Bakhit v Brisbane City Council [2017] QDC 155

DISTRICT COURT OF QUEENSLAND CITATION: Bakhit v Brisbane City Council [2017] QDC 155 PARTIES: OSMAN BAKHIT (plaintiff) v BRISBANE CITY COUNCIL (defendant) FILE NO/S: BD 1197/15 PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 16 June 2017 DELIVERED AT: Brisbane HEARING DATE: 2, 3, 4 and 5 May 2017 JUDGE: Rafter SC DCJ ORDER: The plaintiff’s claim is dismissed. CATCHWORDS: TORTS – NEGLIGENCE – REQUIREMENTS FOR CLAIM OF NEGLIGENCE – DUTY OF CARE – EMPLOYER AND EMPLOYEE – where the plaintiff alleges injury to his lumbar spine while lifting temporary fencing blocks by himself – whether the plaintiff injured his lumbar spine on the date and in the manner alleged – whether a system of work was in place for the lifting of temporary fencing blocks – whether the plaintiff had been instructed in any system of work for the lifting of temporary fencing blocks – whether the system of work caused the injury – if so whether the defendant breached its duty of care – whether the defendant is liable for the plaintiff’s injury – if so quantum of damages Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305D, s305E, s306N Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48, considered Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, considered -- 1 of 25 -- 2 Castro v Transfield (Qld) Pty Ltd (1983) 47 ALR 715, considered Downes v Affinity Health Pty Ltd [2016] QCA 129, considered Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627, considered Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83, considered Lusk v Sapwell [2012] 1 Qd R 507; [2011] QCA 59, considered Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319; [2012] QCA 315, considered The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103, considered Turner v State of South Australia (1982) 42 ALR 669, considered COUNSEL: SD Anderson and JP Morris for the plaintiff MT O’Sullivan for the defendant SOLICITORS: Shine Lawyers for the plaintiff Brisbane City Legal Practice for the defendant Introduction [1] The plaintiff was employed as a labourer by the Brisbane City Council. He says that he injured his back on 13 July 2011 while lifting a concrete block that formed the base of temporary fencing. The defendant denies liability on the bases that any incident on 13 July 2011 did not occur as alleged by the plaintiff, and that it devised, implemented and maintained a safe system whereby concrete blocks were to be lifted by two people using an item of equipment referred to as a “lifter.” The quantum of damages is also in dispute. The plaintiff’s case [2] The plaintiff’s case is that between the time when he commenced employment with the defendant in 2007 and 13 July 2011, he received no training or instructions in relation to the task of lifting and moving the concrete blocks and that the regular system of work was for employees to undertake the task of lifting and moving the temporary fencing panels and blocks on their own. The plaintiff’s case is that part of his employment duties involved erecting and dismantling temporary fencing. That task involved lifting the concrete blocks that formed the base of the fencing, which weighed approximately 31.7kgs. [3] The plaintiff’s case is that the task of lifting the concrete blocks involved a foreseeable and not insignificant risk of injury and that the defendant failed to implement, supervise and/or enforce any adequate system of work in relation to the task. [4] The plaintiff’s case is that on the morning of 13 July 2011, he was undertaking the task of taking down temporary fencing at the Bartley’s Hill reservoir site at Ascot. He says that the ground where the fencing was being removed was uneven. He lifted -- 2 of 25 -- 3 a block and as he twisted to walk he felt an acute onset of sharp pain in his lower back radiating into his left leg. [5] The plaintiff attended his general practitioner three days after the incident and was subsequently diagnosed with an L4/L5 disc protrusion and nerve root compression. He underwent surgical intervention on 6 September 2012. [6] The plaintiff’s case is that as a consequence of the injury he is not suited to any form of manual employment. The defendant’s case [7] The defendant disputes that an incident occurred as alleged by the plaintiff. Further, the defendant contends that the plaintiff was not required or permitted to lift the concrete block in the manner alleged by the plaintiff because it had devised, implemented and maintained a safe system whereby the block was to be manually lifted by two people using an item of equipment described as a “lifter.” The defendant says that the plaintiff was provided with the lifter and instructed to lift the concrete block with the assistance of a colleague. [8] The defendant contends that if the plaintiff lifted the block in the way alleged, then he failed to comply with instructions that had been given to him and in doing so undertook an activity involving obvious risk so that his claim for damages should be reduced by 100%. Agreed facts [9] The following facts were agreed:1 (a) The plaintiff commenced employment with the Brisbane City Council in July 2007 as a labourer in the drainage and construction division. (b) The temporary fencing comprised of metal fencing panels that were dropped into concrete blocks that formed the base of the fencing. (c) The concrete blocks weighed approximately 31.7kgs. (d) The task of dismantling temporary fencing involved: (i) unscrewing fasteners located on the fencing panels that are affixed a fencing panel to the adjacent panel; (ii) once unfastened, lifting a fencing panel up and out of its concrete block base and carrying it to the location where it was to be stored; (iii) once free of the fencing panel, lifting the concrete block that formed the base of the fencing and carrying it to the location where it was to be stored. (e) There is no documentary evidence as to the provision of any training or instruction in the use of a device known as a “lifter.” (f) Between 2007 and 2010, the plaintiff’s team leader was Mr Graham Nepia. (g) From February 2011, the plaintiff was instructed to undertake his employment tasks at the Bartley’s Hill reservoir site at Ascot. (h) The supervisors of the plaintiff at the Bartley’s Hill reservoir site were Joel Tuiti (co-worker) and Ioteva Mataora (team leader). 1 Exhibit 6. -- 3 of 25 -- 4 (i) The plaintiff attended upon general practitioner, Dr Ibrahim, on 16 July 2011 in relation to lumbar spine symptoms and bilateral sciatica. (j) The plaintiff underwent an X-ray of his hip and lumbar spine on 6 October 2011 that did not reveal any L4/L5 disc protrusion or abnormalities. (k) The plaintiff underwent a CT scan on 7 October 2011 that revealed L4/L5 disc protrusion and nerve root compression. (l) The plaintiff underwent surgical intervention comprising a L4/L5 micro discectomy and rhizolysis on 6 September 2012. (m) Post-surgery the plaintiff participated in a graduated return to work with the defendant as a cleaner. (n) The plaintiff travelled to Sudan on or about 22 April 2014 and did not return until 22 June 2014. (o) The plaintiff’s employment with the defendant was terminated in or about June 2014 on the basis that the plaintiff had abandoned his employment. The termination was confirmed by the Queensland Industrial Relations Commission by way of dismissal of an application by the plaintiff for reinstatement. (p) The plaintiff commenced self-employment as a driver for Uber in November 2015. (q) The plaintiff continues self-employment as a driver for Uber. (r) As at July 2013, the plaintiff’s average net weekly earnings from the defendant (as averaged for the three full financial years 2009, 2010 and 2011) were $1,164.74. (s) Since November 2015, the plaintiff has worked as an Uber driver to present. The main issues [10] The main issues for determination are: (a) Whether or not the plaintiff suffered injury to his lumbar spine on 13 July 2011, while lifting temporary fencing blocks by himself as alleged? (b) What was the system of work that was in place for the lifting of temporary fencing blocks as at 13 July 2011? (c) Whether the plaintiff had been instructed in any system of work that was in place for the lifting of temporary fencing blocks as at 13 July 2011? (d) Whether the system of work as at 13 July 2011 caused the lumbar injury and whether it involved a breach of duty as pleaded in paras 4A – 5 of the Amended Statement of Claim, or, whether the claim is defeated by reason of the matters pleaded in paras 2 – 5 of the Amended Defence? (e) In the event that the plaintiff’s injury is found to have occurred as alleged, whether or not there was contributory negligence? -- 4 of 25 -- 5 The witnesses called in the plaintiff’s case The plaintiff [11] The plaintiff was born in Sudan. He came to Australia on 23 August 2005. His first language is Arabic.2 He obtained employment with the Brisbane City Council undertaking construction work. His tasks included erecting and removing temporary fencing.3 The removal of the temporary fencing involved carrying away the fencing panels and lifting the concrete blocks that formed the base of the fencing. He said that he was never told of a method by which the concrete blocks were to be lifted. In particular, he said that he was never told that two people should lift the blocks.4 [12] On 13 July 2011, he commenced work at the Bartley’s Hill reservoir at about 7.00am. He was working with Tuiti (Joel Tuiti) and Teva (Ioteva Mataora). He said that Mr Tuiti was still finishing a cup of tea so he commenced the process of dismantling the temporary fencing. He said that he started to lift a concrete block, and then twisted and hurt his back. He sat down for a couple of minutes. He felt pain from his back all the way down his left leg. A short time later, Mr Tuiti joined him and they removed the fencing together. He did not say anything about his injury to Mr Tuiti.5 He continued his normal work and did not say anything to anyone at work about having hurt his back.6 However, he said that he told his ex-wife that he had hurt his back that day.7 [13] The plaintiff said that his pain worsened and he visited his general practitioner, Dr Ibrahim, on 16 July 2011.8 [14] The plaintiff said that on one occasion prior to 13 July 2011, he and Mr Tuiti used the lifting devices to lift concrete blocks. The lifting devices were never used after that day.9 Dr Ishak Ibrahim [15] Dr Ibrahim is the plaintiff’s general practitioner. He has been seeing the plaintiff since 2008. Dr Ibrahim speaks Egyptian Arabic and the plaintiff speaks Sudanese Arabic. They usually converse in Arabic. Although they speak different dialects, they do not experience any great difficulties in communication.10 Dr Ibrahim said that he sometimes speaks to the plaintiff in English. Over the period of time that he has been treating the plaintiff, he has not noticed any change in his ability to speak English.11 [16] Dr Ibrahim saw the plaintiff on 16 July 2011. The plaintiff said that he had been experiencing lower back pain and strain, with the pain going down his legs, which 2 T1-14 ll 35-50. 3 T1-17 ll 5-20. 4 T1-18 ll 38-42. 5 T1-19 to 21. 6 T1-22 ll 10-20. 7 T1-20 ll 11. 8 T1-26 ll 10-20. 9 T1-24 ll 10-35 (the lifting devices are depicted in Exhibit 1, Tab 1, p 5). 10 T2-4 ll 35-45. 11 T2-5 ll 1-5. -- 5 of 25 -- 6 had been present for perhaps a few days.12 Dr Ibrahim prescribed anti-inflammatory tablets and referred the plaintiff for an X-ray.13 [17] Dr Ibrahim next saw the plaintiff on 9 September 2011. The plaintiff was experiencing the same pain, but had not had the X-ray. Dr Ibrahim issued the plaintiff with a new referral for an X-ray.14 [18] An X-ray of the plaintiff’s lumbar spine, pelvis and left hip was carried out on 6 October 2011. The radiologist’s report states that there was mild lower lumbar curvature convex to the left, centred at L4 level. No lumbar vertebral fracture was identified.15 A CT scan was carried out on 7 October 2011. This showed a marked annular disc bulge at L4/L5.16 [19] Dr Ibrahim assisted the plaintiff to complete a WorkCover Queensland claim form on 26 March 2012.17 Cho Lee Ng [20] Mr Ng is an occupational therapist. He prepared two reports in relation to the plaintiff. The first report is dated 20 February 2014.18 He subsequently examined the plaintiff on 28 July 2016 and provided a further report dated 4 August 2016.19 [21] Mr Ng expressed the opinion that the plaintiff’s injury precludes him from performing his pre-injury employment or any other labouring role which involves regular manual handling.20 [22] Mr Ng is of the view that the plaintiff’s present employment as an Uber driver is suitable for him. That is because he is afforded considerable flexibility to work as his symptoms dictate.21 However, he considers that other driving roles such as work as a taxi driver are not suitable because they do not have the same degree of flexibility.22 [23] Mr Ng is of the view that the plaintiff’s prospects of obtaining and maintaining employment will now always be problematic. He says that the plaintiff’s limited education, language difficulties and significant literacy issues will be major barriers to obtaining sedentary vocational employment.23 Dr Scott Campbell [24] The plaintiff was examined by Dr Scott Campbell, neurosurgeon, on 30 October 2013. Dr Campbell provided a report the same day. Dr Campbell noted that the plaintiff underwent a left L4/5 discectomy operation on 6 September 2012. He noted 12 T2-5 ll 15-20. 13 T2-5 L 40. 14 T2-7 ll 16-20. 15 Medical records of Dr Ibrahim; Exhibit 12 at p 11. 16 Medical records of Dr Ibrahim; Exhibit 12 at p 10. 17 Exhibit 9. 18 Exhibit 1, Tab 6. 19 Exhibit 1, Tab 7. 20 Report of Cho Lee Ng dated 4 August 2016 at para 30; Exhibit 1, Tab 7. 21 Report of Cho Lee Ng dated 4 August 2016 at para 32; Exhibit 1, Tab 7. 22 Report of Cho Lee Ng dated 4 August 2016 at para 34; Exhibit 1, Tab 7. 23 Report of Cho Lee Ng dated 4 August 2016 at para 41; Exhibit 1, Tab 7. -- 6 of 25 -- 7 that the plaintiff continued to experience lower back pain, which occurred daily and was moderate to severe in nature with radiation down the left leg to the foot region. He diagnosed a left L4/5 disc protrusion requiring surgery. Dr Campbell considered that the plaintiff suffered a 12% whole person impairment. [25] Dr Campbell examined the plaintiff again on 27 May 2016 and provided a report of the same date. He noted that it was approximately 5 years since the accident and the plaintiff continued to complain of lower back pain and stiffness. Dr Campbell remained of the view that the plaintiff suffered a 12% whole person impairment. He made reference to Dr Ibrahim’s notes on 6 December 2008 relating to a lower back complaint which required treatment with Panadeine Forte and Voltaren Gel. Dr Campbell said that the plaintiff had no recollection of the event and that it would seem minor and insignificant. It therefore did not contribute to the plaintiff’s overall impairment. Andrew Mealin [26] Mr Mealin worked for a labour hire company and was subcontracted to perform labouring work such as laying water mains for the defendant. He left Australia at some stage and returned, he thought, in July 2011. He believed that he returned to work for the defendant in late July/early August 2011. He worked with different crews including at Willawong and at the reservoir site at Ascot.24 He said that he did temporary fencing work at Willawong. He said that as far as he was aware, there were no rules in relation to the lifting of concrete blocks.25 He said that normally one person would lift a concrete block.26 However, when asked about the system at the reservoir, he said that “we were cleaning walls and things like that.”27 He went on to say “I don’t actually recall fencing anything there myself personally…”28 He said that when he returned to work for the Council after being overseas, he would have done fencing work.29 Aziza Abdalla [27] Aziza Abdalla is the plaintiff’s former wife. She recalled an occasion which she said was in July 2011 when the plaintiff told her that his back was hurting and he was in pain. She said that she was able to recall the conversation because it occurred in the context of an argument in relation to her pregnancy. She said that the plaintiff was not living with her at the time. Ultimately, the child was born 12 days overdue on 2 March 2012.30 Gary Guy [28] Mr Guy worked for the defendant through a labour hire company from July 2008 until August 2012.31 He worked with the plaintiff at the Bartley’s Hill reservoir.32 In evidence-in-chief he said that the removal of temporary fencing involved shifting 24 T2-50. 25 T2-51 L 18. 26 T2-51 L 25. 27 T2-52 L 13. 28 T2-52 ll 13-14. 29 T2-52 L 20. 30 T2-58 to 59. 31 T2-62 ll 6-10. 32 T2-63 L 5. -- 7 of 25 -- 8 concrete blocks, which was usually done by one person.33 However, in cross- examination, he agreed that he had a telephone conference with the defendant’s legal representatives in October 2016. He was asked whether he recalled saying that there were lifters introduced at the Bartley’s Hill reservoir, but he was unable to say what sort they were. He replied, “I recall the lifters were in use, but I can’t remember when they were introduced.”34 He agreed saying in the conference that there was a system for moving the temporary fences which involved the use of the lifters and that it was a “two-man job.”35 He also agreed that he had said that before the lifters arrived at Bartley’s Hill, there was a system of lifting the concrete blocks which was a mixture of team lifting and some people lifting the blocks by themselves.36 He had also said in the conference that after the lifters were introduced, some people still chose to lift the concrete blocks by themselves.37 The witnesses called in the defendant’s case Tuiti Joel [29] Mr Joel did labouring work with the Brisbane City Council through a labour hire company.38 The Brisbane City Council daily timesheet for Wednesday 13 July 201139 shows that he was working at the Bartley’s Hill reservoir at Ascot on that date. The daily timesheet also records that the plaintiff and Ioteva Mataora were working at the site that day. [30] Mr Joel said that the lifting devices were brought onto the worksite at some time prior to 13 July 2011.40 He said that after the lifters were introduced to the worksite there were always two people lifting the concrete blocks. Further, he said that after the introduction of the lifting devices, he did not see any person lifting the concrete blocks alone.41 [31] In cross-examination, Mr Joel initially rejected the suggestion that there was only one occasion when he used the lifting device with the plaintiff, saying that he did so “all the time.”42 However, a little later he accepted the proposition.43 [32] Mr Joel said that toolbox meetings were held at the start of the workday, at which the tasks for the day and safety issues such as the lifting of blocks by two people were discussed.44 Initially he said that he could not recall precisely what happened on 13 July 2011.45 However, a little later he said that he did remember a meeting on that date.46 In cross-examination, he agreed that he had no recollection of working on 13 July 2011 and furthermore that toolbox meetings were not held every day.47 33 T2-63 ll 20-25. 34 T2-65 L 16. 35 T2-65 ll 20-26. 36 T2-65 ll 40-45. 37 T2-65 L 46. 38 T3-11. 39 Exhibit 15 p 10. 40 T3-14 L 22. 41 T3-15 ll 6-11. 42 T3-19 L 28 to T3-19 L 45. 43 T3-19 L 45. 44 T3-13 ll 15-30. 45 T3-13 L 41. 46 T3-14 L 15. 47 T3-18 ll 20-30. -- 8 of 25 -- 9 [33] The plaintiff denied that instructions were given about lifting the concrete blocks.48 Dr Kim Chye [34] Dr Chye examined the plaintiff at the request of the defendant on 9 December 2011. Dr Chye prepared a report for City WorkCover dated 20 December 2011.49 He assisted the plaintiff to prepare a workers’ compensation medical certificate.50 The date of injury stated on the certificate is 9 October 2011. The cause of injury stated on the certificate is: “Approximately two to three months ago lifting heavy object and felt pain in low back.” [35] In cross-examination, Dr Chye agreed that the plaintiff told him that he injured his back about two to three months ago. Dr Chyle drew the inference from that information that the date of injury was in early October.51 [36] Dr Chye also saw the plaintiff on 20 December 2011 and 15 March 2012. Carol Davis [37] Carol Davis is a nurse. She conducts manual training courses on behalf of the defendant. On 8 July 2010, the plaintiff attended a course that was held between 10.30am and 3.00pm.52 [38] The training course covers the types of manual handling injuries that can occur, factors which can make a worker more susceptible to injuries and ways to prevent injuries. The course also includes safe lifting guidelines. [39] Factors which are identified to make a worker more susceptible to injuries include lifting excess weights and lifting and twisting at the same time.53 The safe lifting guidelines include bending at the knees, not twisting the spine when lifting and checking the area for obstacles.54 [40] The ways to prevent injuries include using correct lifting techniques, not attempting any manual handling if it is not safe to do so, and getting help in using mechanical aids.55 [41] Ms Davis said that because people from different backgrounds including people from non-English speaking countries attended the courses, at the beginning she would ask each person to talk about themselves so that she could gage how much English they understood.56 48 T3-74 ll 10-15. 49 Exhibit 14. 50 Exhibit 16. 51 T3-29 ll 25-30. 52 T3-39 L 20; see attendance record, Exhibit 11. 53 T3-40 L 40. 54 T3-41. 55 Exhibit 11. 56 T3-42 L 5. -- 9 of 25 -- 10 Dr David Drynan [42] Dr Drynan was the orthopaedic resident for the spinal fellow clinic at the Princess Alexandra Hospital. He examined the plaintiff on 5 December 2011 and made notes during the examination.57 His report to Dr Ibrahim was typed on 15 December 2011.58 His usual practice is to dictate the report to the general practitioner during the clinic.59 [43] The history given by the plaintiff was that he had been experiencing left L5 pain since January 2010. The notes record “no injury” which Dr Drynan explained meant that he was not able to elicit any injury that caused the plaintiff’s pain.60 [44] Dr Drynan’s report states: “He (the plaintiff) was seen here today regarding 12 months of lower back pain radiating down the left hand side of his left leg. He has had no injury that brought this on and it has gradually built up over time. He noticed that it has been worse in the lower back and cramping type pains in the winter time. It appears to be affecting his work and has appeared to get a lot worse over the past two weeks.”61 [45] The report states that X-rays of the plaintiff’s lumbar spine taken on the day of the examination appeared to be quite normal. Dr Drynan’s report states that he discussed the matter with the clinic fellow Dr Hamish Deverall and it appeared that the plaintiff had multiple levels involved with L4 prominent symptoms consistent with the CT scan performed previously, but not 100 per cent consistent with L4 symptoms or radiculopathy. The applicable principles [46] It is not in issue that the defendant owed the plaintiff a non-delegable duty of care and that it was an implied term of the contract of employment that the defendant would take all reasonable care for the safety of the plaintiff and avoid exposing him to unnecessary risk of injury during the course of his employment.62 [47] The issue of liability is to be determined in accordance with Chapter 5, Part 8 Workers’ Compensation and Rehabilitation Act 2003 (“WCR Act”). [48] The WCR Act modifies the common law to an extent, but is not a code.63 [49] The general standard of care is set out in Division 2. Section 305B provides: “305B General principles (1) A person does not breach a duty to take precautions against a risk of injury to a worker unless— 57 Exhibit 18. 58 Exhibit 18. 59 T3-56 L 40. 60 T3-55 L 35. 61 Exhibit 18. 62 Amended Statement of Claim para 2(b)(i); Amended Defence para 2(a). 63 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48; Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319; [2012] QCA 315 at [22] – [23]. -- 10 of 25 -- 11 (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.” [50] Section 305C provides: “305C Other principles In a proceeding relating to liability for a breach of duty— (a) the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and (b) the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.” [51] The general principles of causation are contained in s 305D which provides: “305D General principles (1) A decision that a breach of duty caused particular injury comprises the following elements— (a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation); (b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability). (2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty— being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)— should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach. -- 11 of 25 -- 12 (3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach— (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.” [52] The plaintiff has the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.64 [53] The determination of whether the defendant breached its duty of care to the plaintiff involves a consideration of: (a) whether there was a reasonably foreseeable risk of injury; (b) whether the risk of injury was not insignificant; and (c) what a reasonable person in the position of the defendant would have done in response to that risk. [54] The question of whether there has been a breach of duty is to be assessed prospectively and not retrospectively.65 [55] There was a foreseeable and not insignificant risk of injury to a worker arising from the task of lifting concrete blocks weighing 31.7kgs. [56] The main factual questions involve a consideration of the adequacy of precautions taken by the defendant in response to the risk, and whether the plaintiff has established that his injury occurred in the manner alleged. [57] The plaintiff claims that the defendant failed to devise, implement and maintain a safe system of work whereby the concrete block would be manually lifted by two people, or alternatively, would be lifted by two people using a device such as the “lifter”.66 Further, the plaintiff claims that the defendant failed to instruct him not to lift the concrete block without the assistance of a colleague, without adequate lifting equipment and whilst standing on uneven and rocky ground when a reasonable person in the position of the defendant would have done so.67 The plaintiff also claims that 64 Section 305E WCR Act. 65 Lusk v Sapwell [2012] 1 Qd R 507; [2011] QCA 59 at [18]; Downes v Affinity Health Pty Ltd [2016] QCA 129 at [41]. 66 Amended Statement of Claim, para 5(b). 67 Amended Statement of Claim, para 5(d). -- 12 of 25 -- 13 the defendant failed to provide him with adequate training in respect of safe manual handling techniques.68 [58] The defendant contends that it devised, implemented and maintained a safe system of work whereby the concrete slab was to be lifted by two people using lifting equipment such as a “lifter”.69 Further, the defendant contends that the plaintiff was instructed to lift concrete slabs with the assistance of a colleague and with adequate lifting equipment.70 [59] The defendant provided the following further particulars of the instructions given to the defendant to lift the slab with the assistance of a colleague: “That the instructions to lift the slab or block with the assistance of a colleague was provided by the supervisors of the plaintiff, namely Tuiti and Sanchez, in the period 1 July 2011 to 13 July 2011 and the instruction was given orally and by demonstrating the technique by which two or more workers using the lifters lifted the concrete block or slab.”71 [60] It is an admitted fact that there is no documentary evidence in relation to the provision of any training or instructions in relation to the use of the lifting device.72 The plaintiff had attended the manual training course conducted on behalf of the defendant on 8 July 2010.73 However, the training course did not expressly deal with the use of the lifting device. [61] Although the defendant’s further particulars stated that Mr Sanchez was one of the supervisors who gave the plaintiff instructions on how to lift the concrete block, Mr Sanchez was not called to give evidence. [62] The evidence that was given by the plaintiff, Mr Mealin, Mr Guy and Mr Joel enables a number of conclusions to be drawn. There was a period when lifting devices were not utilised at the worksite. At some point prior to 13 July 2011, lifting devices were brought on to the worksite and stored in the tool van.74 On at least one occasion prior to 13 July 2011, the plaintiff used the lifting device with Mr Joel.75 Although Mr Joel initially said that he used the lifting device with the plaintiff frequently, he ultimately agreed with the proposition that there was only one occasion at the reservoir when he lifted a block with the plaintiff using the lifter.76 [63] The evidence given by Mr Mealin is of no assistance. He claimed not to have seen the block lifters at all.77 Perhaps the lifting devices were not in use at the reservoir site in 2007 when Mr Mealin first worked there. When he returned to work at the reservoir in September 2011, he seemed to be engaged in cleaning the walls.78 Although he maintained that he did not see anyone using the lifting devices to move 68 Amended Statement of Claim, para 5(e). 69 Amended Defence, para 4(b). 70 Amended Defence, para 4(d). 71 Further particulars of the defence para 3(a). 72 Exhibit 6, para 5. 73 See paras 37-41. 74 T3-14 ll 20-45. 75 T1-24 ll 15-20. 76 T3-19 ll 25-47. 77 T2-54 ll 22-25. 78 T2-53 ll 30-35. -- 13 of 25 -- 14 concrete blocks in September 2011, he was by no means clear that he had been involved in moving temporary fencing.79 [64] The plaintiff said in evidence-in-chief that he had never been instructed in relation to a method of lifting the concrete blocks. 80 However, in cross-examination he agreed that Mr Joel had shown him how to use the device.81 [65] Mr Joel’s evidence was that if he had seen a worker pick up a block and move it on their own he would stop them because that is what he had been told to do by his supervisor.82 He denied seeing the plaintiff lift blocks on his own.83 However, Mr Guy said that after the lifters were introduced to the site, some workers still chose to lift the blocks alone.84 [66] Mr Joel’s evidence as to what occurred at regular toolbox meetings was somewhat vague and uncertain. Although he initially said that there had been a toolbox meeting on 13 July 2011,85 he said in cross-examination that he could not remember that particular day.86 It is likely that toolbox meetings focused on the tasks to be undertaken on that particular day.87 [67] Ms Davis, who conducted the manual training course on behalf of the defendant on 8 July 2010, said that she recommended that people not carry anything weighing more than 20kgs.88 It is clear then that lifting and carrying a concrete block weighing approximately 31.7kgs carried a not insignificant risk of injury. [68] The defendant was required to guard against the foreseeable risk of injury by implementing and maintaining a safe system of work whereby a worker would not attempt to lift and carry a concrete block without assistance.89 The duty to take reasonable care to avoid exposing an employee to an unnecessary risk of injury extends to the risk that may result because of inattention or misjudgment on the part of the employee.90 [69] The evidence led in the defendant’s case fell well short of establishing a system which required the use of lifting devices. The evidence in relation to the use of lifting devices was quite vague. Although lifting devices were available on site, the defendant failed to prescribe a system requiring that they be utilised to lift the concrete blocks. In this regard, the defendant failed to implement proper instructions and monitoring at the Bartley’s Hill reservoir. The defendant thereby breached its duty to take precautions against the risk of injury.91 79 T2-54 ll 25-35. 80 T1-18 ll 37-41. 81 T2-42 ll 37-47 to T2-43 ll 1-15. 82 T3-19 L 15. 83 T3-20 ll 1-5. 84 T2-65 ll 45-47. 85 T3-14 L 15. 86 T3-18, ll 15-20. 87 T3-18 ll 30-45. 88 T3-44 ll 20-25. 89 Castro v Transfield (Qld) Pty Ltd (1983) 47 ALR 715 at 718. 90 Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627; Turner v State of South Australia (1982) 42 ALR 669 at 674. 91 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. -- 14 of 25 -- 15 [70] The precautions that a reasonable person in the position of the defendant could have taken in order to reduce the risk of injury included providing adequate supervision to ensure that safe working practices were adopted. It follows that the defendant has breached its duty to take precautions against the relevant risk of injury. [71] I next consider whether the injury occurred in the manner alleged by the plaintiff. Factual causation [72] The issue of causation is to be determined in accordance with the general principles in s 305D of the WCR Act.92 The plaintiff has the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.93 [73] The plaintiff has the onus of establishing, on the balance of probabilities, that he suffered the injury to his lumbar spine on 13 July 2011 while lifting a concrete block that formed the base of the temporary fencing. The plaintiff submitted that the evidence clearly supports the proposition that his injury occurred in that manner. It was submitted that there is no credible alternative.94 [74] The defendant submitted that in determining whether the plaintiff’s injury occurred on the date, and in the manner alleged, it is necessary to examine the expert opinions and medical records concerning causation.95 [75] In considering the plaintiff’s credibility, it is necessary to have regard to the evidence that is said to support his account as well as his statements about the way in which the injury occurred. In Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors96 Fraser JA, referring to the necessity to consider the entirety of the evidence said: “[50] Most experienced judges subscribe to the view expressed by Goff LJ in Armagas Ltd v Mundogas SA (The ‘Ocean Frost’) that it is essential ‘when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities’. Goff LJ was referring to cases of fraud, but the statement is of general application. As Goff LJ observed in the same passage: ‘It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.’ [51] This is not a recent revelation. About 60 years earlier, for example, Atkin LJ, after observing that ‘an ounce of intrinsic 92 The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 at 16, 38-40. 93 Section 305E of the WCR Act. 94 Written submissions for the plaintiff at para 28. 95 Written submissions for the defendant at para 3. 96 [2017] QCA 83. -- 15 of 25 -- 16 merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’, confirmed that trial judges were encouraged ‘to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.’” (Footnotes omitted). [76] The plaintiff submitted that the date of injury was confirmed by Dr Ibrahim’s evidence of the onset of pain and sciatic symptoms in July 2011 and Ms Abdalla’s evidence of her conversation with the plaintiff in relation to his back injury. [77] This evidence of course does not specifically relate to the mechanism of injury. [78] The plaintiff said that he was able to specify the date of injury as being 13 July 2011 because he told his wife about it on the day of the incident.97 He then saw Dr Ibrahim three days later.98 The plaintiff’s evidence of the conversation with his wife is that he told her that his back was sore because of lifting concrete blocks.99 He said that his wife asked whether he had told his supervisor about the injury and he said that he had not. She suggested that he see a doctor.100 [79] Ms Abdalla acknowledged that she was not asked to recall the conversation until 2015.101 She maintained that she was able to recall that the conversation occurred in July 2011 because it occurred in the context of an argument about her pregnancy. She said that she fell pregnant on 19 May 2011.102 She said that the child was 12 days overdue and was born on 2 March 2012.103 Ms Abdalla maintained that she was not mistaken about the conversation occurring in July 2011, saying that it did not occur in April or May.104 Somewhat curiously, she did not mention the possibility of the conversation occurring in June 2011. Ms Abdalla made no mention of having been told by the plaintiff that his back was sore because he had been lifting concrete blocks. [80] Although I accept that the plaintiff did tell Ms Abdalla at some stage that he was experiencing back pain, I do not accept that she can recall that it occurred in July 2011. The plaintiff saw Dr Ibrahim on 16 July 2011, so he was clearly experiencing lower back pain at that time. Ms Abdalla’s evidence does no more than confirm that the plaintiff complained of back pain to her. [81] Dr Ibrahim’s evidence does not assist in relation to the mechanism of injury. His medical notes in relation to the consultation on 16 July 2011 record lower back pains, strain and bilateral sciatica.105 97 T1-21 L 5. 98 T1-20 L 5. 99 T1-21 ll 5-8. 100 T1-21 ll 9-14. 101 T2-60 ll 20-35. 102 T2-61 L 5. 103 T2-59 ll 10-20. 104 T2-61 ll 15-20. 105 Exhibit 12, p 6. -- 16 of 25 -- 17 [82] Dr Campbell said that the presentation of bilateral sciatica would be quite common where a person suffered a unilateral disc protrusion.106 Dr Campbell agreed that people can experience muscle pain that can mimic the signs of sciatica.107 He explained that sciatica is a common injury with a wide variation of interpretation.108 Dr Campbell agreed that the CT scan on 7 October 2011 was the first radiological evidence to support the plaintiff’s symptoms.109 Dr Ibrahim recognised the need for a CT scan to evaluate the plaintiff’s condition.110 Ms Anderson and Mr Morris, who appeared for the plaintiff, pointed out that Dr Ibrahim’s diagnosis of bilateral sciatica was not challenged by Mr O’Sullivan.111 [83] Dr Campbell said that a person suffering a disc protrusion is capable of continuing to work.112 Therefore the fact that the plaintiff continued to work until December 2011 is not inconsistent with him having suffered the disc protrusion in July. [84] However Dr Campbell said that any number of activities being carried out within normal and safe work practices could cause an injury such as a disc protrusion.113 Dr Campbell said that the disc protrusion could have occurred at any time before the scan on 7 October 2011. Dr Campbell considered that heavy lifting and bending were the most likely causes of a disc protrusion.114 He said that the more physical the activity, the more likely that the injury could occur. It could occur, for example, by moving timber blocks.115 [85] The defendant’s argument that the plaintiff’s evidence should not be accepted requires a consideration of what he said and did not say about the incident on 13 July 2011. [86] The plaintiff made no mention of the incident to any of his co-workers on 13 July 2011. He said that he loved his job and that he was concerned about losing it.116 He had heard about another employee losing his job after making a report.117 He was therefore concerned about reporting his injury.118 The plaintiff said that his ex-wife, Ms Abdalla, had specifically asked him whether he had told his supervisor about the incident.119 [87] The plaintiff said that when he saw Dr Ibrahim on 16 July 2011, he told him that he had hurt his back at work.120 Dr Ibrahim said that the plaintiff told him that he had been experiencing lower back pain and strain with pain going down his legs for perhaps a few days. He said that the plaintiff told him that the pain started when he was at work. Dr Ibrahim was asked whether the plaintiff told him what he was doing 106 T2-35 ll 1-5. 107 T2-26 ll 44-45. 108 T2-26 ll 1-2. 109 T2-34 ll 20-35. 110 T2-7 ll 40-45. 111 Written submissions for the plaintiff at para 26. 112 T2-32 ll 25-40. 113 T2-34 ll 1-5. 114 T2-33 ll 40-45. 115 T2-34 ll 1-8. 116 T1-22 ll 1-20. 117 T1-23 ll 35-40. 118 T1-23 L 46. 119 T1-21 L 10; T1-59 L 46. 120 T1-61 ll 36-46. -- 17 of 25 -- 18 when the pain started and he said the plaintiff was involved in lifting materials and equipment.121 [88] Dr Ibrahim also saw the plaintiff on 9 September 2011, 7 October 2011 and 8 October 2011. During these consultations the plaintiff spoke of the heavy work he was doing which involved lifting and said that he got sore at the end of the day.122 Dr Ibrahim was asked whether the plaintiff said anything about injuring his back during the consultation on 7 October 2011. He said “I believe it’s – it’s – we met – we talked about his type of work, but there was no definite incident that he mentioned – that he was doing something and then, all of a sudden, got sore. I believe it’s just a – it’s like a gradual thing, because of the type of work.”123 [89] Dr Ibrahim’s referral letter to the Princess Alexandra Hospital dated 8 October 2011 states that the plaintiff had been suffering lower back pain and strain for 6 months.124 Dr Ibrahim said that when he was writing the referral letter, he asked the plaintiff how long he had been experiencing that kind of pain and he said the plaintiff probably answered “around 6 months, on and off.”125 [90] The plaintiff was examined by Dr Drynan at the Princess Alexandra Hospital on 5 December 2011. The plaintiff gave a history of experiencing left L5 pain since January 2010.126 Dr Drynan said that he was not able to obtain any specific injury that had caused the plaintiff’s pain.127 Dr Drynan was asked in cross-examination about the fact that his clinical notes state that the plaintiff had left L5 pain since January 2010, whereas in his report dated 15 December 2011, he said that the plaintiff was seen in relation to 12 months of lower back pain radiating down the left side of his left leg.128 There is, in my view, no real significance in the variation. Dr Drynan made comprehensive notes during the examination and his usual practice is to dictate his report while he is at the clinic.129 Dr Drynan’s evidence in relation to the history provided by the plaintiff was not challenged in cross-examination. The plaintiff’s evidence was that he could not recall telling Dr Drynan that he had 12 months of lower back pain.130 However, when asked whether he had told Dr Drynan that there was no injury that had brought on his pain, but that it gradually built up over time, he initially seemed to concede that he may have told Dr Drynan that, but then said he could not remember.131 [91] The plaintiff was examined by Dr Chye on 9 December 2011. Dr Chye completed a worker’s compensation medical certificate which stated that the date of injury was 9 October 2011. In relation to the cause of injury, the certificate stated that approximately two to three months ago the plaintiff was lifting a heavy object and felt a pain in his lower back.132 Dr Chye agreed that the plaintiff had told him that he 121 T2-5 ll 15-40. 122 T2-8 ll 10-20. 123 T2-10 ll 1-5. 124 Exhibit 12. 125 T2-15 ll 1-10. 126 T3-55 ll 25-28. 127 T3-55 ll 34-39. 128 T3-67 ll 30-45 to T3-68 ll 1-10. 129 T3-57 ll 1-15. 130 T1-66 L 20. 131 T1-66 ll 30-45; T1-68 ll 40-47 to T1-69 ll 1-25. 132 Exhibit 16. -- 18 of 25 -- 19 injured his back approximately two to three months earlier.133 He agreed that he had then drawn the inference that the injury occurred in early October 2011.134 Dr Chye said in his report dated 20 December 2011 that the plaintiff’s “…job involves lifting, shovelling, jackhammering and he is unsure what exactly triggers off the injury.”135 Dr Chye said in his report that the plaintiff told him that he was unsure of the system and did not report the incident until recently.136 Under cross-examination, the plaintiff was not able to recall what he had told Dr Chye.137 [92] The plaintiff said that he ultimately reported the incident to a supervisor, Mark Thompson. He had also reported the matter to Joe Sanchez.138 On 9 December 2011, the plaintiff signed a compensation application.139 At question 25 of the application form, the date of injury is typed as being approximately 1 September 2011. The time nominated is “unknown”. At question 26, the explanation of what the plaintiff was doing at the time and how the injury happened is described as “lifting blocks of concrete (temporary fence panel legs) with another employee, noticed pain in back but never reported it.” Those details are typed on the form. [93] The compensation application form is exhibited to an affidavit of the plaintiff sworn on 11 July 2014. In his affidavit the plaintiff says that he told Mr Sanchez that he had hurt his back but that as far as he was aware the incident was not reported.140 He says that he told another supervisor about his injury and the matter was then reported.141 He goes on to say: “11. I had a meeting with a number of people including a manager who asked me about the injury and filled in forms. I was scared and confused at this meeting, as I did not know what was going to happen. 12. A number of forms were filled in at this meeting including an Application for Compensation. I did not fill the forms in myself. I did sign the forms. Exhibited hereto and marked ‘OB-02’ is a true copy of the Application for Compensation dated 11 December 2011. 13. The Application for Compensation says the injury occurred “appox 01/09/11”. I do not remember saying this. I remember that I could not recall the date of injury at the meeting as I was scared and confused. 14. At the time I struggled to understand all of the content of conversations I had with people who were speaking English, as English is not my first language. I would also often mix up the names of months of the year. 133 T3-29 L 25. 134 T3-29 L 30. 135 Exhibit 14. 136 Exhibit 14. 137 T1-71 ll 20-45 to T1-72 ll 1-30. 138 T1-28 ll 35-45. 139 Exhibit 7 pp 11-14. 140 Affidavit of the plaintiff sworn 11 July 2014 at para 9 (Exhibit 7). 141 Affidavit of the plaintiff sworn 11 July 2014 at para 10 (Exhibit 7). -- 19 of 25 -- 20 15. There was an interpreter present at the meeting however he spoke Iraqi-Arabic and I speak Sudanese-Arabic and therefore I could not understand him.” [94] While the plaintiff’s affidavit seeks to explain the discrepancy in relation to the date of the injury, there is no attempt to explain the more significant variation in relation to the way in which the incident occurred. The compensation application form states that the plaintiff was lifting blocks of concrete with another employee. That is of course completely contrary to his case. [95] In cross-examination the plaintiff said that he could not remember having given that version.142 [96] On 26 March 2012, the plaintiff signed a WorkCover Queensland claim form.143 The form was filled in by Dr Ibrahim, who said that he wrote down the details given by the plaintiff.144 The form records the date of injury as 9 October 2011. The form states that the injury occurred as a consequence of “heavy lifting.” The place of injury is recorded as “Daisey (sic) Hill.” Dr Ibrahim confirmed that the plaintiff had stated that the place of injury was Daisy Hill.145 Further, the workers’ compensation medical certificate signed by Dr Ibrahim on 26 March 2012 notes the cause of injury as “heavy lifting timber blocks.”146 The plaintiff agreed that he had told Dr Ibrahim that the date of injury was 9 October 2011.147 However, he could not recall having said that the incident occurred at Daisy Hill.148 The plaintiff’s response to whether he had told Dr Ibrahim that the cause of the injury was heavy lifting of timber blocks was by no means clear.149 [97] The plaintiff’s Notice of Claim for Damages dated 25 October 2013 states that the date of the event was 13 July 2011 at 7.00am to 7.30am. The place of the incident is described as Bartley’s Hill Reserve at Ascot. The plaintiff’s description of the event resulting in his injury is as follows: “At the time of the event I was at work, removing temporary security fencing. After unscrewing and stacking barriers, I walked over to a heavy slab of concrete that two of the barriers had been resting on when they were erected. The concrete slab was approximately 50cm wide and weighed approximately 35kg to 40kg. I squatted to the ground directly in front of the concrete slab, grabbed it on either side and picked it up. 142 T1-77 ll 1-35. 143 Exhibit 9. 144 T2-11 L 30. 145 T2-11 L 35. 146 Exhibit 9. 147 T1-85 ll 30-33. 148 T1-85 ll 45-47. 149 T1-86 ll 5-10. -- 20 of 25 -- 21 The surface of the ground was uneven and there were rocks and pebbles scattered across the ground. I stood up holding the concrete slab and as I took a step, my left leg slipped underneath me. I tried to maintain my balance and not drop the concrete slab. My body twisted and I felt sudden, intense pain in my lower back and did have to drop the concrete slab.”150 [98] The plaintiff was examined by Dr Campbell on 30 October 2013. Dr Campbell said in his report that following the onset of symptoms, the plaintiff required an extensive period of time off work.151 The plaintiff confirmed that he had said that to Dr Campbell. However, he had continued working from 13 July 2011 until December 2011.152 [99] It can be seen then that having failed to mention his injury to work colleagues on 13 July 2011 the plaintiff’s subsequent statements contain inconsistencies in relation to the date of the incident, the place where it occurred, and the way in which the work activity was being carried out. These inconsistencies cannot be explained by the level of the plaintiff’s English language skills. Dr Ibrahim said that he sometimes communicated with the plaintiff in English and over the course of treating him, his English ability had not changed.153 [100] The plaintiff said in evidence-in-chief that he did not read or write English.154 However in cross-examination he initially agreed that he could read English, but shortly afterwards said that he could not.155 When asked whether he could write in English, he said “I can’t write properly.”156 The plaintiff has held a Queensland driver licence since 2007.157 [101] In any event, the plaintiff did not challenge having made any of the contradictory statements. His response, invariably, was that he could not remember having made any of the statements that were put to him. [102] My impression of the plaintiff is that he exaggerated his difficulties in communicating in the English language. The contradictions in his evidence cannot be explained by his ability to speak the English language. [103] When the plaintiff was asked questions in relation to issues that potentially affected his claim for damages, he repeatedly claimed that he could not remember. Although he agreed that he had received manual handling training at the course held on 8 July 2010, he did not seem to recall any aspect of that training.158 150 Exhibit 7. 151 Report of Dr Scott Campbell dated 30 October 2013; Exhibit 1 Tab 4 at p 3. 152 T1-96 ll 10-20. 153 T2-5 ll 1-5. 154 T1-14 L 42. 155 T1-54 ll 20-46. 156 T1-55 ll 46-47. 157 T2-48 ll 44-45. 158 T1-97 ll 1-47 to T1-98 ll 1-40. -- 21 of 25 -- 22 [104] The plaintiff’s explanation for the error in the date on the application for compensation that he was scared and confused during the meeting on 11 December 2011 is unconvincing. He did not explain why he was scared and confused. [105] The plaintiff’s inability to recall conversations that contain inconsistent statements made by him means that there is no credible explanation for those statements. [106] There are significant variations in the plaintiff’s version as to the mechanism of injury, particularly in the compensation application dated 9 December 2011 when he stated that he was injured when he was lifting blocks of concrete with another employee, and in the WorkCover Queensland claim form dated 26 March 2012 when he said he was lifting timber blocks. [107] There are significant inconsistencies in the plaintiff’s account of when he began to experience pain. The contradictory statements made by the plaintiff are based on contemporaneous notes and records, and are therefore a reliable account of what the plaintiff did in fact say. [108] The combined effect of the inconsistencies in the plaintiff’s evidence in relation to when he was injured, when he experienced pain and the mechanism of injury lead me to conclude that his evidence is unreliable and cannot be accepted. [109] The plaintiff has failed to prove that he was injured on 13 July 2011 in the manner alleged, and his claim must therefore be dismissed. [110] In view of my conclusion in relation to liability, it not necessary to consider the issue of contributory negligence. The defendant pointed out that a plaintiff’s claim can be defeated by reason of contributory negligence if the court decided that a 100% reduction is just and equitable.159 The defendant submitted that if the plaintiff established that his injury occurred as alleged, then a significant reduction of 50% was appropriate.160 If I had reached a different conclusion on liability I would not have made any reduction on account of contributory negligence. Assessment of damages [111] Notwithstanding my conclusion in relation to liability, I will nevertheless assess the plaintiff’s damages. General damages [112] The plaintiff’s general damages are to be assessed in accordance with the Workers’ Compensation and Rehabilitation Regulation 2014 (“WCR Regulation”). [113] The scan taken on 7 October 2011 revealed that the plaintiff suffered an L4/L5 disc protrusion with nerve root compression. He underwent L4/5 micro-discectomy and rhyzolysis surgery on 6 September 2012. [114] The plaintiff continues to experience pain and restriction in his lumbar spine. The injury has resulted in a number of restrictions on his daily activities. 159 s 305G WCR Act. 160 Written submissions for the defendant at para 22. -- 22 of 25 -- 23 [115] Dr Campbell assessed the plaintiff as having a 12% whole person impairment. On 27 June 2013, the plaintiff received a notice of assessment from City WorkCover assigning a 25% degree of permanent impairment attributable to his prolapsed disc.161 [116] The plaintiff submitted that his injury should be assessed as a serious thoracic or lumbar spine injury under Item 90 which provides an ISV range of 16 to 35. Alternatively it was submitted that if the injury was assessed as a moderate thoracic or lumbar spine injury under Item 91 then an ISV of 15 which is at the top of the range was appropriate. [117] The plaintiff has suffered a reasonably serious injury to his lumbar spine which has resulted in restrictions in his occupational options and daily activities. [118] In the circumstances, I assess the plaintiff’s injury under Item 91 as a moderate thoracic or lumbar spine injury. I consider that an ISV of 15 is appropriate. The general damages calculation provisions in Schedule 12 result in award for general damages of $21,800. Past economic loss [119] The plaintiff earned an average of $1,164.74 net per week for the three financial years to 2011.162 The plaintiff submitted that this represents the plaintiff’s pre-injury earning capacity. [120] The defendant submitted that the plaintiff should be allowed only a period of two years for past economic loss because he abandoned his employment when he travelled to Sudan on or about 22 April 2014.163 [121] It is appropriate that the 10 week period that the plaintiff was in Sudan between 24 April 2014 and 22 June 2014 be taken into consideration. The plaintiff accepts that a further 10 week period should be taken into account to reflect the time it may have taken to obtain employment upon his return. [122] I do not accept the defendant’s contention that past economic loss should be confined to a period of two years. [123] I would assess the plaintiff’s past economic loss based on the plaintiff’s average net earnings of $1,164.74 per week for 269 weeks (to the date of judgment). This amounts to $313,315.06. [124] The following amounts are to be deducted: (a) $10,482.66 being the plaintiff’s net earnings between 24 April 2012 and 30 June 2012, calculated on the basis of the plaintiff’s net average weekly earnings of $1,164.74 for a period of 9 weeks; (b) $27,158.70 being the net amount paid to the plaintiff between 1 July 2012 and 30 June 2014. This is based on the plaintiff’s income as disclosed in his group payment summaries for the financial years 2013 161 Notice to admit facts dated 6 October 2016 at para 47 and admitted facts dated 19 October 2016. The plaintiff’s written submissions state that the notice of assessment was received on 27 June 2014. However, the date in the notice to admit facts is 27 June 2013. 162 See para 9(r) above. 163 T4-20 ll 1-10. -- 23 of 25 -- 24 and 2014 being $90,955 less $63,796.30 that was paid by way of refundable statutory entitlements; (c) $23,294.80 being the sum of the plaintiff’s net average weekly earnings of $1,164.74 for the 10 week period that he was absent from his employment when he travelled to Sudan between 24 April 2014 and 22 June 2014 and a further 10 weeks that it may have taken him to obtain further employment; and (d) $65,450 being the plaintiff’s earnings as an Uber driver calculated as being $770 net per week for 85 weeks from 1 November 2015 to the date of judgment. [125] The total deductions amount to $126,386.16. This results in an amount of $186,928.90. However, I would make a further reduction of 15% to allow for contingencies such as the possibility that the plaintiff may have had periods during which he was not employed and may not have earned the same amount as he had while employed by the defendant. A reduction of 15% ($28,039.34) results in an amount of $158,889.56. I would round that amount up to $159,000. Interest on past economic loss [126] The plaintiff is entitled to interest on past economic loss calculated in accordance with s 306N(3) of the WCR Act. Interest amounts to $7,536.42.164 Future economic loss [127] The plaintiff is 30 years of age. He has earned an average of $770 net per week since commencing work as an Uber driver in November 2015. This 18 month period provides a reasonable indication of the plaintiff’s residual earning capacity. [128] The plaintiff’s net loss is therefore $394.74 per week ($1,164.74 less $770). [129] The parties agree that the appropriate 5% multiplier is 894 and that a 15% reduction is appropriate for the usual contingencies. In the circumstances, I assess the plaintiff’s future economic loss as $299,962.92 ($394.74 x 894 less 15%). Loss of superannuation [130] The plaintiff received 14% on his earnings when employed by the defendant as superannuation benefits. He does not receive superannuation from Uber driving. I will allow 14% on past economic loss for loss of superannuation, which amounts to $22,260. I will allow 11.3% on future economic loss, which amounts to $33,895.80. The total amount for loss of superannuation is therefore $56,155.80. Special damages [131] Special damages have been agreed at $43,469.11. Interest on special damages has been agreed at $322.66. Future medical and other expenses [132] The amount for future medical and other expenses has been agreed at $8,553.68. 164 $159,000 less $50,601.30 (gross weekly benefits of $63,796.30 less $13,195 tax). $108,398.70 x 2.7% x 5.15 x 0.5 = $7,536.42. -- 24 of 25 -- 25 Fox v Wood [133] The Fox v Wood component has been agreed at $13,195. City WorkCover refund [134] The City WorkCover refund has been agreed at $173,546.32. Summary of damages [135] In summary, the plaintiff’s damages are assessed as follows: General damages $21,800.00 Past economic loss $159,000.00 Interest on past economic loss $7,536.42 Future economic loss $299,962.92 Loss of superannuation $56,155.80 Special damages $43,469.11 Interest on special damages $322.66 Future medical and other expenses $8,553.68 Fox v Wood $13,195.00 Subtotal $609,995.59 Less City WorkCover refund $173,546.32 Total damages $436, 449.27 Orders [136] In view of my conclusion in relation to the issue of liability, the plaintiff’s claim is dismissed. [137] I will hear submissions in relation to the issue of costs. -- 25 of 25 --