Beaven v Wagner Industrial Services Pty Ltd [2016] QDC 299

DISTRICT COURT OF QUEENSLAND CITATION: Beaven v Wagner Industrial Services Pty Ltd [2016] QDC 299 PARTIES: DAVID ALLEN BEAVEN (Plaintiff) v WAGNER INDUSTRIAL SERVICES PTY LTD (ACN 105 730 489) (Defendant) FILE NO/S: D42/2014 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Ipswich DELIVERED ON: 24 November 2016 DELIVERED AT: Brisbane HEARING DATE: 18 November 2015 JUDGE: Richards DCJ ORDER: Claim dismissed. Judgement for the defendant. CATCHWORDS: PERSONAL INJURY - TORTS – NEGLIGENCE – BREACH OF CONTRACT - EMPLOYER AND EMPLOYEE – LIABILITY - where the plaintiff was injured at work when he tried to unlock a truck door by pulling on the unlocking pin with vice grips– whether the defendant breached its duty of care as an employer - whether the defendant was liable for the damage suffered by the plaintiff. Workers Compensation and Rehabilitation Act 2003 Worker’s Compensation Rehabilitation Regulation 2014 Amaca Pty Ltd v Booth (2011) 246 CLR 36 Czatyko v Edith Cowley Investing (2005) 214 ALR 349 Prasad v Inghams Enterprises Pty Ltd [2016] QCA 147 Thomas Borthwick & Sons (Australasia) Ltd v Stapleton [1996] QCA 185 Vairy v Wyong Shire Council (2003) CLR 422 Woolworths Ltd v Perrins [2015] QCA 207 -- 1 of 22 -- 2 COUNSEL: Anderson S D for the plaintiff Farrell S T for the defendant SOLICITORS: Shine Lawyers for the plaintiff BT Lawyers for the defendant [1] The plaintiff has claimed damages for negligence and/or breach of contract on the basis of:  a failure to provide a safe system of work;  failure to take all reasonable steps to implement, monitor and enforce the system of work in effect;  failure to not require or permit the plaintiff to work in a manner that would or was likely to cause injury to the plaintiff;  failure to provide adequate assistance and supervision to ensure the plaintiff would not or was not likely to injury himself in the course of his employment;  failure to provide adequate plant and equipment to ensure the plaintiff could undertake his employment in a manner that was not likely to cause injury;  failure to not expose the plaintiff to a risk of injury where a reasonably prudent employer in the position of the first defendant would not have done so. [2] The relevant agreed facts are that:  the plaintiff was employed by the defendant  the defendant was engaged in the business of selling and supplying concrete and had premises at 20 Airy Street, Wacol where the plaintiff was employed as a concrete agitator/truck driver and the defendant was an employer as that term is defined by s 30 of the Workers Compensation and Rehabilitation Act 2003  the plaintiff was a worker as that term is defined by s 11 of the Act -- 2 of 22 -- 3  the plaintiff’s duties required him to drive concrete trucks to various locations and to operate the truck so that the concrete could be emptied as required  on 10 January 2011 the plaintiff returned to work after a period of two weeks’ holiday and was assigned a concrete truck TKA 292 by the defendant which truck was owned, registered and operated by the defendant [this was the plaintiff’s usual truck]  the plaintiff had been trained and instructed by the defendant to undertake a prestart check of the vehicle at the commencement of each shift and report any defect or malfunction requiring repair, his employment duties included a requirement to perform maintenance matters of a minor nature such as changing light bulbs, wiper blades and tightening wheel bolts, and  it is common ground that the plaintiff did not suffer or experience pain at the time of the alleged fall or at any time on 10 January 2011. [3] Liability and quantum are in issue. Facts [4] On 10 January 2011 the plaintiff, Mr Beaven had been employed by the defendant for almost seven years as a truck driver. He described what happened on that day as follows: “What happened on that day? – I walked over and put the key in the – in the door of the passenger side of the truck, I turned the key and it was – it was jammed. So I took the key out and went around to the driver’s side of the truck and unlocked it, climbed up into the cab and tried to pull the unlocking pin with my fingers. That didn’t work so I reached down under my seat and grabbed a pair of vice grips, attached them to the unlocking pin, gave it a couple of tugs and when the pin came loose it gave – the vice grips came off and I fell backwards into my seat, twisted, and then carried on as normal. Did you feel anything when you twisted and fell back into your seat? – Not at the time. It was just a – just a falling jar.” 1 [5] He didn’t feel any pain until he woke up the next morning and then the pain was in his lower back, down across his right buttock into his hip, down his leg in the thigh, 1 T1-6, line 5. -- 3 of 22 -- 4 into his knee and he experienced cramps all the way down his leg into his feet. Brisbane was in flood at the time, so he simply called work and arranged for more time off work. During the next four days he saw Doctor Singh, his local GP, who diagnosed sciatica and prescribed Naprosyn and Panadol. Later in the week he was referred for a scan and he was diagnosed with a pinched nerve with a disc prolapse. He accepted in cross-examination that when he first went to the doctor on 13 January 2011, he did not mention twisting or falling backwards, he simply described the pain he was experiencing. He went back to the doctor on 16 and 18 January 2011. He went back to work on 17 January 2011 and he spoke to William McNamara, the plant manager, on 19 January about his condition. He was asked how he made the connection between unlocking the truck and his symptoms: “It was the only thing I had done for a number of weeks, the only physical activity that I had, and it was the only thing that could have caused any of it.” 2 [6] He stayed at work until August 2011 but the pain kept increasing and it got to the point where he was unable to work anymore. He had surgery to alleviate his pain in December 2011. He remains in pain. [7] Evidence was given in relation to the repair system at Wagners. Steven Goodenough, the equipment technical manager at Wagners, gave evidence that the fleet vehicles were serviced and maintained every 300 hours with increasing services up to 2,400 hours and then the cycle began again. There was also a service check list. The National Heavy Vehicle Accreditation Scheme inspection was carried out on the plaintiff’s truck on 16 October 2010 and, provided there were no system errors that prevented it, it was done every six months after that. He had no personal knowledge of work done on the plaintiff’s truck. 2 T1-9. -- 4 of 22 -- 5 [8] William McNamara, the plant manager at Wagners, gave evidence that on the first day back after the Christmas break the plaintiff told him that he had hurt his back using vice grips to open a door lock. He then inspected the vehicle with Peter Steele. He unlocked the door with his hand from the inside as the door did not unlock with the key. He was able to lift it up with his fingers. He indicated he had never had any training in the risks involved in adopting an awkward position inside a truck or what forces might be different on the body and potentially cause injury in reaching across the truck. He would not expect to put the truck in the workshop if he could open the door from the inside. [9] Over objection, Justin O’Sullivan, a safety consultant and ergonomist, gave some evidence of the mechanics of movement in the circumstances of this case. He has done work on risk assessments for concrete truck drivers as part of his employment as a consultant. He looked at the mechanics of attempting to lift up the door lock with vice-grips and concluded that the force was “not insignificant but was enough to require some moderate to significant muscular effort, which when that muscular effort was unopposed, that is when the vice-grip slipped off, it was enough to cause him to move backwards and lose balance.”3 The fact that the manoeuvre was done out from his body made a significant difference to spinal stress. He said in relation to manual handling training it should be applied at the work place and training and education was needed in relation to avoiding awkward positions. The training should include discussions about reaching out and lifting at a distance, freedom of foot placement, good basic support and how to do a basic risk assessment. He said the training should be done every year and there should be check lists about manual handling, visible posture and heavy loads. He said there would not be training about 3 T3-12 line 35. -- 5 of 22 -- 6 how to lift up a lock pin but it would be more general training about not getting into awkward positions and risk assessment. Mr O’Sullivan was not aware of the content of the training modules that the plaintiff had completed. Experience and training [10] Mr Beaven joined the Navy out of school and then went into the Army. He qualified as a forklift driver and did various labouring jobs. The Army trained him as a truck driver and he worked there for nine years as an aerial delivery specialist driver. Whilst there, he participated in advanced training in truck driving including extensive training on the maintenance of vehicles, how to change tyres and effect minor truck repairs. Whilst in the Army he was also trained in how to lift and move goods. [11] Before joining Wagners, Mr Beaven had worked for JN Nicholson Transport, Unitrans, Pioneer, Readymix, Nielsens, Boral and Sunmix. His work with those companies was of a similar nature, namely general transport and concreting. He had received training in how to secure a load and how to strap it down. He had received a certificate III in Transport and Logistics Road Transport from Wagners including securing cargo, maintaining his hand tools, carrying out vehicle inspections, load and unload goods and cargo, load and unload vehicles carrying special loads. Most of that training was about procedures he already knew. He accepted that he had extensive experience in his field. [12] Mr Beaven accepted that he was aware of the need to follow occupational health and safety procedures and that his driver’s manual stressed the importance of daily vehicle inspections. He agreed that there were maintenance workshops available if his truck needed repairs. The trucks were regularly serviced and if there were any faults in the truck the driver was required to enter them in the vehicle log. -- 6 of 22 -- 7 [13] Peter Steele was the original driver trainer at Wagners and then became the workplace health and safety officer. He indicated that drivers would be expected to fix small things that went wrong but otherwise they would take it to a repair shop. He trained the drivers in risk assessment, however, that was mainly relating to outside sites. He said the original driver training from the Army would have included manual handling and maintenance of vehicles. It was part of his duties to go out with drivers and make sure that they were performing their duties correctly and in a safe manner. He gave evidence that he had assessed Mr Beaven between 15 and 20 times and never had any concerns about his competency. He had observed him operating the concrete shute which weighed between 7 and 10 kilos on many occasions and he employed the correct technique. In terms of opening up the passenger door of the vehicle Mr Steele said: “ If that door didn’t open I’d expect the driver to jump into the cab stand over the gear stick and have a go with the door because I mean you’re going to - if it’s not going to open doing that then you’re going to report it and you’re going to say well, yes, there’s a fault here. I tried to open it and it hasn’t opened. So therefore I’m going to fill out my vehicle repair request. I have tried to open it and it won’t open so let’s get it fixed.” 4 Injuries and lifestyle [14] Mr Beaven did not feel pain on 10 January 2011 but the next day felt significant cramp-like pain down his lower back, across his right buttock, into his hip, thigh and continuing down to his feet. He had injections in his spine which helped initially but then the pain returned and eventually surgery was necessary. He still experiences pain. [15] As a result of his injuries he was also affected emotionally. He said: 4 T1-75. -- 7 of 22 -- 8 “Any number of problems like financial stresses, feeling down and I mean really down like I was thrown on the scrap heap. At 55 you know it’s just too much, it just weighs too heavily on you especially the financial stuff.” 5 [16] When describing his lifestyle before and after the injury, he said he taught martial arts many years ago, he enjoyed fishing and camping and he would to take his children away from time to time. Since the injury he is unable to ride his motorcycle anymore because of the pain medication he needs. He says he had to have people in initially to mow but now he does it himself but not as often as he would like. [17] He has previously had emotional difficulties when his marriage dissolved in 2006. He said in terms of his mental health right now he is more emotional since the injury: “There are times when I think back to things or some things start to stress me out and I get a bit teary… I think back to the break up and my father passing and extreme financial hardship.” 6 [18] Since the surgery he has brought a caravan and he has gone on approximately four trips altogether with one trip to the Cape lasting two and a half months. After the surgery he bought a boat and he has been out on that on three or four occasions although it quite often hurts his back. He had planned to retire around 65. [19] Mr Beaven’s wife has not worked since 2006. She is quite unwell with a frozen shoulder and chronic kidney disease since 2007, two strokes in 2010 and 2012 and breast cancer in June 2014. Mrs Beaven gave evidence that she began to have ill health from 2007, she has had two strokes, stage 3 renal failure, osteoarthritis and depression. She requires full time care because she has balance issues. Mr Beaven currently cares for her. 5 T1-16, line 35. 6 T1-18. -- 8 of 22 -- 9 [20] Mrs Beaven talked about Mr Beaven being in pain the day after he was at work and having to be helped to go to the toilet because of the pain. Now he doesn’t help as much around the yard or with housework and after the operation someone needed to be around in case he needed any help with his showering. His daughter, Alicia Beaven, gave evidence that he had a bad back in June/ July 2010 and that this had made him impatient and angry. He used to take Panadol Osteo before he went to bed sometimes to relieve the pain. He is unable to pick up his granddaughter. I accept for the purposes of this trial that Ms Beaven is mistaken about the timing of the onset of Mr Beaven’s back pain as it is inconsistent with all of the other evidence in the trial. Medical evidence [21] Psychiatric evidence was received from Dr Foxcroft who saw Mr Beaven on 5 July 2013 and Dr Whiteford who saw him on 4 December 2013. They both agree that he suffers from depression and that whilst there are other stressors in his life, pain is one of the significant contributing factors to his major depression. Dr Whiteford noted that with better pain management and accepting treatment for his depression he should improve. Dr Whiteford said his condition was not permanent. He did have a history of past depression. He did not disagree with Dr Foxcroft’s assessment of 7 per cent disability on the basis of the depression that he suffered and 7 per cent on the PIRS scale. He recommended treatment of 12 sessions, $220 a session and anti- depressant medication at $35 a month. [Mr Beaven has given evidence that he is no longer taking medication]. Dr Foxcroft in his evidence said: “Mr Beaven obviously has a tendency to get depressed when he experiences ongoing stressors….. the primary ongoing stressor is the pain in his back and the restriction that arises from that.” 7 [22] A number of experts gave evidence about Mr Beaven’s back injury. 7 T3-37, line 20. -- 9 of 22 -- 10 [23] Dr Le Leu is a specialist in occupational medicine. He noted in his report of March 2013 that Mr Beaven had a CT scan of the lumbar spine on 19 January which confirmed disc and facet joint problems. He had a number of CT guided spinal injections, his medication was increased and he had physiotherapy at an Ipswich hospital. The CT guided injections stopped the pain for about six weeks but once they wore off the pain was more severe. He continued to work with the pain but eventually found this to be beyond his capacity. Dr Le Leu maintained that Mr Beaven has a poor prognosis due to the degree of degeneration on his lumbar spine. He also has secondary depression. [24] Dr Le Leu gave evidence that his symptoms may well have been precipitated by the incident which he described as awkward twisting and falling backwards. It is likely that he had pre-existing degeneration of the lumbar spine which was asymptomatic and this has been made symptomatic by the incident described. He further said the incident is the ideal situation for a back injury to occur and that he thought there was a causal link between the accident as described and the symptoms he was experiencing. Dr Le Leu noted that he had some improvement in the subsequent months after his operation. Dr Le Leu agreed that there are circumstances where the degenerative processes upon a disc may result in a situation where any event might cause a prolapse to occur but noted that one would expect that it would be an event that involves stress on the area concerned. He accepted that even the act of turning over in bed might bring on such a problem. He said “you don’t have to be lifting anything you just have to be bending forward and supporting the weight of your body”.8 Twisting is the important operative action with production of a disc protrusion. He did defer to Professor McPhee’s opinion because Professor McPhee 8 T 3-77. -- 10 of 22 -- 11 had examined the plaintiff, two years ago and seven months after Dr Le Leu’s consultation with him. [25] Professor McPhee first saw Mr Beaven on 6 October 2011 to review his symptoms and prognosis. His initial report noted: “It is unlikely that non-operative treatments will make any substantial difference. Physical therapies are unlikely to result in any substantial or sustained improvement. Ongoing treatment will depend on analgesia to control the pain or any other modality found to be helpful. His reliance on narcotics is of some concern. A regular exercise program to maintain lumbar spine, mobility, trunk strength and aerobic fitness is advised.” 9 He further examined Mr Beaven on 19 October 2015 and provided a report dated 20 October 2015 where he stated: “1. Mr Bevan sustained an acute rupture of the L4/5 inter-vertebral disc during the course of his work on 10 January 2011. He developed right radicular symptoms and signs. 2. When his symptoms failed to resolve despite extensive non- operative treatments, he underwent a far lateral discectomy at L4-5 on 15 December 2011. 3. Mr Bevan has residual low back, bilateral buttock and right groin pain. He has no radicular signs or symptoms. There is moderate restriction of lumbar spine flexion. 4. Mr Bevan has a 13 per cent whole person impairment of the lumbar spine (DRE Category 3). 5. The claimant’s condition is stable and stationery and reached maximum medical improvement.” [26] His conclusion is that: “On the balance of probability the incident on 10 January 2011 has resulted in an acute strain and rupture of the L4/L5 intervertebral disc resulting in an acute protrusion.”10 [27] He also opined that if he had not sustained this injury in 2011 there was no reason why he would not have been able to continue to work in the capacity of a truck driver 9 Page 3, report no.1 dated 10 October 2011. 10 Report of Dr McPhee dated 20 October 2015, p4. -- 11 of 22 -- 12 until his normal retirement age. He is no longer fit for work. He says he has a DRE Category 3 impairment of the lumbar spine which equates to a 10 to 13 per cent whole person impairment and the maximum impairment of 13 per cent WPR would be appropriate. In cross- examination it was suggested that the longer the period of time between a positive cause and the onset of symptoms the less likely there will be a causative connection but Professor McPhee indicated that he thought there was sufficient in this case to say there was a nexus between cause and effect. [28] Dr Licina saw Mr Bevan on 17 October 2013. He did not disagree with Professor McPhee’s findings but was unable to draw a firm conclusion about causation because of the pre-existing degeneration of the spine. He said that the plaintiff was at serious vulnerability in terms of a similar injury occurring over the five years since 2011 because of that degeneration. He said often these protrusions occur without any precipitating event and the fact that he did not realise that he had injured himself means that the cause of injury remains unclear. He agreed with Professor McPhee’s assessment of impairment as 13 per cent and that it is all attributable to the disc prolapse. He said that if the fall had caused the prolapse then he would have expected pain at the time of the injury, either leg pain occurring hours or days afterwards with back pain at the time of the injury. [29] Evidence was given from Dr Brazel, an orthopaedic surgeon, who initially saw the plaintiff about hip pain possibly caused by bursitis. He organised for an injection which did not make any difference to the pain so that excluded bursitis as a cause for the hip pain. He said a large percentage of people are asymptomatic with trochanteric bursitis so he regarded the bursitis as an incidental finding which would normally remain asymptomatic. -- 12 of 22 -- 13 [30] In relation to the medical evidence I accept the evidence of Dr Le Leu and Professor McPhee where it differs from Dr Licina. I accept the psychiatrist’s evidence that Mr Beavan suffers from depression and the primary cause is the ongoing pain and associated stressors form that pain and his inability to work. Liability [31] I found the plaintiff to be an honest witness generally and his explanation of his fall to be consistent and reliable. He did not attempt to exaggerate his symptoms or his disability and his conclusion that it was the fall that caused the injury is, on the balance of probabilities, consistent with the medical evidence that I accept. I therefore accept for the purposes of liability that Mr Bevan fell backwards awkwardly when trying to unlock the front passenger door of his truck. The precise mechanism of the fall is not known but it seems likely that there was some twisting involved when he fell back. Although he did not experience any pain from the fall, I accept that this was the cause of the pain he experienced the following day. In terms of causation I accept that the injury was caused by the incident on 10 November, the preponderance of evidence seems to be that it is likely that that was the cause and the mechanism of the injury. [32] The duty owed by an employer to an employee is that outlined in the High Court in Czatyko v Edith Cowley Investing (2005) 214 ALR 349: “An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there is a real risk of an injury to an employee in the performance of a task in a work place, 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 the case of repetitive work.” -- 13 of 22 -- 14 [33] The duty owed by the employer must be looked at prospectively not retrospectively11. [34] The plaintiff in this case was an experienced truck driver. He had ongoing training and monitoring whilst working for the defendant. He was assessed in the work place twice a year. He had received training in how to maintain his vehicle over decades, including extensive training in the Army. He has Certificate III in Transport and Logistics which includes subjects such as handling hand tools and pre-start inspections. In this case the plaintiff did receive extensive training in manual handling and continuing training and assessment. [35] The company provided each driver with training and a professional driver’s handbook. There was also a maintenance management system which required daily vehicle inspections with all faults noted in the repair log. There was regular maintenance on all trucks within the fleet and it was made clear to all employees that they should not undertake any repairs other than general maintenance and minor repairs. [36] The plaintiff bears the onus of establishing the system of work which created a foreseeable risk of injury. Attempting to lift a door lock is an activity within the purview of general checks on the truck, however, the plaintiff, upon being unable to lift the lock manually decided to use vice grips to pull it up. This was an activity that was not within the normal course of activity and evidence was given by Peter Steele that while it would be expected that an employee might try to lift the lock from the inside of the truck, that if that was unable to be done then the matter should simply be reported as a fault. It was the act of using the vice grips in this case that caused the plaintiff to be in an awkward position and therefore fall in the manner that he did. 11 See Vairy v Wyong Shire Council (2003) CLR 422, Hayne J at 1240. -- 14 of 22 -- 15 There was regular maintenance on their trucks and the plaintiff acknowledged that if he had been unable to unlock the door he would in fact have done something about the door by going to the maintenance. [37] The question arises in this case as to whether the training firstly was sufficient and secondly whether there should have been additional training in relation to risk assessment for awkward positions and finally whether, in any event, the appellant would be likely to have acted any differently if the further training had been offered. [38] It was submitted by the plaintiff that truck driving is by nature a job which is largely autonomous and accepted that the action of lifting the pin on a door could hardly be seen to be one that might necessarily or even foreseeably cause injury. However, the plaintiff submits that it would be foreseeable in his task of effecting minor repairs that a driver might use a tool to try to unlock the door and in doing so would be placed in an awkward position. The plaintiff maintains that the evidence of Justin O’Sullivan suggests that measures ought to have been taken to instil in the defendant’s employees the need to assess risk before undertaking any unusual activities. Justin O’Sullivan concedes that there is unlikely to be training on how to lift the pin on a door but maintains that training in risk assessment around lifting and reaching out at a distance would make the employee able to assess whether to proceed with the activity. [39] There does not seem to be any suggestion in this case that the defendant’s system of maintenance of the trucks was in any way defective. The drivers were required to report faults in a log and it was accepted that this was an appropriate means of identifying faults in trucks. It was a requirement of the driver that they perform a pre- start check and the professional driver’s handbook required that if fault was found drivers are to cross an initial pre-start and complete the repair request book. Any -- 15 of 22 -- 16 faults that are found that make the vehicle unroadworthy, must be reported to the supervisor immediately.12 [40] There is no suggestion that this particular fault, that is that the passenger’s door lock was sticky, was known before 10 January 2011. However, it is acknowledged that a driver would change oil and do basic repairs of a minor nature and it is uncontroversial that there were tools in the truck for the purpose of effecting those repairs. [41] In these circumstances, it is not unreasonable that if the passenger side door did not open from the outside, that Mr Beaven would try to open it from the inside. Mr Steele acknowledged that that would be an appropriate way to act. Again, in my view, it is not unreasonable that if there were tools within the truck that the plaintiff might try to use an appropriate tool to open the pin lock if he was unsuccessful. Given that this seemed to be a new problem, if there was some minor jamming of the pin lock then that may easily have been fixed without the need to put the truck into the mechanic and it would not be unreasonable for him to act in that manner. [42] The evidence of Mr O’Sullivan as to the further training that should take place in relation to risk assessment of awkward positions is a matter that needs careful consideration. The evidence of Mr O’Sullivan was that it was important that there be continuing training in manual handling such that an employee, such as the plaintiff, is in a position to make a risk assessment so that they would not put themselves in an awkward position which could cause injury. [43] The plaintiff had received ongoing training on 15-20 occasions, including a recent certificate III in transport and logistics. I note that the driver assessment reports 12 Trial bundle 83. -- 16 of 22 -- 17 include an assessment for following occupational health and safety procedures and safety management on 23 April 2010 that included: “The candidate demonstrated skills and knowledge required to follow and apply OHS procedures in carrying out work activities, including identifying the following workplace procedures for hazard identification and risk control, contributing to arrangements for the management of occupational health and safety, and completing occupational health and safety records”.13 This included competence in: “Hazards in the workplace were identified and appropriate action was taken to report them or to minimise or illuminate risk to personnel, workplace and the environment; where relevant procedures and precautions necessary for entry into compliance bases in the workplace were correctly followed, he was deemed competent in assessing risks when using manually operated equipment to ship loads and related precautions to control the risk”.14 [44] On 24 May 2010 the plaintiff was assessed in relation to road transport as being able to modify activities depending on differing operational contingencies and environments. Whilst it was accepted that mostly these were just operational observations by Mr Steele, the difficulty in assessing whether the training was insufficient was that there was no evidence of the fault in manual handling training or what additional training would be necessary for Mr Beaven to have decided not to act in the way that he did on the day in question. As such there is no evidence, to suggest that had he had further training in relation to risk assessment that he would have acted any differently than he did on the day in question particularly given that he had no knowledge of the pre-existing vulnerability in his back. [45] The defendant submits that given the training that the plaintiff had received over the years, the court could not conclude that further manual handling training would have made any difference to his actions that day. It is submitted that, despite his training, 13 Trial bundle 103. 14 Trial bundle 105. -- 17 of 22 -- 18 the additional training would have made the difference and he would have refrained from using the vice grips in the way that he did. There is no specific evidence that he would have behaved differently had he had additional training, however inferences can be drawn by the court as to the likely behaviour of the plaintiff as was noted in Thomas Borthwick & Sons (Australasia) Ltd v Stapleton [1996] QCA 185: “There is often a difficulty in clearly demonstrating what would have happened in the absence of the employer’s negligence. All the court can reasonably do is draw an inference to the likely response of the employee to an effectively communicated instruction and warning”. 15 In this case the plaintiff was not aware that he had a degenerative back condition and he had already leant across to try and pull up the pin lock with his hand. In my view it is unlikely that he would have changed his actions when he thought that the vice grips would fix the problem. [46] To succeed on causation, the appellant has to establish that there is more than simply the existence of an association between the respondent’s breach of duty and the occurrence of his condition. In Amaca Pty Ltd v Booth, French CJ observed: “The existence of an association or a positive statistical correlation between the occurrence of one event and the subsequent occurrence of another may be expressed as a possibility, which may be no greater than a ‘real chance’ that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement, relevant to factual causation in law, that the first event ‘creates’ or ‘gives rise to’ or ‘increases’ the probability that the second event will occur. Such a statement contains an assumption that if the second event occurs it will have some causal connection to the first. However, if the association between two events are shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause of that occurrence. An after-the- event inference of causal connection may be reached on the civil standard of proof, namely, balance of probabilities, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a ‘mere possibility’ or ‘real chance’ that the second event would occur given the first event”. 16 15 Per Williams J, p8. 16 (2011) 246 CLR 36 at 53-54 [43]. -- 18 of 22 -- 19 [47] In Prasad v Inghams Enterprises Pty Ltd17 Boddice J considered the causal link necessary to prove negligence, relying on Woolworths Ltd v Perrins: “That requirement was also considered by McMeekin J in Woolworths Ltd v Perrins: ‘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’: Queensland Corrective Services Commission v Gallagher; Turner v South Australia. In that latter case Gibbs CJ said: ‘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: Duyvelshaff v Cathcart & Ritchie Ltd’ (citations omitted). 18 [48] In my view the plaintiff has failed to prove that had there been further training and signage that the plaintiff would have acted any differently on the day in question and accordingly the plaintiff has failed to prove that the defendant is liable for his injury. [49] If I am incorrect in this assessment then I assess damages as detailed below. Quantum General damages [50] The plaintiff’s spinal injury falls into category 91 in the Worker’s Compensation Rehabilitation Regulation 2014 (WCRR) as a moderate thoracic or lumbar spinal injury – fractured disc prolapse or nerve root compression or damages with injury 17 [2016] QCA 147 at [94]. 18 [2015] QCA 207 at [173]. -- 19 of 22 -- 20 scale value (ISV range of 5-15). Psychiatric injury falls into category 12 of the WCRR, moderate mental disorder with an ISV range of 2-10. [51] It is agreed between the parties that the dominant injury is the lumbar injury and that allowing for the multiplicity of injuries an uplift on the lumbar allowance is appropriate. The defence submits that an uplift to 12 is appropriate, providing general damages of $16, 250. The plaintiff submits an uplift to an ISV of 19 is appropriate, namely $28, 720. In my view the appropriate uplift would be 15 and that equates to general damages in the sum of $21, 200. Past economic loss [52] It is agreed that net weekly earnings at the time Mr Beaven ceased work was $908.28. He ceased work on 24 August 2011. That equates to 274 weeks up to 24 November 2016. The defence submits, and I agree, that a sum of $40 per week should be deducted for travelling expenses and that leaves a net loss of $868.28. It is further suggested by the defence that there should be some discounting because the plaintiff’s underlying degenerative condition could well have manifested in any case in the ensuing time as he had significant degeneration that could have caused the disc protrusion at other times, including when he was carrying and erecting shutes which weighed in the order of 7-10 kilograms. He also has a very ill wife who requires full- time care, and whilst it was suggested that the children could take over that care, obviously that may not have always been possible and I agree that there should be some discounting for that factor. [53] A maximum loss for past-economic loss is $237, 908.72 on a weekly wage of $868.28. In relation to the discount, I will discount that sum by 30 per cent which leaves a total of $166, 536.104. -- 20 of 22 -- 21 [54] The plaintiff received net statutory weekly benefits of $25, 777.53 and that figure needs to be deducted prior to calculating interest at 1.505 per cent, being the ten year treasury bond rate of 3.01 per cent divided by two pursuant to s 306N of the Worker’s Compensation Rehabilitation Act 2003, should be calculated on the net figure of $140,758.57 over 274 weeks, $11, 080.948. Special damages [55] Special damages are agreed at $44, 537.35. The Fox v Wood component $5, 078. Interest on that sum calculated at a rate of 3.01% p.a. on 5.838 years comes to $333.86. Future economic loss [56] Future economic loss is calculated on the net wage of $908.28. There should be some discount for future contingencies given the difficulties that the plaintiff had with his degenerative back condition and the illness of his wife. He was already obese, and as his children age the demands of his wife will become more significant. Therefore he is entitled, in my view, to future economic loss in the sum of $908.28 per week for five years and then a discount should be allowed for the above matters that I have discussed. In my view that should be a discount of some significance reducing the future economic loss to $145, 000. The future economic loss calculation on a multiplier of 271 is $205, 119.90 and discounting by 30 per cent is $143, 583.93. I will round that to $145, 000. [57] Past superannuation is calculated at 9 per cent of $166, 536.104 to $14, 988.25. Future superannuation is calculated at the rate of 9.5 per cent and that comes to $13, 775. -- 21 of 22 -- 22 [58] There is very little evidence in relation to the cost of medication which Mr Beaven still takes or whether there was actually ongoing expenses or the costs of programmes or sessions other than the psychiatric sessions. It seems be appropriate that a general allowance for future expenses in the sum of $10, 000 is appropriate. [59] Therefore the quantum is as follows: General damages: $21, 200 Past economic loss: $166, 536.10 Interest on that amount: $11, 080.95 Special damages: $44, 537.35 Interest on that amount: $333.86 Fox v Wood component: $5078 Future economic loss: $145, 000 Past superannuation: $14, 988.25 Future superannuation: $13,775 Future expenses: $10, 000 Subtotal: $432, 529.51 Less WorkCover refund: $62, 888.22 Total: $369, 641.29 -- 22 of 22 --