatworks was quite different to anything he had previously experienced. It may not have been so obvious then to him that it was an important thing to report. [78] In any case there is the difficulty that there is no evident reason to hide anything at that time. It can hardly be assumed that on that day Mr Baig had in mind a damages claim, discarded the possibility of succeeding on an over period of time claim, formed an intent to deceive medical practitioners, and so determined to focus on the events of the 5th July and pretend nothing had preceded it. [79] The second point made is that he felt Dr O’Regan was dismissive (my word) of him. He reported that the doctor did not look up from his desk. It was said that this was improbable. The doctor’s notes record a restriction in bending and no tenderness. That with respect does not show that any great time was taken in the consultation or that Mr Baig’s perceptions in a general sense were not accurate. [80] The third point made was that there was a discrepancy between his oral evidence that pain extended into his buttock on the day and the symptom recorded in Dr O’Regan’s records.38 One of the ironies of this point is that when Dr O’Regan was asked to explain how he determined the location of the pain being described by a patient (with limited English) he demonstrated the technique, but his demonstration made the point very plainly that the technique is far from precise and that mistakes can easily be made. The transcript reads: “MR DIEHM: Thank you. The reference to left lower back, are you able to elaborate upon what that means in terms of – I’m sorry, I’ll withdraw that and ask you firstly: is that a reference to what the patient was telling you, then? Yes. And are you able to elaborate at all about what that means in terms of the area that he was indicating the complaint was in? Can I just show? Yes, please, but if you could stand? So that will be in that sort of area. All right. So you’re indicating to the left-hand side of the spine? Mmm. At the top of the buttock and just above the top of the buttock, across the waist? Yeah, and MR CROW: Well, I think nearly all of the buttock, your Honour.”39 [81] I interpose here that Mr Crow described exactly what I saw the witness demonstrate. Mr Diehm, I assume, expected something different from the doctor as he went on: 38 T3-17/13-21. 39 T3-16/44 – 17/11. -- 21 of 43 -- 22 “MR DIEHM: Well, I will have the witness elaborate. Did you mean all of the buttock, or just the top of - - -?---I would have – if it was pain in the buttock I would usually say pain in the buttock. Right? So in the back area. So from the top of the hip Yes? So it would be – that area would be what I’d call left lower back. Okay. So the top of the hip – above the hip? Yeah.”40 [82] The evidence of the onset of symptoms was: “MR CROW: Are you able to stand up and show us the place where you suffered the pain. INTERPRETER: It’s that area of my back and also my buttock. MR CROW: And we might need that better described. I’d describe it as a band across about his belt level across his lower back. And with some pain in the left buttock. … MR CROW: The band being perhaps six or seven inches broad. … MR CROW: Can you describe the level or type of pain that you suffered in your back at that point when you first felt it. INTERPRETER: Well, when I pulled it and when I feel the pain, it was a very bad pain, like a stabbing sharp pain that I have never felt that bad pain before. When I left the knife and the things and walked back, when I was moving my back a little bit, it was very painful, too.” 41 [83] I am not persuaded at all that Mr Baig’s description in his evidence was materially different to his description to the doctor seven years before. [84] Before leaving Dr O’Regan it is of interest that his own notes are conflicting. It tends to demonstrate the problem with the defendants’ criticisms of Mr Baig. At one point the doctor records Mr Baig as having told him that he injured himself “pushing on beef”. In another record, but produced out of the same conversation, the doctor has it that he was injured “pulling offal”. The latter is a more accurate description. Why the discrepancy? Very likely the language barrier. Conclusion 40 T3-17/13-21. 41 T1-19/39 – 20/17. -- 22 of 43 -- 23 [85] The defendants’ attacks on Mr Baig to a large extent are based on what counsel asserts is likely or probable. In many instances I doubt that starting premise. I have given my detailed response to the submissions above. What I find striking about the evidence is that in so many places Mr Baig is supported in what he says. [86] I have mentioned the support that he obtains from Mr Mohannadi. [87] Mr Baig claims that there were times when the work was rushed. Mr Kahler witnessed seven minute delays between paunches.42 For the workers to complete their 1603 beasts there would of necessity have to be a catch up period with much more rapid work than the average pace as Mr Mohannadi and Mr Baig said would occur. Mr Kahler witnessed some confirmation of that – a period of only 13 seconds between the paunches.43 And Mr Kahler did not observe the rushed conditions that Mr Baig and Mr Mohannadi report. [88] Mr Baig says that he had to stretch out across the table to do his job. Mr Kahler provides a photograph of a worker doing just that.44 This photograph is a still taken from the video supplied by the defendant. The worker there is not working at a fast pace. As well, Mr Kahler’s conclusion that there must be periods of more intense activity and a consequent need for extensive reach distances is compelling.45 [89] Mr Baig says that there was a pulling force involved in removing the “bible” from the paunch, or there could be, depending on circumstances. Mr Kahler observed that to be so in practise.46 [90] Mr Baig said that he would have to hang paunches from time to time because the person at Man 1 could not keep up. The video depicts that occurring albeit the worker is not apparently rushed.47 [91] Mr Baig complained of a severe onset of pain on 5 July. Not so long after he is found to have a prolapsed disc in his spine. In his PIPA claim form he reported an onset of painful symptoms in his back before the 5th July and there is a medical record confirming complaints consistent with that. [92] These are all essential features of the case. In addition to these features his account has been more or less consistent over many years. That there are inconsistencies is inevitable in any human recollection. [93] I am satisfied that I should treat Mr Baig as a witness of credit. I turn then to the essential questions. Did the incident of 5 July occur? [94] There is no reason not to accept that the incident occurred as Mr Baig related. His evidence I recount above.48 42 Ex 1.1 at p 27. 43 Ex 1.1 at p 27. 44 Ex 1.1 at p 23 Figure 42. 45 Ex 1.1 at p 30. 46 Ex 1.1 pp 24-25 Figure 48. 47 See Ex 1.1 at p 36 Figure 60. -- 23 of 43 -- 24 [95] The essential findings are that for whatever reason Mr Baig was required to work at pace. A bull’s paunch was on chain 2. Because of the timing of delivery and his own speed of work the chain had commenced to take the paunch away from him. It was at a distance from him. He extended right across the table to reach it. He had not managed to slice the bible off. A cut or two had been made. He inserted his fingers into that cut and hauled the bible towards himself. As Mr Kahler explained it is quite possible in that manoeuvre to lift as well as pull.49 He felt an immediate onset of pain. That he would need to adopt such a posture to perform this task was not an unusual event. Was there any breach of the duty of care owed to the plaintiff? The principles [96] The principles are not in doubt. For the employer sections 305B and 305C of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”) are relevant. [97] Section 305B provides: 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. [98] Section 305C provides: 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. 48 See [53] and [55]. 49 Ex 1.1 at p 22. -- 24 of 43 -- 25 [99] For the second defendant the common law applies. The duty has been put in various ways. Windeyer J in Vozza v Tooth & Co Ltd50 said: “[F]or a plaintiff to succeed it must appear 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.” [100] In Czatyrko v Edith Cowan University51 the High Court said of the employer’s duty to its employee: “The appellant relied in this court on these basic general principles. 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.” [101] Both parties refer me to the decision of the High Court in McLean v Tedman52: “The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, The Law of Torts, 6th ed. (1983) pp 480–481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.” [102] On the question of breach Mason J’s judgment in Wyong Shire Council v Shirt53 is usually cited: “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 his conduct involved a risk of injury to the plaintiff or to 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 50 (1964) 112 CLR 316 at 319. 51 (2005) 214 ALR 349 at [12]. Citations omitted. 52 (1984) 155 CLR 306 at 313. 53 (1980) 146 CLR 40. -- 25 of 43 -- 26 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 assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position”54 A not insignificant risk? [103] The defendants submit that the work system is safe and point to the concession made by Mr Kahler: “The author agrees that when the work is happening in a controlled way, as observed at the inspection, the man working at the position of Mr. Baig is exposed to acceptable musculoskeletal loading when the work involves that person rotating through various tasks e.g. Man 1 – Man 7 positions”55 [104] Adopting that as a starting point then it is necessary that I accept one of three things: Either that the controlled method of work which in turn depended on the pace that paunches came to Man 2 never varied from the average; or that when it did (i.e. became faster) there were no extremes of posture and no excessive forces imposed on the spine of the workers that were likely to cause harm; or that if there were such forces that the employer had done all that was reasonable to meet the risks. In putting the questions this way I do not mean to reverse the onus of proof. It is of course on the plaintiff. [105] On the first point, the defendants’ reliance on the pace of the work as shown on the videos is quite disingenuous. As Mr Kahler explained the work had to be done at a much faster pace on average than the pace shown on the videos, let alone from time to time when needed, as Mr Baig and Mr Mohannadi said would occur. If the defendants wished to challenge this then it was necessary to cross examine Mr Kahler and point out to him where his analysis went wrong. [106] As to the second point: was there a risk of injury that was “not insignificant”? Mr Kahler opined that the forces involved were potentially harmful. His analysis covers several pages of his report.56 It is not necessary to repeat it. He was not cross examined. The forces were potentially harmful if the work was not performed close to the torso. [107] As to whether extremes of posture were required the defendants say that I should not accept Mr Baig’s evidence. The submission relies on the observations of the general manager, Mr Mudannayake. He performed the work once in 2006 for 15 or 20 minutes when the plant first opened. And he walks around the plant every day and would visit the paunch room at least once a day. When asked the direct question his answer was not enlightening: 54 At p 47-48. 55 Ex 1.1 at p 34. 56 See Ex 1.1 Section 10 at pp 40-45. -- 26 of 43 -- 27 “And in the times that you’ve seen people working in the position of man 2, have you ever seen anybody bent over the line and stretching out at full arms-length to reach a bible on a paunch? The – traditionally, we – there – there’s a chain moving. When it’s moving, the – the ta – away from the – you, then you put the knife. It just peels out like a bana – it – it’s coming out. So it’s a technique that other people use, but I haven’t seen that, you know [indistinct] but a lot of people now – people – because the – sorry. The – the whole paunch is a little – or bible is a round thing. Yes? Right. So as soon as you put the knife, it can peel off, so it – the chain [indistinct] go further, then – keep the knife, it comes out. Then they pull into the – to the other person opening the pau – opening the – a crown off the paunch or bible. All right. Thank you. In terms of the physical nature of the work that’s involved – are you able to make any comparison of the work involved in the task of man 2 to the other positions around the plant in terms of the physical difficulty of it? As I’m concerned, it’s – it’s not – it’s one of the easiest tasks to learn and perform. The – I would say, in that some [indistinct] operation around the plant. Yeah.”57 [108] My interpretation of that answer is that he avoided the question, albeit making clear that the work was relatively light. But the real issue is whether from time to time the workers come under much greater pressure for whatever reason such that they were not working at the pace shown in the videos and such that they may need to lean across the table and pull on a paunch. Mr Mudannayake was not asked about working under those conditions, perhaps because he had not seen it.58 [109] That need to reach out would arise because the chain, particularly chain 2, takes the paunch away from their position, so that if they do not complete their work in time they must, of necessity, reach out to get to it. Mr Baig says this occurred at times and that he did precisely that action on this occasion. Mr Mohannadi (who did not work at Man 2, but at Man 3) said that he experienced a much greater pace of work than the video showed. Mr Kahler said: “… but if there were a delay in working on the paunch travelling on chain 2 by, for example, 5 seconds, then very significant reach distances could be involved for Man 2.”59 [110] And further: “…delays at the position of Man 1 or even paunches arriving faster [than the average] there could be opportunity for the person at the position of Man 2 to have very extended reach distances when removing bibles on chain 2.”60 57 T3-61/12-29. 58 Although he thought it common enough that a worker stretch out to do the work: T3-64/35-39. 59 Ex 1.1 at p 24. 60 Ex 1.1 at p 30. -- 27 of 43 -- 28 [111] And again: “It is necessary to strongly manage the postures adopted to minimise the risk of injury from a task as well as manage the forces involved. For the work completed by Mr Baig, it is clear that when the environment is controlled and the rate at which paunches and “bibles” are presented, the person, while working reasonably constantly, exerts low levels of force. It is when that balance is lost that opportunity exists for extremes of posture and increased force. The likelihood of a person not responding to that change in posture and force is also dependent upon the prevailing culture i.e. the shared behaviours of a group of people. The report has described how there seem to be many aspects of the work at the time which would simply have the circumstances of the incident as a variation of a theme and something quite different from that which prevailed at the time of the inspection.61 [112] I note that Mr Kahler’s Figure 4262 has a person in the Man 2 position reaching out across a considerable distance. Similarly the person in Figure 6163 is also reaching out, i.e. not performing the work immediately adjacent to his body. The purpose of the photos is not to show the posture that the plaintiff adopted on the day but confirms that significant variation in posture can occur from the ideal. [113] In my view the probabilities are overwhelming that reaching out would occur from time to time. [114] To assert by mere argument from the Bar table that Mr Kahler has misunderstood the forces involved and the reach distances is entirely unpersuasive, particularly so when it is known that the defendants themselves retained an engineer of some standing to check his work and opinions. [115] My conclusion is that this was a one handed pull on a very large object (the weights could be from 50 to 90 kgs), using the weaker hand, at an extreme outreach. It is highly probable that the forces involved exceeded those recommended. [116] I am satisfied that a reasonable person in the employer’s position would have taken precautions against this risk of injury bearing in mind the probability that the injury would occur if care were not taken; the likely seriousness of the injury; and the burden of taking precautions to avoid the risk of injury. [117] In short, I am satisfied that the conditions laid down in s 305B(1) and (2) WCRA were met. Were adequate precautions taken? 61 Ex 1.1 at pp 40-41. 62 Ex 1.1 at p 23. 63 Ex 1.1 at p 36. -- 28 of 43 -- 29 [118] The submission was that adequate precautions had been taken principally through the setting of a reasonable work load and instructions to use the “Stop” button when needed. [119] While the work load was reasonable if taken as an average it was not reasonable when the reality is considered. Mr Kahler’s criticism was that the system was “reasonably intolerant of delays experienced at each work station.”64 Mr Kahler’s opinion was that there were available management and engineering controls that could ensure that the men carried out the work at the position of Man 2 close to their torsos and so minimise the risk of injury. [120] Again it is worthy of note that Mr Kahler was not cross examined. [121] The engineering control suggested was to lengthen the zone over which Man 1 and Man 2 performed their work. Mr Kahler said that there was an extra 500mm available that could be utilised. I am not at all sure that this was a tentative opinion and subject to the provision of detailed plans as was submitted. But even if the engineering control was not reasonably available, and I would have expected evidence from the defendant if that was so, the management controls then become critical. [122] Mr Kahler suggested several measures that would have addressed what he understood from Mr Baig to be the main causes of pressure coming on to the person at Man 2.65 He was critical of the Job Hazard Analysis that the defendants had undertaken. It did not reflect the reality of the risks that were present.”66 He was critical of the lack of training that Mr Baig had received in terms of being able to undertake a risk analysis in the dynamic work environment. He pointed out that Safety Codes had been in place since 1991 recommending such training.67 The Advisory Standard of 2000 included training in competencies such as “How to avoid poor work postures” and “How to handle loads safely”.68 No such training was given to Mr Baig. There is a deal more in his report. His opinions are not contested, nor is it suggested that the employer adopted any of these measures. [123] What is said is that the instruction to use the “Stop” button was sufficient to meet the risk of injury. I have discussed the evidence above69 concerning the use of the button. Mr Kahler presumably adopted the information that Mr Baig gave him, which is unduly favourable to the defendants, but he clearly thought – and I agree – that this measure did not meet the risk. The problem is that the workers were not adequately trained in when it was their right to stop the chain. That you were having trouble keeping up and might have to adopt an extreme posture to do your work was not self- evidently an occasion to use the stop button and pause the chain. [124] The submission is that the workers were at liberty to use the “stop” button “if required”.70 This submission reverses the true position at law as to where the responsibility for devising a safe system of work lies and ignores the evidence of Mr 64 Ex 1.1 at p 47. 65 See Ex 1.1 at p 47. 66 See Ex 1.1 at p 51. 67 See Ex 1.1 at p 51. 68 See Ex 1.1 at p 53. 69 [64]-[68]. 70 See defendants’ submission Ex 38 at paragraph 95. -- 29 of 43 -- 30 Kahler as to the deficiencies in the training and instruction given to the workers. In effect, the system here was that the employer left it to an untrained worker (and in this case a 19 year old Afghani refugee with 10 weeks experience by the day in question) to determine when it was that the safety device should be activated. In the text The Liability of Employers the authors, in discussing the concept of delegating to the worker the responsibility of devising a safe system of work, said: “No doubt the situations where the injured employee has been invested with full responsibility for the system, and properly so, will be marginal and rare. A basis for finding in favour of the plaintiff will always be disclosed if the delegation is less than complete or where it is complete but the requisite skill of the employee to accept such full responsibility is in debate.”71 [125] I appreciate that the defendants do not contend that the whole delegation had been made to Mr Baig, but they effectively argue they could contend this much was appropriately delegated but without the slightest basis for thinking he had adequate training or skill. This is not one of those “marginal and rare” cases. [126] A final submission was made that Mr Baig had been trained to adopt a different method to the normal when the chain became busier: “In situations where the chain is busy i.e. paunches were on consecutive hooks, the plaintiff knew to remove the bible from each paunch first and then trim the fat”.72 Given the evidence from Mr Baig and Mr Mohannadi this would be more frequently than not. However I am not at all persuaded that the training reached the level that the submission assumes. Nor can I accept that Mr Kahler said that this was “a most suitable control”, as was submitted. [127] The evidence elicited from Mr Baig was as follows: “MR DIEHM: The person showed you how to do all of the tasks that you were required to do in a position of man 2? INTERPRETER: Yes, the person was showing a simple thing there for me, but there was no talking. The person was from Philippines. I was from Afghanistan. There was no communication in between. MR DIEHM: One of the things that the person showed you, I suggest, was that if there was a paunch on chain 1 one and a paunch on chain 2, that you could remove the paunch – I’m sorry, you could remove the bible from the one on chain 1 before you had removed the fat from the bible? INTERPRETER: You mean without separating it you can remove? MR DIEHM: Yes, that you could separate the bible before you went about removing the fat. 71 Glass, McHugh and Douglas, The Liability of Employers 2nd ed (1979). 72 Ex 38 paragraph 97. -- 30 of 43 -- 31 INTERPRETER: The way that he taught was that – sorry, correction – the way that he showed me, he said, “You remove the fat like this. Then you – you cut it, and you put your finger in this manner.” That’s what he showed me. MR DIEHM: Yes, but what you were also shown was that if they were – if they were coming in a way that there was a bible – sorry, I’ll start again. What you were also shown was that if they were coming in a way that there was a paunch on chain 1 and a paunch on chain 2 near each other, that you could change your work so that you removed the bible first and trimmed the fat after having removed the bible. INTERPRETER: This much communication didn’t occur between us that this gentleman is saying. MR DIEHM: You told his Honour yesterday – for those in the transcript, page 36, line 15 – Mr Interpreter, I’ll start the question for you again. You told his Honour yesterday when you were asked a question by Mr Crow that when – you said, “When it’s fast and when it’s far away from us, we don’t get the opportunity to remove the fat. We do it all together.” INTERPRETER: Yes, we cut it. Then we remove the fat. That happens under the circumstances that if it is far away from you, and you can’t reach it.” 73 [128] There was no evidence led of the instruction that Mr Baig supposedly received. I take it that I am to ignore the answer “[t]his much communication didn’t occur between us that this gentleman is saying.” [129] And with all due respect to the submission the instruction presumably given in sign language and by demonstration to “do it all together” when “you can’t reach it” comes nowhere near the level of instruction that the various safety codes and advisory standards lay down. Nor is that answer an acceptance of the proposition now put by counsel. [130] Mr Kahler’s alleged acceptance of the method was in these terms: “In essence, Dr Jenkins is suggesting to a procedural solution which, if applied, would reduce the opportunity for musculoskeletal damage. However, its introduction and sustainability requires that: a) it be documented; b) people must be trained to the procedure and the underlying reasons for that behaviour; and 73 T2-42/10-47. -- 31 of 43 -- 32 c) in a highly repetitive work environment such as a meatworks, there needs to be supervision positively reinforcing desired behaviours and conversation being generated about undesired behaviours.” 74 [131] Not one of the three conditions that Mr Kahler spoke of was shown to exist. And again I point out that he was not cross-examined. [132] No argument was put that “the expense, difficulty and inconvenience of taking alleviating action [or] any other conflicting responsibilities which the defendant may have”75 justified the defendants in exposing the plaintiff to this risk. [133] I am satisfied that the plaintiff has shown that the defendants were in breach of the duty of care owed to him. Causation [134] It is not in issue that Mr Baig has a disc prolapse. CT and MR scans are reported as showing a “large central left L5/S1 disc protrusion”. Nor is it in issue that he complained of symptoms classically related to a disc prolapse a few days after the incident that I accept occurred on the 5th July. [135] There are two arguments put by the defendants. First, that the disc injury did not happen on 5 July 2010. Secondly, that if it did happen on that date it did not happen in the way the plaintiff said it occurred. That second point depends on a finding that Mr Baig was not a witness of credit. I reject that submission for the reasons explained above. [136] As to the first point there are two contentions. The first is that there was a delay in onset of the sciatic symptoms so that the disc injury that is plainly associated with sciatic symptoms cannot be related to the work undertaken a few days before. The second is that there was no new injury suffered on the 5th July but merely a continuation of whatever the problem was that pre-dated the 5th and prompted the visit on the 3rd to Dr Mohan. This depends on the alleged similarity of the findings on 3 July (Dr Mohan) and 6 July (Dr O’Regan). [137] Before turning to those contentions I note that senior counsel for the plaintiff submitted that the following facts were established and supported the causal connection: a. The Plaintiff had no back pain on Sunday;76 b. The fact that the Plaintiff had worked the full day in the paunch room from 6.00am to 4.00pm without pain or limitation prior to his injury at or about 4.00pm;77 c. The particular mechanism of injury described by the Plaintiff being consistent with causing a discal injury; d. The onset of immediate pain, different in kind to that experienced on the third, including pain into the buttock; 74 Ex 1.2 pp 8-9. 75 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. 76 T1-18. 77 T2-64/5;T1-35/17. -- 32 of 43 -- 33 e. An intervening period of a matter of perhaps 3-4 days before onset of severe pain into the leg; f. The fact of the Plaintiff’s contemporaneous reporting of the incident and the injury on several occasions, namely: i. The first aid note recorded in the register as identified in the evidence of Ms McClelland; ii. The Incident Report completed by the Plaintiff on 5 July 2010;78 iii. The GP attendance upon Dr O’Reagan, and in particular, the Workers’ Compensation Medical Certificate completed by Dr O’Reagan on that day;79 iv. The fact of the Plaintiff having provided a statement to the employer on 7 July 2010 consistent with the incident as described;80 v. The contemporaneous reporting to the GP and to the employer of the onset of pain into the leg making it difficult for the Plaintiff to walk. g. The fact that it is the only injury the Plaintiff reported; h. The fact that the Plaintiff immediately ceased work. [138] There is evidence to support each of the matters relied on. [139] As to the delay in the onset of the sciatic symptoms Mr Baig’s evidence was: “MR DIEHM: You did not at this time, that is, on the 5th or the 6th of July, have pain in your left leg, did you? INTERPRETER: No, the pain in my left leg didn’t start on the 5th or 6th. MR DIEHM: It, in fact, didn’t start for about another week after this; is that right? INTERPRETER: After I was given certificate for suitable duties I went to the other suitable job for three to four days. After three to four days, one morning when I woke up I felt the pain and the pain had moved to my left leg and when I woke up in the morning I couldn’t put my feet on the ground properly. I was limping. MR DIEHM: And that change in your symptoms happened over the weekend of the 10th and the 11th of July. INTERPRETER: After the three to four days of suitable duties that I was doing it put a lot of pressure on me and I had a lot of pain. That I couldn’t step on my left leg.” 81 [140] The significant point is that the sciatic symptoms came on after a relatively short period, well within the time that the medical experts thought was reasonable to support 78 Exhibit 22. 79 Exhibit 24. 80 Exhibit 18. 81 T2-17/1-18. -- 33 of 43 -- 34 a causal connection with the events of 5 July,82 and after a period of light duties. That is, there was no obvious reason why a 19 year old would spontaneously have a disc prolapse given the lack of activity over those few days and unrelated to the event that I find occurred on the 5th July. As senior counsel for Mr Baig stressed the particular mechanism of injury described by the Plaintiff was consistent with causing a discal injury. Mr Diehm advanced the “rolling over in bed” scenario but it seems highly improbable, and I took that to be Dr Campbell’s response too.83 [141] As to the claimed similarity of the presentations to the doctors on the 3rd and the 6th July the immediately obvious point is that depends on the accuracy of the records. I have already pointed out the problem with Dr O’Regan’s recording of the location of the back symptoms. Dr Mohan said that he also might resort to the pointing method to locate symptoms. A further point of distinction, noted by both Dr Campbell and Dr Licina is that there was a report of injury before the visit on the 6th. That report was well documented. It involved the type of incident that can result in disc prolapse. Mr Baig went off work immediately, consistent with his claim that he had a new and different symptom experience.84 His symptoms did not abate as they had done following the 3rd July visit. That is of significance too.85 [142] So I have evidence from two practitioners, neither of whom recalls Mr Baig or the detail of his visit; Mr Baig was hardly the best descriptor of symptoms given his limited English;86 it is obvious that mistakes can easily be made; the presentation with buttock pain is not inconsistent with a disc injury;87 and there was an obvious step down in physical abilities dating from the incident on the afternoon of the 5th July. On balance I am not at all persuaded that the two presentations involved the same symptoms. [143] On the facts as I find them to be there is no real dispute between the experts.88 The medical experts, of course, can only take the point so far. They can advise whether the connection between injury and event is consistent with the known or assumed facts. Whether the connection is established on the balance of probabilities is a question for the Court: EMI (Australia) Ltd v Bes [1970] 2 NSWR 238. [144] In my view the probabilities strongly favour a causal connection between the event of the 5th July and the disc prolapse. DAMAGES [145] As mentioned for the purposes of the proceedings I assume that Mr Baig was aged 19 when injured and is now aged 25 years. 82 As to the reason for this: see Dr Licina’s opinions in Ex 30; Dr Campbell’s evidence at T3-13/20-40. I note that even a few weeks delay is possible: Dr Campbell T3-4/35-38; but perhaps improbable: T3- 10/5; T3-12/20-26. 83 See the exchange at T3-10; T3-11/3. 84 T2-16/17. 85 Dr Campbell: T3-4/45. 86 I am aware of the point made by the defendants that Dr Mohan spoke several languages, one of which Mr Baig spoke. But there is no evidence that they stumbled onto their mutual tongue and I would have thought I would have heard evidence about such an event. It cannot be that common for a general practitioner in Rockhampton to discuss a patient’s symptoms in Urdu. 87 Dr Campbell: T3-8/40; T3-13/44 – 14/5. 88 See Dr Licina: T3-73. -- 34 of 43 -- 35 General Damages [146] The plaintiff seeks $80,000 damages and the defendant allows $15,000. [147] The principal point agitated by the defendants is the impact of the pre-existing condition as evidenced by the attendance on Dr Mohan on 3rd July. The defendants urge that the finding should be that the disc prolapse pre-dated the 5th July incident albeit accepting, for the purposes of the argument, a contribution from the incident. Dr Licina expressed an opinion to that effect. However it was predicated on the view that the symptoms complained of at the attendances on Dr Mohan on the 3rd and on Dr O’Regan on the 6th were essentially the same. I do not accept that proposition. [148] That there was something amiss with Mr Baig’s back on 3 July cannot be denied. The significance of the condition, whatever it may have been, is a matter of controversy. The legal principles that apply where a defendant alleges that the plaintiff suffered from a pre-existing condition that would have impacted on his or her future wellbeing were explained in Watts v Rake89 and Purkess v Crittenden.90 Jackson J in McQuitty v Midgley91pointed out the difficulties in reconciling those authorities with Malec v JC Hutton Pty Ltd.92 Jackson J referred to the judgment of Ipp JA in Seltsam Pty Ltd v Ghaleb93 as assisting in that reconciliation: What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the “disentangling” evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition. Where a defendant alleges that the plaintiff suffered from a pre- existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of “disentanglement” discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations — not proof on a balance of probabilities. Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s 89 (1960) 108 CLR 158. 90 (1965) 114 CLR 164. 91 [2016] QSC 36. 92 (1990) 169 CLR 638. 93 [2005] NSWCA 208. -- 35 of 43 -- 36 enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition. Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.”94 [149] The defendants then have the evidentiary onus. I am not persuaded that they have shown that had the incident of 5 July 2010 not occurred that Mr Baig would have inevitably ended up in much the same condition. The assumption here of course is that he would not have been exposed to an unsafe system of work. It remains necessary to bring into account that prior condition to the extent I think deserved. [150] In response to a question from myself Dr Campbell said: “So I think that the history – from the history and the GP notes and his reaction to that injury on the 3rd when he went back to work almost immediately, to me that sounded like a minor injury, and if the injury that occurred on the 5th hadn’t have occurred, it’s unlikely he would have had his disc protrusion and had these ongoing problems. So I think he – if the subject injury hadn’t have – had not have occurred, it’s likely he would have been able to continue working, although he may have been susceptible to minor back injuries moving forward, requiring the occasional day off work.”95 [151] I accept that opinion. It is based on the facts as I have found them to be. [152] Plainly enough if Mr Baig had endeavoured to persist with hard manual work he may not have lasted. He had sufficient difficulties after nine weeks to see a doctor about his persisting back symptoms. It seems probable that he would not have wished to pursue 94 [2005] NSWCA 208 at [104]–[108] – my emphasis. As Jackson J notes that passage was set out by White JA in Phillips v MCG Group Pty Ltd [2013] QCA 83 at [57] with apparent approval. 95 T3-8/47 – 9/7; and see T3-13/25. -- 36 of 43 -- 37 this type of work. But I see no reason to find that there was a significant chance that he was likely to have a disc protrusion had the subject incident not occurred. [153] Dr Campbell diagnosed a 10% impairment of which he attributed 9% to the subject incident. [154] Mr Baig’s problems were typical of a person with the condition that has been diagnosed – difficulties sitting or standing for significant periods, difficulties walking when the condition was at its worst, pain interfering with concentration, a need for painkillers, stress and depression. He says that he feels that he has no hope. There are cultural aspects that impact on him. He feels that as he cannot expect employment he can never marry as he cannot support a family. His friend, Mr Ali, explained: “I noticed, like, when you were eating, normally culturally you sit on the floor to eat. So he was having trouble doing eating. He was changing his position. And when he was standing up, he was having trouble to stand up and sometime he was taking from the wall his hand, to stand up you know.” 96 [155] Mr Crow who appears for Mr Baig refers me to Syben v Mackay TFS Pty Ltd [2009] QSC 367 ($100,000)97; Cameron v Foster & Anor [2010] QSC 372 ($80,000); McClintock v Trojan Workforce No 4 Pty Ltd & Anor [2011] QSC 216 ($80,000); and Paskins v Hail Creek Coal Pty Ltd & Anor [2017] QSC 190 ($60,000). It is very difficult to compare one case with another. The impression made on the Court of the extent of the difficulties is all important and not always easy to recount in words. Here, Mr Baig was very young when injured. His symptoms are probably lifelong. I do not think they are as serious as those described in Syben, Cameron and McClintock. Those decisions are quite dated now. The symptoms are probably at least as serious as in Paskins (a decision of my own), and perhaps more so in terms of their effect on him. He is much younger than the plaintiff in Paskins. [156] I allow $80,000. Economic loss [157] The plaintiff seeks $315,000 for past loss (calculated on a loss of $1000 per week over 315 weeks discounted by 10%) and $590,000 for future loss. The defendants did not attempt an assessment. [158] The defendants submitted: (a) that there are steps that could be taken to enhance the plaintiff’s employability; (b) that the plaintiff’s poor command of English was a larger impediment to employment than his previous history of a back injury/compensation claim; (c) that he does not have a drivers licence is an impediment to employability; 96 T2-29/26731. 97 The figure in brackets refers to the award of general damages in each case. -- 37 of 43 -- 38 (d) in any event, the plaintiff is physically fit to work as an interpreter and given the appropriate vocational training, he can; (e) that at most, as stated by Dr Licina, the plaintiff has suffered an aggravation of pre-existing pathology; (f) that the evidence does not justify a finding that the plaintiff has been incapable of working since July 2010. He is able to drive. He is able to walk. He is able to stand; (g) with remediation by completing further studies in English and obtaining a drivers licence, he can restore his earning capacity, whether that is to work as an interpreter or in some other lighter roles canvassed in the evidence. [159] I have previously rejected the proposition in (e). [160] Mr Baig was earning $875 net per week at the defendant’s employment. He has not worked since the subject incident save for a few days on light duties. [161] His stated aim pre-injury was to work at the meatworks for some months and to study to better himself.98 [162] I think that it was not likely that Mr Baig would have continued at the meatworks for years as was contended. That he was prepared to travel to Rockhampton and take up employment in what was to him a completely foreign environment is very much to his credit. But his back and shoulder problems that pre-dated the subject injury suggests that a future in such work was unlikely. I accept that he would have wished to maintain employment if he could. His lack of English and his limited skill base suggest that he was very likely restricted to manual work. [163] It is evident that his residual earning capacity is very limited. Mr Crow has summarised the evidence:99 (a) Dr Scott Campbell, Neurosurgeon, in a report of 18 November 2011 stated: “Mr Baig’s prospect of return to work as a Labourer is poor. Any return to duties of a physical nature would place him at risk of further injury and would be best avoided. As an immigrant with limited English speaking skills and a lack of education and training in sedentary type work, Mr Baig’s prospects of returning to work in any capacity at present are poor. He may need to reskill at TAFE or college to improve his job prospects. The only favourable factor is his young age of 19 years.” (b) Dr Campbell, in a subsequent report of 15 October 2015, said: “Mr Baig’s ability to work and to perform the activities of daily living has not altered significantly since I last assessed him on 18 November 2011. He is still not working and his prospects of returning to work as a Labourer/Separator remain poor. Any exposure to heavy lifting and bending would place him at risk of further injury and would be best avoided. Ideally, Mr Baig would be best suited to sedentary type work in the future. He is currently attempting to reskill at TAFE to improve his job prospects.” 98 T1-16/19. 99 See Ex 39 at pp 7-8. -- 38 of 43 -- 39 (c) In a report of 19 August 2016, Dr Campbell then stated: “Mr Baig is currently not working, although he is hopeful of re-entering the workforce in the future if he can find suitable light duties or sedentary type work of a part-time nature. In the interim, he is studying English at TAFE to improve his job prospects. He has difficulty sitting through lectures. He will have similar problems upon entering the workforce in the future.” (d) In a report dated 15 September 2016, Dr Paul Licina stated as follows: “Mr Baig is likely to have worsening of his back pain from heavy physical tasks. This is unlikely to cause any further structural derangement of the spine and cause no more than a temporary exacerbation. Nevertheless, repetitive bending or heavy lifting, especially if associated with twisting, is likely to make pain worse. Prolonged sitting beyond an hour or two is also likely to exacerbate the pain.” (e) Dr Licina in response to questions asked about a number of possible alternative occupations concluded: “Taking into account the answer to question 11, Mr Baig’s employment possibilities are restricted. Without the expertise in occupational medicine, it is difficult for me to precisely respond to the 14 occupations listed. I feel that lighter jobs such as a Cashier, Customer Service Operator, Retail Store Assistant or Guard would be within his capabilities. Tasks involving prolonged sitting such as Data Entry Clerk, Call Centre Operator or Truck Driver may be somewhat more difficult. Heavier jobs such as Storeman, Factory Worker, Labourer, Meat Processor, Tiler or Cleaner are likely to be difficult on a full-time basis.” (f) The evidence of Lee Ng, Occupational Therapist, was that the Plaintiff will have difficulty obtaining and maintaining employment. (g) Mr Ng acknowledged in his oral evidence that the Plaintiff may benefit from improving his English skills, and maintained some potential capacity for employment. However, he comes from a comparatively disadvantaged background in that regard. [164] I note that Mr Baig has endeavoured to improve his English by attendance at TAFE from late 2012 until early 2017. His back problems have interfered with his studies. The defendants argue that he has a residual earning capacity that he has not utilised. I do not accept that is right. As the defendants point out a significant barrier to him working is his lack of English. He acted reasonably in attempting to better himself. As his English has improved he has applied for jobs but without success. The defendants have led no evidence of employment that was likely to be available to him. There is no reason that I can see to discount the award for monies that he ought to have earned but did not, as is submitted. [165] I will adopt the wage that he was earning at Teys in 2010 as a guide. I am conscious that it has increased over the years. I am not at all confident that the wage there reflects his hypothetical future if uninjured. I will adopt the period suggested by counsel and the discount. [166] I allow $250,000 for past loss. Interest is claimed at 5%. I have received no submission to the contrary. -- 39 of 43 -- 40 [167] As to the future the defendants submit that Mr Baig could train and become an interpreter. He will restore his earning capacity it is claimed. I think that a highly doubtful future. Mr Ng explained the difficulties.100 Mr Baig has a very limited formal education. He commenced studying English when in Pakistan as a small boy. No doubt his studies then were rudimentary. He has been attempting to learn English over the last eight years since his arrival here. He is still not confident. The prospect that he will become sufficiently fluent in English to become an interpreter seems a very remote prospect. He has problems with prolonged concentrated study because of his back pain. That will interfere not only with his studies but his ability to concentrate so as to interpret. [168] I will allow a loss over 40 years. I think that the probabilities are that he will eventually find light manual work. He will be more susceptible to having periods of unemployment because of recurrences of back problems. Mr Crow suggested a residual earning capacity of $400 net per week but allowing two years to retrain at a loss of $1,000 net per week. [169] All this is, of course, quite speculative. Mr Baig’s prospects of earning a consistent income through his life are poor. But his likely future if uninjured was not necessarily earning $1000 per week as is assumed. As the defendants submit his lack of English is a serious disadvantage quite apart from his back problems. Mr Ng said that statistically migrants with English as a second language were very often restricted to manual work. [170] I will allow $320,000 – roughly a loss of $400 net per week over 40 years and discounted for contingencies. Past and Future Care [171] The plaintiff claims $70,840 for the past and $100,000 for the future. The submission is that an appropriate award for past and future gratuitous care based upon $55.00 per hour101 is four hours per week for the first five years and then two hours per week thereafter and into the future. [172] The defendants deny any entitlement. [173] Mr Baig received assistance from his house mates. [174] He has some limited support from Dr Campbell who thought that one to two hours per week assistance might be required.102 Dr Licina was more sceptical, at least in more recent times.103 The principal support was from an occupational therapist, Mr Ng. He made it clear that such assistance as he thought was necessary was only when Mr Baig’s back was aggravated – his needs were not full time. He was cross-examined: “Now, with respect to domestic assistance, you’ve identified some particular activities that this man, you say, needs assistance with. If I’ve- - -?---Yes. 100 T2-73/20-39. 101 Opinion of Mr Ng – Exhibit 7, p 11. 102 Ex 3 p 5 paragraph 6. 103 Ex 29 Section 6.24. -- 40 of 43 -- 41 - - -noted them correctly, they included vacuuming, mopping, cleaning the bathroom, gardening and lawn mowing. Have I got that right?---I think made allowance for laundry and grocery shopping and – and meals. He can cook his own meals, can’t he?---He can, yes. All right. He can do his own laundry?---He can, yes. And he can do his own grocery shopping?---He can, yes. The allowances that I’ve made there for the grocery shopping because he doesn’t have a vehicle, he’s only carrying light items, so if he needs heavier – if he has heavier items, he is relying on – on friends for transport to assist with that. The meals was related to difficulties with static standing, the – the – the frequent standing and stooping, postures associated with doing meal preparation and cleaning up. And the laundry was more pertaining to the hanging and retrieving of laundry, as opposed to actually putting the washing on. This man can stand long enough to prepare a meal, can’t he?---He can, yes. And he can do so?[indistinct] quite adequately?---Yes, that’s correct. That’s why I haven’t provided – I haven’t said that he’d need it every day. I see. He can adequately attend to his own needs with all respects to laundry?---Yes. The – the hanging and retrieving is an aggravation – is an aggravator, obviously. What about vacuuming?---Yes, the same. It’s the frequent bending, stooping, plus the – the pushing motion of using the vacuum cleaner, aggravator, obviously.” 104 [175] I am satisfied that there is a need at least from time to time for assistance. Mr Baig’s condition was somewhat worse in the early years it seems. However the vagueness of the evidence makes it difficult to be confident of the level of assistance that should be laid at the door of the defendants. [176] I will allow 1.5 hours per week as an average for the past and one hour for the future. For the past I allow $32,000. For the future I allow $55,660 adopting the 60 year multiplier. Interest is claimed on past care at 5%. Again I have received no submission to the contrary. Recurring Expenses [177] The plaintiff claims $40,000 for the cost of future attendances on medical practitioners, medications, and retraining. There is no analysis of the figure to justify the amount claimed. The defendant submits that a pain management course would be helpful. 104 T2-74/19 – 75/2. -- 41 of 43 -- 42 [178] The special damages schedule, which was unchallenged, indicates that Mr Baig is regularly attending on medical practitioners and obtaining medications. There is no reason to think that there will be any significant change in the future. If Mr Baig did attend a pain management course and it was successful in reducing his need for medications there would still be a significant cost associated with the course. [179] The amount claimed is equivalent to approximately $40 per week over Mr Baig’s life expectancy. That seems modest in the circumstances. I note that while Mr Baig has to date declined surgery apparently because of the risks associated, he may change his mind and if so would be liable for a substantial sum – in the order of $5,000 to $10,000. [180] I will allow the sum claimed of $40,000. Loss of superannuation [181] The loss of past superannuation benefits is claimed at 9.25% of the amount of the award. It reflects the usual approach and is not the subject of any countervailing submission. I allow the claim at $23,125. [182] The loss of future superannuation benefits is calculated at 11.33% of the future award.105 Again there is no countervailing submission. I will allow the sum of $36,250. Summary [183] In summary I assess the damages on the common law basis (as invited by Mr Diehm) as follows: HEAD AMOUNT General Damages $80,000.00 Interest on General Damages106 $5,920.00 Past Economic Loss $250,000.00 Interest on Past Economic Loss107 $51,408.00 Past Loss of Superannuation $23,125.00 Future Loss of Earnings $320,000.00 Future Loss of Superannuation Benefits $36,250.00 Recurring Expenses $40,000.00 Past and Future Gratuitous Assistance $87,660.00 Interest on past care $11,840.00 Special Damages $53,111.11 Fox v Wood108 $4,940.00 105 Citing Heywood v Commercial Electrical [2013] QCA 270. 106 On $40,000 at 2% over 7.4 years. 107 On $138,943 ($250,000 less Centrelink and WorkCover) at 5% x 7.4 years. -- 42 of 43 -- 43 TOTAL $964,254.11 Orders [184] I will hear from counsel as to the appropriate orders and as to costs. 108 (1981) 148 CLR 438. -- 43 of 43 --