Adam v Skilled Group Limited and Anor [2013] QSC 7

SUPREME COURT OF QUEENSLAND CITATION: Adam v Skilled Group Limited and Anor [2013] QSC 7 PARTIES: RICHARD CRAIG ADAM Plaintiff And SKILLED GROUP LIMITED First Defendant And NATIONAL FOODS LIMITED Second Defendant FILE NO/S: 579/11 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Rockhampton DELIVERED ON: 8 February 2013 DELIVERED AT: Supreme Court Rockhampton HEARING DATE: 30, 31 January, 1 February 2013 JUDGE: McMeekin J ORDER: 1. Judgment for the plaintiff against the first defendant in the sum of $16,235.88 2. Judgment for the plaintiff against the second defendant in the sum of $27,250.01. CATCHWORDS: DAMAGES – MEASURE OF DAMAGES – LIABILITY - PERSONAL INJURIES – GENERAL PRINCIPLES – where the plaintiff suffered injury to his lower back at work – whether a metal hook was used at work – whether he used metal hook contrary to instructions – whether the plaintiff was forced to use the hook – whether the plaintiff suffered any injury – whether the plaintiff was credible – where damages are in issue Civil Liability Act 2003 (Qld) COUNSEL G.C.Crow SC for the Plaintiff -- 1 of 14 -- 2 A.S.Mellick for the First and Second Defendants SOLICITORS: Bressington and Partners for the Plaintiff Bruce Thomas Lawyers for the First Defendant Carter and Newell Lawyers for the Second Defendant [1] The plaintiff, Richard Craig Adam, claims damages for personal injuries which he alleges were suffered on 5 March 2010 in an incident at his workplace. He was then employed by the first defendant, Skilled Group Limited, on a labour hire contract. His labour had been hired to the second defendant, National Foods Limited. He was employed as a labourer in a warehouse, picking and packing milk products. [2] The defendants have filed cross claims for contribution but have resolved the issues between them. As against the plaintiff both liability and quantum of damages are in issue. [3] The plaintiff was born on 14th June 1964 and so he is presently aged 48 years and was aged 45 years at the time of the alleged injury. Liability [4] The plaintiff alleges that at about 5.00pm, on 5 March 2010, which was a Friday, he injured his back while he was using a steel hook to manually handle a stack of crates of milk. He alleges that the stack was six crates high. Making assumptions as to the likely co-efficient of friction of a typical plastic milk crate on a dry concrete surface (the relevant type of surface) an engineer has calculated the “minimum pull force”1 required to move a stack of six crates as being 33kg. [5] Mr Adam alleges that by reason of the positioning of the stack in relation to other stacks of crates within the warehouse it was necessary that he pull one handed on the metal hook and to the side of his body. There was thus some twisting of his spine. Evidence was lead of an opinion held by Mr Brendan McDougall, an engineer who specializes in industrial safety, that, given the minimum pull force required, “the restricted access to stacks of crates in the centre of the block stack would ….. make a system of work using hooks to move stacks ergonomically unsound.” 2 [6] The defendants did not contest this opinion. [7] Nor was there any contest that if the factual basis for the engineer’s opinion was accepted then the defendants were in breach of duty and liability would be established. [8] What the defendants did contend was that the plaintiff was not a witness of credit and that his account of what had occurred should be rejected. [9] There are four key issues. The first is whether the plaintiff in fact used a metal hook. The second is whether, if he did so, he did so contrary to his instructions. The third is whether he was forced to use the hook because of the way in which the 1 Ex 1 at p7 2 Ex 1 at p15 -- 2 of 14 -- 3 crates were stacked. The fourth is whether the plaintiff suffered any injury as a result of using the hook in the manner alleged. [10] There was a sustained attack on the plaintiff’s credit which I will deal with the detail of below. There are reasons to scrutinize the plaintiff’s evidence with some care however on the crucial issues it seems to me that his case on liability should be accepted. [11] As to the use of the metal hook the plaintiff maintains that the hook was frequently used by workers and that it was necessary to use it because of the way in which the stacks of crates were set up. The workers were provided with forklifts and trolleys which could be used to move pallets of crates or stacks of crates about. The plaintiff contended however that when the stacks were placed too close together the trolleys could not be used because they could not be manoeuvred into position and it was then that the hooks were used. [12] The defendants contested these allegations. They called the second defendant’s logistics co-ordinator, who was effectively the supervisor of the warehouse, Mr Rangitihi, who denied each of these allegations. He claimed that the workers were instructed never to use the hooks, that he had never seen workers use the hooks, that hooks were not supplied and that the stacks were so placed that the trolleys could be used. There was no reason to think that Mr Rangitihi was anything but an honest witness. He has no interest in the outcome of the matter, he is no longer employed by the second defendant having been made redundant some time ago and he impressed as a careful witness. [13] The only reason that I accept the plaintiff’s case in this regard is that he is supported by another worker, Mr Lachlan Campbell. Mr Campbell was called in rather peculiar circumstances which I need not detail. The relevant point I think is that he was not shown to have any interest in the matter, had no ties to the plaintiff and was no longer employed by the first or second defendants. He gave his evidence in a straightforward and natural manner and he supported the plaintiff in the allegation that employees of the first defendant working at the second defendant’s plant frequently used such hooks and did so because of the positioning of the stacks of crates. [14] It may be that Mr Rangitihi did not see this occur, the complex being apparently of a substantial size and he attended in the relevant part of it only from time to time. Or it may be that he has now forgotten the incidents that occurred. It is relevant that the warehouse was only open for several months and these events occurred nearly three years ago. [15] Submissions were made about the significance of the contents of incident reports generated by each defendant. It would seem that a report of the incident was made only to the first defendant’s staff and a report prepared on 10 March 2010.3 The report prepared by Mr Rangitihi for the second defendant was merely a copy of that. The description of the event in the report largely matches the plaintiff’s present account. The report refers to a mechanical aid being utilised. The plaintiff’s side submitted that the hook was the aid referred to. The defendants contended that the reference was more sensibly to the trolleys provided. Normally I would agree with 3 Ex 7 -- 3 of 14 -- 4 the defendants’ view but their difficulty is that no one was called to assert that the plaintiff’s present account differed from his account of 10 March. That absence of evidence is telling. [16] As to the second issue it is far from clear that there was any instruction that the workers were not to use the hooks to move stacks of crates. There was certainly an instruction that they were not to use the hooks to move pallets of crates4 but that is a different issue. It would seem from the evidence that the second defendant placed the important instructions in writing and copies of the relevant documents were given to the workers and posted on the noticeboard. No document has been produced that contains an instruction not to use the hooks on stacks of crates. [17] The fact that an instruction not to use the hooks exists tends to suggest that hooks were available at the warehouse. Mr Mellick, who appeared for the defendants, submitted that in context the instruction was intended to meet the chance that workers might be tempted to use the hooks brought to the warehouse by truck drivers employed by third parties. The instruction however makes no mention of third party hooks. The much stronger inference is that there were hooks provided and the employer was concerned that workers not use them to move pallets, the pallets being far too heavy for such use, and so restrict their use to moving crates and stacks of crates. [18] As to the third issue, the positioning of the crates, that too is resolved by the acceptance of Mr Campbell’s evidence. It is not irrelevant that there were six labourers employed at the warehouse at the relevant time and the defendants have called none of them to contest the plaintiff’s case. [19] Finally I am prepared to accept that an incident occurred as the plaintiff alleges which resulted in some pain in his back. The defendants’ attack on this part of the case, apart from its attack generally on the plaintiff’s credit, centres on his failure to promptly report the occurrence of the incident. It is common ground that no formal report of the incident was made until Wednesday 10 March and then to Skilled Group Limited. Mr Rangitihi maintained that he did not learn of the alleged incident until the next day, 11 March, when it was reported to him by Skilled employees. That is probably right. [20] It is common ground that on 3 March, that is two days before the alleged date of injury, the plaintiff attended at a toolbox meeting at which the importance of reporting all incidents was reinforced. The plaintiff did not contest that he had been so instructed and knew he was required to report all incidents. Nor did he contest that he made no contemporaneous report of the incident. His explanation was that the incident occurred late on a Friday, it involved a momentary onset of pain, that he thought nothing of it but was in distress the following morning, a Saturday. He attended at work but with difficulty, he again attended work on the Sunday but went home after some hours. [21] The defendants contested that any work was done on the Sunday at all and called Mr Rangitihi to say so. Whilst that was Mr Rangitihi’s initial evidence he eventually reached the view that he himself did not work on a Sunday but did not contest that others may have. 4 Ex 9 -- 4 of 14 -- 5 [22] No documentary evidence was led to dispute the claim. Presumably wage records exist showing dates of attendances. The incident report accords with the plaintiff’s claim that he worked Saturday and Sunday. It seems hardly credible that the plaintiff would make up a claim to have worked on the weekend at a time (the following Wednesday) when it could have been easily checked with several independent witnesses. [23] I accept then that the plaintiff worked on the week end following 5 March and that he did not see out the week end. He is supported by his de facto wife in his claims. The incident report records that also. As well, the second defendant’s analysis of the sequence of events has the plaintiff working on the Saturday and for five hours on Sunday as he alleges.5 [24] The plaintiff did not attend work after the Sunday. Mr Rangitihi says he was told that the plaintiff was ill. [25] The medical records show that the plaintiff attended at the Rockhampton Base Hospital on Monday 8 March complaining of lumbar pain for three days that started “when he pulled on cranes (sic?) of 125kg.”6 On clinical examination the treating doctor has recorded “tenderness at L3/L4 lumbar region with left para-vertebral tenderness”. [26] On 10 March 2010 the plaintiff attended on his general practitioner with a history of having lower back pain as a result of lifting heavy objects the previous Friday.7 [27] Finally there was expert orthopaedic evidence to the effect that the mechanism of injury described was of a type that could cause soft tissue injury to the spine.8 [28] It seems then that there is a reasonable explanation for the failure to report the incident on the Friday – it was late and the onset of pain was seemingly transitory. It seems likely that the plaintiff did attempt work on the Saturday and Sunday. A report the following Wednesday to Skilled Group of difficulties at work over the week end could easily have been checked. No one is called to dispute the claim. The incident report records that he left early on the Sunday. He could reasonably have assumed that would become known to his supervisors. By early Monday he attended at the hospital complaining of back pain with a history consistent with an injury the previous Friday. That lends support to his claim that he left early Sunday because of increasing back pain. The history that he gave, both to the doctor at the base hospital and to his private general practitioner, was consistent with an injury on the previous Friday. His presentation on each occasion seemed to be consistent with a lower back problem. [29] Despite my reservations about the plaintiff’s credit generally I’m satisfied that there was an incident on the Friday and that he did suffer an onset of lower back pain then in the manner he describes. [30] Given the defendants’ concession and accepting the plaintiff’s allegations of fact it follows that the plaintiff has established liability. 5 Ex 34 6 Ex 20 tab 7 at p76 7 Ex 11 8 Dr Labrom: T2-53/50 -- 5 of 14 -- 6 Credit [31] The defendants’ attack was based on several grounds: (a) The plaintiff’s failure to refer to a back injury sustained in 2005 in New Zealand when he completed an “Employee Capabilities Analysis” form prior to taking up employment with the Skilled Group, or later when reporting his history to investigating specialists; (b) His claim that he lied to a general practitioner and a specialist neurosurgeon and deceived them in their medical examinations of him by pretending that he was fully recovered when he was not in order to obtain a clearance to return to work after his injury; (c) His refusal to accept two days a week work when offered to him by the defendants in May 2010 on the ground that he was entitled to six days work a week; (d) His failure to advise Dr Alan Cook, an orthopaedic specialist who saw him for medico legal examination in February 2011, of his work at a meatworks in October - November 2010 for three to four weeks; (e) His failure to reveal that post injury employment in several documents sent to the defendants or give credit in his calculations of lost income for the income there earned; (f) His failure to reveal that employment to Sunsuper in his claim for a Total and Permanent Disability Payment; (g) The fact that he engaged in that employment for nearly four weeks when allegedly severely disabled by back pain; (h) The variability of his symptoms; (i) His relatively few visits to medical practitioners with any complaint of symptoms or requests for medication until October 2011; (j) His hostility towards Dr Labrom, a specialist engaged by the defendants to provide an independent opinion; (k) His claim to have a degree of disability not supported by any medical evidence. [32] While some of these points can be explained away, the combined effect of those that cannot be dismissed has been that I have difficulty accepting what the plaintiff says on important matters without cogent corroboration. [33] I should make some further comment on the defendants’ points. No one of them is of itself compelling but combined they cause me considerable concern. [34] The failure to mention the prior back injury to the employer or to the doctors was explained on the basis that the plaintiff thought it was of little consequence pointing out that not even a day off work resulted. The plaintiff’s then employer confirms, after consulting his wage records, that there was no time lost from work as a result of the injury. He says he observed no symptoms of discomfort after the day of injury.9 [35] The difficulty is that the medical records show that the plaintiff did complain, presumably honestly, of continuing symptoms and they were not insignificant. Initially the plaintiff complained of pain that was initially not severe but latterly 9 Ex 14 -- 6 of 14 -- 7 “much worse”. There was spasm observed. Three days rest was advised.10 Seven weeks later the plaintiff returned to the general practitioner with a report that his back felt “OK” but with numbness in his left leg. He was dragging his leg intermittently. The doctor recorded concern about the possibility of a disrupted disc. There was a referral for X-Rays. He was prescribed Voltaren. He apparently took the medication as he returned a few days alter complaining the Voltaren had had no real impact. He had had further spasming recorded as “almost constant yesterday”.11 He was referred to an orthopaedic surgeon and attended on the surgeon on 14 July. The plaintiff is recorded as advising the specialist that he had a couple of days rest after the initial incident, improved significantly and was “continuing for a period until he was getting up from a bent position, this a week or two later and found that he could not straighten up. He was in trouble and has remained so with pain then in spasm extending down the left leg”.12 [36] It hardly needs to be said but in a case where one claims substantial damages for a back injury it is perfectly obvious that any prior back injury has the potential to be important. This was no twinge at work that passed and was not thought of again. No doubt the problem settled as the specialist expected it would. But it is impossible to accept that the plaintiff had entirely forgotten the episode13 and its sequelae or that he could genuinely believe it was not worthy of mention particularly to the investigating specialists. [37] The refusal to accept two days work a week is entirely puzzling. The plaintiff’s case is that he was desperate for money. WorkCover payments had been erratic. He wanted a clearance to return to work even though his symptoms were still severe. He lied to doctors about his symptoms and somehow misled them in the clinical examinations into thinking that he was completely recovered and so obtained his clearance. He contacted Skilled Group who advised that National Foods could only offer him two days work a week. He refused to take that work because he claimed to be entitled to six days work a week. The plaintiff made reference to his rights under WorkCover legislation. [38] The puzzle is this – the plaintiff says that his condition in truth then was as he is now, in severe pain. His case is that he is not fit and has never been fit to carry out manual labour of the type he was performing when injured. If that is so why insist on six days work that you know you cannot perform? If you are desperate for some income why not take the two days offered and see how you go? [39] I have mentioned the plaintiff’s claim that he lied to doctors about his symptoms and somehow misled them in the clinical examinations and so obtained his clearance to return to work. That claim has the problem that one would expect the two doctors allegedly deceived, Dr Tollesson, a neurosurgeon, and the plaintiff’s general practitioner, to observe signs of significant pain or limitation in the back, if present. Dr Tollesson seems to have carried out a full examination. He recorded a demonstration of “complete normal neurology” with “straight leg raise test negative bilaterally” and “normal walking and squatting”. There was a report of “minimal back pain” and no sciatica experienced for several weeks. Dr Tollesson thought that 10 Ex 20 Tab 9 at p130 11 Ex 20 Tab 9 at p 131 12 Ex 20 Tab 10 p136 13 I note that the plaintiff made express reference to the prior complaint to the hospital staff in March 2010: Ex 20 Tab 7 at p 77 -- 7 of 14 -- 8 there had been a “normal complete spontaneous recovery”.14 The next day the general practitioner, Dr Mahmood, recorded “Looks well. Nil symptoms”.15 [40] The plaintiff’s presentation in the witness box was variable. At times he behaved as Mr Mellick described – “squirming, moving, shaking, standing up and down”16. If he had that level of discomfort when he presented to Dr Tollesson to obtain a clearance then I have great difficulty accepting that he could hide his discomfort from a specialist medical practitioner or satisfactorily perform clinical tests. [41] The plaintiff said that he was “pretty much” in the same physical condition then as he was when giving evidence. He affirmed that his level of pain was the same but his presentation was now different17 despite the fact that he was now taking OxyContin – which Dr Cook described as a morphine based “much stronger analgesic-type medication”18. The picture is confusing. [42] The alternative possibility is that the plaintiff did not mislead the doctors, that he did not manage to somehow deceive them in their clinical examinations and that he was indeed ready to return to work. The present claims might be a ruse to cover the inconvenient fact of substantial recovery. Such a recovery would be in accord with what is usually expected of a soft tissue injury of the type hypothesised here.19 And it would accord with the relatively few attendances on medical practitioners (in the 17 months following his clearance to return to work only two attendances for low back pain: 17 June 2010 and 25 January 2011),20 the subsequent performance of four weeks work at a meatworks which I will come to in a moment and the absence of any need for prescription medication until over a year later. [43] If there was a substantial recovery (“minimal back pain” was recorded by Dr Tollesson with some pain in the thoraco-lumbar area21) then the plaintiff’s response to the offer of two days work, while still odd, may be explicable. A genuine belief that he could perform 6 days work a week might well cause him to be angry at the offer and he might well have thought he would prefer to try and get full time work elsewhere rather than restrict himself to two days work only. [44] The employment at the meatworks in September - November 201022 causes the plaintiff difficulties on three fronts. [45] The first is that he has passed yet another medical examination.23 14 Ex 20 Tab 6 p 73; Ex 12 letter of 7 May 2010 to Dr Mahmood 15 Ex 12 – entry for 7 May 2010 16 T1-49/20. Dr Cook recorded a similar presentation in February 2012 – Ex 3B at p4 17 T1-49/10-50 18 T2-19/22 19 Dr Labrom: T2-56/35-55 20 I do not ignore the point that the lack of attendances on medical practitioners cuts both ways - if the plaintiff intended to deceive then why not ensure a record of such attendances is in place? The answer might be that at the relevant point in time the plaintiff did not intend to deceive. 21 Ex 20 Tab 6 p 73; Ex 12 letter of 7 May 2010 to Dr Mahmood 22 It seems to have been common ground that there was about four weeks employment but the dates of that employment are not clear – it appears to have commenced on 29 September and while the employment formally concluded on 19 November the last date of attendance was 1 November – see Ex 20 Tab 8 p 103 for the commencing date and p 84 at para 2 for the last date of attendance. 23 Ex 20 Tab 8 at p 109 -- 8 of 14 -- 9 [46] The second difficulty is how he could have attended to his duties at all, let alone for such a length of time - about four weeks work - if in a condition similar to his presentation now. Labouring at a meatworks is not a light job. It was recorded in a pre employment interview that the plaintiff understood that “a high level of manual labour” would be required.24 The plaintiff claimed that his was the lightest position in the meatworks but the duties involved would place considerable demands on a person with a significant back condition. The plaintiff was required to operate a saw cutting half carcasses into quarters and allocating the sawn carcass to a chain. Every second sector of the shift he would do the cutting. He was standing all day in gumboots on a concrete floor. The work started early in the morning. The plaintiff asserts that he had pain, that he doubled up on his medication and eventually abandoned the job. There were no attendances on any medical practitioner in this period and no independent proof of any increase in medication, nor record of any observation, or report, of restriction at work. I note that a supervisor has recorded, apropos of a date or period that I cannot determine but prior to and perhaps around 18 October, that the plaintiff’s attitude to work, ability on the job and efficiency on the job were all “good”.25 Dr Cook thought that the plaintiff would be unable to do such tasks, full time, even for a week.26 [47] The third difficulty is the plaintiff’s failure to inform the specialists retained to assess him of that employment. [48] The failure to inform the defendants and Sunsuper of the employment may be explicable as these communications were through his solicitor and the plaintiff did tell his solicitor of the employment, albeit a little cryptically,27 and it would be common enough for clients to assume that solicitors remember to include all necessary information in the documents they prepare. However the failure to mention the matter to Dr Cook is not so easily explained. [49] Dr Cook’s evidence was that such employment history was of some significance to him and express enquiry was made at the February 2012 visit.28 Yet he was not told of it. It could hardly have been forgotten – it was the plaintiff’s only significant work since his injury. Dr Labrom was not told of the work either. The relevance of an attempt at such work should have been obvious. Hence there is the question of the plaintiff’s willingness to be frank. [50] Another odd feature of the evidence is the plaintiff’s report of consuming significant quantities of medication. His account is that he obtained no relief from the prescribed medications and so turned to over the counter analgesia and kept no record of these purchases. All this is entirely possible. However it does not sit comfortably with Dr Labrom’s report that on 28 July 2011 the plaintiff reported to him that he was taking no analgesia.29 And that report is completely at odds with the plaintiff’s claim that before going to Brisbane to see any medical practitioners he took extra medication.30 24 Ex 20 Tab 8 p 88 25 Ex 20 Tab 8 at p 107 26 T2-20/40 – 2-21/5 27 Ex 16 - an email dated 14 December 2010 with its reference to “freezing works” 28 T2-15/45 29 Ex 20 Tab 4 at p 59. For the plaintiff’s rather odd response to this see T1-94 30 Ex 2 para 37 -- 9 of 14 -- 10 [51] The final matter that deserves mention is the extent and variability of the plaintiff’s symptoms. In the acute phase of his injury when seen at the Base Hospital the plaintiff was capable of normal straight leg raising.31 Similarly when seen by Dr Tollesson on 6 May 2010. But not so when examined by Dr Cook on 9 September 2010 where his range of movements were considerably restricted.32 While the detail of any pre-employment medical examination carried out at JBS Australia a few weeks later is unknown it seems unlikely that the plaintiff could have presented with any such restrictions and still obtain or maintain employment. The areas of tenderness identified at the hospital in March and by Dr Cook in September varied considerably. The plaintiff has had symptoms sometimes in his left leg, sometimes in his right. Symptoms developed that could not be easily connected with the lumbar spine. The plaintiff has had at one time an apparently severe neck condition with associated headaches that has now completely resolved. He has had symptoms sometimes in one arm, sometimes in the other. Dr Cook has offered what explanation he can – good days and bad days, variability in technique or expertise of the examiner, adoption of altered postures brought about by significant pain – but the overall impression is that this degree of variability is at least odd. [52] Nor is the extent of the claimed incapacity supported by medical evidence. Dr Cook agreed that the plaintiff was not a spinal cripple33 but his presentation, his inactivity, his reports of pain levels at a level of ten on a scale of one to ten with ten being the worst pain imaginable34 and his claimed need for very strong pain relieving medication all gave that impression. [53] Mr Crow of Senior Counsel who appeared for the plaintiff conceded that the plaintiff had not behaved well and had done his case a disservice by some of these statements and actions. Mr Crow stressed the plaintiff’s good employment history, his strong work ethic spoken of by past employers and his de facto partner, and as demonstrated by his determination to continue to work over the week end after the subject incident despite being in significant distress. He submitted that the plaintiff’s personality was the problem, that he was essentially honest, and importantly, he was corroborated by his de facto partner, Ms Janice Cooper. [54] The extent of that corroboration was Ms Cooper’s assertion that the plaintiff had been in severe pain to her observation ever since the subject incident, that he had taken medication of varying types that had been purchased over the counter for which no record had been kept, and that he was severely disabled. [55] The issue here is the reliability of Ms Cooper’s recollections of symptoms going back nearly three years. Amongst many complaints the plaintiff has complained of severe neck pain. Ms Cooper was unaware of this. After some questioning she accepted that there were such complaints occasionally when the back pain was severe. But the medical records suggest that these complaints were far more serious. Dr Cook recorded in February 2012 complaints that “when he moves his head and neck he can feel and hear crunching noises and pain” and that he had “lots of headaches” for which he used a “lot of Nurofen”.35 On 6 June 2012 the plaintiff attended at the Rockhampton Base Hospital with a complaint of “long standing 31 Ex 20 Tab 7 p 76 and also Ex 13 32 Ex 3A at p 5 33 T2-12/39 34 Dr Labrom – Ex 20 Tab 4 at p 59 35 Ex 3B at p3 -- 10 of 14 -- 11 history of neck pain”. He complained that he had “had this pain for years and it was getting gradually worse”. The neck pain was described as the “main debilitating problem for him, which is keeping him out of work”.36 That his complaints were taken seriously is evident - a CT scan of the cervical spine was performed in late 2011 and an MRI scan in 2012. [56] I don’t doubt that Ms Cooper was honest. But if she was unaware of this history then she had no real idea what was going on with the plaintiff’s symptoms. It may be that there were in truth no such symptoms and the plaintiff has made them up but that creates even more problems for the plaintiff. Further Ms Cooper’s recollection of the consumption of medication, no easy thing over so long a period, could as well be associated with these symptoms as with back pain. Hence her corroboration is not compelling. [57] Because of these various factors I am not prepared to accept the plaintiff’s account of the existence and continuation of significant symptoms of pain in his low back and consequent restriction from 5 March 2010 to the present time unless corroborated and I cannot see that he is in material respects. What was the Consequence of the Injury Suffered? [58] There are two competing theories. One is that any injury suffered on 5 March 2010 resolved at the latest within months of the incident. That is Dr Labrom’s view. The other is that the plaintiff has aggravated pre existing albeit mild degenerative changes in his thoracic and lumbosacral spine and has suffered generalised musculo-ligamentous or soft tissue injury to those areas with ongoing and permanent effect. That is Dr Cook’s view. [59] There is no objective evidence to support Dr Cook’s opinion. It is reliant on the history provided and the honest presentation of the plaintiff. I am not satisfied that the history provided should be accepted (indeed it is evident that Dr Cook did not have a complete history) or the presentations adopted as valid. It suffices to say that the plaintiff carries the onus of proof and he has failed to discharge it. [60] I am satisfied that there was an initial injury. There is some support for ongoing problems until the presentations in early May. The key issue is whether the plaintiff substantially recovered by early May 2010. What evidence there is points to such a recovery. Both Dr Tolleson and the general practitioner thought that the plaintiff had then recovered fully. The request to return to work and the anger at the reduction in hours is consistent with such a recovery. The lack of attendance on medical practitioners is as well. The only attendance that year, after his clearance, was on 17 June where the doctor recorded “looks well” and “nil neurology”.37 Such recovery would be considered the normal course for a soft tissue injury. The completion of four weeks work at a meatworks is consistent with such a recovery. Dr Cook conceded the possibility of that recovery.38 He offered no good reason why that possibility should not be accepted or was less probable than any other. On the balance of probabilities I am satisfied there was such recovery. 36 Ex 20 Tab 7 at pp81A and 81D 37 Ex 12 38 T2-11/25 -- 11 of 14 -- 12 [61] That is not to say that there may not have been recurrences of back pain from time to time since. That may explain the sudden increase in medical attendances in late 2011 and the apparent increased need for significant pain relieving medication. The difficulty for the plaintiff is in establishing why any such recurrences are due to the impact of the insult suffered in March 2010, assuming recovery by May, as opposed to his vulnerability to the normal stresses and strains of life consequent on the general underlying degenerative condition or to some unrevealed event. While the evidence is that no necessary correlation can be drawn between radiological appearance of degenerative change and the onset of symptoms the plaintiff’s past history is significant. In this regard I accept Dr Labrom’s opinion expressed in the following exchange: “And for a patient such as Mr Adam with a normal age specific degeneration, whether he in fact would have ever suffered from spinal pain is unknown? -- I think in his case it is known, only because he's got such a good preceding or antecedent history of pain recorded as far back as 2005. So if you're asking the question based upon radiological features, I think that's a reasonable question, but if you're asking me with reference to this fellow specifically, I could say that historically and based upon the information provided to me you could predict that he would've had problems with his back beyond 2005. But one can't say when; would that be correct? -- True, no. Correct. Very difficult to say when but he's got, if you like, a track record of pain over a number of years and you could suggest, as I have done, I believe, that there's been a cyclical and variable expression of pain over time with particular activities.” 39 [62] No mention was made of the matter in cross examination but I note that the medical records from New Zealand as well record a history of back pain prior to May 2005.40 While not necessary for the acceptance of Dr Labrom’s views that history is consistent with his expectations of the plaintiff’s condition. [63] Given my determination of these issues it is not necessary to consider the further question of the true extent of the plaintiff’s disability and its impact on his earning capacity, particularly given his many other complaints. Those are very much live issues. Assessment [64] It follows that the assessment of damages must be somewhat limited. Mr Mellick submitted that if I made findings along the lines that I have the award should be as follows: Pain, suffering and loss of amenities of life $5,000.00 Interest on $5,000 at 2% for 2.9 years $290.00 Past Economic Loss $8,301.18 39 T2-53/5-25 40 Ex 20 Tab 9 at pp128-129 -- 12 of 14 -- 13 Interest on past economic loss $180.55 Loss of superannuation benefits (past) at 9% $747.11 Future Economic Loss $00.00 Special damages (paid by WorkCover) $2,293.13 Special damages (paid by the Plaintiff) $500.00 Interest $00.00 Future medical expenses $00.00 Fox v Wood $1,665.00 Total Damages $18,976.97 Less refund to WorkCover $11,014.13 Net Damages $7,962.84 [65] Mr Crow SC made no submission to the contrary. He did not address the issue of the appropriate award on these findings. [66] I have two issues with Mr Mellick’s analysis. Both relate to the assessment of past economic loss. Otherwise it seems to me that the amounts allowed fairly reflect the case I accept. [67] The first issue is that the amount allowed for past economic loss assumes a wage well below the amount the plaintiff in fact earned in the only full week that he worked for the second defendant - $1,185 net of tax.41 I appreciate that hours could vary and that over time the hours available to labourers reduced and that the second defendant eventually closed the warehouse in August 2010. I have no precise evidence as to when the hours did reduce and by what amount. The second defendant had it within its power to prove with greater precision what wages were in fact paid out to labourers there and so establish the probable loss. It chose not to do so. In those circumstances I am disinclined to make assumptions against the plaintiff. If the pre incident level of wage had continued to be paid then for the period to 7 May 2010 the plaintiff has lost a little over $10,000 net. [68] The second issue is that the amount allowed does not take into consideration the difficulties of regaining employment. Even given a recovery that does not mean immediate return to the same level of gainful employment as previously enjoyed and which the plaintiff probably would have enjoyed if uninjured. The second defendant’s own response to the plaintiff’s request for reemployment shows that. While impossible to calculate I would allow a further sum of $5000 to allow for a reasonable period to regain employment at least to the level the plaintiff might have enjoyed given the falling off of work at the second defendant’s business. [69] Bearing these two issues in mind I would allow $15,000 for past economic loss and adjust interest and lost superannuation accordingly. I allow interest on $7,944 at 5% for 2.9 years - $1,151.88. I allow lost superannuation at 9% - $1,350. [70] There will be judgment against the second defendant in the sum of $27,250.01 41 See Attachment 2 B to Ex 2 -- 13 of 14 -- 14 [71] Allowing for the refund to WorkCover there will be judgment against the first defendant in the sum of $16,235.88. [72] I will hear from counsel as to costs. -- 14 of 14 --