Butcher v Inflight Logistics Services Pty Ltd [2016] QDC 101

DISTRICT COURT OF QUEENSLAND CITATION: Butcher v Inflight Logistics Services Pty Ltd [2016] QDC 101 PARTIES: BRAD STEVE BUTCHER (Plaintiff) v INFLIGHT LOGISTICS SERVICES PTY LTD (Defendant) FILE NO/S: 3793/14 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Queensland District Court DELIVERED ON: 5 May 2016 DELIVERED AT: Brisbane HEARING DATE: 19-22 October 2015 JUDGE: Moynihan QC DCJ ORDER: 1. Judgment for the plaintiff in the amount of $47,261.95. 2. The parties are at liberty to make any written submissions on costs by 4.00pm on 9 May 2016. CATCHWORDS: TORTS – PERSONAL INJURIES – DAMAGES – QUANTUM – Where plaintiff received an electric shock in the course of his employment – Where liability was admitted – Where plaintiff claims he suffered physical and psychiatric injuries as a result of the electric shock – Where defendant disputes any personal injury as such, or personal injuries to the extent claimed – Whether the electric shock caused the plaintiff personal injury – Extent to which damages should be assessed. Workers Compensation and Rehabilitation Regulations 2014 (Qld) Tabet v Gett (2010) 240 CLR 537 COUNSEL: J Wiltshire for the Plaintiff S Gray for the Defendant -- 1 of 11 -- 2 SOLICITORS: Shine Lawyers for the Plaintiff Bruce Thomas Lawyers for the Defendant Introduction [1] The plaintiff was employed by the defendant to drive a truck to designated aircraft at Brisbane Airport, and then load and unload food and beverage trolleys. [2] On 22 January 2013, the plaintiff was working at the defendant’s premises at Eagle Farm when he grasped an electrical cord and the metal frame of a hydraulic “bin lifter”, and received an electric shock. [3] The shock entered his body at his left hand, in which he held the electrical cord, and travelled through his body before exiting at his right hand. It was a “latch on/latch off” electric shock. A co-worker observed the plaintiff lying on the ground five to 10 seconds after the shock. He was conscious, lying on his side holding his right upper arm and he said, “the fucking bin lifter got me”. He was shaking and his pulse was erratic. [4] The plaintiff was taken by ambulance to the Royal Brisbane Hospital. He suffered no burns, and was clinically tested and observed while at the hospital, and then discharged later that day. [5] The plaintiff, who was born on 31 May 1972, claims he suffered personal injury as a consequence of the electric shock. [6] He specifically claims to have sustained “an electric shock injury” with symptoms that include “pain in both shoulders, arms and hands, pins and needles in the hands, hand swelling, reduced grip strength, weakness and easy fatigue in the arms, intermittently sweaty hands, some muscular weakness and pain in the chest, headaches and nausea and reduced memory and concentration”. -- 2 of 11 -- 3 [7] Further, he claims to have sustained a psychiatric injury in the form of “post- traumatic stress disorder and adjustment disorder with depressed mood or major depression”. [8] The plaintiff contends that as a result the award of damages should be in the order of $330,254.13, calculated as follows: 1. General damages: $44,600.00 2. Special damages: $10,476.10 3. Interest on special damages: $21.88 4. Past economic loss: $50,381.48 5. Past loss of superannuation: $4,660.29 6. Interest on past economic loss: $2,043.43 7. Future loss of earning capacity: $188,190.00 8. Future loss of superannuation: $19,759.95 9. Future expenses: $13,000.00 10. Fox v Wood: $121.00 [9] In an unrelated incident in January 2008, a roller door struck the plaintiff’s head while he was working. As a result he suffered an injury to his cervical spine with pain in his neck and shoulder. At that time he also had diffuse degenerative disease in the cervical spine, which was asymptomatic but likely to cause him trouble in five to 10 years’ time. In December 2008 he was assessed by Associate Professor Dr Peter Steadman as suffering a five to eight percent impairment to his whole body. The Defendant’s Liability [10] The defendant admits the plaintiff suffered an electric shock and that it was caused by its negligence and breach of contract. The defendant contends that the plaintiff did not suffer personal injury at all, or alternatively, did not suffer personal injury to the extent claimed. The Quantum of Damages [11] The issue is whether the electric shock caused the plaintiff personal injury, and if so, what damages should be allowed to compensate the plaintiff. [12] The plaintiff has to prove, on the balance or probabilities, that the electric shock caused him damage in the form of personal injury. -- 3 of 11 -- 4 [13] In Tabet v Gett (2010) 240 CLR 537, Kiefel J, with whom Hayne, Crennan and Bell JJ agreed, said at p. 578 [111] that to prove causation: The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty. (footnotes omitted) [14] In Tabet, Hayne and Bell JJ explained at p.564 [66], that “damage” means: For the purposes of the law of negligence, “damage” refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant’s negligence was a cause of that difference. The comparison invoked by reference to “difference” is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred. (footnotes omitted) [15] I accept that, on the whole of the evidence, the more probable inference is that the electric shock caused the symptoms of which the plaintiff complained to his general medical practitioner, Dr Champika Jinendradasa, on 25 January 2013, 29 January 2013 and 5 February 2013. The symptoms included: stress, anxiety, irritability, poor sleep, dizziness, aches and pains, electrical spasms and episodic shooting pain in the left upper limb. [16] The issue then narrows to the nature and extent of that injury, and the degree of damage. The Physical Injury [17] The plaintiff gave evidence that the shock ran up his left hand and his whole body shook. He said that, while in hospital that day, he felt scared and dizzy and experienced pain in his body. The pain was worse in his hands and shoulders, and his muscles felt contracted and tight. In the days after the shock, the pain eased a little, however he experienced problems sleeping, nausea and dizziness. He had flashbacks. He said when he saw Dr Jinendradasa on 29 January 2013 he was still experiencing muscle spasms and had pain in his shoulders and hands. The plaintiff said that after -- 4 of 11 -- 5 he returned to work on restricted duties there were days when he would have to go home early due to pain in the his hands and shoulders, nausea or dizziness. Those symptoms persisted, and in addition his hands started to swell and his arms more rapidly fatigued from work. This occurred in the period before he resigned his position with the defendant on 22 November 2013. The plaintiff explained the pain he felt in his hands and fingers was a tingling followed by a burn. The pain in his shoulders, which was not present prior to the electric shock, was a constant “burn”. The plaintiff received minor relief from the shoulder pain following a course of cortisone injections into each shoulder. The plaintiff gave evidence that in November 2013, in addition to his other symptoms, “my hips started to play up”. This was the first time the plaintiff had specifically complained of hip pain. [18] The plaintiff said he felt tired, down, angry and empty in the weeks immediately following the injury. He said “I wasn't feeling happy. I wasn't feeling as myself”. He did not feel equipped to do his job. He experienced regular flashbacks to the incident. He felt that he was useless and not wanted by the defendant. Initially he refused to touch electrical items but that reluctance lessened with time. His relationship with his wife deteriorated as a result. He found the counselling sessions provided by the defendant “very helpful”. [19] The plaintiff’s evidence was that the physical symptoms have largely remained since the time of the electric shock. [20] In relation to the physical consequences of the shock, Dr Chris Andrews, who is a general medical practitioner with a particular interest in electric shock cases, concluded the plaintiff suffered the “typical consequences" of such a shock. The consequences included: 1. the initial shaking of the left arm and shoulder and subsequently a burning pain in both shoulders, arms and hands; 2. sweating hands; 3. paraesthesia in the tips of all fingers caused by sudden motion; 4. a weakness in grip strength, and in the arms and shoulders; 5. fatigue of the arms following minimal sustained effort; 6. weakness and pain at the peak of the anterior chest with some minor involvement of the leg muscles and back; and 7. headache and nausea. [21] Doctor Andrews, in his report of 21 December 2013, said: -- 5 of 11 -- 6 Mr Butcher was injured by an electric shock from current capable mains firmly applied L hand to R hand. He is suffering typical physical and psychological effects of the injury, typical in quality, and while there are physical injuries, typical psychological aspects are extremely disabling. The mechanism of injury is highly plausible and entirely consistent with his presentation. [22] Doctor Andrews conceded that, in general, it is important to look for objective signs of injury to support the subjective symptoms. Further, that it was very important to perform neuropsychological tests to determine the nature of the injury. He said: “… that neuropsychological testing will tend to objectify evidence that one would consider from the examination of the patient.” [23] Doctor Scott Campbell, a neurosurgeon, examined the plaintiff on 20 September 2014. He diagnosed a neurological electric shock injury mainly affecting the upper limbs and concluded the current symptoms of headaches, nausea, dizziness, insomnia, anxiety, lower limb spasms, chest tightness and upper limb burning pain, swelling and numbness were unlikely to improve. He said: Mr Butcher has a range of symptoms as a result of the electric shock injury. The predominant limiting symptom appears to be upper limb and hand burning pain, numbness, weakness and swelling. His overall impairment would be in the order of 6% Whole Person, predominantly due to the upper limb symptoms which are most likely neurological in nature and secondary to the electric shock injury. [24] Dr Campbell’s opinion was influenced by his belief that the plaintiff was thrown two to three metres by the shock and landed on the ground. I am not satisfied, on the whole of the evidence, that the plaintiff was thrown that distance by the shock. The plaintiff did not give evidence of being thrown. He said he could not recall how he came to be on the ground but recalls lying there. I accept he told Dr Alison Reid on 4 March 2013 that “he was able to let go” and then his memory became fuzzy. The idea that the plaintiff was thrown a distance was something that seemed to creep into his narrative to doctors who saw him later in time. His evidence was that he did not recall how he ended up on the ground. Doctor Campbell did not consider any shoulder or neck injury to be related to the electric shock. Finally, he gave evidence that this was not within his field of expertise and that his diagnosis was general and based on a constellation of symptoms and given the uncommon nature of electric shock injury he would defer to the opinion of a specialist in the area of the body said to be injured. -- 6 of 11 -- 7 He acknowledged the there was no “radiological or nerve conduction proof of those injuries”. [25] I am satisfied that the plaintiff suffered a minor electric shock and suffered physical symptoms that would have resolved within a short period of time because: [26] First, the doctors at the hospital examined the plaintiff and found no evidence of serious injury and discharged the plaintiff the same day. [27] Secondly, by 12 February 2013, Dr Jinendradasa could not explain the ongoing physical symptoms and referred the plaintiff to a neurologist. [28] Thirdly, that specialist, Dr Christopher Staples, examined the plaintiff and reported on 4 April 2013: There is nothing amiss neurologically. The reflexes are 1-2+ and the knee jerks are 3+. Both plantars are non-responsive. All sensory modalities are intact. There are no cerebellar signs. The cranial nerves are normal. There is restricted shoulder abduction to about 90 degrees bilaterally and somewhat worse on the right. No obviously arthropod is present in the hands. Unfortunately, it is only the passage of time and perhaps physiotherapy and increasing the amitriptyline that will improve matters. I can only reassure Brad that he has not sustained any serious injury. [29] Fourthly, Dr Alison Reid, a neurologist, accepted that it was probable that the physical symptoms the plaintiff reported to Dr Jinendradasa up to 5 February 2013 were related to the shock but that they would diminish with time. Doctor Reid examined the plaintiff on 4 March 2013 and 5 May 2014. In her report regarding the first examination, Dr Allison concluded that at that time “There is no clinical evidence of any neurological or other organic injury”. She added that she believed “Mr Butcher has over-valued his injury and his symptoms of pain and cramps are largely perceptual”. Dr Reid ultimately said “… there has been no evidence found by any examiner of an organic injury affecting any tissue, organ, system or function of the body.” [30] Fifthly, Dr Brett Halliday, an orthopaedic surgeon who examined the plaintiff on 1 December 2014, did not find any orthopaedic injury attributable to the electric shock. He concluded: -- 7 of 11 -- 8 From an orthopaedic point of view, I could find no evidence of any injury. The restricted range of motion of the cervical spine left and right shoulder are consistent with pre-existing conditions and their natural history. [31] Finally, Dr Gavin Ballenden, a consultant occupational physician who examined the plaintiff on 13 August 2013, was of the opinion the electric shock was minor and would have caused only short term depolarisation of nerve ending and muscle soreness. He said: This man’s symptoms are not related to electrical exposure and have no correlation to the suggested mechanism of injury. This man has no discernible physical injury and has never had any discernible physical injury, hence his discharge, after monitoring only, from hospital. He has never required treatment for the electrical exposure of any direct nature. Psychological Injury [32] I accept the plaintiff’s evidence that the electric shock caused him to become anxious and depressed. This affected his relationship with his wife and children and his ability to work for a time. He also avoided electrical items for a period of time. I accept the plaintiff suffered flashbacks. [33] Professor Harvey Whiteford, a psychiatrist, diagnosed the plaintiff with suffering an adjustment disorder with mixed anxiety and an unstable mood. He conceded in cross examination that if the plaintiff had told him of flash back or nightmares, that would support a diagnosis of post-traumatic stress disorder, and the post-traumatic stress disorder can be caused by the experience rather than the physical symptoms. Dr Whiteford said “… (PTSD) can arise from the trauma of actually experiencing an event which the individual believed could be seriously injuring or fatal for them.” [34] I prefer the evidence of Dr Byth, a psychiatrist, who said in his report of 21 February 2014: I found that, as a result of the electric shock injury, he has developed PTSD, along with prominent associate anxiety and depression. This condition is causing moderate psychiatric impairment and will need specialist treatment over the next 2 years. [35] Further, in his report of 23 September 2014, Dr Byth said: I thought there was little doubt that Brad Butcher is suffering from moderately severe, Class 3, psychiatric impairment as a result of the electric shock injury at work. I believe he is capable of some work, however he has -- 8 of 11 -- 9 a moderate impairment of his capacity for paid work because of continuing symptoms of PTSD, anxiety and depression. General damages [36] I will make some small allowance under this head for the physical injuries I have found would have resolved within a short time after the electric shock when assessing the injury scale value for the psychological injury. [37] In relation to the psychological injury, I accept Dr Byth’s conclusion in his written report of 21 February 2014 that as a consequence of the post-traumatic stress disorder, the plaintiff suffers a whole person permanent impairment of 17% under the psychiatric impairment rating scale (PIRS). [38] The parties accept the PIRS rating was assessed as required under schedule 10 and 11 of the Workers Compensation and Rehabilitation Regulations 2014 (the WCRR). [39] I find the plaintiff has a serious mental disorder: see schedule 9, item 11 of the WCRR. I take into account the PIRS rating, the plaintiff’s age, insight and the effect the psychological injury has had and will have on the plaintiff’s work, personal relationships with others and his social and recreational activities in finding the injury scale value is 21. That equates to general damages in the amount of $35,400: see schedule 12, item 5, table 3 of the WCRR. Special damages [40] There was no dispute as between the parties that the plaintiff was entitled to $10,476.10 as special damages. Economic loss [41] The plaintiff’s evidence was that his inability to work at all in the weeks immediately after the electric shock and his reduced capacity thereafter was due primarily to the physical injuries. [42] On the plaintiff’s return to work on reduced duties he felt unhappy, useless and underutilised. He resigned on 22 November 2013 because the defendant did not give -- 9 of 11 -- 10 him sufficient work hours. The plaintiff’s claim that he was bullied and treated badly by unidentified employees of the defendant after the electric shock is not supported by the evidence of his co-workers or managers, and I am satisfied the defendant treated the plaintiff properly, and that the defendant expeditiously and effectively dealt with any complaint made by the plaintiff and appropriately managed his return to work after the electric shock. His return to work program was managed by an external provider, Kinnect. I also accept the evidence of Adam Higgs, who was the defendant’s operations manager, that before the electric shock the plaintiff was an average worker unlikely to be promoted. [43] In any event, after he resigned the defendant commenced other employment and his evidence was that it was his physical injuries, in particular pain in his shoulders, hands, legs and hip, that inhibited his ability to do that other work and limited the hours he could work in his current job, which involves him driving a motor vehicle. [44] The finding that the physical injury resolved within a short period of time limits the plaintiff’s economic loss. [45] The plaintiff did not identify his psychological disorder as restricting his employment at these times. The defendant said that other than the physically demanding aspects of his subsequent jobs driving vehicles, he had “no problems otherwise with driving”. More generally, his evidence was: Okay. How do you feel that your mood is now or your personality? - - - It’s good now because of - because I’m working. I have a job that I like doing. I - all the problems that I have financial wise with the house and things like that was sold out and thing like that. So I’m feeling more positive, and I can see where I intending to go, where I want to go in life, which is to make sure my kids are well provided for… [46] In all the circumstances I will allow past economic loss for the period from the date of the electric shock until the plaintiff went to Trinidad in August 2013. For the period of 24 weeks, between the date of the incident and the end of the 2013 financial year, the defendant lost $7,956.28. I calculate the amount for the whole period to be $9,945.35 ($331.51 x 30 weeks). I will allow interest for 2.75 years at 1.35% and an amount for lost superannuation entitlements at 9.25%. [47] There will be no allowance for future expenses. -- 10 of 11 -- 11 [48] In summary, I conclude that judgment should be entered for plaintiff in the amount of $47,261.95, calculated as follows: Head Of Damage Amount General damages $35,400.00 Past economic loss $9,945.35 Interest on past economic loss at 1.35% $369.22 Past loss of superannuation entitlement at 9.25% $919.94 Fox v Wood $121.00 Future economic loss $0.00 Future loss of superannuation entitlements $0.00 Special damages $10,476.10 Future special damages $0.00 Sub total $57,231.61 Less WorkCover refund $9,969.66 Total $47,261.95 [49] The parties are at liberty to make any written submissions as to costs by 4.00pm on 9 May 2016. -- 11 of 11 --