Clarricoats v JJ Richards & Sons Pty Ltd [2017] QSC 214

SUPREME COURT OF QUEENSLAND CITATION: Clarricoats v JJ Richards & Sons Pty Ltd [2017] QSC 214 PARTIES: JOSHUA BENJAMIN CLARRICOATS (Plaintiff) v JJ RICHARDS & SONS PTY LTD (Defendant) FILE NO/S: S615 of 2015 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 29 September 2017 DELIVERED AT: Rockhampton HEARING DATE: 17, 18, 19, 20, 21 July 2017. JUDGE: McMeekin J ORDER: Judgment for the Defendant CATCHWORDS: TORTS – NEGLIGENCE – GENERALLY – where plaintiff claims damages for injuries suffered in the course of employment with the defendant – where both liability and quantum of damages are in contention TORTS – NEGLIGENCE – BREACH OF DUTY – where the plaintiff alleges the defendant breached their duty of care in instructing the plaintiff to drive the truck with the defective seat – where it is alleged that the plaintiff’s back injury occurred in the course of that drive – where the defendant argues that the decision to direct the plaintiff to drive the vehicle from Moranbah was a reasonable one in the light of the information they had at that time – whether the decision to direct the plaintiff to drive the truck with inoperative air suspension under the driver’s seat involved a breach of the duty of care admittedly owed TORTS – NEGLIGENCE – CAUSATION – where the pleaded case included the initial collapse of the seat as causative of the injury – where the plaintiff alleges that the injury suffered was caused by the employer requiring him to drive from Moranbah to his home depot at Clermont after the shock absorber of the driver’s seat broke away from its -- 1 of 37 -- 2 mounting bracket – where the defendant contends that the injury was sustained at the time that the seat collapsed, not on the drive to Clermont – whether the injury was caused by the forces impacting on the plaintiff’s spine during the return drive TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the defendant claims the plaintiff was contributorily negligent – whether there is anything the plaintiff could have done to avoid the injury – whether the plaintiff was contributorily negligent and what apportionment should be allotted TORTS – NEGLIGENCE – DAMAGES – GENERAL DAMAGES – where assessment is considerably clouded by plaintiff’s exaggeration of his symptomatology to the medical practitioners – where the claimed disabilities as explained to the medical practitioners and what is seen on the surveillance footage is stark – where a number of expert medical practitioners determined that they could not support any continuing disability that fell within their respective disciplines following their viewing of the surveillance material – whether the views of the expert medical practitioners overlooked certain objective evidence – whether the plaintiff suffers an ongoing disability TORTS – NEGLIGENCE – DAMAGES – PAST ECONOMIC LOSS – FUTURE ECONOMIC LOSS – where the plaintiff was only employed by the defendant for a few months prior to the incident occurring – where the plaintiff was kept on at the workplace because he was rehabilitating – where more skilled and more senior workers lost their employment through retrenchments within months of the incident – where the advanced pre-existing symptomatic degeneration puts a significant limit on any award of damages – where there is evidence suggesting the plaintiff may have been in the same position within five years – where the plaintiff has not tried to obtain employment – whether in any event the plaintiff would have remained employed by defendant – whether the plaintiff has the capacity to return to work. Superannuation Guarantee (Administration) Act 1992 (Cth) s 19 Uniform Civil Procedure Rules 1999 (Qld) r 165, Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305D, s 305E, s 305 F, 305H, s 305J, s 306L, s 306 O and s 306P Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) s 130 Allwood v Wilson & Anor [2011] QSC 180, cited -- 2 of 37 -- 3 Adsett v Noosa Nursing Home Pty Ltd [1996] QCA 491, considered Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, cited Brisbane Youth Service Inc v Beven [2017] QCA 211, cited Browne v Dunn (1893) 6 R 67, considered Bugge v REB Engineering Pty Ltd [1999] 2 Qd R 227; [1998] QSC 185, cited Bulstrode v Trimble [1970] VR 840, cited Coleman v Anodising and Aluminium Finishes of Queensland Pty Ltd [2002] 1 Qd R 141; [1999] QCA 467, cited Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, followed Finn v The Roman Catholic Trust Corporation for The Diocese of Townsville [1997] 1 Qd R 29, considered Heywood v Commercial Electrical Pty Ltd [2013] QCA 270, cited Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, cited Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; (1990) 92 ALR 545; (1990) 64 ALJR 316; (1990) Aust Torts Reports 81-022; [1990] HCA 20, cited Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319, cited Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271, cited Paris v Stepney Borough Council [1951] AC 367, cited Pasqualotto v R & L Pasqualotto [2013] VSCA 21, cited Pitsiavas v John Lysaght (Aust) Pty Ltd (1962) NSWR 1500, cited Strong v Woolworths Limited (2012) 246 CLR 182; (2012) 285 ALR 420; (2012) 86 ALJR 267; [2012] HCA 5, cited Thomas v O’Shea (1989) Aust Torts Reports 80-251, cited Wyong Shire Council v Shirt (1980) 146 CLR 40, considered COUNSEL: DA Wheelahan QC with PJ Woods for the Plaintiff GF Crow QC for the Defendant SOLICITORS: Bourke Love Lawyers for the Plaintiff DibbsBarker for the Defendant [1] McMEEKIN J: Joshua Clarricoats claims damages for a back injury that he suffered on 14 January 2013 in the course of his employment with the defendant, JJ Richards & Sons Pty Ltd (“JJ Richards”). [2] Both liability and quantum of damages are in contention. -- 3 of 37 -- 4 [3] Mr Clarricoats alleges that he suffered a prolapsed disc in his spine when required to drive his employer’s truck from Moranbah to his home depot at Clermont, a distance of about 120 kilometres, after the shock absorber of the driver’s seat broke away from its mounting bracket. [4] Mr Clarricoats was born on 20 November 1988. He is presently aged 28 years. He was 24 years old at the time he says he suffered the subject injury. LIABILITY [5] It is common ground: (a) that Mr Clarricoats was driving a Scania truck on 14 January 2013 in the course of his employment; (b) that the truck had been supplied by his employer; (c) that the shock absorber of the driver’s seat broke away from its mounting bracket when the vehicle was located at or near Moranbah; (d) that the failure caused the seat to suddenly collapse; (e) that Mr Clarricoats reported the failure to his manager; (f) that he was directed to drive the truck initially a few kilometres to a repairer; and (g) when the defect had been identified and the mechanic’s advice was that it could not be repaired, that he was directed to drive the truck from Moranbah to Clermont. For ease of reference, and to match the pleaded case, I will call the events of the day “the incident”. [6] Mr Clarricoats’ case, as argued, is that JJ Richards breached the duty of care owed to him as their employee in instructing him to drive the truck with the defective seat the distance from Moranbah to Clermont and that his back injury occurred in the course of that drive. [7] The pleaded case included the initial collapse of the seat as involving a breach of the duty of care and as causative of the injury. That case was expressly not pursued at trial. [8] JJ Richards’ case is that the decision to direct Mr Clarricoats to drive the vehicle from Moranbah was a reasonable one in the light of the information that the employer had at that time. Further the defendant contends that the injury was sustained at the time that the seat collapsed, not on the drive to Clermont. [9] There are two fundamental issues. The first is whether the decision to direct Mr Clarricoats to drive the truck back to Clermont with inoperative air suspension under the driver’s seat involved a breach of the duty of care admittedly owed. The second is whether the prolapsed disc in his spine which was subsequently diagnosed was caused by the forces impacting on Mr Clarricoats’ spine during the drive to Clermont, as opposed to when the seat collapsed. There were several factual disputes agitated that bear on these issues: (a) Did Mr Clarricoats suffer an onset of pain indicative of sustaining a back injury when the seat collapsed? (b) In his initial report to his manager and when still located at Moranbah, did Mr Clarricoats advise that he had suffered an injury to -- 4 of 37 -- 5 his back, or that he had suffered an onset of pain in his back, when the seat collapsed? (c) Did Mr Clarricoats suffer significant and different symptoms of pain during the course of the drive back to Clermont? (d) Was the level of forces impacting on Mr Clarricoats’ spine on the drive to Clermont liable to cause injury? (e) Did those forces in fact cause injury? Mr Clarricoats’ credit [10] Fundamental to resolving these issues is the question of Mr Clarricoats’ credit. [11] Several arguments were put. One involved reference to a number of inconsistencies that seemed to me to be more in the nature of exaggerations than seriously misleading statements. I refer here to claims of putting on significant weight and an avoidance of walking on sand. They support a claim of exaggeration but no more. [12] More significantly, the defendant pointed to the marked differences between Mr Clarricoats’ evidence as to the onset of his symptoms and pre-trial statements and pleadings. I will discuss those differences in a moment but they are significant and remain unexplained. [13] Finally the defendant relies on the discrepancy between the presentation to the medical practitioners and the surveillance material. I will detail some of the discrepancies later, but the effect was to seriously impugn Mr Clarricoats’ credit. He grossly misrepresented his condition to medical practitioners. [14] Senior counsel for the defendant reminded me of my remarks in Bell v Mastermyne Pty Ltd1 where I said: “The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting – of his or her symptoms; of their impact on the plaintiff’s life; of pre-existing problems; of the genuineness of effort to regain employment after injury; and of their capacity to maintain employment. These are all difficult issues for a defendant to thoroughly investigate and test. In truth no-one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities. Here it is known that the plaintiff was prepared to be dishonest for his financial advantage. In my view that permeates every aspect of the case.” [15] I maintain those views. I agree they apply here. Unless Mr Clarricoats’ evidence seems to me inherently probable, or is supported by other reliable evidence, I am not prepared to act on his evidence. I should mention that I reject the submission that the defendant did not put Mr Clarricoats on notice that the claim was a fraudulent one – Mr Crow, senior counsel for the defendant, has identified 10 occasions on which he made it plain in cross-examination that such a case was being put against Mr Clarricoats.2 1 [2008] QSC 331 at [19]. 2 See paragraph numbered 36 in submissions in reply. -- 5 of 37 -- 6 The plaintiff’s case [16] Mr Clarricoats has departed from his case as originally pleaded. The material part of the pleaded case is as follows: 8. On 14 January 2013: … (b) without prior notice or warning the suspension to the drivers’ seat … failed; (c) the driver’s seat of the vehicle then heavily contacted the floor of the vehicle’s frame; (d) the Plaintiff experienced immediate pain to his lower back; … (f) (i) the plaintiff spoke to Brad Higgins [his manager] and orally advised him that: B. at the time the suspension attached to the seat failed he injured his lower back; … (n) (i) [when still at Moranbah] the Plaintiff again advised Higgins that his lower back had been injured and that because of this his return trip to the depot would be delayed ; … (q) During the course of the Plaintiff’s journey back to the depot the: (i) driver’s seat of the vehicle came into heavy contact with the floor of the vehicle’s frame each time the vehicle went over any bump, pothole or crack in the roadway; (ii) Plaintiff felt increased pain to his lower back each time the vehicle went over an irregularity on the roadway… (iii) the Plaintiff was forced to pull over to the side of the road on about three occasions due to experiencing an increase in pain to his lower back;” [17] Matters of note include – that there was an immediate onset of pain in the back on the seat collapsing; that there was a complaint of injury made when still at Moranbah; and no complaint of any different symptom such as leg pain on the drive to the depot. I have set out the pleading as it originally stood. On 25 November 2015 the pleading was amended by inserting in paragraph 8(q)(ii) the words “and pain into his left leg” after the words “lower back” so that the pleading reads: “During the course of the Plaintiff’s journey back to the depot the Plaintiff felt increased pain to his lower back -- 6 of 37 -- 7 and pain into his left leg each time the vehicle went over an irregularity on the roadway…” [18] In paragraph 9 it is pleaded that as a result of “the incident” the plaintiff suffered the injuries alleged. “The incident” is not plainly defined. There is a reference to “the incident” after paragraph 8(t) which refers to the plaintiff reporting the condition to Higgins and seeking medical treatment. Those matters are presumably not causative of injury. [19] I take the reference to “the incident” to mean that the injuries complained of were caused by the whole concatenation of events described in paragraph 8, which include the seat collapsing and the driving of the vehicle, not only, or perhaps at all, the matters set out in paragraph 8(t). But, as mentioned above, a different course was taken at trial – the case that the employer was liable for the defective seat collapsing was expressly abandoned. Pre-existing back pain [20] To understand the issues it is necessary to appreciate that Mr Clarricoats had pre- existing degeneration in his spine and that the condition was symptomatic. Dr McPhee said the degeneration present was above average for a man of his age. Dr Gillett’s evidence was to the same effect.3 [21] Mr Clarricoats had reported having trouble with his back in December 2012. He complained that the seat of the truck (the same Scania as involved on 14 January) was defective. He reported “driver seat bad for my back”.4 His evidence was that he thought that the seat was a little askew. His complaints were investigated. No defect was found. The truck was driven by himself and others following his complaint. No other driver complained of back problems related to the seat or reported any defect. Neither did Mr Clarricoats repeat his complaints although it seems that he had daily discomfort, at least when he drove the truck, which he often did. He made an appointment on 10 January 2013, i.e. four days prior to the incident, to see a chiropractor, the appointment being for 15 January 2013, the day after the incident. [22] In his evidence Mr Clarricoats described this back trouble he had as not a pain but a “discomfort”. Whatever the level of pain experienced, it was sufficient to result in a formal notice of equipment defect being given to the employer, for his complaints to be investigated, for an appointment to be made to see a chiropractor and for Mr Clarricoats to report to a GP in mid-January, shortly after the drive from Clermont with the broken seat, that he had had “back pain” for 4 weeks. [23] I do not overlook that the “discomfort” was not so substantial as to stop Mr Clarricoats working and performing overtime, and substantial overtime, when available. He received no medical treatment and, so far as is known, required no medication. [24] I can only speculate as to the motive for not reporting continuing symptoms – perhaps Mr Clarricoats did not wish to jeopardise his employment; perhaps he thought that his employer would be unsympathetic? 3 T3-51/14-17 (all references to the transcript are to the electronic version of the paginating). 4 Ex 1 Tab 10. -- 7 of 37 -- 8 [25] The report to the general practitioner and the making of the appointment with the chiropractor leads me to the view that in his evidence Mr Clarricoats minimised the problems that he was having prior to 14 January 2013. But even so, they were plainly not disabling. The significance of the timing of the onset of symptoms [26] On the case as pleaded there is no necessity to distinguish between symptoms that occurred at the time of the seat collapse and symptoms that occurred later on in the journey. Both the collapse and the journey were said to be causative and both events were said to be in breach of duty. [27] Once that case was abandoned - that the employer was liable for the original defect in the seat - then the distinction becomes crucial. Significant symptoms suffered at the time of the seat collapse would be consistent with an injury suffered at that time. The onus would then be on the plaintiff to distinguish between the effects of the seat collapse for which the employer is not said to be responsible and the consequences of the journey for which the plaintiff argues the employer is responsible. To minimise the effects of the seat collapse would suit that case. [28] That this is so, is evident from the evidence of Dr McPhee. Dr McPhee’s evidence in cross-examination was: “Doctor, assuming again those two matters that I’ve referred you to, that is, he’s had back pain for four weeks, he had an immediate onset of back pain when the first seat (sic – presumably “seat first”) collapsed, you’ve told us your opinion is that the – as I understand it, the collapse of the seat is regarded as an injury in the form of an aggravation of previously symptomatic lumbar degeneration? Yes. If after that immediate onset of back pain at the first collapse of the seat the plaintiff then drives on in – in the truck and there are further feelings of symptoms of pain as the seat bottoms out, are you as an orthopaedic surgeon able to identify whether any of those further bottomings out of the seat has or has not in any way contributed to any injury sustained by the plaintiff? I don’t think anyone can give you a definite answer. All you can say it’s a bit like having a thorn in your foot. When it goes in it hurts like hell. Every time you put your weight on it, it hurts like hell. I mean, you know, the problem’s there. If you’ve got a – if you’ve injured your knee, every time you start walking you’re putting weight on your – on the leg, it’s going to hurt you in your knee. I mean, what you’re doing is you’re applying it an intermittent force which is automatically going to cause pain. That doesn’t mean to say that the injury’s extending. It’s just – I mean, it reinforces that this was a distinct injury with a distinct progression of the symptoms at the time. -- 8 of 37 -- 9 The fact that the symptoms may progress, though, is that necessarily indicative of any further injury? No.”5 (my emphasis) [29] And then in re-examination, after being asked to assume Mr Clarricoats’ description of the onset of symptoms: “Doctor, what, if anything, do you say, given that analysis of the facts, was the cause of his problem? It’s a combination of all. I mean, the first instance is the initial event. Now, that’s – that’s progressed whatever the problem – underlying problem is enough that he’s got more pain. It also makes him a little more susceptible to aggravation of that pain with impact on his back, which is what the seat is doing every time it bottoms out. So to me, the – the story is completely consistent, and this is just a continuation of the aggravation.”6 (my emphasis) The evidence of the symptoms suffered [30] Mr Clarricoats’ evidence was that he suffered the onset of pain in his back on the drive to Clermont, not when the seat collapsed. [31] On this point, as on some others, the case is a peculiar one. Each side advances propositions that are contradictory. Mr Clarricoats alleges that he did not suffer injury when the seat collapsed but only on the journey back to base. Yet his case is – on one version - that he told his manager Mr Higgins that he did suffer injury to his back when the seat collapsed. Mr Higgins says that he was not told by Mr Clarricoats of any problem with his back before Mr Clarricoats arrived back at base. Yet the defendant’s case is that Mr Clarricoats injured his back, initially at least, when the seat collapsed, not on the journey home. [32] I shall endeavour to determine the facts on the probabilities. I record that I thought that Mr Higgins appeared to be a reliable and sincere witness. [33] In his evidence Mr Clarricoats said that when the seat collapsed he felt a “bit of a jar” but had no symptoms at all. He had no problems changing gears (there were 16 forward gears), alighting from the truck, or in driving it. When asked about symptoms on driving the truck a short distance when still at Moranbah he said: “discomfort and the inconvenience of having a seat throwing me around the cabin, nothing unusual”. Then, after stating that his manager, Mr Higgins, told him to drive the truck back to Clermont, he gave the following evidence: Did you say anything to him? I did. I said that it was going to take a long time. The vehicle was obviously in a dangerous position. My back was – I was experiencing the discomfort having to drive the truck, and – but I followed his instructions. And did you tell him something about the journey back? I said it would take a while, obviously, because of the nature of the truck. 5 T4-22/25-46. 6 T4-25/33-39. -- 9 of 37 -- 10 Did he respond? He said that would be fine. Just drive the truck back.7 … HIS HONOUR: I didn’t quite follow what you just said. Did you tell Mr Higgins, your boss, that you were experiencing discomfort before you commenced the journey back with the broken seat? I did, yes. The discomfort was, obviously, as a result of what I had already been experiencing driving the truck. Never mind the cause of it, but I want to know what you said to Mr Higgins as best you can recall? As best as I can recall, I said that my back was experiencing discomfort, I was – whether or not it was injured, I think I might have said that. But, yes, it was nothing out of the ordinary.8 [34] Mr Clarricoats then said that symptoms developed on the journey back to base. His evidence was given in great detail in chief. He said that as he got further into the journey he noticed a pain developing in his lower back that got worse over the course of the journey and that was “different to what he had felt before”. When asked to explain whether it was different in “character or location” he replied: “It was very different to what I felt before.”9 And when again asked how it was different: “It was just a totally different beast. I – I was used to discomfort from that – from driving that truck, and during that journey I started to feel pain that actually worried me. It scared me.”10 Approximately one-third of the way into the journey and between 20 to 30 minutes into the journey he pulled off the road for a break, got out, stretched his back, and continued. He did this on three occasions. The stretching did not help. He began to have trouble changing gears and noticed pain developing in his left leg. He described the developing pain in detail. It commenced in the outer thigh, travelling to the knee, and then below the knee, down the calf and eventually to the top of his foot and into the big toe. He had difficulty getting back into the truck after he stopped for a stretch. [35] Mr Higgins said that upon his return to the depot it appeared that Mr Clarricoats was in some difficulty and he offered to take him to the doctors. Inconsistent versions [36] Mr Clarricoats’ pleaded case, as set out above, as well as a report in a contemporary document, and a pre-trial statement, are each contrary to the evidence that I have recited. [37] An incident report entitled “Site Based Management Plan” was completed by the manager, Mr Higgins, two days after the incident, on 16 January 2013. Mr Higgins says that Mr Clarricoats own words were used. After describing the seat breaking and taking the vehicle to the local repairers and receiving their advice the report goes on: 7 T2-7/1-9. 8 T2-7/16-25. 9 T2-11/1-2. 10 T2-11/4-6. -- 10 of 37 -- 11 “I called Brad Higgins, to inform him of the seat. I was then asked to take back to the yard for the JJR mechanics to inspect. The pain in my back was immediate as soon as the seat broke. Whilst travelling back to Clermont I pulled over a few times to give my back a reprieve. Upon arriving at Clermont depot the pain was severe and I informed my manager Brad Higgins, who sent me to the doctors”.11 [38] There is therefore a report made very close to the day of the incident of an immediate onset of pain when the seat collapsed. There is no mention in the report of advising Mr Higgins in the phone calls that took place from Moranbah that he had injured his back when the seat broke. The plain meaning is that the report was made on the return to base. Nor is there any mention of pain in the left leg occurring on the journey. [39] To commence a claim for damages it is necessary for the claimant to file a Notice of Claim for Damages form. In this case such a Notice was signed by Mr Clarricoats on 22 July 2014. In it he declared before a Justice of the Peace that “all statements made in this Notice of Claim for Damages that are in my personal knowledge are true and correct and complete in every respect.”12 [40] In response to question 40 of the Notice Mr Clarricoats provided the following information, he of course being the “Claimant” referred to: 2. The Claimant collected waste from a number of customers and was on his way to a third customer when, without notice or prior warning, he heard a loud “snap” and the driver’s seat of the subject vehicle “bottomed out” (‘the incident’. 3. As a consequence of the incident the Claimant felt immediate pain to his lower back. …. 8. The Claimant then immediately telephoned Brad Higgins (‘Higgins’), being the Operations Manager at JJ Richards & Sons (‘the Respondent’). The Claimant orally advised Higgins that the seat in the subject vehicle had broken. The Claimant further advised Higgins that at the time the suspension to the seat failed he injured his lower back. 9. Higgins thereby then orally instructed the Claimant to take the subject vehicle to a mechanical workshop in Moranbah (being Great Northern Services Mechanical). The said workshop was approximately 3kms from where the Claimant had stopped the subject vehicle in Goonyella Road. … 12. The Claimant drove the subject vehicle out of the said workshop and remained on the side of the road awaiting instructions from the Respondent. 11 Ex 1 Tab 18 p 2. 12 Ex 7. -- 11 of 37 -- 12 13. At or about this time the Claimant continued to suffer pain and discomfort to his lower back. 14. After a number of hours, the Claimant spoke to Higgins. At that time Higgins advised the Claimant that “he had spoken to a mechanic at Clermont” and that the mechanic suggested that the Claimant take the truck back to the depot so it could be inspected. The depot being approximately 120kms from the workshop as aforementioned. 15. The Claimant advised Higgins that his lower back had been injured and that it “might be a while before he could get the truck back to the depot” as he would have to “take it easy”. Higgins advised the Claimant that this was “fine” and “to take his time”. … 17. The Claimant then returned the subject to the Respondent’s depot at Clermont. During the course of this journey, the Claimant was required to pull over at the side of the road on about three or four occasions to try and relieve increasing pain to his lower back. In the premises the said journey between Moranbah and Clermont took about two and a half hours. 18. During the entire time of the said journey, the Claimant’s seat kept “bottoming out” every time he went over any sort of bump or other irregularity in the roadway. Each time this occurred, the Claimant felt increased pain to his lower back. 19. As a consequence of those matters set out above, upon the Claimant’s arrival at the Respondent’s depot in Clermont he was in considerable pain and experienced difficulty walking when he alighted from the subject vehicle.” (my emphasis) [41] The assertion that there was immediate pain in the lower back upon the seat collapsing, the reference to continuing pain and discomfort when waiting beside the road and before commencing the long journey, and the claims that he told Higgins that he had injured his back and so would have to take it easy on the drive back, are all inconsistent with the evidence given at trial (where, as to the last point, Mr Clarricoats said that he would have to take it easy because of the state of the seat not the state of his back). Again of note is the lack of any reference to developing pain down the leg. [42] There is no explanation proffered as to how these early versions, or the pleading, came to be in the form they are in or how they can be reconciled with the evidence given. [43] I turn now to the factual issues that I have identified. Was there an onset of pain at the time of the seat collapse? [44] Only Mr Clarricoats knows what symptoms he suffered and when. The issue really is – why should I accept Mr Clarricoats’ evidence effectively denying any symptom of pain in his back at the time of the collapse of the seat, and continuing thereafter, when it is contrary to his own early report, his own Notice of Claim form and his own pleaded case? -- 12 of 37 -- 13 [45] The detail in the Notice of Claim suggests a very lively recollection being claimed, a different recollection to that which is now claimed, also a detailed one. So long as his case was that the employer was liable for the defective seat it suited him to maintain that original version. Once that case was abandoned then a different account was put in place, minimising the effects of the seat collapse and maximising the effect of the journey. The impression that I have is that Mr Clarricoats will tailor his evidence to suit the exigencies of his case. [46] It is difficult then to know where the truth lies. The onus of proof, of course, lies on Mr Clarricoats. [47] His evidence was hardly compelling. I have set out Mr Clarricoats’ evidence above. He was equivocal. He denied having any onset of pain when the seat collapsed but claims that he told Mr Higgins that he was in discomfort, but in the context of no more than was usual, and perhaps that he had been injured. In cross examination he expressly denied advising Mr Higgins that he had suffered any pain in his back when the seat collapsed. Why he may have said he was injured if he had not suffered any symptoms is puzzling. If his discomfort was no more than customary, and which he had not reported over the previous four weeks, again it seems odd that he would now complain. [48] The manager, Mr Higgins, denies being told by Mr Clarricoats, whilst Mr Clarricoats was at Moranbah, that he had injured his back when the seat collapsed. Mr Higgins says that the first that he was aware of any problems was upon the return to Clermont. As I have mentioned Mr Higgins appeared to be a sincere man and I am quite sure would not have deliberately sought to mislead me. [49] The evidence suggests that whatever conversation occurred was very short. Telephone records were produced. Mr Clarricoats reported that the seat had broken at 8.48am. He was told to take the truck to the repairer in Moranbah where a Mr Fredrick Martin assessed the truck. At 9.48 am Mr Higgins rang seeking information about the state of the truck. Mr Clarricoats told Mr Higgins that it was not repairable. He advised Mr Clarricoats to await further instruction. At 9.54 am Mr Higgins rang leaving a message on Mr Clarricoats’ phone. At the same time Mr Clarricoats rang Mr Higgins. A 40 second conversation occurred. Mr Clarricoats was directed to drive the truck back to the depot. [50] There is no good reason not to accept Mr Higgins’ evidence. That factor, and the equivocal manner in which Mr Clarricoats gave his evidence of the claimed conversation which I have quoted above, gives me little confidence that it had occurred as claimed by Mr Clarricoats. I am satisfied that nothing was said during the phone calls from Moranbah to alert Mr Higgins to the existence of any problem with Mr Clarricoats’ back. [51] I note that Mr Clarricoats completed a daily work sheet after his return from Clermont. In it he makes reference to the broken seat and to his exchange with Mr Higgins. He says nothing there about an onset of pain or a report of pain to Mr Higgins.13 That omission proves little, save that there is no contemporaneous support for Mr Clarricoats. 13 Ex 1 Tab 15. -- 13 of 37 -- 14 [52] What considerably complicates the picture is a statement made to Mr Martin. The statement of Mr Martin was lead in evidence. He was not required for cross examination. Mr Martin examined the defective seat in Moranbah. Mr Martin says that he spoke to Mr Clarricoats – whom he did not know by name but knew as the driver of the Scania that had the seat defect – when Mr Clarricoats brought the vehicle to the mechanic’s shop in Moranbah. Mr Martin says that after he told Mr Clarricoats that the seat could not be repaired Mr Clarricoats replied with words to the effect: “If the boss makes me drive back to Clermont I will go them. The road is too rough.” Mr Martin was not challenged, indeed Mr Clarricoats agrees that he did say something like that to Mr Martin. The obvious inference is that Mr Clarricoats had in mind suing his employer before the journey but, on his present case, before he had any real reason to. If he had in fact suffered an onset of more significant pain then he might well have been understandably angry about such a direction. If so it is odd that he did not complain about the direction to Mr Higgins. But it is common ground that he did not. [53] I am conscious that the evidence suggests that Mr Clarricoats was not suffering disabling symptoms when in Moranbah. I have in mind here two things. First, there is Mr Higgins’ denial of any complaint of injury while Mr Clarricoats was at Moranbah. That is consistent with the significant effects of the injury occurring on the drive to the depot. [54] Secondly, there is the evidence of Mr Martin. His is the only evidence independent of the parties. He said that he “did not notice the driver to be injured, limping, or in any pain when he brought the truck in”. [55] But those two pieces of evidence do not lead to the conclusion that there was no onset of pain when the seat collapsed, or indeed continuing pain as he waited at Moranbah as Mr Clarricoats said in his Notice of Claim formonly that the symptoms were not then disabling. [56] That Mr Clarricoats might not report that he was in pain is consistent with his failure to report symptoms over the previous four weeks. He was not minded to bring his problems to his employer’s attention. [57] As I have said I am not prepared to accept Mr Clarricoats’ evidence at face value. [58] The probabilities seem to me to favour him suffering pain initially. He had a pre- existing symptomatic condition; it is not in issue that the seat did collapse; and it would not be surprising if there was a sharp forceful impact on the lower back if the seat suddenly descended (it being agreed on the pleadings that there was heavy contact between the seat and the frame of the truck, so from the defendant’s perspective an acceptance of the likelihood of the event). Those aspects reinforce his early and consistent reporting of coincident pain. [59] I can see no reason to accept Mr Clarricoats’ present evidence. The probabilities favour his early accounts as being accurate. Painful symptoms occurred upon the collapse of the seat. Being thrown about - a pleading point [60] Mr Clarricoats claims that he was thrown about in the course of the journey to the depot. There are two issues. The first is whether I should accept that occurred. The -- 14 of 37 -- 15 second is whether the defendant can be held liable for the consequences, there being no pleading that that was the effect of the seat breaking. [61] As to that second issue the defendant points out that both the pleading and the opening of the case emphasised the frequent bottoming out of the seat. Mr Clarricoats did not claim in his evidence that the driver’s seat frequently bottomed out. Rather he said that he was thrown about. The pleading is at paragraph 8(q)(i) quoted above and which I repeat here: “During the course of the Plaintiff’s journey back to the depot the driver’s seat of the vehicle came into heavy contact with the floor of the vehicle’s frame each time the vehicle went over any bump, pothole or crack in the roadway”. [62] Nowhere in his evidence does the plaintiff assert that occurred. The closest he came was in response to a question from myself where he said: “And I’m talking about what you told Higgins at that time. My note was you said to him that it was uncomfortable or very uncomfortable. Can you recall whether you were telling him that it was uncomfortable to sit in the seat or that you were suffering discomfort, or do you not see a distinction between those two concepts? No, it was very uncomfortable to drive the vehicle. Sitting in a seat is fine. Driving the vehicle is very different because the suspension would throw me all over the cab. When the shock absorber didn’t work, the only thing left was the spring, so I felt everything, the movement of the truck and everything.”14 [63] There is considerable force in the defendant’s submission that the plaintiff seemed to draw a distinction between the seat bottoming out (which occurred only the once and that in the initial collapse) and his experience when driving to the depot.15 [64] That is of some relevance to the issues but does not really provide much support to the claim that the defendant is taken by surprise. So far as the pleading point is concerned I am inclined to the view that as a matter of forewarning the defendant as to the issues the pleading alerted the defendant well enough that the break in the seat suspension altered the characteristics of the seat so as to cause or permit damaging forces to come onto the spine. [65] In fact the defendant’s pleading in response to the statement of claim was that it did not admit subparagraph 8(q) “as the plaintiff was the only person in the truck during the journey and the defendant is unable to say whether the facts alleged are true or untrue”. A pleading of a non-admission such as this means that the defendant is not at liberty to call or give evidence to positively assert a contrary fact: r 165(2) Uniform Civil Procedure Rules 1999 (Qld) (UCPR). [66] Despite that restriction the defendant did call evidence that was relevant to the issue but maintained that it was for a different and permissible purpose. The purpose, it was said, was not to challenge the claim that Mr Clarricoats was thrown about as he drove back to the depot, but rather to justify the decision of the manager, Mr Higgins, to direct him to undertake the drive. The experience of the defendant’s witnesses was that with this defect and assuming that the truck was driven back slowly, the seat should not bottom out as other forms of suspension would still be operative. 14 T2-81/36-44. 15 T2-80/13. -- 15 of 37 -- 16 [67] The evidence of the defendant’s witnesses – and they were familiar with the Scania vehicles – is that the Scania truck in question had three forms of suspension. Once damaged, the air suspension under the driver’s seat was absent. The two other forms of suspension in the vehicle remained in place.16 While the driver’s seat lacked the extra facility of air suspension that effectively meant that it was in the same condition and subject to the same forces as the passenger seat. That is so because as manufactured, the air suspension of the type under the driver’s seat was never in place under the passenger’s seat. [68] Mr Higgins said that he had no safety concerns about the direction to drive the truck in its damaged state. That evidence loses what force it otherwise might have had for two reasons. One is that he did not say why he held that view. His opinion that it was safe is irrelevant unless supported by cogent reasons. Senior counsel for the defendant submits that his view was not challenged and complains that he was not thereby given the opportunity to explain his position. That is not right at all. He had every opportunity to say why he held his views – he simply wasn’t asked by his own side. The plaintiff was under no obligation to attack his unexplained view. [69] The second problem is that he could not say, at least by the time he gave his evidence, what the precise problem with the seat was. He did say that he had discussed the issue with Mr Aaron Bartolo, the workshop manager, prior to directing Mr Clarricoats. Mr Bartolo had spoken to the workshop in Moranbah and was aware of the precise defect. So perhaps at the time Mr Higgins gave his direction he knew what the claimed defect was. But I am by no means satisfied that is shown. [70] Mr Bartolo said that he was aware of a previous case in which a Scania truck had been driven with defective suspension under the driver’s seat and it was done without difficulty. His evidence emerged in this exchange: “Mr Bartolo, having heard his Honour, what do you say to my question? Well, yes, on previous occasions offer the previous occasion where I witnessed it completely happen, the seat had sat down on the base and he’d driven it back safely, due to cab suspension and the suspension of the vehicle.” I see. HIS HONOUR: That doesn’t really answer the question either. MR WHEELAHAN: No. HIS HONOUR: We’re interested in knowing: does the seat bottom out as you drive along? If you let the air down, it shouldn’t bottom out. It will bottom out on its base, but it doesn’t lift up and down. But do you know – putting aside for the moment whether it should, in your experience, is that what happens? In my experience of driving with no air in the seat, yes.”17 16 See the evidence of Mr McMahon: T4-71/10 – 72/25; Ex 23; Mr Bartolo: T5-13/4 and T5-14/7-15. 17 T5-17/27-45. -- 16 of 37 -- 17 [71] Given the purpose for which the evidence was admitted (as discussed above) what is left in issue is the credit of Mr Clarricoats. A non-admission still requires the plaintiff to prove his case. [72] I note that in his report to WorkCover two days after the incident Mr Clarricoats said: “Drove car to Clermont very slowly as the seat was bouncing all over the place & the roads are pretty bad”.18 So there is an early version completely consistent with the evidence now given. Again, there is the concern raised by the comment made to Mr Martin. Yet the defendant did not put to Mr Clarricoats in cross examination that he made up this account. [73] In the absence of a direct challenge, either in the pleading or in cross-examination, and given the early consistent reporting of the events, I accept that Mr Clarricoats was thrown about within the vehicle, at least to a greater degree than he was accustomed to with the suspension intact. What symptoms were suffered on the drive? [74] In addition to being thrown about, the contention that Mr Clarricoats was subjected to significant and damaging forces on the drive back to Clermont depends on acceptance of his evidence that he experienced new and different symptoms in the course of the drive to Clermont and that those symptoms are indicative of a causal influence. [75] There is no independent evidence supportive of Mr Clarricoats. Should I accept that the symptoms occurred as alleged? [76] Mr Clarricoats has consistently claimed that by the end of the journey he had significant pain in his lower back. He was observed by Mr Higgins to be moving gingerly as he quit the truck. Mr Higgins plainly thought that Mr Clarricoats was distressed by pain on his return. He evidently reported significant pain to his GP, Dr Gallage on the day. The GP treated his case as a genuine one. He reported being in pain in all his early statements. [77] There are two reasons that I can see not to accept his claim. The first is the comment he made to Mr Martin, mentioned above, that he was going to “go” his employer even before the drive. However, as I have said, that comment is consistent with Mr Clarricoats in fact having significant pain but just not revealing that to Mr Martin. The second reason is in the evidence of a fellow employee, Mr McMahon. He said that he was on a return to work programme in January 2013 with Mr Clarricoats when Mr Clarricoats told him that he had retained solicitors and was “going to take action”.19 The evidence is that he did in fact retain solicitors within a week of the incident. So at a time when Mr Clarricoats could not know how disabled he might end up being, and when he was ostensibly trying to rehabilitate to resume his full duties, he was seeking advice as to his rights to sue his employer. This is consistent with the comment made to Mr Martin. The consequence of this is that these comments tend to throw doubt on the validity of the whole proceeding. [78] But if the whole claim is a fraudulent one then Mr Clarricoats has gone to extraordinary lengths to perpetrate it. And there is evidence that there was a genuine problem. Early radiological films confirmed the presence of a prolapsed disc. He 18 Ex 1 Tab 25. 19 T4-70/1-5. -- 17 of 37 -- 18 underwent epidural injections and surgery. None of the treating specialists who saw Mr Clarricoats in the first year after the incident thought that the whole claim was fraudulent. Mr Clarricoats was carrying out his usual duties up and until that day. These various matters strongly support a significant injury occurring at about this time and so the claimed onset of lower back pain. [79] I am satisfied that by the end of the journey Mr Clarricoats had significant back pain. [80] The symptoms of leg pain as now recalled are not so well supported. There was no mention of such symptoms in his response to questions in his claim for compensation20 where Mr Clarricoats said: “Drove car to Clermont very slowly as the seat was bouncing all over the place & the roads are pretty bad. Pulled over a few times to stretch out. The initial breaking of the seat & then driving the truck back is what hurt my back. Very stiff in the lower back and felt like I was walking lop sided when I got back to the depot. Was in a lot of pain & a bit teary.” [81] Not only is there no mention of this onset of very significant symptoms in the leg but there is no distinction made between the causative effects of the breaking of the seat suspension and the drive back to the depot. [82] The general practitioner, Dr Gallage, received a complaint of leg symptoms at an early stage. She saw Mr Clarricoats on the day of the incident. Dr Gallage’s clinical note was of “shooting pain to the left hip” and “shooting along the sides of trunk”.21 Her letter of referral of 23 January 2013 (ie 9 days later) to Dr Dorgeloh relates “pain in L3 region that radiates to left groin and left LL since 14th January” and “radiating pain to the lift (sic) lower limb” but without any statement as to the timing of onset ie not specifically related to the drive home.22 [83] Mr Clarricoats’ report to the first specialist he saw, Dr Williams, on 22 February was (after relating the failure of the seat): “… He drove over a bumpy road for 120 kilometres experiencing severe lower back pain at the other end. He tells me that his pain passes from the groin into the anterior thigh as far as its midpoint.”23 Under current symptoms Dr Williams recorded “very little leg pain.”24 [84] Again the time of onset is not stated. No inference can be drawn from that as I suspect it was of no significance to the doctors. But neither record is consistent with the symptoms of pain down into the big toe being suffered in the course of the drive as is now recalled. The first note that I have found of that symptom ie the pain extending in 20 See Ex 1 Tab 21 – apparently provided on 16 January 2013. 21 See Ex 1 Tab 22. 22 Ex 1 Tab 27. 23 Ex 1 Tab 35. 24 Ec 1 Tab 35. -- 18 of 37 -- 19 that way, is in Dr Williams’ report of his review of 10 September 2013, post-surgery of 24 July.25 [85] Again I mention the amendment to the pleading which introduced, only in November 2015, the plea of pain occurring into the left leg during the course of the journey. [86] All these considerations leave me in considerable doubt about the onset of the claimed symptoms in the left leg occurring in the course of the drive, at least as now described. What records are available are not supportive of the description now given and indeed contrary to it. While it is quite possible that Mr Clarricoats did not think to mention the leg symptoms as coming on at any particular time to his employer or to WorkCover it is difficult to reconcile the present claim with the Notice of Claim and original pleading (which I have outlined previously and which make no mention of such symptoms), the record of the GP made on the day, and the precise record of Dr Williams made only five or so weeks after the incident with a very different description of symptoms. [87] Senior counsel for Mr Clarricoats points out that there was no challenge made to Mr Clarricoats’ account. That is true, at least so far as cross-examination went. The rule in Browne v Dunn26 required such a challenge. But I take the true principle to be that a tribunal of fact is not required to accept evidence because it has not been challenged in cross-examination, but the failure to cross-examine a witness as to a particular matter is something which ought to be taken into account: Bulstrode v Trimble [1970] VR 840 at 849-850; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [13]; Pasqualotto v R & L Pasqualotto [2013] VSCA 21 at [241]. [88] Here the challenge comes not from testimony from other witnesses. Indeed there is not much that can be proved - no-one but Mr Clarricoats knows what symptoms he experienced. Rather the problem is that created by his own more contemporaneous accounts, and statements to medical practitioners when, one would think, he had every reason to be accurate. What is more, Mr Clarricoats put the medical records into evidence. In my view there has been no unfairness to Mr Clarricoats from the failure to cross-examine and the evidence against his claim is compelling. [89] However that is not the end of the matter. Even if symptoms of lower back pain, and pain into the leg to some extent, did occur during the drive no inference can be necessarily drawn as to the causation of injury. While such onset would be consistent with an injury to a disc in the spine occurring during the drive, it would also be consistent with an injury being sustained to a disc in the collapse of the seat. The medical practitioners all accepted that symptoms could come on even days after damage to a disc, let alone an hour or two later. As Dr McPhee said in the passage quoted above with respect to the possible effect of the seat bottoming out – “what you’re doing is you’re applying … an intermittent force which is automatically going to cause pain. That doesn’t mean to say that the injury’s extending.”27 [90] Those are my conclusions on the factual issues. I turn now to the questions of breach of duty and causation. Breach of Duty 25 See Ex 1 Tab 44. 26 (1893) 6 R 67. 27 See [28] above. -- 19 of 37 -- 20 [91] Sections 305B and 305C of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) are relevant to the duty owed by an employer to a worker. Those sections are set out: 305B General principles (1) A person does not breach a duty to take precautions against a risk of injury to a worker unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)— (a) the probability that the injury would occur if care were not taken; (b) the likely seriousness of the injury; (c) the burden of taking precautions to avoid the risk of injury. 305C Other principles In a proceeding relating to liability for a breach of duty— (a) the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and (b) the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. [92] These provisions involve what McMurdo JA recently described28 as a reiteration of the considerations which were discussed by Mason J, in Wyong Shire Council v Shirt: 29 28 Brisbane Youth Service Inc v Beven [2017] QCA 211 at [220] 29 (1980) 146 CLR 40 at 47-48. -- 20 of 37 -- 21 “[I]t is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.” [93] The defendant argues that the conditions in s 305B(1) are not met. It is submitted that the plaintiff has the onus of showing that the risk of injury was both foreseeable and not insignificant, that he failed to do this and so, in the circumstances, a reasonable person in the position of the defendant would not have taken precautions against the risk. A foreseeable and not insignificant risk [94] Senior counsel for the defendant described the submission that to drive the truck with a known defect to the shock absorber as not involving a foreseeable risk as “an adventurous submission” at least “in the abstract”. That is how the argument did initially strike me. However on reflection there is some force to the argument. [95] The starting point is that, as rough and irregular as the road might be, there is no suggestion that the forces that came onto the driver of the Scania truck when traversing the public highway between Moranbah and Clermont, with the driver’s seat shock absorber intact, involved a foreseeable risk of injury to the driver’s spine. The crucial distinction then is between the forces that are applied to the driver when driving over irregularities in the road surface with the seat intact and those applied when the seat is without the shock absorber. [96] Here, neither side thought it necessary to lead any independent evidence on that crucial point so there is no direct evidence of what those forces might be. The plaintiff’s case depends upon acceptance of his claims as to what he experienced as to the extent he was thrown about, as well as his claims regarding the onset of symptoms. I am sceptical of both, not so much that there was no such experience, but that the experience described was accurately described. [97] That the likely forces exceed those that would usually pertain is, I think, obvious. The suspension is there for a reason. And I have accepted Mr Clarricoats’ claim that he was thrown about, at least more so than was customary. This however does not show that the forces involved were at such a level that they were likely to cause significant injury. [98] Nor can I draw an inference of injurious forces from the fact that Mr Clarricoats ended up in significant pain at journey’s end. That may be the result of the initial collapse of the seat, or the pre-existing degenerate condition of his back, or a combination of both. [99] So at the end of the plaintiff’s case I have only his word and that is not something that I am prepared to rely on. -- 21 of 37 -- 22 [100] The plaintiff then must confront the defendant’s evidence as to the effect of the remaining suspension systems and their experience with a similar defect. I have mentioned some of their evidence above.30 The defendant’s case was that the suspension system in the truck included air bag systems between the wheels and chassis and a further airbag system between the chassis and cabin. If, as they say, the driver’s seat, in its damaged state, was effectively subject to the same forces as the passenger’s seat, then there is a real doubt that the force that could come on to the driver was at a damaging level. This is particularly so with the truck driven slowly, as it was agreed it should be, and as indeed it was. [101] These arguments have considerable force. However Mr Bartolo qualified his opinion. He said that had he known that Mr Clarricoats had any problem with his back, he would have had someone else drive the truck back to the depot. [102] In my view Mr Bartolo’s concession that he would not have given the direction that he did if he had known that Mr Clarricoats had some form of discomfort or pain in his back after the seat collapsed, justifies a conclusion that there was a foreseeable risk of injury involved in the task of driving the truck back to base along a sometimes rough road for a distance of 120 kilometres with a defective seat suspension. [103] I appreciate of course that it is not Mr Bartolo’s personal view that determines the issue, but rather it is an objective enquiry. But I take the test to be undemanding – and not so far removed from the common law test of the risk of injury being “not farfetched or fanciful”.31 The quality of robustness that Mr Bartolo apparently assumes must be variable among workers. Mr Bartolo had experience with trucks of this type and with defects of this type. The fact that he would not permit a person with a suspect back to drive the truck is a strong indicator that this relatively undemanding test is met. The probability and seriousness of the potential injury [104] That there was such a risk of injury does not conclude the matter. Breach is shown only if a reasonable person would have taken the suggested precaution after bringing into account the probability and seriousness of the potential injury as required by s 305C(2). [105] There is no evidence to put against the evidence of the experienced mechanics called by the defendant as to the effect of the alternative suspension systems. The question really is equivalent to asking whether the employer would have been in breach of its duty of care if Mr Higgins had directed that Mr Clarricoats should travel in the passenger seat of the truck on the drive home. I cannot see how the answer to that question could be in the affirmative. [106] Before leaving the question of breach there are two issues to address. The first is the relevance of the rather confused evidence that Mr Bartolo gave concerning the letting of air out of the seat. Senior counsel for the defendant submits that the evidence relates to a different defect to the one in question. I am inclined to think it does, but it could have been made a deal clearer. What is clear is that the seat initially collapsed to the floor of the cabin when the shock absorber of the driver’s seat broke away from its mounting bracket due apparently to a weld failing to hold. Mr Clarricoats did not assert 30 At paragraphs [64]-[67]. 31 See the discussion of the level of probability required in Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at [22]-[26] per Fraser JA (White JA and Mullins J agreeing). -- 22 of 37 -- 23 that he reinflated the seat after it collapsed, if indeed that was possible. The tenor of his evidence was that the air suspension was not working. Mr McMahon explained the way that the seat could be reinflated.32 There is no evidence that Mr Clarricoats did this and the tenor of Mr Clarricoats’ evidence is that he did not. I do not see the evidence as relevant. [107] The second issue is whether Mr Bartolo was justified in assuming that Mr Clarricoats’ back was “normally” robust. Given the evidence that is now known, Mr Clarricoats had a degenerate back at the time of the incident. Should this effect the duty owed? [108] The defendant here knew that Mr Clarricoats had complained of discomfort on one occasion four weeks before the day in question. Should that have been brought into account in the responses expected of the employer? Was there any duty to enquire about the state of his back? [109] It is relevant to note that there was no repeat of the complaint. In that four week period Mr Clarricoats had worked on every day that he was expected to work and had completed extensive overtime. Indeed Mr Clarricoats advances these considerations as indicative that his pre-existing discomfort was of no consequence to the case. As I said earlier I am satisfied that Mr Clarricoats minimised the extent of any pre-existing discomfort. But the employer did not know that. [110] I take the law to be that absent some special knowledge of an inherent weakness or special vulnerability an employer is under no obligation to make enquiry of an employee as to whether he has such a weakness nor is the employer in breach of the duty of care owed if he exposes the employee to risks resulting from his inherent weakness. Questions of this type were considered by the Court of Appeal in Finn v The Roman Catholic Trust Corporation for The Diocese of Townsville [1997] 1 Qd R 29 at 41 where Williams J said (McPherson JA agreeing): “It has also generally been recognised, where the employer has knowledge or at least the means of knowledge of a particular susceptibility to injury in the employee, then that will affect the steps which must be taken in order to comply with the obligation to take reasonable care. Such a problem was considered by the Full Court of the Supreme Court of New South Wales in Pitsiavas v John Lysaght (Aust) Pty Ltd (1962) NSWR 1500, especially at 1502 and 1504. The statement by Manning J at 1504 is probably too broadly stated; it should be limited to the situation where the employer had knowledge, or the means of knowledge of, the susceptibility. But it is worth citing the passage: ‘In my opinion there is no basis for imposing upon the employer the additional burden of taking care not to expose a particular employee to risks resulting from his inherent weakness. His duty is to act with reasonable care to protect his employees from unnecessary risks. He is not required to enquire into the question as to whether each labourer employed by him may be unfit for the work involved by reason of some constitutional defect or weakness.’” 32 T4-72/20-25 -- 23 of 37 -- 24 [111] Thomas J’s reasoning in Finn is to the same effect. [112] In my view the employer was not on notice of any special vulnerability and had no duty to enquire further.33 One complaint of discomfort four weeks before hardly amounts to notice of a vulnerability to injury over and above that common to us all. [113] To this point I have not brought into account the defendant’s argument that there was an onus on Mr Clarricoats to inform Mr Higgins that he had suffered an injury to his back either before he commenced the drive to Clermont or during the drive to Clermont. The argument was that in determining the scope and content of the duty owed regard must be had to the conditions of contract citing Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15. The defendant’s point is that it was a condition of employment that the employee comply with the General Induction Handbook.34 He was well aware of its requirements. The Handbook provided that an employee was required to “report all workplace injuries, illnesses … immediately” and to advise the supervisor immediately if the worker has a “workplace injury”.35 That was said in the context of safety and management of the injury. It was said that Mr Clarricoats breached this duty. It was said that the employer was entitled to assume that he would comply with his obligations. [114] I think it clear that at some point, whatever version of symptoms be adopted, Mr Clarricoats appreciated that he had something seriously wrong with his back. In his Notice of Claim form and in his pleading he did report an onset of pain with the seat suspension failing and continuing pain right up and until he arrived at the depot. His present evidence is of increasing pain throughout the journey. It is common ground that he made no report of the latter. He plainly could have. [115] I do not base my conclusion on this argument, but I think it reinforces the point made above that, absent express notice, the employer was entitled to assume a normal level of fortitude. Conclusion on the breach of duty question [116] I am not persuaded that the direction to drive the truck back to the depot was in breach of duty – that is, that a reasonable person in the position of this employer would have taken precautions against the risk of injury. [117] In case I am wrong in that conclusion I will go on to consider the issues of causation and contributory negligence. Causation [118] Section 305D of the WCRA provides, relevantly: “(1) A decision that a breach of duty caused particular injury comprises the following elements— (a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation); 33 Cf. Paris v Stepney Borough Council [1951] AC 367 and Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271. 34 See Ex 5 Document entitled “Employment Agreement” at p 33 cl 10. 35 See Ex 5 at p 10; Ex 5 Training Records - answer to Q 16 at p 17. -- 24 of 37 -- 25 (b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability). (2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection(1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach. (3) … (4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.” [119] Section 305E WCRA states that the onus of proving any fact relevant to the issue of causation is on the plaintiff and on the familiar balance of probabilities test. [120] What is in issue here is factual causation. The plaintiff must show that “but for” the defendant’s breach of duty the injury would not have occurred.36 The question just resolved is that the employer was not to expect prospectively that the probability and seriousness of the potential injury resulting from the forces to which Mr Clarricoats was liable to be exposed justified taking steps, beyond what was done, to protect him from them. The question here is whether those forces did in fact cause the prolapsed disc? Assuming that I am wrong in my conclusion as to breach of duty, was the hypothetically assumed breach a necessary condition of the occurrence of the injury? [121] While the question is different much the same evidence and analysis applies. [122] Senior counsel for the plaintiff relied on the acceptance of Mr Clarricoats’ evidence both of the forces he experienced and his description of symptoms. I have made relevant findings above. I do not accept in their entirety those descriptions. But that is not the end of the matter. [123] The additional material to consider is the mechanism of injury. The issue is whether the plaintiff can discharge the onus of showing that the disruption to the disc occurred during the course of the journey as opposed to when the seat collapsed. [124] There are a series of opinions from well qualified experts that the disc prolapse was due to pre-existing degeneration. I take that to mean that the pre-existing condition predisposed Mr Clarricoats to the prolapse. But that does not say anything about the crucial issue here. [125] I have mentioned Dr McPhee’s opinion above.37 His view was that even accepting increasing symptoms through the journey (as I do) that does not mean that the injury to the disc occurred then. 36 Strong v Woolworths Limited (2012) 246 CLR 182; (2012) 285 ALR 420; (2012) 86 ALJR 267; [2012] HCA 5 at [18]. 37 At [28]. -- 25 of 37 -- 26 [126] The plaintiff relies on the opinion of Dr Gillett. Dr Gillett assumed that Mr Clarricoats was asymptomatic prior to the day of the incident. That was a mistaken assumption. So his opinions need to be read with that qualification in mind. He frequently asserted that the disruption to the disc occurred as a result of the events of the day of the incident, but without drawing a distinction between the collapse of the seat and the effect of the drive. That too needs to be borne in mind. However when asked in cross examination to adopt the assumption that there was an immediate onset of back pain with the collapsing of the seat (which is the finding that I have made) he said: “If I can change the factual premise on one more occasion to this: that when the – the truck seat collapsed, as you’ve noted on page 2 there was an immediate onset of back pain – if there was an immediate onset of back pain with the collapsing of the seat, then is it likely or more likely that the injury was sustained when that seat collapsed? More likely.”38 [127] There then followed questioning by myself: It’s the judge this time, Doctor. On that last point - - -?---Yes. - - - assuming the seat collapsed and there was an onset of some level of symptoms, if all - - -?---Yes. - - - you knew was that some hours later leg pain developed, I take it you’d have - - -?---Yes. - - - no difficulty in drawing a causal connection between the seat collapse and the – and the discal problem?---Correct. If that’s all you knew?---Yes.39 [128] The opinion that the plaintiff relies on is contained in an answer which immediately followed the foregoing. It requires the adoption of two assumptions that I do not accept are shown – frequent bottoming out of the seat and no onset of pain initially. The answer was in this exchange between myself and the doctor: “All right. Now, you have the additional history that between the seat collapsing, initially, and the onset of leg pain, Mr Clarricoats drove the vehicle for 100 or so kilometres and during that time developed leg pain? Yes. And the seat was bottoming out frequently enough because of the state of the road and so on. Do you draw any distinction then between the initial impact when the seat bottomed out and the subsequent impact so far as causation goes, and if so why? It relates to – I think it relates to the – the easy connection is – easy link is that if there is pain with the initial bottoming out. If there’s no pain then one could say, well, that didn’t happen. He didn’t do any damage to himself. He – he was not injured, and then the symptom complex then becomes apparent with repeated 38 T3-56/4-8. 39 T3-56/14-25. -- 26 of 37 -- 27 bottoming out on the way back. So it would seem that you could link that if there’s nothing happening on the first event, then the subsequent events, which is repetition of the bottoming out, is causal to the disc being protruded. So the link relates to when the leg – you know, the back leg pain becomes apparent. … No, you go on. There’s a time delay obviously. Go on? … So I would rely on the history of the onset of pain. It would seem – if the – if en route to Moranbah the seat bottoms out and you have no pain, then it would – I would support the concept that the repetition of bottoming out between Moranbah and Clermont over 120 kilometres, that is, repeatedly, was causal in the disc protrusion. If he had acute pain with the first bottoming out, then the disc was then vulnerable and this protrusion occurs more likely than not due to … the first bottoming out. That’s as accurate as I could offer.40 (My emphasis) [129] On the findings that I have made Dr Gillett’s relevant opinion is that the disc protrusion was more likely to have occurred on the initial bottoming out of the seat. [130] The plaintiff also relies on the opinion of Dr Pincus that emerged in this exchange: “Doctor, I’d ask you to assume that after the initial jolt from the failure of the seat, he reported no symptoms to a workshop to which he was sent; that he was sitting comfortably and doing things normally for some hours and then he embarked upon the journey back to his home base, which involved him driving a truck with a defective seat that bottomed out on every bump, undulation and defect in the road, that he noticed an increase in back pain to the extent that his left lower limb became involved, and by the time he returned to his workplace after several hours, he had great difficulty walking from the back and left-limb pain. Would you, Doctor, implicate the journey and the events that happened to him in that journey in the presentation when he returned to his depot?---So it’s a really long question so just to make it clear, you’re asking me to assume that the seat broke and then he had no pain at all and then, in the process of the journey, he developed his pain? Correct?---And the question is? What part did the journey play in the and the fact that his seat was bottoming out on every bump play in the appearance of that pain?---Well, they appear to be related. If what you’re telling me is true, they would appear to be related.”41 (My emphasis) [131] Again I reject the premise on which the question is based. In any case the relevant question is not that put – that any bottoming out of the seat played a part in the 40 T3-56/27 – 57/16. 41 T5-28/22-39. -- 27 of 37 -- 28 appearance of that pain. The question is what caused the disc protrusion. Once suffered no doubt any bottoming out (assuming that occurred) would have played a part in the pain suffered. [132] In my view the evidence is all one way – given my findings, the disc protrusion (if indeed it was not pre-existing as some of the medical evidence suggests) more than likely occurred upon the initial failure and associated sudden bottoming out of the seat. Factual causation is not shown. Contributory negligence [133] Relevant to the defendant’s argument are sections 305F and 305H of the WCRA. They relevantly provide: 305F Standard of care in relation to contributory negligence (1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the worker who sustained an injury has been guilty of contributory negligence in failing to take precautions against the risk of that injury. (2) For that purpose – (a) the standard of care required of the person who sustained an injury is that of a reasonable person in the position of that person; and (b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time. 305H Contributory negligence (1) A court may make a finding of contributory negligence if the worker relevantly— (a) failed to comply, so far as was practicable, with instructions given by the worker’s employer for the health and safety of the worker or other persons; …” [134] The principles that apply to breach of duty mentioned in section 305F WCRA include those set out in section 305D WCRA which I have set out above. Relevantly here it provides: “(1) A decision that a breach of duty caused particular injury comprises the following elements— (a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation)…” [135] On the findings I have made the argument for an apportionment is otiose. There is nothing Mr Clarricoats could have done to avoid the injury, any more than there was anything the defendant could have done. -- 28 of 37 -- 29 [136] If it be assumed that I am wrong in my findings – that is, that it be assumed that the injury occurred at some later time than the initial seat collapse then the argument here is that Mr Clarricoats contributed to his injury by failing to inform his employer of the fact that he had an injury before being directed to drive to the depot, or perhaps continuing to drive after he felt the onset of leg pain. That assumes that he knew he had such an injury. It also assumes that the prolapse to the disc would have been avoided if Mr Clarricoats had then acted. [137] The Handbook is clear that he was under a duty to report a workplace injury. I have found that he did not do so before he reached the depot. I have discussed the relevant evidence above. I accept that if he had reported the symptoms that he was experiencing at any stage then the defendant would not have required him to drive the truck any further. [138] The onus here is on the defendant. The defendant must show that Mr Clarricoats’ state of knowledge was such that he knew he had a reportable injury and before the damage to the disc was done. [139] At some stage the plaintiff well knew he had an injury. When that was, is difficult to ascertain. It may have been on the initial seat collapse. If not then, it was very probably in the course of the journey. The difficulty is that I have no confidence that Mr Clarricoats has truthfully explained his symptoms. If the Notice of Claim form is accurate Mr Clarricoats had been suffering an increased level of back pain for some time before he left Moranbah. But it is not possible to make a finding that he had leg pain. He may or he may not have. The evidence is unclear. That symptom would alert anybody to the fact that they had a new and different problem. [140] Would an increase in the level of back pain experienced be sufficient? I think that it is relevant to bring into account the pre-existing discomfort. It informed Mr Clarricoats of his employer’s attitude. Mr Clarricoats had reported that the seat was not good for his back. The seat was examined by competent mechanics. There was in fact no discoverable defect. The probabilities are that the problem was with Mr Clarricoats back, not the seat. But the employer’s response was not to explore the issue of his discomfort or to otherwise modify his duties. That was Mr Clarricoats’ experience. Why should he have assumed that he came under some different obligation now, or that his level of discomfort would be of any interest to Mr Higgins? [141] The answer can only be that the symptoms he was then suffering commanded a different response but the onus is then on the defendant to show what those symptoms were. On his own case Mr Clarricoats was in discomfort when at Moranbah. He now says that was no more than usual. I am satisfied that his condition was worse than that but, as I have found, not disabling. [142] In the state of the evidence I cannot make a finding that Mr Clarricoats should have realised that he had an injury within the meaning of the Handbook and at a time that would have made a difference to the disc prolapse. DAMAGES [143] Damages fall to be assessed pursuant to the WCRA. -- 29 of 37 -- 30 [144] The assessment must be undertaken on the false premise that I have found a breach of duty that has caused some injury. The hypothesis that I will adopt is that the defendant is responsible for the consequences of “the incident” as defined in the pleading ie all the events of 14 January 2013. [145] The assessment is considerably clouded by Mr Clarricoats’ exaggeration of his symptomatology to the medical practitioners. [146] That there was such exaggeration is plain. The surveillance took place 14 and 15 January 2015 (after attendances on Drs Pincus and Leong respectively), 10 February 2015, 13 February 2015, 15 and 16 July 2015, 25 and 26 October 2015 and 1 November 2015. The surveillance often took place only weeks from the time that the plaintiff was seen for examination purposes. [147] The contrast between the claimed disabilities as explained to the medical practitioners and what is seen on the videos is stark. Mr Clarricoats told the doctors that he requires a walking stick, used a motorised scooter, needed assistance when shopping and dressing, was restricted in his driving, was unable to do his ministry work, was phobic about being in public places and had very limited seating, standing and walking tolerances. His presentation included moving in a guarded way and slowly and with the aid of a walking stick or crutches, limping, holding his back, stooping, moaning and with facial grimacing. [148] The videos show Mr Clarricoats going about life relatively normally. Occasionally I detected some stiffness and slowness in his movements. He seemed to me to be more careful at times when bending than might be considered usual, but not consistently. He generally walked normally, and more often without a walking aid. There was no use of a motor scooter. He sits for extended periods, far longer than told to practitioners, without sign of discomfort. He drives apparently without any problem. He is seen to lift shopping bags from the back of car without apparent effort – three bags in one arm at one time, five bags on another occasion. He attends to his ministry in the public gardens – the outing then was for more than 3 hours. On that occasion he loaded and lifted a trolley from his car and took that trolley with him as he walked to his stand. He attends at shopping centres, sometimes with his wife nearby, sometimes not. He stands for extended periods. There is no sign of discomfort. Remarkably, given his claimed disabilities, on one occasion he jogs from the car to the front door of his home. The distance is relatively short but this from a man who supposedly struggles to walk. [149] It was suggested to Dr Pincus that these discrepancies could be explained by variation in pain levels. The doctor firmly rejected the proposition and I think on very strong grounds: “Doctor, when he’s told you that his pain varied from time to time, could that not be a reasonable explanation for a different presentation of symptoms?---No. Why not?---Because of the presentation that he gave was someone who was pretending as though – indicating, I apologise, indicating that he was severely disabled, unable to dress himself, can’t wash himself, can’t do anything, needs help with all activities, and the videos clearly showed that that’s actually not the case. -- 30 of 37 -- 31 So - - -?---You can’t move from one day not being able to move at all, having no range of movement in your spine at all, to very few – in a short time maybe being able to sit for an hour. That doesn’t actually happen in the real world.”42 [150] I agree. [151] Following their viewing of the surveillance material Drs Scheepers, Leong and Pincus determined that they could not support any continuing disability that fell within their respective disciplines. [152] In their submissions plaintiff’s counsel contends that I should not accept their views arguing that they had overlooked certain objective evidence.43 Even if the submission was otherwise right, and it is not, there still remains the need for the plaintiff to discharge his onus of proof – to call persuasive evidence supporting an ongoing disability. He did not do that. [153] The objective evidence that counsel contends was overlooked by the medical practitioners was said to be (with my responses following): (a) The CT lumbar scan report of 15 January 2013 – the issue is not whether there was a prolapse but whether there was any continued disability following corrective surgery. The scan is irrelevant; (b) The surgery performed for the disc prolapse – as above; (c) The further surgery scheduled for 18 February 2014 but abandoned at the 11th hour – the issue is whether the decision to operate was based on a genuine presentation. The fact of the decision being reached does not prove a great deal. The abandonment of the surgery, if anything, is against the plaintiff; (d) Muscle wastage to the left mid-thigh and mid-calf – Dr McPhee thought the finding incidental and irrelevant.44 No medical practitioner supported the finding as of importance; (e) The description of neuropathic pain to the left foot and big toe “from the outset” without knowledge of dermatomal distribution of pain – I have rejected the claim that the distribution was as described “from the outset” (see [82]-[84] above); and as the defendant points out it cannot be known what research Mr Clarricoats undertook; (f) That the plaintiff attended doctors after extensive travel and so could be expected to be in worse condition when seen by them than when under surveillance – the doctors were aware of that fact. The problem is the gross discrepancy between presentation and statements made and the observed behaviour. [154] The plaintiff relies on the opinion of Dr Gillett but Dr Gillett reached his opinions without the benefit of seeing the surveillance material. His views are presumably based on his assumptions as to the continuing symptoms noted in his first report of 17 September 2014, and that the presentation on examination was genuine.45 The onus lies 42 T5-27/20-30. 43 See Ex 26 paragraphs 37 and 38. 44 Ex 1 Tab 60 p 2. 45 Ex 1 Tab 55 at pp 3 and 4. -- 31 of 37 -- 32 on the plaintiff to prove those assumptions are accurate: Dasreef Pty Ltd v Hawchar46 per Heydon J. He did not discharge that onus. [155] I turn then to the heads of damage. General Damages [156] General damages for pain and suffering are to be assessed in accordance with section 306O and 306P of the WCRA and the general damages calculation provisions in section 130 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (“the WCRR”) and Schedules 8, 9 and 12 of the WCRR. I am referred to my analysis in Allwood v Wilson & Anor.47 [157] It is not possible to determine an impairment level. [158] Senior counsel for Mr Clarricoats submits that the assessment should be $31,250 adopting Item 9148 (Moderate thoracic or lumbar spine injury— fracture, disc prolapse or nerve root compression or damage) with an Injury Scale Value (ISV) of 15 (at the top pf the range of 5 to 15) and applying a 25% uplift because of an alleged secondary psychological condition and the overall adverse impact of the injury on Mr Clarricoats. [159] Senior counsel for the defendant submitted that the physical injury should be characterised as a short term aggravation of an underlying degenerative condition. While there is evidence to support that approach (Dr Williams at a very early stage; Dr McPhee who thought that the prolapse may have pre-dated the incident; and Dr Pincus who suggested a five year acceleration49) it overstates the case. It is possible that the impact of the seat collapsing and the subsequent drive to the depot caused only an acceleration of the condition but there is no scientific basis, as Dr Gillett said (and more pertinently any basis in the evidence), for knowing when, if ever, the condition would have reached the stage that it did. Dr Gillett said: “So whilst we accept that there is a risk for someone who has a degenerate spine [indistinct] become symptomatic in the future, that can’t be said in any, you know, scientific way – one might suggest that if you were a younger person with a degenerate spine doing a laborious task, then were you at higher risk of getting back symptomatology. Whether you were going to get a disc protrusion is not able to be determined. You may develop back pain and you may develop disc protrusion requiring surgery, but there’s no way to say that that’s going to occur.”50 [160] Senior counsel for the defendant argues that the appropriate Item is Item 92 – moderate lumbar spine injury (soft tissue only). That submission assumes a pre-existing prolapse and so ignores as not greatly relevant the radiological and surgical findings of an existing disc prolapse. 46 (2011) 243 CLR 588 at 614. 47 [2011] QSC 180. 48 In fact the submission refers me to Item 92, which matches the defendant’s submission, but that seems to be in error given the comment quoted. 49 Ex 16 p 7. 50 T3-52/33-39. -- 32 of 37 -- 33 [161] I do not accept that approach. The significant point is that Mr Clarricoats was functioning reasonably well prior to the incident. While he had some level of discomfort he was able to work full time and complete overtime. There is no evidence of seeking medical attention, save for the prospective visit to the chiropractor. [162] I find that as a consequence of the incident Mr Clarricoats sustained a prolapse of the L4/5 disc. As a consequence Mr Clarricoats underwent epidural injection of steroids into the spine and, when that proved ineffective, eventually surgery involving L4/5 discectomy and L5 nerve root exploration in July 2013. He complains of continuing and debilitating symptoms. Just how debilitating those symptoms are is debateable. There should be some moderation of the award to allow for the prospect that he was at substantial risk of having significant problems during his life and perhaps to the same extent. [163] Item 91 applies. An ISV at the top of the range is said to be appropriate where three things are satisfied - there is a disc prolapse for which there is radiological evidence at an anatomically correct level; the impairment has not improved after non-operative treatment; and “there are symptoms of pain and 3 or more of the following objective signs, that are anatomically localised to an appropriate spinal nerve root distribution— (i) sensory loss; (ii) loss of muscle strength; (iii) loss of reflexes; (iv) unilateral atrophy.” [164] The first two conditions, as I have set them out, are met but I cannot be satisfied that the third one has. [165] More controversial is a claim for a secondary psychological injury. That psychological condition was diagnosed by a psychiatrist, Dr Richardson, as an adjustment disorder with anxiety and depression. Mr Clarricoats reported an attempted suicide and takes anti-depressant medication. However even Dr Richardson noted discrepancies in Mr Clarricoats’ claimed lack of function.51 [166] While he may have had that condition in January 2014 when Dr Richardson carried out his assessment there is no support for it as an ongoing condition. Dr Rice thought it to be in remission by December 2013. Indeed Dr Rice, I think, has assessed Mr Clarricoats accurately when he said the he was focused on compensation issues.52 [167] Both psychiatrists whose reports were before the Court, Dr Scheepers (assessment in June 2015) and Dr Leong (assessment in November 2106) withdrew their diagnoses after viewing the surveillance material.53 [168] As to the psychiatric condition, at best there was a mental disorder that was relatively short lived and that eventually went into remission without lasting effects. No PIRS assessment is possible. Item 13 with an ISV of 0 is appropriate. [169] I bear in mind Mr Clarricoats’ relative youth. As mentioned Mr Clarricoats was only 24 years of age when injured. He is now 28. 51 Ex 1 Tab 58 at pp11-12 52 See reports of 9 December 2013 (Ex 1 Tab 45 at p10); and 20 March 2014 (Ex 1 Tab 52 at pp 1-2). 53 See Ex 19 and 20 respectively. -- 33 of 37 -- 34 [170] I assess an ISV of 10. I assess damages at $14,000.54 [171] Interest on general damages is not recoverable against the employer (s 306N(1) WCRA). Past Economic Loss [172] Section 306J WCRA applies here and provides, so far as is relevant: “306J When earnings cannot be precisely calculated (1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. (2) The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. (3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.” [173] Obviously assessing objectively what Mr Clarricoats can and cannot do is very difficult. He, of course, bears the onus of proof. [174] A claim is made on his behalf for $304,685 but that is entirely unrealistic given my findings. [175] There are a number of issues. One is that the chief barrier to Mr Clarricoats returning to work is his attitude. Dr Rice pointed that out at an early stage.55 He is simply not motivated to do so. He has not in fact returned to work. I am quite confident that he has not genuinely tried to get back to work. It is impossible then to determine with any accuracy his residual earning capacity. [176] A second issue is that Mr Clarricoats was kept on at the defendant’s workplace because he was rehabilitating. Others who were more skilled and more senior lost their jobs through retrenchments within months of the incident. The defendant lost contracts and so was obliged to reduce its workforce. The probabilities favour a finding that his employment would have been terminated within five or six months of the incident. [177] A third issue is the state of his back assuming the prolapse had not occurred. He was symptomatic before the incident with daily discomfort. Truck driving, apparently, is not ideal for those with degeneration.56 How long he may have lasted is unknowable but there would need to be a significant discount to allow for the prospect that he would not have lasted. The principles explained in Malec v JC Hutton Pty Ltd57 apply. 54 Schedule 12 Table 3. 55 Ex 1 Tab 45 p 8. 56 Dr McPhee: T4-24/1-2; Dr Gillett: T3-55/35 – 56/2. 57 (1990) 169 CLR 638; (1990) 92 ALR 545; (1990) 64 ALJR 316; (1990) Aust Torts Reports 81-022; [1990] HCA 20. -- 34 of 37 -- 35 [178] I note that by the time of the incident Mr Clarricoats had been with the defendant only since the previous September – a period of three and a half months or so. His earnings there do not necessarily reflect his long term earning capacity. He had previously worked in sales and as a bank teller. [179] Mr Clarricoats would have had a greater earning capacity had he not suffered the disc prolapse. If uninjured he probably would have found work doing something had he lost his employment with the defendant in mid-2013 as I find was likely. He may have found work as a truck driver. He had maintained reasonably good employment prior to his employment with the defendant earning around $50,000 per annum. [180] So far as Mr Clarricoats’ residual capacity is concerned I am satisfied that if he had applied himself to his rehabilitation he was likely to have been in a fit state to work some years ago, albeit not as a truck driver. He is capable of at least sedentary work as he had done before. [181] The defendant advances $41,403 as a reasonable assessment. That reflects the income Mr Clarricoats would have earned with the defendant (using his father’s earnings) to his probable retrenchment date. Something should be added to that for the more than four year period from June 2013. [182] I assess a global sum of $100,000. [183] Mr Clarricoats was in recept of workers’ compensation benefits for a lengthy period, I will not allow interest, and indeed none is claimed. Future Economic Loss [184] Sections 306J (as above) and 306L WCRA are relevant to this head of loss. [185] An amount of $764,561 is claimed by the plaintiff. The defendant allows an amount between nil and $30,000. [186] The advanced pre-existing symptomatic degeneration puts a significant limit on any award. As Dr Pincus said, with some support from Dr Gillett, he may have been in the same position within five years. I cannot find that was inevitable but there was a chance of that. An assessment of about $20,000 would be appropriate if that assumption was adopted. [187] Counsel for the plaintiff refer to Thomas v O’Shea.58 The claimed evidentiary burden cast on the defendant in that case was doubted in Bugge v REB Engineering Pty Ltd59 and Coleman v Anodising and Aluminium Finishes of Queensland Pty Ltd.60 A similar argument was rejected in Adsett v Noosa Nursing Home Pty Ltd61 where Pincus JA held (McPherson JA and Shepherdson J agreeing): “But this argument fails, in my view, for a simpler reason; counsel for the appellant conceded that to throw any onus on the respondent 58 (1989) Aust Torts Reports 80-251. 59 [1999] 2 Qd R 227; [1998] QSC 185. 60 [2002] 1 Qd R 141; [1999] QCA 467 at [16] per R.R. Douglas J. 61 [1996] QCA 491 at 9-10. -- 35 of 37 -- 36 the appellant had to prove that she had really tried to obtain employment.” [188] The same applies here. Mr Clarricoats has not yet tried to obtain employment. [189] I allow $150,000 reflecting a loss of about $300 per week over 40 years but discounted for contingencies. Loss of superannuation benefits [190] I allow 9.25% of the past economic loss assessed - $9,250. [191] For the future the loss is claimed at 11.33% of the amount assessed presumably relying on the decision of the Court of Appeal in Heywood v Commercial Electrical Pty Ltd.62 There is no dispute about the rate albeit that I note that the assumptions concerning the future statutory guarantee rate of superannuation underlying the decision in Heywood have been abandoned.63 I allow future loss at $16,995. Future surgical, medical, medication and the like expenses [192] The plaintiff claims $39,924 for the future cost of medications assuming the present rate of expenditure of $40 per week over the next 56 years or so. He also claims $7,200 for psychological counselling, $20,000 for future spinal fusion surgery, $485 for dietary advice and $4,000 for future physiotherapy treatments. [193] The defendant allows between nil and $500. [194] I cannot determine the extent of Mr Clarricoats’ genuine need for medication. He has certainly not shown an ongoing need for medication or counselling for any psychiatric injury. [195] I do not accept there is any prospect that any reputable surgeon would operate on Mr Clarricoats. [196] It is common enough for those with back complaints to need over the counter pain killers with flare-ups. There is a need to moderate the award for the possibility that Mr Clarricoats may have ended up in the same physical state within a relatively short period of time. [197] It is impossible to be precise. I will allow $2,500 as a global sum. Special damages [198] The disputed claims relate to an amount that the plaintiff has expended on medications and an amount refundable to Medicare. The defendant allows nil. [199] Mr Clarricoats holds a Medicare Notice of Past Benefits to 5 July 2017 in the sum of $2,659.90. He says that he has spent $40 per week on medications over 217 weeks ($8,680). The fact of the expenditure was not challenged. Again I have the difficulty that I cannot assess the genuine need. 62 [2013] QCA 270. 63 Superannuation Guarantee (Administration) Act 1992 (Cth) s 19. -- 36 of 37 -- 37 [200] I will allow the Medicare refund amount and a global amount for medication. [201] I asses the loss under this head at $3,500. Summary [202] In summary I assess the damages as follows: Head of damage General Damages $14,000.00 Past Economic Loss $100,000.00 Past Loss of Superannuation $9,250.00 Future Loss of Earning Capacity $150,000.00 Future Loss of Superannuation Benefits $16,995.00 Future Expenses $2,500.00 Special Damages (Plaintiff) $3,500.00 Special Damages (WorkCover) $70,341.82 Total $366,586.82 Less WorkCover refund $152,620.41 Net Total $213,966.41 Orders [203] There will be judgment for the defendant against the plaintiff. I will hear from counsel as to costs. -- 37 of 37 --