Clayton v Jetcrete Oz Pty Ltd [2017] QDC 3

DISTRICT COURT OF QUEENSLAND CITATION: Clayton v Jetcrete Oz Pty Ltd [2017] QDC 3 PARTIES: WENDY LEE CLAYTON (Plaintiff) v JETCRETE OZ PTY LTD (ACN 137 775 903) (Defendant) FILE NO/S: 81/2014 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: Cairns DELIVERED ON: 25 January 2017 DELIVERED AT: Cairns HEARING DATE: 12, 13 & 14 September 2016 & 30 November 2016. JUDGE: Morzone QC DCJ ORDER: 1. Judgment for the defendant. 2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the plaintiff will pay the defendant’s costs of the proceeding (including reserved costs) to be assessed on the standard basis. CATCHWORDS: TORTS – NEGLIGENCE – whether alleged incident occurred – credit of plaintiff in issue - breach of common law and/ or statutory duties – whether injury caused by defendant’s breach. DAMAGES - MEASURE OF DAMAGES – PERSONAL INJURIES – back injury – pre-existing conditions – assessment of loss and damage. LEGISLATION: Workers’ Compensation and Rehabilitation Act 2013 (Qld) (as at 13 July 2012), ss 305B, 305C, 305D, 305E & 306J Workers Compensation and Rehabilitation Regulation 2003 CASES: -- 1 of 36 -- Withyman v NSW [2013] NSWCA l0 at [65] Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353 Andar Transport Pty Ltd v Bramble Limited (2004) 317 CLR 424 Turner v South Australia (1982) 56 ALJR 839 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 Woolworths Ltd v Perrins [2015] QCA 207 at [173] Wyong Shire Council v Shirt (1980) 146 CLR 40 McLean v. Tedman (1984) 155 CLR 306 Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 Rosenberg v Percival (2001) 205 CLR 434 Vairy v Wyong Shire Council (2005) 223 CLR 422 Benic v New South Wales [2010] NSWSC 1039 Erickson v Bagley [2015] VSCA 220 Pollard v Trude [2008] QSC 119 Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 Reed v Warburton [2011] NSWCA 98 Allianz Australia Insurance Limited v McCarthy [2012] QCA 312. COUNSEL: G Houston for the Plaintiff B. F. Charrington for the Defendant SOLICITORS: Shine Lawyers for the Plaintiff Kaden Boriss Legal solicitors for the Defendant [1] The plaintiff claims she suffered a debilitating back injury by overexerting herself whilst pushing concrete down the chute of a concrete agitator truck. She has sued the defendant for consequential loss and damage, but the defendant rejects the claim as being incredible. Background [2] The plaintiff was born on 2 November 1958. She was 57 years old at trial. [3] The plaintiff was employed as a concrete agitator truck driver/operator for the defendant. The defendant company was in the business of a shotcrete contractor, and provided concrete spraying service to the Ernest Henry Mine, via Cloncurry in Queensland. [4] The plaintiff worked 2 weeks on and 2 weeks off on a fly-in fly-out basis. She had twelve- hour shifts over 2 weeks at the mine and would return to her home in Cairns for her two weeks off. [5] During her two weeks off, before returning to work on 13 July 2012, the plaintiff experienced back pain and received chiropractic treatment. At the start of her shift on 13 July 2012, the -- 2 of 36 -- plaintiff spoke to her supervisor Craig Carver, and her incoming supervisor, Gordon Geddes. Those conversations are subject of some dispute, but it is clear that the plaintiff did not elaborate on her condition or the treatment. There is also a dispute about whether the plaintiff asked Mr Carver about leaving her shift a week earlier to obtain further treatment. [6] In paragraph 4 of her Second Further Amended Statement of Claim the plaintiff alleges that at about on 13 July 2012 she accompanied a co-worker, John McMahon, for the batching, delivery and pouring of a concrete mix in an agitator truck. She alleges that at the pour site, the mix did not flow properly and she was instructed by the co-worker to regulate the flow. The plaintiff asserts that she injured her back when she used her maximum strength with her hands and a scraper to push the concrete mix down the chute of the truck. [7] The plaintiff alleges that the injury was caused by the negligence of the defendant and/or the breach of duty by the defendant as her employer as pleaded in paragraphs 5 and 7 of the Second Further Amended Statement of Claim. [8] The defendant denies that the plaintiff performed the task of pushing concrete down the chute of the truck and relies upon the contradictory evidence of Mr McMahon, and the evidence of other workers, Jamie Collins and Chad Hines, who were employed on the mine site by a different company, Northern Mining. Otherwise, the defendant denies that any injuries were caused by the negligence or breach of duty as employer of the Defendant, and if so, the nature and extent of those injuries. Issues [9] The determinative issues in the proceeding are: 1. Whether the plaintiff was injured in the way alleged? 2. Whether the injury was caused by the defendant’s negligence or breach of duty? and 3. The assessment of damages (if any). Liability [10] The plaintiff’s case fundamentally turns on her evidence being found both honest and reliable as to the circumstances and mechanism of injury. [11] In paragraph 4 of her Second Further Amended Statement of Claim the plaintiff alleges that: “… (c) At about 3:30 pm on 13 July 2012 the plaintiff during, and in the course of her employment with the defendant, went on a delivery of shotcrete mix (‘the mix”) as an observer only in a Hino truck number CA19 (“the truck”) driven by a co-worker John McMahan. … (h) On discharging the mix from the bowl, the mix did not flow properly from the bowl down the chutes. (i) The Plaintiff was instructed by John McMahon to get out of the truck and regulate the flow of the mix from the bowl. -- 3 of 36 -- (j) (i) The Plaintiff went to the rear of the truck and used her hands and a scraper to push the mix down two of the chutes on the rear of the truck (“the said work”). (ii) The said work was awkward and difficult for the Plaintiff to carry out. (iii) The said work required maximum strength and effort from the Plaintiff to perform. (iv) The Plaintiff was required to bend and twist her thoracic and lumbar spine to carry out the said work. ... (vi) Whilst the Plaintiff was bending and twisting to use the scraper to push the mix down the chutes, she sustained an injury to her thoracic spine and lumbar spine.” [12] It is uncontested that the plaintiff received chiropractic treatment for a back condition during her 2 weeks off work before the start of her shift on 13 July 2012. The plaintiff described that she received treatment for “sciatica”, and returned home for hot baths and rest. [13] She testified about reporting her treatment to her supervisor, Craig Caver, when she returned to the mine for her shift commencing 13 July 2012, as follows:1 So when you returned to work on the 13th of July, what did you do? First thing you did?---We flew in approximately 11, 11.30. We then get a bus that takes us out to the camp. I then got changed, ready to go on shift, because we were required to go to work when we arrived and as I was walking over to the mess tent to get my lunch or smoko, I then came across Craig Carver and Jason Brooks and that’s when I – I spoke to Craig and I informed him that I had seen a chiropractor while I was off and because of that, I wanted to know, with our second week of work, which was night shift when I left, could I have that second week off because there wasn’t anything really happening on night shift – well, not for me anyway – and so that I could go back and have that bit more intense treatment and I would have three weeks to recuperate or rest and he just informed me that (a) there was no longer any night shift, (b) we already had one person on holidays, which I did know about, and that I was to proceed – I couldn’t have the time off and I was to proceed out to site and inform Gordon Geddes exactly what I just told him. [14] The plaintiff elaborated when her counsel prompted her as follows:2 And did you tell him what you’d seen a chiropractor for?---I told him that I had seen the chiropractor for back pain. And what did Mr Carver say to that?---Nothing. And when you asked him for some time off - - -?---Yes. - - - did you explain to him why you wanted the time off?---Yes, I did. 1 T1-43/25 to T1-43/40 2 T1-43/45 to T1-44/10 -- 4 of 36 -- Just what did you say?---I just said to him that I needed to have a little bit more – or would like to have a little bit more in-depth treatment after speaking with the chiropractor and if I could have that extra week, that would give me three weeks off so that I could get the relevant rest that I would need. [15] The plaintiff could not remember telling Mr Carver about the state of her back condition on her return to work. But she recalled that Mr Carver did not ask about her current state, or instruct her about what to do, except that she should speak to her new supervisor, Mr Geddes. [16] Mr Carver gave a different version in his evidence. He testified that the plaintiff asked for leave from “night shift”, which was not available for her job. He did not recall the plaintiff asking for leave for her second week of the shift to get further chiropractic treatment. He agreed that he referred the plaintiff to her new supervisor, Mr Geddes, because he had finished work on that day. [17] Accordingly, the plaintiff drove to the defendant’s site office where she found Mr Geddes and Mr McMahan. The plaintiff testified that:3 And where was this?---This was in the Jetcrete office on site – on the mine site. All right. And just tell his Honour what you said to Mr Geddes?---Okay. I just told him that I’d been to see a chiropractor while I was off and that – I had asked could I have an extra week off, but Craig said no. And with that, John McMahon said to me I think you’d better go down and let Byrnecut know. Now, did you tell Mr Geddes why you’d been to the chiropractor?---No. Beg your pardon?---No. And what did Mr McMahon say?---He just said I think you’d better go straight down and tell Byrnecut. … All right. Now, did Mr Geddes give you any instructions about what work you were to do or not to do?---No. Did he give you instructions to go to the mine clinic for a check-up?---No. [18] Mr Geddes testified that the plaintiff told him that during her time off she saw a chiropractor on a couple of occasions for her back just to get her routine back manipulation.4 He testified that the plaintiff did not ask to leave her shift early or tell him of her need to get treatment for a back condition or anything else.5 In addition, he was not made aware of any malfunction of the truck bowl.6 In cross examination Mr Geddes said the plaintiff “narrated that she was ready to go to work. She never said that she was unfit to go to work”.7 He added that she never 3 T1-44/32 – T1-45/16 4 T2-70/28 5 T2-70/28-35 6 T2-71/5-25 7 T2-75/1-3 & 20-25 -- 5 of 36 -- said she was still sore and there was nothing about her appearance that suggested that she was unfit to do her duties.8 However, he did recall her proposal to shadow Mr McMahon that day.9 [19] In any event, the plaintiff went to the Byrnecut mine office and spoke to Mr Peter Ferguson. She testified as follows:10 All right. And so what happened then?---Then that’s exactly what I did. I went down and seen Byrnecut and that’s when I found out that there wasn’t any OH&S officers on duty. The only person that was on duty was a supervisor from Byrnecut. And his name was Peter Ferguson. And so did you speak to Mr Ferguson?---Yes. I did and I told him that I’d seen a chiropractor. Did you say why you’d seen a chiropractor?---For my back - - - Yes?--- - - - and I just said to him that I’d been told that I should come down and let you know. And he said no. That’s fine. He said just go about your day and if you’ve got any problems whatsoever, go to the mine clinic. … So what transpired after you’d seen Mr Ferguson?---I went back up to the Jetcrete office - - - Yeah?--- - - - and John and I waited for the phone call to come through for the concrete to be delivered to sump 4. And what happened then?---Okay. Once we got the phone call, John batched it into the truck and we proceeded to go down to sump 4. And I did say to John that I would come for a run with him because it was common practice for us to, when we first come on shift, to go and have a look around the mine site because it changes from day – to day to day, you know, not – day to day basis. So all of us always went for a run on that shift when we came in to see what job we were doing at the time or where we were working or what changes had been made. And that was the reason for me being in the truck. Yep. Which – do you remember which truck you were in?---Yes. CA19. And what – and that was the agi truck, it was a Hino truck, was it?---Yes. Hino. And was that a truck that you’d driven before?---Yes. That was what was commonly known on site as my truck. All right. Now, can you tell the court were there any problems with the truck before you got to the delivery site?---Yes. When we were trying to spin up when we were batching, you need the rotation [indistinct] to be going extremely fast. And it didn’t want to do it then. It had to be – it just didn’t want to hold onto its rotation. So again, 8 T2-75/26-30 9 T2-70/40 10 T1-44/45 – T1-46/12 -- 6 of 36 -- we had to fiddle with the levers at the back of the truck at that time. … And so we persevered with it all the way down the mine site to sump 4, which is quite a way. And at least on one occasion on the way down, we had to stop, get out and get the bowl to rotate again. [20] That evidence was largely uncontradicted except Mr McMahon was not concerned about the bowl during the batching process. He explained that the truck was an older unit, which required manual adjustment from the back to rotate the bowl at full speed to mix, and then lower the speed before driving off in the truck. He testified that the revs of the truck taking off affected the speed of the bowl and required him to stop and adjust before continuing to the pour site.11 [21] It was the plaintiff’s evidence about how the following critical events that diverged from the other witnesses and was the subject of the significant controversy between the parties. The plaintiff described the critical events as follows:12 We got to sump 4 and it had stopped rotating again to the point where somebody – I don’t know who it was – but somebody from Northern Mining was quite irate and he said to both John and I don’t ever bring a load here again were the bowl doesn’t work. Okay. So just tell the court what happened when you got to the delivery site?---Okay. They explained to John McMahon what they wanted. …. So what they inevitably had to do then was we had to put on all – all the chutes had to go on – not me. I was still in the truck. Had to put all the chutes on and they just drove the truck – John drove the truck very very slowly while they discharged the concrete into exactly where they wanted it. But what happened was the bowl stopped and it wouldn’t accelerate from inside the cabin of the truck. And just so – was there a switch or a control inside the truck, was there?---No. It – it was regulated from the accelerator. You could sit it – what you’d do is at the back of the truck, the lever that rotates the bowl – okay. The speed of the bowl, you set that to where you want it before you take off, before you endeavour to drive the agi. And it should maintain that speed the whole time until you get down there, okay. But what happened when we started to do the job, the bowl wouldn’t turn at all. And John said to me can you go out and have a look at the controls and just see what’s going on because there was no concrete coming down. So I went out and used the controls to speed the bowl up and to discharge. And when I hit – tried to discharge it – pull the lever to discharge it, the concrete just started falling over the sides of the chute. It was that thick and going back up through the hopper. So - - - So what did you do then?---I went up the ladder at the side of the truck, which is on the driver’s side of the truck. Went up the ladder and proceeded to try and push the concrete down the chute. And how did you do that?---I had one – to start with, I had one foot on the ladder, one foot on the back of the truck, one hand on the chute and then I was pushing with this hand because the chutes were [indistinct] 11 T3-50/35-45 12 T1-46/10 to T1-55/5 -- 7 of 36 -- So I that pushing with your right hand?---Yeah. Yeah?---Yeah. And did you have anything in your hand?---A scraper. And how long did you do that for?---I’d have to say approximately, but I was there for at least 15 minutes. And where was Mr McMahon when you were doing this?---He was driving the truck because someone had to drive it forward. And where were the northern mining workers?---Okay. There was – one gentleman was at the end of the chutes. He had a plastic bucket that he was putting concrete into. And he also had a shovel, because he was pulling down the chutes with the shovel, pulling the concrete down. And to the best of my knowledge there was two or three others, but they were over, like, doing the form work just near the truck, but – and then there was a gentleman appeared at the bottom [indistinct] when I say the bottom I mean at the side of the chute lower, and he turned – he actually turned – I don’t know who he was, but he turned around and he said to me get down and I’ll get up and see if I can’t make it run quicker. And what did you do then?---Got down. All right. So just tell the court, again, just the process you were using to move the concrete down the chute?---Okay. With the right hand and with a scraper. And, as you’ll see, the scrapers like a half-moon piece of wood, and your inside of your chutes are sort of like a half-moon. So no doubt it was built to – for that to – for it to take the maximum benefit, but it just wasn’t moving. Just would not move. And was there a handle on the scraper?---No. Just a hole where you put your – I guess, well - - - Was there anything else available you could have used to push the concrete down the chute?---No. Had you ever done this sort of work before - - -?---Yes. - - - working for Jetcrete?---Yep. Yeah. When was that?---Wagner’s Concrete. Wagner’s – I mean working for Jetcrete?---No. Not for Jetcrete, no. Okay. But you’d done it before when you were working for Wagner’s?---Mmm. And was there a scrape for use in that situation or - - -?---At Wagner’s? Yes?---Yes. What sort of scraper was it?---It was a metal one built like a little shovel – like a baby shovel. -- 8 of 36 -- And where was the – where did you find the scraper?---It hangs on the back of the truck. [the witness was shown and explained various photographs and continued] … All right. So can you describe to the court the – what difficulties you had in doing this work?---I just found it really, really hard to get any pressure, because you – you couldn’t give it a 100 per cent of your pressure because – well, you had to hold on to something. You had to be – to be stable to some degree. But it was – I found it to be really, really heavy hard work trying to get it to go down. It just wouldn’t move. Yeah. And you told us how you did this for at least 15 minutes, maybe longer?---Mmm. How were you feeling when you were doing this work after, say, 15 minutes?---I was tired. I was buggered, in fact. I think my leg – my arms were like just errrrgh. Well, just – just describe that. So it’s - - -?---Tired. Yeah?---Yeah. Very limp. And so you told us earlier how someone – you don’t know who it was – told you to get down and he’d take over?---Yeah. Do you know who that was?---No, I don’t. And what did you do then?---I got down and proceeded to the rear of the vehicle – the back of the truck and I stood there while they were still trying to get it out and then I took a walk up the side of the truck and approached John in the cabin and I just explained to John that it wasn’t running – we’d run out of water so we – you know, could he get out and have a yarn with the boys and try and get that concrete out of there in a hurry and that’s exactly what he did. So when was the first time that John McMahon got out of the truck?---To the best of my knowledge, when I asked him to get out to – at the very end. I beg your pardon?---When I asked him to get out at the very end. Okay. So what happened after that?---They finally got as much as they could discharged out of the agi and then we just packed up and went back up to our batch hut – or the Jetcrete site office and John proceeded to wash it out. [22] The plaintiff’s version stands in stark contrast to the evidence of the other witnesses – Messrs McMahon, Collins and Hinds, who were present and recounted events form their various perspectives. [23] Mr McMahan confirmed that the plaintiff accompanied him, but he said that she did not have, nor did he instruct her to perform, any role on that occasion.13 He described the concrete as a “dry mix”14 and affirmed his previous statement to the effect that all the on board water was used and the concrete congested at the top of the chute.15 Mr McMahon also described his 13 T3-52/35-40 14 T3-53/1-5 15 T3-57/10 -- 9 of 36 -- role during the pour process, saying that he remained in the cab of the truck and moved forward as directed by the “spotter”;16 he then explained that he got out of the truck to chock the wheels for “two, three minutes”; then he went to the back of the truck and he saw a Northern Mining worker using a shovel to move the concrete down the chute.17 During cross examination the witnesses responded to the plaintiff’s case this way:18 All right. So the – there’s a time when you’re in the truck and did the plaintiff leave the passenger seat and go to the back of the truck?---Yes, sir. At that time, that you were sitting in the truck and - - -?---We both – sorry – we both got out at the same time, I’d say. Yeah. All right. But the – but I suggest to you there was a time when – when you’re sitting in the truck and the plaintiff’s gone to the back of the truck and you can see the plaintiff in the rear vision mirror on the driver’s side. Is that true?---Yes, sir. Yeah. Yeah. And what you saw – you saw the – you saw the plaintiff in the rear vision mirror and she climbed the on board ladder at the back of the truck, didn’t she?---Yes, sir. Yeah. She is – she did?---Yes, sir. Yes, sir. And you saw that, didn’t you in the rear vision mirror?---Saw – yes, sir. Yeah. And then you saw her in the rear vision mirror pushing concrete down the chute?---No. Didn’t you?---Couldn’t – no. You can’t see what goes on at the back of the truck sir, no. There’s a platform but you can’t see the – the chutes were to the passenger side of the truck, so you can’t see what’s going on up there from the driver’s seat. But the – but the – the ladder to get up to the back of the truck is on the driver’s side, isn’t it?---Driver’s side. Yes, sir. Yeah. And you saw her in the rear vision mirror climbing up that ladder?---On the platform, sir. Yeah?---Yes, sir. And so – and she’s on the platform?---Sir. And you can see her on the platform?---Well, the back – yes, sir. Yeah. And then I suggest you could – you then saw her pushing concrete down the top of the chute with a scraper?---No, sir. That – I couldn’t see what was going on at the back. I didn’t know. All right?---I didn’t know that – what the problem was down the back. 16 T3-53/10-20 17 T3-53/25-T3-54/10 18 T3-55/30-T3-56/25 -- 10 of 36 -- [24] It was in this context that the witness affirmed his previous statement made on 26 July 2012 where he supposed: “I moved the agi forward and after parking, observed Wendy from the rear view mirror climbed the on board ladder to manually push the concrete down the chute.”19 [25] As to the period of time that the plaintiff was on the back of the truck, Mr McMahon was pressed by cascading questions as follows: Now, I put to you Mr McMahon that the plaintiff was on the back of the truck for approximately 15 minutes or so?---No, sir. I beg your pardon?---Fifteen minutes? Yeah?---No. I doubt that, sir. No. Well, would you agree it may have been five or 10 minutes?---I wouldn’t have been five. Five at the most, not - - - All right?--- - - - wouldn’t be more than five. Okay. So say – but you would agree for five minutes she was on the back of the truck?---I – at – at the extreme. Yeah?---Five. Yeah. And she was pushing concrete down the – down the chute, wasn’t she?---Sir, I – I – no. I know it – I can’t recall. No. [26] Mr McMahon did not see anyone climb the truck ladder that is fixed to the rear driver’s side of the truck. At best, Mr McMahon recalls seeing, through his rear view mirror, the plaintiff on the platform of the truck for a very short period of not more than 5 mins. His reference to the “platform” seems to be the a horizontal strut and tail gate (or bumper bar as described by the expert, Mr McDougal) shown in the photographs. More significantly, having regard to those photos and the position of the driver’s rear view mirror, it is obvious that Mr McMahon’s vision was both reflective and obscured by the body of the truck. He could not have seen the plaintiff pushing the concrete down the chute as she asserts. This is consistent with both his oral testimony and his remarks in an undated incident report that he: “Did not witness [the] incident as I was in the cabin of AGI.” In those circumstances, whilst I accept Mr McMahon was honest, I do not accept his evidence is a reliable account of the plaintiff’s conduct on the back of the truck. Since his rear vision was significantly impaired, he could well have mistaken a Northern Mining worker as being the plaintiff. [27] The notion that the plaintiff was on the truck at any time pushing the concrete was completely rejected by the other eyewitnesses – a concreter, Mr Jamie Collins, and a supervisor, Mr Chad Hinds, who were working for Northern Mines (not associated with the defendant). Another concreter, Ben Ledger, was also working at that time but he’d returned to England by the time of trial and did not testify. [28] Mr Collins testified that he saw the truck arrive and “come down the hill” and he was mainly positioned in the pour area getting ready for the concrete pour. 20 He recalled that he saw a 19 T3-57/15-20 & Exhibit 20 20 T3-78/1-15 -- 11 of 36 -- woman (who he could not identify as the plaintiff) get out of the truck, but denied that she ever got onto the truck.21 He described the consistency of the concrete as having a “hard” slump and that it became “unworkable” when there was no more water to add to the mix.22 He then described what happened as follows: So Chad just was straight up there, and he was just pushing it down. I see. So Mr Hynes got up - - -?---Yes. - - and pushed it down the shute?---Yep. Did you see anyone else get up - - -?---No. I didn’t. - - and push concrete down the shute?---No. Were you there the whole time that the concrete - - -?---I was there the whole time. Yeah. And how close to the truck were you?---I would have been within I’d say five metres away from the truck. I see. And the shute comes down, we understand, across the back of a truck on an angle - - -?---Yep. - - toward the passenger side of the truck?---Yep. Was that accurate?---Yes. It was. Yeah. And what was the shute leading to?---It was leading to where we were pouring the blinding [indistinct] And who was stationed at the place where the concrete was landing, if I can - - -?---I was. You were?---Yeah. And you – did you get to leave that job at any stage during the pour process?---No. I couldn’t. Because it was going off that quick. I see?---And still had to quickly screed it all. And did you have within your observation the back of the truck at all times?---Yes. It’s always there. Yeah. You can always see it. And did you see the lady from Jetcrete get up onto the truck and push concrete down at any stage?---No. I didn’t. And did you see Mr Hynes get down at any stage during his pushing of the concrete?---The only time he would have got down is if the truck was moving forward, 21 T3-79/1-10 22 T3-79/10-45 -- 12 of 36 -- like, to move a couple of metres forward, and then he would have got back on it again, and then he would have spun the bowl to get it – and then - - - And do you recall that happening?---Yeah. Yes?---Yep. [29] Mr Collins’ evidence was not diminished in cross examination, in particular he maintained the truck was constantly in his view and that the plaintiff did not get onto the back of the truck at any time.23 [30] This was corroborated by Mr Chad Hind’s evidence. Mr Hind worked for Northern Mining worker and was the supervisor for the concrete pour on 13 July 2012. He remembered the truck arriving with two occupant24 and that the concrete was “very, very stiff”.25 He also described that he saw the plaintiff get out of the truck as follows:26 I saw Wendy get out of the – out of the ute – oh, the truck, very gingerly, and I’d had enough. I’d – I’ve worked in this industry all my life and when you’re under the pump you’re under the pump, so I just told her go away, I can’t handle this – excuse me, but I can’t handle this shit. Go away. Sit down. I got up on the back of the truck. I pulled the concrete down the chute. She did not come near the truck one bit. Simple as that. [31] Mr Hinds described that he got onto the back of the truck to facilitate the one hour pour but no one else.27 During cross-examination, he rejected the suggestion that the plaintiff was on the back of the truck before he took over.28 He also explained how he had the truck under constant observation from the moment of its arrival and then got on the back to push the concrete down the chute.29 [32] The plaintiff then described the delayed onset of her symptoms as follows: Okay. Well, can you tell the court, after you got down off the truck from trying to push the concrete down the chute and when you were, as you said, waiting there, after you spoke to Mr McMahon, could you just tell the court what happened then. How were you feeling then?---I started to get pains across my shoulder blades and – which was – it was quite stabbing pain – and then when I got back into the truck to go, then my – when we were heading back up the – to the plant, the rest of my back starting aching, like it started to work its way down. So then John said to me, well, I’ll just quickly wash this out and we’ll take you down to the medical team. So what did you say to Mr McMahon about how you were feeling when you were driving back to the truck?---My exact words to him was I don’t think that did it – did my shoulders any justice whatsoever. Okay?---Because that’s where I first felt the pain, not my lower back, in me shoulders. 23 T3-81/1-40 24 T3-86/10-35 25 T3-85/45 26 T3-86/45 – T3-87/5 27 T3-87/5 – T3-88/10 28 T3-89/25-45 & T3-90/9-15 29 T3-89/10 – T3-90/45 -- 13 of 36 -- And how long after did you feel the pain in your lower back?---20 minutes, 15 minutes. And how long did it take to get back to the batching plant?---40, 45 minutes. And what happened there?---John proceeded to wash the truck out. I actually sat not far away from where he was doing that on a chair and – because he did say to me, just sit down and wait till I’m finished washing it out and I’ll run you down to the medical centre so that’s what we did. And do you recall what time you got there?---Half past 5, quarter to 6. [33] The plaintiff described that she was in a “fair bit of pain” and that she received pain relieving medication and heat packs before being able to return to Cairns a week later. Various medical records concerning the plaintiff’s treatment between 13 July 2012 until 21 July 2012 corroborated her evidence about these matters.30 Consideration [34] The plaintiff’s version of the critical events was challenged on the basis that it was untrue and unreliable, and further impeached by her past behaviour. [35] In Withyman v New South Wales,31 the New South Wales Court of Appeal referred with apparent approval to the remarks about credibility by Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at p 43l as follows: "'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." 30 Exhibit 2 31 Withyman v NSW [2013] NSWCA l0 at [65] -- 14 of 36 -- [36] The plaintiff also submitted that her evidence about performing this task is “corroborated” by other independent evidence, namely: (a) The incident reports of Mr Geddes;32 (b) The Defendant’s “Employer Injury Claim Report” dated 18 July 2012;33 (c) Email from Mr Finn (the defendant’s general manager) dated 25 July 2012;34 (d) Email from Mr White 26 July 2012;35 and (e) Statement of Mr McMahon dated 26 July 2012.36 [37] In the main, these documents were compiled in reliance upon information provided by the plaintiff and Mr Geddes. The information is secondary and ought not to be elevated or characterised as being independent, additional or stronger evidence that inferentially makes the plaintiff’s primary account more sure or certain. The very brief information attributed to the plaintiff is useful to test consistency or inconsistency, but it does not independent prove anything. Indeed, although generally consistent with her testimony, the plaintiff’s out of court statements did not significantly bolster her credit when tested against other evidence. I have already remarked about Mr McMahon’s limited perspective and obscured view of things. He may well have mistaken a Northern Mining worker for the plaintiff. [38] Clearly enough, the plaintiff’s evidence is inconsistent with her account given in the Notice of Claim for Damages wherein she alleged that she pushed the concrete for 30 to 45 minutes. About this, her counsel submits that “she is probably mistaken”. If so, her unreliable recollection was exposed by her vague testimony of “at least 15 minutes” and her apparent murmured acceptance of her counsel’s suggesting - “…maybe longer?”. The Northern Mining workers could not be drawn on any time period, and Mr McMahon accepted 5 minutes “at the extreme”. [39] The plaintiff’s counsel submits the plaintiff may have been working on the back of the truck for 5 to 10 minutes was not noticed by Messrs Heinz and Collins. I do not accept that submission. These witnesses impressed me with their straightforward and plausible accounts; untrammelled by cross-examination. It seems to me that Messrs Collins and Hinds had the rear of truck in view from the moment of its arrival and while they worked in close proximity during the pour. I prefer the evidence of Messrs Collins and Hinds where it conflicts with the evidence of Mr McMahon and the plaintiff. [40] In addition to these evidentiary conflicts, it seems to me that the plaintiff’s credit was significantly diminished by cross-examination about her preparedness to conceal and otherwise embellish her true circumstances when it suited her convenience. She was demonstrably less than frank about her health in the defendant’s pre-employment process, and apparently concealed her financial and work activity in this proceeding. I will elaborate on these matters now. 32 Exhibit 1 documents number 1 and 2 33 Exhibit 1 document 5 34 Exhibit 1 document 7 35 Exhibit 1 documents 8 and 9 36 Exhibit 20 -- 15 of 36 -- [41] The plaintiff was required to undertake a medical assessment before starting with the defendant in late November 2011. [42] During the course of this pre-employment process, she denied any prior history of depression; yet the records of her medical treatment reveal a 3 year history of symptoms of depression requiring medication.37 [43] The plaintiff also falsely denied any history of back problems to practitioners who assess her during the pre-employment process. The falsity is exposed by a comparison of the representations made by the plaintiff and other documents (some only 15 days prior to the pre- employment medical assessment): 1. When the plaintiff completed a presenting information sheet for Bauer Chiropractic she equates back pain with sciatica;38 2. The notes of Bauer Chiropractic on 17 April 2009 record her complaint of lower back sciatica for several years, worse in the previous 3 weeks, caused by heavy lifting;39 3. The notes of Bauer Chiropractic on 17 April 2009, 9 November 2011, 18 January 2012 and 30 June 2012 record treatment for back pain including sciatica;40 4. The notes also record her complaints of soreness in the lower back for six-months because of truck driving only 15 days before she denied such pain in the pre- employment medical;41 5. Dr Parry’s records of on 19 July 2012 note the plaintiff’s history of back problems all her life;42 6. Dr Todd’s report of the plaintiff’s examination on 15 September 2012 notes a history of 10 years of sciatica.43 [44] I do not accept the plaintiff has being truthful in her evidence when she feigned ignorance of the association of back problems and sciatic symptoms. During her cross examination she said: So you told Mr Bauer that you’d been suffering six months of back pain up to that date of 9 November 2011 because of truck driving?---I think you’ll find that Mr Bauer has written it down as back pain. What I explained to him was that I had sciatica – what I always thought was sciatica. So that’s my naivety, but that’s what I always thought it was. [45] When the plaintiff completed the information sheet on 17 April 2009 for Bauer Chiropractic she equated back pain with sciatica describing her “major complaint” as – “Lower Back/sciatica” and rated the severity of pain as “8” in a sliding scale of 1-10 between “no pain” and “excruciating pain”. The plaintiff inserted “several years” as the date of the onset of this complaint with “regular” occurrence.44 It seems to me that the plaintiff well knew that sciatica was back associated pain and consciously failed to disclose her true state when the opportunity arose prior to her employment with the defendant. 37 Exhibit 13 – 5.1.09, 19.1.09, 31.8.10 & 7.9.10 38 Exhibit 8 39 Exhibit 16, pp 1 & 3 40 Exhibit 16 41 Exhibit 16, p 3 42 Exhibit 2, p 15 43 Exhibit 17,p 11 44 Exhibit 8 -- 16 of 36 -- [46] The plaintiff was also shown to be less than candid in relation to financial matters. So much is demonstrated by comparing her oral and documentary evidence with her Facebook account. [47] In her further updated statement of loss and damage,45 her quantum statement,46 and her oral evidence,47 the plaintiff asserted that she had not engaged in any employment activities or earned any income since the alleged injury of 13 July 2012. She did not disclose any self- employment activities in her statement of loss and damage or in her quantum statement. She also denied such activities in oral evidence.48 Similarly, she did not refer to such activities as either hobbies or average daily activities.49 [48] On the contrary, the plaintiff’s Facebook account spruiks her involvement in multi-level marketing and sale of organic products, and it reveals a significant post-injury period of self- employment activity.50 This material, first revealed to the plaintiff’s lawyers during her cross- examination at trial, boasts financial success of some degree associated with these activities. This was inconsistent with her assertions in re-examination that she had not gained any income from those activities but rather had lost a substantial sum of money, despite her claims to the contrary. [49] In my view the plaintiff had endured a long history of back problems (with sciatica) and treatment and arrived for work on 13 July 2012 in a compromised state. Whilst I accept that she reported her chiropractic treatment for her back to Messrs Geddes, Carver and Ferguson separately at the beginning of her shift, she nevertheless presented herself fit for work. I do not accept that she told those men of any persistent back symptoms or that she needed leave in the second week of her shift for further treatment. I find that the plaintiff was permitted to, and did, accompany Mr McMahon in the Hino truck number CA19 on 13 July 2012 to familiarise herself with the current work activity and any changes at the mine during her absence. I prefer Mr McMahon’s evidence as to the operational peculiarities of the old truck and the voyage to the pour site. The truck ran out of water and the concrete consistency deteriorated to a hard slump, which required manual intervention on discharge. It seems to me that the plaintiff got out of the truck to operate the rear leavers, but did so instinctively without any instruction or direction by Mr McMahon. However, I find that she did not mount the ladder or step on the back of the truck at any time during the concrete pour, and did not manually push the concrete down the chute using her hands or a scraper. Instead, Mr Hines got onto the back of the truck and pushed the hardening concrete down the chute during the pour. I accept that the plaintiff felt shoulder and back elevated pain about 15 to 20 minutes after the pour and required treatment. However, it is not clear to me whether this was brought on by her movements in and out of the truck or during the trip in the truck. I can conclude on the balance of probabilities that the plaintiff’s subsequent symptoms were not attributable to any activity of pushing concrete down the chute as alleged. [50] For these reasons, the plaintiff has failed to establish on the balance of probabilities that she manually pushed the concrete mix down the chute of the agitator truck number CA019 on 13 July 2012. Therefore, I’m bound to conclude that the plaintiff’s case must fail. 45 Exhibit 6 46 Exhibit 3 47 T1-70/31 to T1-72/43 48 T1-72/39 - 43 49 Exhibit 3, paras 117-118 & 125-130 50 Exhibit 7 -- 17 of 36 -- Negligence/Breach of Duty [51] Notwithstanding my negative conclusion about those factual matters, as a precaution I will deal with the causes of action had I accepted the plaintiff’s version. [52] The plaintiff alleges that her injuries were caused by the defendant’s breach of its contract of employment and/or breached its duty as employer and/or was negligent by failing to provide and maintain a safe system of work.51 Scope of Duty [53] It is trite that as the plaintiff’s employer, the defendant owed her a duty of care at common law as described in Czartyrko v Edith Cowan University:52 “An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.” [54] The duty is not one of strict liability, but as the High Court said in Andar Transport Pty Ltd v Bramble Limited:53 “The employer’s duty of care encompasses only an obligation to take reasonable steps for the safety of its workers.” [55] Further, in Turner v South Australia,54 Gibbs CJ said: “The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury. The employer is not an insurer of his employees against danger. For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available.” (references omitted) [56] So, in order to establish the necessary causal link between any arguable negligence on the part of the employer and the injury suffered by the employee, it is necessary to show that the measures that it is said the employer failed to adopt would protect the employee from injury, not “could” or “might” have done so.55 51 Second Further Amended Statement of Claim, para 7. 52 Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353 53 Andar Transport Pty Ltd v Bramble Limited (2004) 317 CLR 424 at 439 54 Turner v South Australia (1982) 56 ALJR 839 55 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [26]-[27] per de Jersey CJ; Woolworths Ltd v Perrins [2015] QCA 207 at [173] -- 18 of 36 -- Breach of Duty [57] It is a question of fact as to whether the defendant breached its duty. The court must balance the factors explained by Mason J in Wyong Shire Council v Shirt:56 “In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of 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. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of risk and its degree of probability remain to be considered with other relevant factors.” [58] The defendant employer’s obligation was not merely to provide a safe system of work, but it was obliged to establish, maintain and enforce such a system. Where employees adopted a work practice which routinely exposed them to a significant risk of injury, the High Court held in McLean v. Tedman:57 “In such a situation it is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence. The standard of care expected of a reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence. The employer is not exempt from the application of this standard vis a vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer’s obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risk of injury except those which arise from his own advertence or negligence”. (references omitted) [59] Where the breach is by omission, the plaintiff must clearly identify what should have been done and prove it was unreasonable not to do it in the circumstances. It is not enough to, with the benefit of hindsight, assert that something more might have been done.58 56 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48 57 McLean v. Tedman (1984) 155 CLR 306 at 311 58 Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 at [3] Mason P -- 19 of 36 -- [60] As to hindsight, Gleeson CJ warned in Rosenberg v Percival,59 that: “There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated…” [61] In Vairy v Wyong Shire Council,60 Hayne J explained the prospective nature of the inquiry as follows: [124] Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’. [126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury. … [128] If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated 59 Rosenberg v Percival (2001) 205 CLR 434 at 441 – 442 60 Vairy v Wyong Shire Council (2005) 223 CLR 422 -- 20 of 36 -- because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was — diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.” [62] Against this common law background, the determination of whether the defendant breached its duty is governed by statutory medication in ss 305B and 305C the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) as follows: 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 not been taken earlier) have avoided a risk of injury does not of itself give rise to or affect -- 21 of 36 -- liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.” Relevant risk [63] The relevant risk contended by the plaintiff is the risk of injury from manually pushing the hard concrete down the chute of the truck using her hands and a scraper in circumstances where the plaintiff recently needed chiropractic treatment. [64] The plaintiff relies upon the report of Mr Brendan McDougall of Intersafe,61 in which he opines: This report has described a situation where Ms Wendy Clayton was applying a maximum level one handed push force across the front of her body, whilst standing on the bumper bar of an agitator truck. Shortly thereafter, Ms Clayton started to experience increasing levels of discomfort and pain across her shoulders and lower back. The handling technique used by Ms Clayton prior to pain onset, would always be considered ergonomically unsound. It would be expected that some workers performing such a task will report with musculoskeletal damage. Situations where delivery timeframes have extended beyond expectation, and the workability of the concrete is reducing, would be one of the generic hazards that workers in this industry are likely to encounter, and therefore could reasonably be expected to have been the subject of a generic risk assessment. The use of scrapers is another generic task. The appropriate procedural controls would document and communicate that standing on the bumper bar of an agitator truck under any circumstances (including when maintaining 3 points of contact) and/or applying any large one handed force whilst standing on the ladder, would involve an unacceptable risk of injury from both manual handling and potential falls from height. The procedural control should state that it was unacceptable to allow the workability of the concrete to reduce to the point where it would not flow down the chute, under gravitational force alone. The responsibility of the driver detailed in the procedural control, would involve monitoring the workability of the concrete and discharging the concrete (into a dump site if required), prior to it reaching the situation where it does not flow. Attempting to manually handle concrete, which does not flow down the chute using shovels, scrapers, etc, should be documented as being unacceptable. In this situation, when all water carried on the vehicle had been added to the concrete and the workability of the concrete had reduced to a point where there was a risk that concrete would not flow down the chute, a non-routine situation had developed and a 61 Exhibit 1, Document 4. -- 22 of 36 -- task specific formal risk assessment, potentially involving the client, would also have been appropriate. With the benefit of undertaking a task specific risk assessment, appropriate manual handling training, work procedures, and work culture, workers and supervisors are more likely to recognise the risk in applying one handed push forces across the body at or approaching the limit of muscular strength, whilst standing on a ladder or bumper bar of an agitator truck, as being unacceptable. A potential risk factor in this incident is Ms Clayton’s history of back pain. A minimum management strategy to deal with such a situation, would involve management advising the worker not to undertake any significant manual handling task, and altering work duties to allow this to occur until medical advice was obtained. An ergonomic assessment of work activities and work techniques should also be completed. [65] I accept the defendant’s submission that Mr McDougall’s report and opinion (perhaps more aptly characterised as advocacy) was written through the prism of hindsight. [66] Hindsight has no place in the assessment of the risk of injury. As Garling J held in Benic v New South Wales [2010] NSWSC 1039: “The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play.” Was risk was foreseeable? [67] As to foreseeability of the risk under s 305B(1)(a), it must be one that the defendant knew, or ought reasonably to have known. The analogous provision in the Civil Liability Act 2002 (NSW) considered in Benic v New South Wales62 drew the following remark form Garling J: “… the plaintiff must satisfy the Court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant's position and the obviousness or the likelihood of the event happening when using common sense.” [68] In Erickson v Bagley,63 Kyrou and Kaye JJA said that the question whether the relevant risk was one which the defendant ought to have known “is to be determined objectively, taking into account the particular facts and circumstances subjective to the [defendant]”. [69] I afford little weight to the literature review conducted by Mr McDougall from international jurisdictions. Whilst such literature might be sound from an academic perspective of an occupational health and safety expert, in my view it is a level of knowledge that exceeds the expected knowledge of an employer in the position of the defendant. 62 Benic v New South Wales [2010] NSWSC 1039 at [92] 63 Erickson v Bagley [2015] VSCA 220 at [46] -- 23 of 36 -- [70] Here, the plaintiff was employed in the capacity of a concrete agitator truck driver and she had never been required to perform the task of scraping concrete as part of her work with the defendant. On the commencement of her shift she informed her supervisors Messrs Carver and Geddes of her chiropractic treatment during her time off. However, she did not request immediate time off, but instead foreshadowed leave in the second week of her shift for further chiropractic treatment. She made no current complaint of back problems or limitations, and she was not noticeably impaired or incapacitated. She apparently presented ready and fit to work her shift on the day. Even after seeing Mr Ferguson she was apparently content to accompany Mr McMahon as a mere observer with no defined role. The fact is that no one, not even the plaintiff, anticipated the need for her to push the concrete down the chute of the agi truck as she described. [71] In the circumstances of this case, I am not satisfied that the risk of injury was foreseeable because it was not a risk the defendant knew or ought to have known in relation to the plaintiff. Was the risk not insignificant? [72] In Pollard v Trude,64 Chesterman J held in relation to the significance of the risk as follows: “[39] …The description of a risk which might be ignored as being “not insignificant” replaces the earlier test formulated in Wyong Shire Council at 47-48 of a risk which is “far-fetched or fanciful”. The new formulation adds little in clarity. According to the report of the committee appointed to conduct a Review of the Law of Negligence: The phrase “not insignificant” is intended to indicate a risk that is of a higher probability than is indicated by a phrase such as a “substantial risk”. The choice of a double negative is deliberate. We do not intend the phrase to be a synonym for “significant”. “Significant” is apt to indicate a higher degree of probability than we intend. … [40] Unless a risk is insignificant it should lead to the taking of precautions if it is foreseeable that the risk might lead to harm and if a reasonable person in the circumstances would have taken precautions.” [73] At the commencement of her employment about 6 months before the incident, the plaintiff represented that she was fit to perform the manual handling duties commensurate with the position. She did not disabuse the defendant of this by disclosing that she found her previous employment too heavy,65 or that her current work was too heavy66 or that she was unfit for her shift on 13 July 2012. [74] Whilst the plaintiff asserts that she told Mr Carver of her recent chiropractic treatment, he had already finished his shift and was not the responsible for her supervision on the day in question. He properly referred the plaintiff to Mr Geddes. The plaintiff did not communicate persisting back problems or limitations, nor was she noticeably impaired or incapacitated, to indicate that her work duties posed any risk of injury. 64 Pollard v Trude [2008] QSC 119 65 T1-59/25-43 66 T1-69/20-40 -- 24 of 36 -- [75] In his report, Mr McDougall opined that the handling technique used by the plaintiff “would always be ergonomically unsound”. His assessment is predicated on the plaintiff’s subjective report that she applied “maximum level one handed push force across the front of her body, whilst standing on the bumper bar of the agitator truck”. The posture relied upon by Mr McDougall differs markedly from the plaintiff’s testimony that she had one foot on the ladder, one foot on the back of the truck, and one hand on the chute and then she was pushing with the other hand with a scraper for at least 15 minutes.67 The plaintiff also relied upon medical reports, which correlate the plaintiff’s injury with the alleged activity.68 [76] Critically, the expert evidence lead by the plaintiff is not an objective assessment of the task, including any measurement of the posture, “maximum” force required for the task or its duration. And there is no assessment of whether they exceeded a recognised standard likely to injure a woman of normal fortitude, or even with a degenerative back condition. [77] In my view the expert evidence falls well short of the requisite proof in cases involving manual force as described by McMeekin J held Stitz v Manpower Services Australia Pty Ltd, 69 as follows: [55] As I have said there was no evidence led as to the level of force imposed on the spine by any of the identified risks. In my experience that is invariably proved, as indeed it needs to be, as it is fundamental to the assessment of whether a reasonable employer should respond to the risk. Virtually any activity in life is accompanied by some risk. Hard manual labour obviously carries with it the risk of manual handling injuries. But it has never been the law that an employer must remove all risk of injury. And appeals to general principles such as that the standard of care expected of an employer is high does not fill the evidentiary gap.” … [57] If the forces involved were at a level not likely to injure a man of normal fortitude then the fact that those forces could have been further reduced so as to be even less likely to injure such a man does not establish a need to act. A failure to take such measures does not connote negligence in an employer. …. [110] In my view the facts do not warrant that inference being drawn here. Here the plaintiff was engaged in manual work. Such work has a capacity to injure – particularly if one has a degenerate back, as did the plaintiff. That would be irrelevant if it were shown that the work the plaintiff performed exposed him at the material time to forces that were at a level likely to injure a man of normal fortitude. But that is no shown here.” [78] In these circumstances, the plaintiff has not demonstrated that the risk was not insignificant. Would a reasonable person taken precautions? 67 T1-47/34 - T1-483 68 Plaintiff’s Outline of Argument, para 21 and Exhibit 2 Doc 16 – report Dr Campbell 23.5.13; Exhibit 20, at page 13.3 - report Dr Joureaux 24.5.16; and Exhibit 17 at page 3.4 - report Dr Todd dated 15.9.12 69 Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 -- 25 of 36 -- [79] In relation to precautionary measures, Basten JA remarked about the NSW analogy of s 305(b)(1)(c) in the New South Wales Court of Appeal in Reed v Warburton,70 as follows: “[21] Section 5B appears to be directed to a case where a person who has, or should have, identified a risk of harm, must then take “precautions” against it, as opposed to simply exercising reasonable care in going about his or her activities. For example, in the present case, it makes sense to speak of the use of a heat shield or ensuring the availability of buckets of water as “precautions”: the need to take care not to allow the flame too close to inflammable material is less helpfully described as taking a precaution. The latter simply involves taking reasonable care. The infelicity of the expression of s 5B need not be problematic, but it may be necessary to avoid an unconscious tendency to look for identifiable “precautions” instead of considering whether the responsible party has simply failed to exercise reasonable care.” [80] In deciding whether a reasonable person would have taken precautions against a risk of injury, consideration should be given to, amongst other things, the factors in s 305B(3), namely: the probability that the injury would occur if care were not taken; the likely seriousness of the injury and burden of taking precautions to avoid the risk of injury. I am also cognisant of the other principles in s 305C. [81] There is insufficient evidence to enable me to confidently discern the probability that the injury would occur if care was not taken or the likely seriousness of the injury. However, I proceed on the basis that these matters are satisfied, and focus on the burden of taking precautions to avoid the risk of injury. Alleged failures to take precautions [82] The plaintiff argues that the defendant did not act reasonably to take precautions against the risk of injury by failing to provide and maintain a safe system of work as alleged in paragraphs 5 of the Second Further Amended Statement of Claim as follows: 5(a) (i) The Defendant did not carry out any risk assessment in respect of the risk of injury to the Plaintiff at work, when it knew by its supervisors, Craig Carver and Gordon Geddes, that she had recently experienced back pain symptoms during her 2 weeks off in Cairns and had received chiropractic treatment; (ii) Did not require the Plaintiff to undergo a medical assessment at the mine clinic, prior to commencing the work referred to in paragraph 4(a) thereof, when it knew by its supervisors, Craig Carver and Gordon Geddes, that she had recently experienced back pain and symptoms during the 2 weeks off in Cairns and had received chiropractic treatment. (b) Should not have required or allowed the Plaintiff to do the said work, when it knew she had recently suffered from back pain and symptoms and received chiropractic treatment. 70 Reed v Warburton [2011] NSWCA 98 at [21] per Basten JA (Hodgson JA and Handley AJA agreed) -- 26 of 36 -- (c) Should have instructed the Plaintiff not to perform any manual handling tasks or other physical work [83] The plaintiff’s further allegations in paragraph 7 of the Second Further Amended Statement of Claim can be summarised as follows: (a) The defendant failed to provide and maintain a safe system of work. (b) The defendant failed to provide safe and suitable equipment for the use by the off whilst she was performing the said work. (c) The defendant failed to take any or any adequate precautions for the safety of the plaintiff in all the circumstances. (d) The defendant failed to warn the plaintiff of the risks of injury she was exposed to whilst performing the said work of the risk of injury. (e) The defendant exposed the plaintiff to a risk of injury of which it knew or ought to have known. (f) The defendant failed Required or allowed the plaintiff to carry out the said work when the defendant knew or ought to have known it was unsafe for the plaintiff to do so; (g) The defendant failed to provide any or any adequate assistance to the plaintiff so as to minimise the risk of injury to her whilst performing the said work; (h) The defendant failed to ensure the workplace health and safety of the plaintiff. [84] Many of these allegations are directly or indirectly predicated on the performance of the plaintiff’s “work” or the “the said work”. That activity was defined in para 4(j)(i) of the plaintiff’s pleading a: “The plaintiff went to the rear of the truck and used her hands and a scraper to push the mix down 2 of the chutes on the rear of the truck”. In this regard, as discussed above, I am not satisfied on the plaintiff’s version that the defendant knew or ought to have known that the plaintiff would do this work; she did so instinctively and voluntarily. It seems to me that a reasonable person would not have taken precautions in that regard. [85] I should say something more about the allegations that the defendant: (a) Failed to require the plaintiff undergo a medical assessment before commencing duties on 13 July 2012; 71 (b) Failed to instruct the plaintiff not to perform any manual handling tasks or other physical work. [86] The plaintiff argues that the defendant, by Mr Carver and Mr Geddes, breached its duty of care to the plaintiff by allowing her to start work, without instructing her to attend the mine medical clinic for assessment of her back condition and otherwise by not instructing her to perform any physical work. In this way, it is argued that the plaintiff’s supervisors, especially Mr Geddes, 71 Second Further Amended Statement of Claim, Para 5(1)(ii) -- 27 of 36 -- failed to comply with the defendant’s own memorandum of 4 January 2012.72 The relevant parts of that memorandum provide: “An employee arriving at work and informing the supervisor of a non work related injury, or if the supervisor can visibly see a physical injury NOT to allow the employee to commence work. By doing so we are legally accepting the person “as is” in he or she’s current condition, and any work carried out during this shift by the employee that causes aggravation of the injury will result in it becoming a work related case. … An employee who arrives at work (residential or during normal rostered days on) and informs the supervisor of being injured or away from work, or if the supervisor can physically see the person is injured or ill, are to stop them from commencing work and accompany them to site medical centre for review. Supervisor is to ensure the site medic is aware that the injury is not work related.” [87] It is argued that Mr Geddes should have attended with the plaintiff at the mine medical clinic to ascertain what duties she was capable of performing and to ensure that she performed only light duties. [88] I do not accept those arguments. The plaintiff’s reports of receiving chiropractic treatment to Mr Carver was vague and general, and even more so to Mr Geddes. I do not accept that her vague references to chiropractic treatment somehow ought to have alerted those supervisors about some work or non-work related injury, and even less, some existing injury. Further, I do not accept that those matters had sufficient gravity to override the plaintiff’s own assessment that she was fit to work for the shift. [89] In any event, it is common ground that the plaintiff would merely accompany Mr McMahon on the concrete run as a mere observer with no defined role. It seems to me that this course was sufficiently precautionary at that stage, and a reasonable employer would have not have taken any further precautions against a risk of injury in the circumstances. Causation [90] Section 305D provides for a two limb test as to whether a breach of duty caused the plaintiff’s injury. Section 305E prescribes that: “In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation”. [91] The plaintiff has not proved on the balance of probabilities that her injury was caused by any a breach of duty on the part of the defendant. Assessment Damages [92] Notwithstanding my conclusion reached on liability, it is appropriate that I address the issue of quantum in any event. 72 Exhibit 1 document 9 -- 28 of 36 -- [93] The assessment of damages is to be at common law, subject to the provisions of the Act73 and the Workers Compensation and Rehabilitation Regulation Qld 2003 (“the regulation”). General Damages [94] The plaintiff has a significant history of lower back pain with sciatica. [95] She apparently told Dr Parry on 19 July 2012 of back problems all her life.74 She indicated to Dr Todd on 15 September 2012 that she had a history of 10 years of sciatica.75 The plaintiff used non-prescription pain relief and otherwise obtained chiropractic treatment at the Bauer Chiropractic on 17 April 2009, 9 November 2011, 18 January 2012 and 30 June 2012 for back pain including sciatica.76 These mattersevidence that the plaintiff’s pre-existing degenerative back condition. [96] In his report dated 2 June 2016,77 Dr Campbell opined that the plaintiff had sustained a musculoskeletal injury to her thoraco-lumbar spine. Dr Camplbell previously considered that the radiological evidence was normal for the plaintiff’s age and her pre-existing bulges were minor and insignificant.78 He noted that the plaintiff’s treatment included Panadeine Forte, Oxycontin, Lyrica, Endep, Diazepam, physiotherapy and CT guided lumbar injections. He considered that further recovery was unlikely and her current symptoms and restrictions are likely to persist indefinitely. Dr Campbell assessed the plaintiff’s whole person impairment for the thoraco-lumbar injury at 8%. He apportioned 30% (previously 20%) as being attributable to pre-existing pathology, leaving 5.6% attributable to the work injury. [97] In contrast, Dr Todd was of the opinion that the Plaintiff should make a full recovery from her work injury. In cross-examination Dr Todd agreed that the plaintiff’s pre-existing degenerative changes in her spine were relatively minor,79 and he also agreed that the injury accelerated symptoms that may not have occurred for years.80 Dr Todd acknowledged that it is usual for tissue injuries to resolve over 3 months but no more than 2 years. Even so, he conceded that about 2% of people have ongoing chronic symptoms for years. [98] Dr Journeaux accepted that the plaintiff sustained an acute soft tissue injury to her thoraco- lumbar spine but believed that she should have made a good recovery within 6 weeks and he was unable to explain the plaintiff’s continuing symptoms, except by referring to “psycho- social factors”. However, under cross examination,81 Dr Journeaux accepted that there are occasions when people don’t recover from musculoligamentous strain injuries as expected and its “possible” that some patients take 12 months, even two years, to get better. [99] It seems to me that the plaintiff has not realised the recovery expected by Dr Journeaux and Dr Todd. 73 Sections 306 to 306P 74 Exhibit 2, p 15 – Report Dr Parry19 July 2012 75 Exhibit 17, p 11 – Report Dr Todd 15 September 2012 76 Exhibit 16 77 Exhibit 2, document 17 78 Exhibit 2, document 16 79 T3–35/20-40 80 T3–36/22-34 81 T3–23/1-30 -- 29 of 36 -- [100] The plaintiff has received physiotherapy treatment from Ms Munro throughout 2013.82 Ms Munro said that during massages she regularly detected “tenderness on palpitation” being an objective sign of pain.83 Whilst her treatment provided short term relief, it failed to produce any no long term improvement.84 [101] The medical records of the plaintiff’s treating general practitioner, Dr Sanouiller, also noted the plaintiff’s ongoing chronic pain since July of 2012.85 The plaintiff describes her current symptoms in her quantum statement as follows: 86 “I suffer pain in my lower and upper back. The pain travels right down the legs. My feet swell up when that happens. Certain activities aggravate the pain. These include forward bending, long periods of sitting, standing or walking and lifting. On a good day I rate the pain as 4/10. On a bad day I rate the pain as 9/10. To alleviate these symptoms I use pain medication and lay down. Now I have learnt to cope with the pain. I am careful with what I do to not aggravate it. I can do most things but if I do I will suffer for it afterwards.” [102] Having weighed up all the medical evidence, I prefer the opinion of Dr Campbell to that of Dr Journeaux and Dr Todd. I accept that the plaintiff continues to suffer chronic back pain since July of 2012 and has a permanent impairment of 5.6% whole person attributable to the concrete scraping activity in accordance with the opinion of Dr Campbell. [103] The plaintiff submits that the proper categorisation of the injury is within item 92 of schedule 9 of the regulation being Moderate thoracic or lumber spine injury – soft tissue. The injury scale value (ISV) range for this item is 5 to 10. On the contrary, the defendant contends that the plaintiff’s injury is within item 93 being a Minor thoracic or lumbar spine injury with an ISV range of 0 to 4. [104] It seems to me that the plaintiff ought be categorised in the low end of the range of Item 92 being an ISV of 7. Therefore, I assess general damages in the sum of $9,410.00.87 Economic loss [105] The plaintiff claims that her impairment as reduced her working capacity resulting in past and future economic loss. Her counsel argues that as a consequence of her injuries, the plaintiff has been unable to return to her normal duties as a concrete truck driver/operator with the defendant. 82 T2-35 ff 83 T2-39/4-27 84 T2–42/25-35 85 Exhibit 2, document 15 - Omega Health Medical Centre 86 Exhibit 3, p17 87 Calculation: being ISV7 – 5) x $1,530 + $6,350; Regulation, Schedule 12, Table 3 – For an injury sustained from 1 July 2012 to 30 June 2013 (dates inclusive). -- 30 of 36 -- [106] The defendant argues that the plaintiff had reached the stage of being unable to cope with her work due to her pre-existing condition, and she would have ended on the mines closure in January 2014. [107] Section 306J of the Act provides: 306J When earnings can not be precisely calculated (1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. (2) The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. (3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. (4) The limitation mentioned in section 306I(2) applies to an award of damages under this section. [108] In Allianz Australia Insurance Limited v McCarthy,88 White J remarked about the analogous provision, s 55 of the Civil Liability Act, as follows: “[47] ... Section 55(2) of the Civil Liability Act mandates that a court may only award damages if satisfied that the person injured will suffer loss of earnings. In this, the provision does not alter the common law. [48] In Graham v Baker Dixon CJ, Kitto and Taylor JJ noted: “… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.” That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission: “A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute ahead [sic] of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the diminution of … earning capacity is or may be productive of financial loss.” 88 Allianz Australia Insurance Limited v McCarthy [2012] QCA 312. -- 31 of 36 -- [49] In Nichols v Curtis Fraser JA, with whom the President and Chesterman JA agreed, observed of a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury: “The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that that [sic] she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.” [50] His Honour continued: “Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity had been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.”” (Footnotes omitted.) [109] At the time of her injury the plaintiff was earning an average of about $1,125 nett per week. She has utilised her annual and sick leave entitlements and has not earned any other income since 13 July 2012. She was on leave without pay from about February 2013. She unsuccessfully attempted a Return to Work Program and the defendant terminated her employment on 18 February 2014. [110] I am satisfied that the plaintiff, in her current and stable state, is incapable of working as a concrete truck driver/operator. Accordingly, I conclude that the plaintiff’s earning capacity has been diminished because of her injuries. An examination of the plaintiff’s working capacity before and after the injury must be taken into account to assess the extent of any loss of working capacity and whether it sounds in economic loss. [111] Prior to her work injury, the plaintiff had a good work record,89 however, her pre-existing health problems did disrupt her working life. [112] In 2009 she worked as a concrete agitator truck driver for Wagners. Since that time she has experienced a significant history of back pain.90 Indeed, she found the work at Wagners “too heavy”, which lead to her first chiropractic treatment with Bauer Chiropractic for back pain with sciatica.91 The plaintiff then worked for Troncs to transport fruit and vegetables. After that the plaintiff did some mining truck work, which also apparently caused her grief with 6 months of back pain. The plaintiff’s back condition was clearly symptomatic and affected her capacity to work when she started with the defendant in late November 2011. 89 Exhibit 3 at paragraph 143 90 Exhibit 2, p 15 – Report Dr Parry19 July 2012 & Exhibit 17, p 11 – Report Dr Todd 15 September 2012 91 Exhibit 8 -- 32 of 36 -- [113] In the pre-employment process, the plaintiff dishonestly concealed her medical history despite ongoing treatment, including chiropractic treatment only 15 days before.92 I resist speculation of whether the plaintiff would have been successful had her true state been revealed. [114] The plaintiff continued to endure back problems during the defendant’s employ resulting in further chiropractic treatment on 18 January 2012 and 30 June 2012 for back pain including sciatica.93 On 6 June 2012 an MRI scan of her lumber spine revealed minor disc bulges of the thoracolumbar junction. Yet, it was only after the alleged incident on 13 July 2012 that plaintiff disclosed to Mr Geddes and Mr Dunn that she found her work was too heavy.94 It seems to me that she was referring to her work generally rather than the alleged incident. As to the nature of the plaintiff’s work, I accept Mr Ferguson’s evidence that it was the lightest work available with the defendant in a driving role, and that the plaintiff by reason of her stature would not have been suitable for the normal role staff performed in underground mining. [115] Ms Hague, occupational therapist, reported that the plaintiff would be precluded from commercial employment. The Plaintiff had a grade 9 education and low self efficacy for occupational tasks.95 Unfortunately, the evidence of Ms Hague has been eroded by the plaintiff nondisclosure self-employment activity and her true functional capacity in relation to those activities.96 In those circumstances, her opinion had been rendered impotent. [116] In his report dated 2nd June 2016,97 Dr Campbell opined that the plaintiff is commercially unemployable due to the chronic lower back pain complaint and difficulties with sitting, standing, walking, lifting and bending. In his evidence, Dr Campbell remarked about the plaintiff’s working capacity as follows: “So what – what we have – prior to work injury we have a – we have a natural history of her back complaint over the years – over many years which – which was a grumbling, intermittent back pain which didn’t interfere with her day to day work activity. So if the subject work accident had not occurred, it is likely she would have continued in that fashion as she moved to her early, mid, late 60’s. So it’s likely she would have remained in the work force. However, taking into consideration she – was a truck driver, I think there would be a natural history that after the age of 62, she would then move into sedentary type work to retirement age of 67, but that’s (indistinct) what I feel her natural history would have been had the subject accident not occurred.”98 [117] Dr Todd agreed that the plaintiff’s pre-existing degenerative changes in her spine were relatively minor,99 and he also agreed that there was no reason why she could not have worked as a truck driver for several years. Dr Journeaux testified that the plaintiff was likely to be able to work as a truck driver for several years with her pre-existing condition.100 [118] It seems to me that but for the alleged incident and despite the plaintiff’s concealment of her true physical state, I think she was likely to endure working with the defendant as a agitator 92 Exhibit 16, p 3 93 Exhibit 16 94 T1-69/20-40 95 Exhibit 2, documents 20 and 21 96 T2-51/35 - T2-52/46 97 Exhibit 2, document 17. pp 8 to 10 98 T1–85/17 - 26 99 T3–35/20-40 100 T3–23/1-30 -- 33 of 36 -- truck driver for a period. However, in my view the plaintiff’s employment would have ended in January 2014 when the mine contract with Byrnecut ended. At that time, I do not accept that the plaintiff would have been suitable for similar truck driving work with the defendant or anyone else. She would have been on the open labour market with a reduced working capacity for more sedentary work in any event. Having said that, with time I think it likely that the plaintiff would have realised employment in a role commensurate with her age, health and experience, including less arduous work than she might have achieved in Townsville as a truck driver, earning $850 to $900 nett per week. Any transition would have involved uncertainties and delay, which ought be reflected in a discount of 25%. It seems to me that the plaintiff’s residual earning capacity would be in the order of $600 per week, and I adopt the mean of $375 as her weekly loss of earning capacity. [119] On this basis, I assess the plaintiff’s past economic loss at $95,906.25, being $58,500.00 for 52 weeks at $1,125 net per week leading up to the mine closure at the end of January 2014 and $69,375.00 for 185 weeks at $375 per week, then discounted by 25% for the contingencies. [120] I also allow interest on past economic loss of $4,961.21 using the agreed half yearly bond rate of 1.135% calculated on past economic loss for 237 weeks from 13 July 2012. [121] I will allow past superannuation loss of $8,631.56 using the rate of 9%. Future economic loss [122] An award for future economic loss should equate to the reduction in the plaintiff’s earning capacity to the extent that it may be productive of financial loss. This is difficult to assess with precision using a defined weekly loss since the plaintiff has not realised her post mine career. [123] The plaintiff is now 58 years old and intended to retire at 63. [124] I do not accept that she is commercially unemployable. She has demonstrated a stoic, resilient and determined attitude to work life despite her problematic back condition. Indeed, she has also demonstrated these traits by her engagement in Multi-Level Marketing on Facebook. It is likely that but for the aggravation of her pre-existing impairment the plaintiff would have realised employment in a role commensurate with her residual working capacity for about 9 years until her voluntary retirement at age 63. I think that the plaintiff will have been limited to more sedentary work on a part time or casual basis due to her pre-existing condition in any event. In the circumstances it is not possible to precisely calculate future economic loss and a global sum is preferred. [125] On that basis I will allow a global award of $50,000.00 for future economic loss. In doing so, I rationalise the outcome adopting $350 net per week and using the 5% multiplier of 190 for 4 years to achieve $66,500, and then applying a discount of about 25 % for contingencies in the plaintiff’s life and vocation. [126] I also allow $5,500.00 for future superannuation being 11% of future economic loss. Future Expenses [127] The plaintiff contends that $15,000.00 should be allowed for future expenses in reliance upon Dr Campbell’s opinion. In contrast the defendant contends that any ongoing expenses are sensibly due to the plaintiff’s pre-existing condition and the opinion of Dr Journeaux and Dr Todd should be preferred. -- 34 of 36 -- [128] Dr Campbell opined that surgery, especially fusion surgery, was not advisable, and would most likely worsen the plaintiff’s condition. However, consistent with the evidence (which I have preferred above) he recommended that plaintiff might benefit from a short course of physiotherapy and/or alternative therapies (6 to 8 sessions @ $70 - $100 per session) for any acute exacerbations of her lower back injury that may occur in the future. In his first report dated 20 May 2013, Dr Campbell considered it reasonable for the plaintiff to undergo a further trigger point injection to the thoraco-lumbar spine at a potential cost of $2,000 to $3,000. It is likely that the plaintiff will require medical intervention, other treatment and medication for pain management. [129] It seems to me that the plaintiff will require continuing medication for pain relief, which may be acute at times, as well as other conservative treatment, rehabilitation and retraining. I will allow a global amount of $5,000.00 for future expenses of this kind. Special Damages [130] There is a refund to WorkCover of $10,042.43 and also a refund to Medicare of $4,596.70. I will allow half of the claimed $4,641.66 that the plaintiff has incurred herself for medical, pharmaceutical, travel and rehabilitation expenses as set out in her quantum statement. [131] I will allow $17,000.00 for future medical expenses. Care & Assistance [132] The plaintiff claims for 2 occasions of paid cleaning services, and she also claims for future paid care for 10 years in reliance upon Ms Hague’s evidence. In her report dated 18 July 2016, Ms Hague is of the opinion that the plaintiff reasonably requires 1.25 hours per week for cleaning at a rate of $35 per hour. [133] The defendant disputes this claim on the basis that it is incredible, not required and the evidence of Ms Hague should be given little weight. [134] It seems to me that the plaintiff will require paid care form time to time consistent with my findings above, and I will allow the plaintiff an award of $5,000 for past and future paid care and assistance being one third of the claim. Summary [135] In summary, I assess $191,391.34 as damages after refunds to WorkCover is as follows: General damages $9,410.00 Past economic loss $95,906,25 Interest on past economic loss $4,961.21 Past superannuation $8,631.56 Future economic loss $50,000.00 Future superannuation $5,500.00 -- 35 of 36 -- Conclusion [136] For these reasons, I give judgment to the defendant against the plaintiff. [137] Unless either party applies for a different costs order within 14 days of this judgment, I will also order that the plaintiff will pay the defendant’s costs of the proceeding (including reserved costs) to be assessed on the standard basis. Future expenses $5,000.00 Special damages $17,000.00 Care & Assistance $5,000.00 Sub-total $201,409.02 Less WorkCover refund -$10,042.43 Total $191,366.59 -- 36 of 36 --