Duck v Woolworths Ltd [2011] QDC 312

DISTRICT COURT OF QUEENSLAND CITATION: Duck v Woolworths Ltd [2011] QDC 312 PARTIES: DARRYL DUCK (plaintiff) V WOOLWORTHS LIMITED (ABN 88 000 014 675) (defendant) FILE NO/S: BD 1663 of 2010 DIVISION: Civil trial PROCEEDING: Claim ORIGINATING COURT: District Court Brisbane DELIVERED ON: 15 December 2011 DELIVERED AT: Brisbane HEARING DATE: 1 and 2 December 2011 JUDGE: Andrews SC, DCJ ORDER: JUDGMENT FOR THE PLAINTIFF AGAINST THE DEFENDANT IN THE SUM OF $136,732.21 CATCHWORDS: DAMAGES – personal injury – measure of damages COUNSEL: McClymont for the plaintiff Morton for the defendant SOLICITORS: Sciacca’s Lawyers & Consultants for the plaintiff DLA Phillips Fox for the defendant [1] The plaintiff was employed by Woolworths as a night manager at Woolworths store at Stanthorpe. The plaintiff was performing the duties of his employment at about 2 am on 10 November 2005. He was walking to the back dock of the store to lock rubbish bins. He was accessing the dock area by ladder. The rungs of the ladders were cylindrical. I find that he slipped when his feet were on the top rung and fell. Issues [2] The issues apparent from the pleadings were not all pursued. Those which remained live by the time of counsel’s addresses were liability, and relevant to quantum were: (a) whether the plaintiff had a pre-existing history of injuries to his feet and ankles from training and participating in endurance events; -- 1 of 23 -- 2 (b) whether shin splints from causes unrelated to the alleged fall are a cause of his loss; (c) the extent of the plaintiff’s recovery from any lisfranc injury; (d) whether the plaintiff ceased employment with Woolworths because of injury or to move to the Gold Coast; (e) whether the plaintiff earned less after moving to the Gold Coast; (f) the plaintiff has suffered a disruption of his L5/S1 inter vertebral disc from causes unrelated to the events of 10 November 2005 and it is an issue whether that will significantly restrict his earning capacity in the future with the consequence that his lost earning capacity is caused by his back condition and not by an injury the subject of the claim in this proceeding. [3] Woolworths accepts that the plaintiff sustained a lisfranc fracture to the right foot as a result of his slip and fall. There is evidence that the plaintiff had a pre-existing history of injuries to his feet and ankles but there was no argument that they have been disabling, save for a Morton’s neuroma. There is no evidence or argument that the plaintiff suffered subsequent lisfranc fractures to his right foot from causes unrelated to the alleged fall. There is no evidence or argument that the plaintiff made a full recovery from any lisfranc fracture sustained on 10 November 2005. Woolworths argues instead, that the plaintiff’s injury stabilised two or three years ago and will remain in its current state. Whether the plaintiff will have surgery for the injury is an issue. Liability [4] Counsel for Woolworths advised that if the court accepted the plaintiff’s evidence as to the fact and circumstances of a slip and fall then Woolworths takes no issue on liability. In context, I understand that to be this concession: if the plaintiff’s evidence as to the manner of his slip and fall is accepted then Woolworths would be liable as employer for damages caused to the plaintiff from the slip and fall. Woolworths does contest the cause of alleged loss and the quantum of damage for loss caused by the slip and fall. The concession was confirmed during cross- examination of the plaintiff. [5] The plaintiff gave evidence that he was about to descend a ladder from the dock to the ground to move and lock rubbish bins. The ladder appears in the photographs Exhibit 13. It is more correctly described as four metal rungs bolted to a wall. Above it are two vertical handrails. The plaintiff was about to grasp the handrails when both his feet were on the top rung. His right foot slipped and his left remained on the rung. I infer that his right foot must have crashed heavily onto the ground or a lower rung. He rolled on the ground. He experienced immediate pain in his right foot when he tried to stand. He was taken to Stanthorpe hospital that night. The photographs were taken some time after the incident and after the plaintiff’s employment with Woolworths had ended. They revealed a sign on the wall above the ladder which reads “Caution Steps are Slippery”. There was no cross- examination of the plaintiff as to his evidence as to the manner of his slip and fall or the state of the premises depicted in the photographs or as to whether the premises as they appeared in photographs was different from their appearance on the date of -- 2 of 23 -- 3 the slip and fall. I accept the plaintiff’s evidence as to the manner of his slip and fall. It follows that having regard to the helpful concession by Woolworths, liability for the slip and fall is not in issue. Woolworths is liable to the plaintiff for damages for his losses caused by the slip and fall. Other Facts [6] Born on 9 July 1963 the plaintiff is 48 years of age. He has no children and has never been married. He was 42 years old when he slipped and fell. He was educated to Grade 10 in Stanthorpe. He then spent 10 years working on a farm. When aged about 26 he attended TAFE to study electronics repair and qualified with a certificate in business equipment maintenance. He did work repairing domestic and commercial electronic equipment including VCRs, TVs, microwaves and thermostats. He worked in a kindergarten for a year. He spent two years working at a research station for the Department of Primary Industries. He has worked as a swimming coach, a lifeguard, a gym instructor and in his own electronic repair business. Years before taking the employment with Woolworths he had worked for Woolworths as a night manager. [7] The plaintiff has “longstanding degeneration in the lower two lumbar discs….concordant with a history of recurrent low back pain extending back to 1990”.1Despite this, he had always been a physically active man. Prior to the injury to his foot he enjoyed running, playing basketball, cycling and triathlons to half- ironman level. He reported to Dr McCaulay that he once could run 10 km in under 30 minutes. That achievement alone would have once made him an elite athlete at any age. I assume it was when he was much younger. He reported to Dr McCaulay that he had last raced in about 2001 or 2002. I infer that he had not performed in a triathlon since then. In spite of his lisfranc injury he adapted his activities and maintained a very active lifestyle, so active that he developed painful shin splints. After the lisfranc injury the plaintiff suffered symptoms from his back problem so disabling that he gave up work and was bedridden for a while. Despite that he strived to overcome it by strengthening his back with paddling a surf ski and a kayak and he succeeded. That perseverance and his approach to physical activities generally is consistent with a person for whom physical fitness and the enjoyment of an active lifestyle are each high priorities. [8] His earnings history was not so exceptional. In FYE 2002 his gross income was $21,377 mostly from working as an electronics engineering technician. In FYE 2003 his gross income was $16,367 of which two thirds was derived from being an electronics engineering technician and one third from Commonwealth allowances. In FYE 2004 the plaintiff lost about $8,000 in his own business in electronics repair and received about $9,000 in Commonwealth allowances meaning his gross income was about $1,000. In FYE 2005 he earned about $10,000 in Commonwealth allowances and lost about $2,000 from his electronics repair business. The plaintiff earned at a subsistence level in those years. The low earnings are odd having regard to prior retail experience, his physical prowess and his skill as an electronics repairer. The low earnings were not explained. He had no apparent dependants. The earnings in those five years suggest that to the age of 42 this man prized physical fitness, independence from the monotony of an employee’s lot and an active 1 See Ex. 2 p. 28. -- 3 of 23 -- 4 lifestyle more than he prized money. Then he returned to a 40 hour a week job at Woolworths. [9] The grocery manager at Woolworths, Stanthorpe in September 2005 had previously worked under the plaintiff when the plaintiff had worked for Woolworths as a night manager years before. She wanted someone with experience to assist. On 23 September 2005 the plaintiff commenced employment at the Stanthorpe Woolworths store as a second in charge night manager. His duties included dealing with loads which were delivered to Woolworths. Those duties included breaking down the loads, taking stock from the loads and stacking them for filling or filling himself. After the store closed his duties included bringing the rest of the pallets out, distributing those, “filling the stock”, tidying the store, doing security checks and helping to manage staff. He tended to arrive by 7 pm and to depart at midnight on Saturdays to save Woolworths from paying penalty rates for Sunday and he would leave at between 2:30 am and 5:30 am on other nights. He was paid for a 40 hour week. There was no formal start or finish time as his actual hours would depend on the work to be done. He suffered his injury on 10 November 2005, after seven weeks in the job. [10] On the night of his injury the plaintiff was given painkillers at the hospital. Next day his foot was x-rayed and he was given crutches and advised to rest. He did not return to work for several days. When he returned he initially had a desk job doing reports for the manager. After a week or two he returned to performing his prior duties as second in charge night manager though with restricted hours, restricted duties and initially limited to four hours and on fewer days per week. He could not pull heavy loads or use the trolley jack. As a filler, one must either bend to pick the stock from the floor or squat. Bending was not recommended because of the risk of back strain. An alternative to bending can be squatting. Squatting can hurt the plaintiff’s right foot. When squatting, his heel would come off the floor and he would feel pain. [11] The plaintiff gave evidence that the pain in his foot never went away2 and that almost any duty at Woolworths was difficult for him to perform including simply being on his foot so long.3 I do not infer that pain was constant while at Woolworths or generally. In March 2006 the plaintiff signed a statement that his foot was recovering well and that he could jog up and down the aisles when rushed at work. I accept that that was true at the time. I accept that the plaintiff accurately told Dr Saxby in March 2006 that he had recently returned to work and had discomfort with prolonged standing and activity. The plaintiff has treated himself with a tens machine sometimes. Whether the treatment was to his foot or his back was not explained. He has avoided medication. He has sought certificates for a time for flare-ups from general practitioners. He has found orthotic inserts helpful. He told Dr Saxby in July 2010 that he was not experiencing significant pain. That was a time when he was unemployed because of back problems and he said his activities had decreased. Dr Saxby reported that the plaintiff had told him on 28 November 2011 that he has ongoing foot pain which is an occasional ache with episodes of intermittent severe pain perhaps occurring once a week and usually settling after 20 to 30 minutes, that he was not receiving any treatments and was continuing to carry 2 T1-16 3 T1-17 -- 4 of 23 -- 5 out his normal day to day activities. I accept that the plaintiff said words to the effect of these reports to Dr Saxby. [12] The plaintiff’s foot injury was not properly diagnosed for about eleven months until after an MRI was performed on 19 September 2006. The injury was initially treated as a soft tissue strain. All medical experts now accept that the plaintiff suffered a Lisfranc injury. I find that it was caused by the slip and fall. While it was undiagnosed, medical opinions were expressed about the injury and its prognosis. They were expressed on the wrong premise and are less helpful because of that. [13] The plaintiff tried to pursue the active lifestyle he enjoyed before his fall. He assumed that getting back to those activities was appropriate. He resumed cycling, kayaking, intermittently tried running, and did weight training at the gym. Before the diagnosis of a lisfranc injury he told some medical experts that he was getting better. I accept that he believed that at the time and that it reflected improving symptoms at the time. However he has abandoned basketball and distance running. Sports like basketball or squash with stopping and direction changes would trouble his foot. I do not infer that he tried basketball. Cycling was also troubling his foot. He solved that problem. He adjusted the position of the cleats for his cycling shoes. He believes the adjustment reduces his power up hills but it has allowed him to painlessly cycle, sometimes for hundreds of kilometres. He participates in rock climbing and kayaking and surf skiing. As a rock climber, he believes his foot injury limits the amount of time he can stand on it in a small hole in the rock. When climbing, he wears rock climbing shoes which support his foot. By April 2007 he was recorded as saying that he was walking 5 km without aggravating his pain. In evidence he explained that it was not accurately recorded. He was then walking 2.5 km to work and sometimes he would walk home too and that the walking was good for his foot. By April 2007, he was riding his bicycle 1.5 hours a time 2 or 3 days a week, had an extremely fit build, was 190 cm and 80 kg. [14] He gave evidence that the biggest improvement in his foot occurred while he stopped using it because of a bad back.4 I accept that. Presumably his active leisure activities were then also curtailed. This was well after leaving Woolworths. That back problem troubled him to various extents from September 2009 until the end of 2010. [15] In the course of the plaintiff’s employment with Woolworths after his return to work he made several applications for compensation for aggravation of injury to his right foot.5 Some of the applications appear to have been written long after the events to which they allegedly relate. The details of the applications reveal: 7/12/05 In a report the plaintiff described himself as a full time employee working 40 hours per week, with restricted hours and suitable duties, to whom injury occurred at 11 pm on this date, while filling and that he stopped work for a little while. 3/3/06 In an incident report made in October 2006 the plaintiff alleged that he had been working 40 hours a week on a full time basis and that he sustained an injury when he “turned 4 T1-29 5 Exhibit 14 -- 5 of 23 -- 6 left to go up a ramp while driving walk” (sic) behind a forklift and that he did not stop work because of the injury or receive medical treatment. 24/3/06 Is the date of an alleged aggravation of his right foot injury where he provided the details that he rested and stretched for 15 minutes then went back to work and stopped at 3:10 am. 14/8/06 The plaintiff alleged that at 2:00 am this date he was kneeling on the floor, got up and turned left and felt a sharp pain in his foot while filling stock. He was then working full time on suitable duties according to the form. He did not receive medical treatment in hospital. 24/8/06 7:30 pm was the time which the plaintiff reported that he turned left and felt a pain in his right foot. He wrote that the pain was slowly getting worse throughout the week and was too much to walk on without support and that he went home and strapped it up and carefully returned to work. 21/11/06 At 12:40 am the plaintiff alleges that when walking around throughout the night his foot had become progressively more sore, that he took a 20 minute break to rest it but that later in the night when bending to pick something from the floor he felt a tearing pain in the underside of his mid foot. He fell behind schedule that night. He visited a doctor on 22 November and obtained a referral. 1/12/06 It was reported that at 7:00 pm this date while in the capacity of a full time employee doing suitable duties he was twisting and turning on his foot when he injured his right mid foot and that the nature of his injury was a “lisfranc injury”. [16] The plaintiff gave evidence that when he aggravated his foot at work there were times he would go home and times when he would not come in the next day and that he then had to fill out a report. The last application for compensation that the plaintiff filled in was the application relating to the alleged incident on 1 December 2006. He explained that at some point he “was told by Woolworths that because the case was closed that they can't do any more workers' compensation. If I take time off it's on my own.” [17] That evidence was not the subject of objection. The correctness of it was challenged in cross-examination. The plaintiff maintained his version. Woolworths called no evidence on the point. I note that about 24.89 days worth of unpaid hours appear in the records and that is consistent with his evidence that compensation payments were discontinued. I do not infer that the plaintiff suffered no pain to his right foot merely because there were no incident reports made after 1 December 2006. I accept that he did suffer pain including pain from his lisfranc injury and that pain was one cause of his taking some of his unpaid leave. [18] He said that he was not always reimbursed for days that he had away from work for foot problems. He explained that if he had holiday leave entitlements he would use -- 6 of 23 -- 7 that leave and that when the leave ran out he went unpaid. He gave evidence as to why he took his holidays: If I had any days of leave accrued, then a missed day would be taken as leave. When that accrual ran out I was just simply unpaid… And are you able to estimate as best you can how many days of your leave entitlements, your annual leave entitlements - holiday leave I think you said - that you used in relation to your foot injury instead of just holidays?-- Until the time I left all of them…I took those because I simply couldn't perform the job, though. It was a desperation attempt to give it a break to see if I could come back and get stronger and be able to do it and then I resigned at the end of that leave.6 [19] The records for the plaintiff’s annual leave are not consistent with that evidence. [20] From his evidence it was reasonable to infer that he recalled taking a day or so as annual leave from time to time if it was owed and when pain came on unexpectedly or if it persisted. His leave history shows no short periods of leave taken. Instead the leave history reveals that he had 4 weeks annual leave commencing on 23 October 2006 and 2 weeks on 14 May 2007 and 62 hours (7.75 days) from 15 August 2007. The first two periods of leave are not corroborative of his evidence. In particular, the first annual leave taken was eleven months after his lisfranc injury and taken as a four week block about a year after his job began. It appears to have been taken when it was due. His second period of two weeks was taken six months after his return from 4 weeks annual leave. That could be consistent with being taken early. Neither period of leave coincided with any significant complaint reported either at work or to the plaintiff’s GP. The second period of leave did occur a month after the plaintiff was suffering symptoms of shin splints from athletic pursuits. Later in evidence the plaintiff said that May 2007 was probably when he was his best.7 The third period of leave taken was only two and a half months after the second. It has the virtue of some consistency with the plaintiff’s evidence. However the plaintiff’s evidence about using holiday leave for a “missed day” was consistent with his taking short, recurrent and random leave when he simply could not perform. If the third absence has the virtue of appearing random it was not short and was not coincident with treatment of any kind. If he was in so much pain that he took that leave in desperation: he did not expressly give evidence of it; his letter of resignation did not say so; he started a new job. The plaintiff’s oral evidence about using leave for pain relief was unpersuasive. [21] Medical records show that by January 2004 the plaintiff had been troubled by discomfort in his right ankle for some time and had sought physiotherapy and had been referred to a specialist. Low back problems led to x-rays in 2004. The ankle ailment was not noted in the plaintiff’s signed statement of loss and damage.8 It was denied in his amended reply. The only report of a prior back problem in that statement was a note of back strain in 1990. In these two respects the plaintiff was not reliable in giving potentially important instructions for preparation of his statement of loss and damage and his amended reply. The ankle is not shown to have caused any time away from work. Its only relevance is as to the plaintiff’s 6 T1-19 7 T1-52 8 Exhibit 19 -- 7 of 23 -- 8 reliability. By the time of trial it was obvious to the plaintiff that Woolworths knew of this aspect of the plaintiff’s past medical history. He gave evidence that he had sprained his ankle three times. [22] Two or three months before 26 August 2007 and while he was working for Woolworths the plaintiff accepted the offer of a position which was to become available at Tweed Heads. The acceptance of that offer tends to suggest that the plaintiff then believed he could cope with that job despite the need to spend long amounts of time on his feet with the prospect that he would have levels of discomfort similar to those at Woolworths at Stanthorpe. The position would have been as second in charge manager at a new store in Tweed Heads to be operated by Jaycar Electronics, a subsidiary of Electus Distribution Pty Ltd. He alleged that he rejected the position at the last minute before the store opened. He alleged it was because he did not think he was capable of performing the job as his foot was getting sore. The date of the rejection was unclear. He believed that the income he would have earned from that job was much the same as the income he was earning at Woolworths or a little higher. I accept that the plaintiff believed this. There is no evidence that his belief was correct and there is no claim for damages associated with this abandoned employment opportunity. No complaints to doctors suggest any particular exacerbation of symptoms a couple of months before 26 August 2007. I am not satisfied that the reason he rejected the job was because he did not think he was capable of performing the job as his foot was getting sore. The failure to satisfy me of that has no effect on any matter in issue. I accept that the plaintiff would have expected continuing discomfort related to his foot if he took that job. [23] The plaintiff estimated that there were 20 days that he spent away from work after his accident when he received neither leave entitlements nor workers’ compensation benefits. This was partly corroborated by Woolworths documents.9 The documents show that from 22 January 2006 until departing Woolworths in August 2007, he was unpaid for hours which total about 192.89 hours (24.89 days) worth of time and for which he was recorded as OTH N/P, meaning “other not paid” or was recorded as SLV N/P meaning “sick leave not paid”. The documents do not explain why the plaintiff took those hours away and there is no basis for finding that the time was always related to recuperating from a foot injury or recuperating from one. The plaintiff did not give evidence that he took time off only when his foot was troubling him. There is little corroborative correlation in the records of the Granite Belt Medical Service10 where the plaintiff sought treatment from general practitioners. Those medical records reveal complaints consistent with the foot injury at dates which correspond with 24 hours of unpaid time in September and early October in 2006. There is no other record of complaint in those medical records whose type and date unequivocally reveals whether or not the foot injury was the problem complained of at about the date of unpaid time away from work. The plaintiff may have had reasons to take time away other than for the symptoms of his lisfranc injury. He suffered shin splints which he incorrectly attributed in April 2007 to the lisfranc injury. He had back problems in 2006. The same records reveal that as early as a week before 13 July 2006 the plaintiff was troubled at work by back problems which correlate with 80 hours of workers compensation payments for time away from work. The back problems are not established to be related to the foot injury. I am not satisfied by the records that all unpaid time recorded as OTH 9 Exhibit 23 10 Exhibit 22 -- 8 of 23 -- 9 N/P or as SLV N/P appearing in Woolworths records is attributable to the lisfranc injury. The plaintiff appears not to have seen a general practitioner for the eight and a half months before he left Woolworths in August 2007.11 He explained that he saw no medical practitioner because Woolworths was not giving him compensation. It does not make me doubt his evidence of recurrent foot pain but it is another matter that causes me to doubt the degree to which it interfered with his capacity to work. He would not take painkillers or anti-inflammatory medication. That too does not make me doubt his evidence of recurrent foot pain but it also makes me doubt the degree to which it interfered with his capacity to work. [24] In 2007 he stayed away from work without pay one day each week in April, and he took eight day in two weeks in June. If they were related to incapacity, they evidence a serious exacerbation of his foot problem. Yet they do not correspond with any request for treatment and are not explained by the plaintiff. In the third of the weeks in April 2007 when the plaintiff took an unpaid day it was also a week when he saw Dr Macauley for a medical report at the request of Woolworths. He reported to Dr Macauley that he was conscious of constant discomfort in his right mid foot but there was a particular problem which he reported as coming on in recent months which was pain up the inner aspect of both shins. The plaintiff told the doctor that he attributed that to his lisfranc injury. The plaintiff was wrong about the cause of that recent pain. I accept the medical opinions and find that such pain was indicative of shin splints and that the shin splints were probably related to an overuse syndrome secondary to his athletic pursuits. There is no evidence that such symptoms are related to a lisfranc injury. [25] The evidence does not satisfy me to the requisite standard that the 24.89 unpaid days the plaintiff spent away from work were all caused by problems related to his lisfranc injury. For reasons which follow, I am not persuaded that the plaintiff was reliable about the extent that the disability disabled him from working. For the part played by the symptoms of the lisfranc injury I infer the plaintiff lost time totalling about 10 of the 20 days he gave evidence of or $1,194. [26] While on annual leave in August 2007 the plaintiff had driven from Stanthorpe to Brisbane to pick up things for the electronic repair business he continued to run at a loss from home. It was late at night and the plaintiff was too tired to return to Stanthorpe. He telephoned his brother at the Gold Coast and went there to stay. His brother worked at a Jaycar store at Mermaid Beach. His brother told the plaintiff of a retail job available for the plaintiff at Jaycar Mermaid Beach. The plaintiff thought about it for a couple of days and accepted. That led to the plaintiff’s commencing at Jaycar on 20 or 22 August 2007. The plaintiff tendered his resignation to Woolworths by letter on 25 August 2007.12 The letter advised Woolworths that he had been staying at the Gold Coast during his leave “to try and help with my injury”. It is not consistent with his evidence that he drove to the coast because it was a more convenient distance to travel from Brisbane. The plaintiff wrote that he had “no other choice but to seek other employment”. The true position was that he had not sought other employment but had received an offer and thought about that offer for a couple of days before accepting it. The plaintiff’s letter was misleading. 11 T1-76 and exhibit 22 12 Exhibit 15 -- 9 of 23 -- 10 [27] The plaintiff knew that when he accepted the new job at Jaycar that it would require him to restock shelves, walk around the store, serve customers, stand all day and bend. That meant it had several of the features which he claimed were unsatisfactory about his job with Woolworths. He explained in evidence why he would take such a job: I was faced with a manager who said, "Don't come back until you can do the job", and I may not have been able to do the job. [28] That statement allegedly made by the manager, if it was an ultimatum, was not a part of the statement of loss and damage and did not emerge in the plaintiff’s evidence in chief. It was not referred to in the plaintiff’s self serving letter of resignation. I do not accept that the Woolworths manager said it. [29] The plaintiff later gave evidence that he was incapable of performing the job at Woolworths. That evidence contradicted the passage quoted above which was to the effect that he may not have been able to do the job. [30] The plaintiff gave further evidence that the job at Jaycar initially involved less hours which he said he regarded as important and that it would not involve squatting and handling large heavy objects. I accept that the job at Jaycar was easier on his foot for involving less squatting. [31] When asked why he took the job at Jaycar on another occasion the plaintiff gave another reason. The cold in Stanthorpe troubled his injury. That may have been so. It does not assist me to make any relevant finding about cause of loss. It was not a complaint made to any doctor. There is no evidence that it was reasonable to leave employment in Stanthorpe to pursue work where the winter temperatures were milder. He dealt with the problem in Stanthorpe in bed at night with an electric blanket. He did not give evidence that the cold while working at Woolworths was a problem or that the problem was less on the coast. [32] Another basis for taking the job at Jaycar was explained as being a feature of the Gold Coast: The other reason is it's a larger place and there's more opportunity to find employment in some sort of capacity that won't affect my foot. [33] The plaintiff did not give evidence of seeking alternative employment while working at Jaycar. [34] While working at Jaycar the plaintiff rode his bicycle to and from work. The round trip was 36 km each day. The work there troubled his foot. [35] The plaintiff gave no evidence of taking time off at Jaycar because of the pain in his foot. I accept that he experienced pain. He had the advantage of a sympathetic brother there. The tight, crowded spaces behind the counter caused his foot problems with twisting. The fact that there was no evidence given of any time away for foot pain is a troubling feature. It causes me to doubt the reliability of the claims about the degree to which he was disabled by foot pain at Woolworths and the frequency of genuine disablement. One explanation for not taking time off at Jaycar because of foot pain may be the onset of back pain at Jaycar. That explanation was not offered. -- 10 of 23 -- 11 [36] At Jaycar the plaintiff wore various orthoses in his shoes. He gave evidence that he changed them during the day. He suspected that the orthoses may have been affecting his back by affecting his gait. He took holidays from Jaycar because of his back problems and while on holiday his employer terminated the employment on 23 June 2010.13 However the termination followed back problems and I find it was as a result of a back problem. It was not argued that there is sufficient evidence to attribute it to the lisfranc injury. I am not asked to find that the Jaycar job was terminated as a result of the lisfranc injury. Even though it was not the plaintiff’s case that the lisfranc problem caused the plaintiff to leave the work at Jaycar, the plaintiff gave evidence as though he believed his back complaints were caused by the lisfranc injury. He was asked by his own counsel whether he would consider applying for a job in retail like the one he had at Jaycar. He answered that he would not because: “I pretty much beat my body to a pulp just to make it as long as I did. There’s no way I could do it for a length of time…My foot just gets worse, and it just beats the rest of my body up trying to look after my foot.” That opinion of the plaintiff may be genuinely held. He attributes back problems to the wearing of his orthotic inserts and also to the need to bend as an alternative to squatting. I am unable to accept the implication in his opinion that the lisfranc injury has caused significant problems for other parts of his body. While it is a plausible hypothesis, no medical evidence was tendered to support it. [37] The plaintiff did not give evidence about whether the pain in his foot resulted in taking any time off while working at Jaycar. He did give evidence that he sat down often on the counter and in a back room to relieve pain he felt. The claim for past economic loss does not include a claim for wages lost on account of time away from work while employed at Jaycar. The absence of evidence about needing time away from Jaycar on account of foot pain, despite the long hours on his feet, makes it more difficult to accept his evidence as to the extent of his difficulties at Woolworths. [38] The early medical opinions which were given after the lisfranc injury was diagnosed suggest that the lisfranc injury did not prevent the plaintiff from performing his job at Woolworths. The level of the plaintiff’s pain is not capable of objective assessment. Woolworths cannot verify it. It is a matter peculiarly within the knowledge of the plaintiff. Because of the unreliable features to which I have referred, I am not satisfied that the plaintiff has been frank. I do not regard his evidence of difficulties at Woolworths as invented, but as overstated. [39] I am not satisfied that when the plaintiff left Woolworths in 2007 he could not perform them to the satisfaction of his employer. I find that he could perform his duties at Woolworths, but that it was reasonable for him to expect occasions when an awkward movement would cause debilitating pain and might justify a break at work or even a day away from work. His employer appears to have permitted this so long as time away other than for sick leave or vacation leave was unpaid. 13 See exhibit 18 -- 11 of 23 -- 12 [40] There was no submission for Woolworths that it was unreasonable for the plaintiff to leave Woolworths to work at Jaycar or to accept an arguably lower net income. Though it was pleaded for Woolworths that the plaintiff ceased employment with Woolworths to move to the Gold Coast, it was not put to him that his foot pain at work at Woolworths was not one reason for the move. I find that the prospect of recurrent foot pain caused by performing duties in the job at Woolworths was one basis for his change of employment. Early medical opinions [41] The plaintiff was seen by Dr Saxby, an orthopaedic surgeon, at the request of the defendant, in its capacity as a self-insurer for workers’ compensation, on 6 January 2006. Dr Saxby initially diagnosed a soft tissue injury which he considered would gradually heal. The plaintiff continued to complain of pain and aggravation of his injuries with performance of work duties. He returned to Dr Saxby on 14 February 2006 and 16 March 2006. [42] Dr Saxby did not diagnose the Lisfranc injury to the right foot until re-examination on 10 October 2006, and the plaintiff continued to complain at that examination of intermittent pain in his foot and difficulty at work. At that time, Dr Saxby discussed the prospect of surgery but did not recommend this as he did not consider that surgery would be likely to improve the plaintiff’s symptoms. He expected that there would be ongoing discomfort in the plaintiff’s foot which should be managed with supportive shoes and inserts. He considered that the plaintiff was fit to return to normal duties and considered the condition to be stable and stationary. [43] Dr Malcolm Wallace, orthopaedic surgeon, assessed the plaintiff for medico-legal purposes at the request of his solicitors on 25 January 2007. He noted the plaintiff’s complaint that he had difficulty performing his work duties. He noted the plaintiff’s complaint that he walked with a limp after standing for one hour, had problems at work with prolonged standing, and experienced aching in his foot at the end of a shift at work. [44] Dr Wallace was of the opinion that the plaintiff would require regular breaks, and be impeded in his ability to return to manual work, driving, prolonged standing or walking on rough ground. He opined that the plaintiff should be able to continue his work at Woolworths. [45] The plaintiff consulted Dr Mark Richardson, orthopaedic surgeon, for treatment purposes. The defendant requested a report from Dr Richardson, which was supplied, dated 16 February 2007. [46] Dr Richardson confirmed that the plaintiff had sustained a Lisfranc injury, with a tear to the Lisfranc ligament and bone oedema suggesting undisplaced fractures to the bases of the 1st and 2nd metatarsals and the medical cuneiform. [47] Dr Richardson considered that the plaintiff had a “guarded” prognosis with or without medical intervention. He noted that the plaintiff reported significant discomfort exacerbated by prolonged weight bearing at work. He considered that the plaintiff may benefit from a fusion of the mid-foot. -- 12 of 23 -- 13 [48] In a supplementary report of 16 April 2007, Dr Richardson advised that the Lisfranc injury was chronic and would be likely to lead to ongoing swelling in the area of the mid-foot. He opined that the work duties were not significantly different from those required to perform activities of daily living. [49] Dr David Macauley, rheumatologist, examined the plaintiff at the request of the defendant on 16 April 2007. He confirmed the diagnosis of a Lisfranc injury to the right foot which he considered had a prognosis for degenerative changes at the base of the first and second metatarsals of the right foot. Dr Macauley believed that the plaintiff was likely to require a mid-foot fusion. He did not consider the plaintiff incapacitated for employment but noted his complaints of ongoing, intermittent pain and discomfort. The plaintiff reported the recent onset of pain up the inner aspect of both shins. The plaintiff related the pain to gait disturbance because of foot pain. The doctor disagreed. He opined that it was unrelated to the lisfranc injury but was shin splints from overuse syndrome related to athletic pursuits. [50] The plaintiff was reviewed by Dr Richardson on 9 May 2008 and a report was provided to the defendant. The plaintiff was noted to have minor swelling of the tarsometatarsal junction of the 1st and 2nd metatarsals, and pain in the right foot. He noted the plaintiff’s belief that he would need to modify or change his employment secondary to difficulty loading and unloading shelves. He considered the plaintiff was likely to require a fusion in years to come. He stated that management of the condition included orthoses and modified activity. [51] The plaintiff was further reviewed by Dr Richardson on 1 August 2008 and a report was provided to the defendant, but this report dealt only with the assessment of whole person impairment for the injury. By application of the American Medical Association Guide to the Evaluation of Permanent Impairment, Dr Richardson noted that the only applicable assessment was on the basis of deranged gait, and ascribed 2% according to that method. The plaintiff’s back pain [52] While working at Jaycar, in or about September 2009, the plaintiff experienced the onset of lower back pain that later became significant. He ceased working for Jaycar in November 2009 and did not return to that employment. He believed that a cause of his pain was constant bending to work at the counter at Jaycar, lodged a Notice of Claim for Damages seeking compensation for the injury, and underwent medical examinations by specialists for medico-legal purposes. [53] It is not claimed in these proceedings that the lower back pain was caused by the right foot injury or the use of orthoses. The plaintiff gave evidence that orthoses remain such a problem for him that he tries as much as possible not to wear them. [54] The plaintiff underwent a number of medico-legal assessments in 2009 to 2010 in the context of his WorkCover claim against Jaycar. He was seen by Dr Scott Campbell, Associate Professor Bruce McPhee and Dr Greg Gillett. The cause of his pain was variously diagnosed as a disc protrusion at L5/S1 or mechanical pain. [55] When they assessed the plaintiff during the period of time he was suffering back pain, Dr Campbell and Dr Gillett considered that the plaintiff’s lower back pain would interfere with his ability to work as a sales assistant. In contrast, Professor -- 13 of 23 -- 14 McPhee considered that the plaintiff “may have” a functional incapacity for work as a sales assistant which “may only be specific to his former work place”. He stated that there was nothing that precluded him from returning to work as a sales assistant provided heavy lifting were not involved. [56] Professor McPhee recommended that the plaintiff undertake a regular exercise program to improve lumbar spine mobility, trunk strength and aerobic fitness. [57] At the time of the examination by Dr Gillett on 21 June 2010, Dr Gillett recorded the plaintiff’s advice as follows: “Gradually he started to improve with further treatment which has been self-managing of getting back to the exercises and stretching… He is now kayaking. Overall he has improved at this point and in the last few weeks he has been good. He finds the kayaking is helping and he is walking.” [58] The early signs of improvement noted in Dr Gillett’s report of June 2010 continued. The plaintiff continued kayaking and other exercises, which he found strengthened his back. He gave evidence of a gradual improvement in his symptoms until February 2011, by which time he said that his back pain completely resolved. [59] The plaintiff was reviewed by Professor McPhee on 12 September 2011. He noted that the plaintiff had an excellent range of lumbar spine movements. [60] Professor McPhee noted that the plaintiff had an excellent range of lumbar spine movements. He noted the recurrent episodes of back pain in the plaintiff’s history and believed that the plaintiff was, despite his rehabilitative efforts, susceptible to injury and recurrent pain. While he considered that the plaintiff had the strength to lift heavy objects, he advised that it would be imprudent for the plaintiff to undertake heavy materials handling. However, he considered that there was nothing in the examination to preclude him undertaking semi-sedentary work including light and moderately physical tasks in a full-time capacity. [61] The plaintiff gave evidence that his back is completely better and he would not consider that there were any jobs that he could not do on account of that condition14. He said that he would choose not to undertake work such as a furniture removalist in any event, due to his age15. He was not challenged about either of those pieces of evidence, and it was submitted for him that it should be accepted. I accept that he would choose not to do such work at his age. I do not accept the plaintiff’s lay opinion that there are no jobs that he could not do on account of his back condition. I prefer Professor McPhee’s opinion above. Recent assessments [62] On 5 August 2010, Dr Saxby reviewed the plaintiff at the request of the defendant’s solicitors. He noted that the plaintiff was then off work due to the back injury. The plaintiff stated that his pain had improved though he noted that his activities had 14 T1-57 15 T1-30 at l50 -- 14 of 23 -- 15 decreased. Dr Saxby noted pain and clinical signs of a Morton’s Neuroma, causing tenderness between the third and fourth metatarsals and a “click” on palpitation of the area. [63] Dr Saxby considered that the plaintiff continued to suffer some ongoing pain and disability from the Lisfranc injury, and noted that the plaintiff had experienced difficulty returning to his previous employment, but considered that the plaintiff would be capable of working in the retail area. [64] He considered that surgery by way of a mid-foot fusion was a possibility, not a probability, and expected that the plaintiff would continue to require supportive footwear and inserts. [65] Dr Malcolm Wallace reviewed the plaintiff on 18 November 2011. He considered the plaintiff would not be able to work in any job requiring prolonged standing. He considered that the plaintiff should be considered for a limited mid- foot fusion. [66] Dr Mark Richardson reviewed the plaintiff on 21 November 2011 and provided a report of 22 November 2011. He noted that the plaintiff continued to complain of pain in his right mid-foot. He noted that the plaintiff had a “baseline of pain” that limited his activities. He noted that the plaintiff was “capable of working” but considered that the plaintiff would eventually require fusion surgery in his foot. [67] In his evidence, Dr Richardson agreed that it was consistent with the plaintiff’s injury that he would require breaks in the course of his employment, avoid twisting or turning motions while ambulating, and swap orthoses regularly during the day. He stated that the plaintiff’s present functional ability is likely to decline with advancing degeneration but that it was impossible to predict how quickly that would occur16. [68] Dr Saxby had a discussion with the defendant’s representatives on 2 November 2011 and subsequently re-examined the plaintiff on 28 November 2011. Dr Saxby noted that the plaintiff complained to him of intermittent episodes of severe pain. He complained that the episodes were about weekly and settled after 20 to 30 minutes. Dr Saxby saw no objective evidence of it. He opined that the plaintiff suffers the ongoing effects of the Lisfranc injury which could contribute to mid-foot pain, and a Morton’s Neuroma which contributed to forefoot pain. He believed that the plaintiff was unlikely to undergo fusion of the mid-foot. [69] The recent medical opinions are premised upon the accuracy of the plaintiff’s complaints to the specialists who gave opinions. There is no doubt that he suffers a lisfranc injury. I accept that it probably causes him pain. Each of the medical specialists to give evidence agreed that, if the plaintiff’s reporting is accurate, the plaintiff suffers ongoing pain as a result of the injury, which is exacerbated with prolonged weight-bearing or twisting on the foot while ambulating. There is an issue as to the extent to which the plaintiff’s reports that pain prevents him pursuing jobs that involve standing, twisting or squatting are accurate and the extent to which pain from the injury has interfered with his earning capacity and caused loss of past and future earnings. The plaintiff shows little or no objective signs which allow one 16 T1-37 -- 15 of 23 -- 16 to assess the reliability of his reports of pain save for the fact that he was taking breaks and time off work at Woolworths and at Jaycar he wore orthoses in spite of his concern for his back. He now avoids wearing orthoses as much as possible. There is no evidence that he lost any days of work at Jaycar due to his lisfranc injury. He is extremely fit and active, takes no medication, seeks no treatment and has not pursued the option of surgery. The Morton’s Neuroma [70] Dr Saxby is alone among the orthopaedic surgeons to diagnose a Morton’s Neuroma. Dr Richardson tested for a Morton’s Neuroma and did not find clinical evidence of one. Dr Wallace noted no complaint of symptoms suggestive of a Morton’s Neuroma. The symptoms caused by that condition are limited to the area between the 3rd and 4th metatarsals. It has no impact on the pain caused by the Lisfranc injury. It is diagnosed according to clinical signs including a “Mulder’s click”. [71] Dr Saxby agreed that the plaintiff did not complain to him in 2011 of pain in the forefoot. He was referred to Dr Wallace’s description of the plaintiff’s pain as being in his forefoot, but Dr Wallace clarified that that pain was around the base of the second metatarsal17, and confirmed that the plaintiff did not complain to him of symptoms suggestive of a Morton’s Neuroma18. [72] The defendant did not plead that the plaintiff’s pleaded loss or damage would be subsumed or otherwise affected by reason of a Morton’s Neuroma, despite specifically pleading that he suffered other conditions. [73] Dr Saxby gave no evidence that a Morton’s Neuroma would have any particular effect on the plaintiff’s ability to exercise, give rise to any specific need for treatment, or improve or worsen over time. He gave no evidence of the likely date of onset of the Neuroma, bearing in mind that it was, presumably, not present when he examined the plaintiff on 10 October 2006. [74] The plaintiff’s counsel submitted that the Morton’s Neuroma, if indeed the plaintiff has one, should be disregarded in the assessment of damages. I accept that submission. Return to work [75] The plaintiff started work a couple of months ago. He has his own business number and does not work as an employee. He works with a bicycle sales and maintenance business owned by others. The work he does is mainly bicycle assembly and maintenance and occasionally sales. He works at two cycling businesses. This work means that he can sit often and avoid twisting. He can work short hours if he wishes. If he is obliged to work a long day he is free to take off the next. It is too early for him to say how much income he will make in this job. He is paid by the hour and can take work home. [76] Before obtaining that work, the plaintiff had looked for work since January or February 2011. He said that he tends to shy away from anything that he knows 17 T1-64 18 T1-66 at ll 20 - 32 -- 16 of 23 -- 17 would involve standing all day and which may involve twisting actions on his foot. He said that a lot of applications are on-line and involve questions such as “Do you have any permanent injuries or disabilities?” That would make him an unattractive prospect if he answered frankly. He was bedridden for a time with his back. That problem and his Lisfranc injury would each warrant disclosure to such a question. Surgery [77] There is divided medical opinion as to whether the plaintiff is likely to require surgery by way of a mid-foot fusion, but all agree that a mid-foot fusion is the appropriate surgical treatment for pain caused by a Lisfranc injury, and that the trigger for surgery would be the plaintiff being unable to continue to tolerate the pain in his mid-foot. I find that he is unlikely to undergo the surgery. The prospects for improvement of pain are uncertain. There is a real risk it could interfere with function and thus his active sporting life. I assess the risk of the plaintiff’s electing to have future surgery at 20%. General Damages [78] For Woolworths it was submitted that general damages of $25,000 were appropriate for pain suffering and loss of amenities on the basis that the injury has resolved to be a nuisance. I regard it as a more significant problem than a nuisance. It has and continues to interfere with the plaintiff’s active lifestyle and I accept that it continues to cause him pain at work. [79] The plaintiff has always been a physically active man, engaging in a wide range of exertive activities. While he continues to exercise, some of his prior activities are now impossible for him: long-distance running, playing basketball, and engaging in triathlons. [80] The degree of whole person impairment for the injury was assessed by Dr Malcolm Wallace at 7%, on the basis that he believed the American Medical Association Guide to the Assessment of Permanent Impairment did not properly deal with an injury such as the plaintiff’s19. [81] Dr Richardson agreed that the Guide was deficient in this regard, and considered that the injury had to be assessed according to the Guide at 2% on the basis of mild impairment of gait20. He thought there might be future deterioration. [82] Dr Saxby considered that the Guide provided no applicable basis for assessing the plaintiff’s injury other than according to his pain, and assessed 2% permanent impairment, in the context of the maximum permissible allowance for pain being 3%.21 [83] For the plaintiff it was submitted that general damages should be assessed at $40,000.00, consistently with the decision in Nguyen v Swift Australia Pty Ltd22 and the cases referred to therein. In Nguyen general damages were assessed at $43,000 in what appeared to be a more serious case though for a slightly older plaintiff. The 19 Exhibit 5, page 2 20 Exhibit 10, 5th page, para [1] 21 Exhibit 11, report of 29 November 2011, page 3, para [4] 22 [2009] QDC 219 -- 17 of 23 -- 18 plaintiff in that case had undergone surgery. The plaintiff in this case has suffered a more significant effect upon his ordinary range of recreational activities and his condition could deteriorate to a small extent. [84] I accept that $40,000 is appropriate for general damages. [85] I reject the submission for Woolworths that most of the problems have resolved. The lisfranc problem seems to be stable with a risk of slight deterioration. Accordingly I allow interest on half of general damages at 2% for 6 years being $2,400.00. Past Economic Loss [86] The plaintiff gave evidence that he also used his annual leave entitlements to recuperate from his foot injury. The defendant’s leave records indicate that the plaintiff used 37.75 days of annual leave during the period of his employment.23 For the plaintiff it was submitted that I could assume that half of this amount is related to the foot injury and so the plaintiff’s lost leave entitlements total $2,253.75. I do not make that assumption. I am not satisfied that he used annual leave to recuperate from his foot injury. [87] The plaintiff’s leave record shows 24.89 days of unpaid leave.24 The plaintiff’s ordinary nett wage varied from $572.93 at the commencement of his employment to $621.10 close to the end of his employment. At his average weekly wage of $597.02, it was submitted he lost income for 24.89 days totalling $2,971.97. I reject that for the reasons given above. I assess his loss as ten days at $1,194.04. [88] The plaintiff submitted he earned less at Jaycar and is entitled to the difference. For Woolworths there was no argument against the proposition that the plaintiff was entitled to the difference if he earned less. The only submission against the plaintiff was that he earned much the same until his employment was terminated by Jaycar. I accept the plaintiff’s counsel’s submission that he earned less. Calculating the difference is problematic. The plaintiff gave evidence that his gross wage increased but that, inexplicably, he received less as net income. It may be that he paid no heed to the large income tax refund he received. FYE 2008 was a financial year where the marginal income tax rate for individuals changed for every dollar earned over $30,000 from 15% to 30%. [89] It was submitted for him that he lost $90 per week nett for 117 weeks or $10,530 nett. His gross income as a sales assistant in FYE 2007 was $35,65125. In FYE 2008 it was $34,06926 and in FYE 2009 it was $32,074.27In FYE 2009 the plaintiff’s marginal income tax rate fell again to 15%. The plaintiff’s nett weekly pay for each of his last two full working weeks at Woolworths in FYE 2007 was $621.10. The plaintiff’s net income actually paid by Jaycar for FYE 2008 was $23,49528, for the period 22 August 2007 to 30 June 2008, a period of 44.6 weeks. For the plaintiff it 23 Op cit, being the total hours listed as “AL ORD” (presumably, “Annual leave, Ordinary”), divided by 8 24 Exhibit 23, pages 4 to 18, calculated according to the total hours listed as “OTH N/PD” or “SLV N/PD” (presumably, “Other – not paid” and “Sick leave – not paid”), divided by 8, being the hours paid by the defendant in an ordinary working day. 25 Exhibit 12 pg 90 26 Exhibit 12 pg 92 27 Exhibit 12 pg 124 28 Exhibit 12, page 92 -- 18 of 23 -- 19 was submitted that using this figure one derives an average of $526.79 nett per week, or $94.31 nett per week less than he earned at Woolworths (even if it is assumed his wage at Woolworths would not have increased). But reference to the plaintiff’s income tax assessment shows that he received a refund of more than $4,000. If one compares his gross wage for each of his last two full working weeks at Woolworths in FYE 2007 ($769.50) with his average gross wage at Jaycar for the period 22 August 2007 to 30 June 2008 ($27,713/44.6 weeks = $621.37/week) one sees a gross loss of $148 per week. [90] The plaintiff gave evidence that initially he worked shorter hours at Jaycar. The shorter hours were not explained either to reveal what they were, how long they lasted or whether shorter hours were the plaintiff’s choice or were forced upon him by Jaycar. His evidence was of a 38 hour week at Jaycar. The reason for his falling gross income from FYE 2008 to FYE 2009 was not explained satisfactorily bearing in mind that there was no claim for lost days at Jaycar on account of the lisfranc injury. [91] I am satisfied that the plaintiff did earn less at Jaycar than the amount he had been able to earn for a week of forty hours at Woolworths. The plaintiff worked at Jaycar for a period of approximately 2.25 years. His loss over this period cannot be ascertained with certainty. His wage in Woolworths employ is likely to have increased over the same period. It was submitted that his loss was at least $90.00 nett per week over this period. Having regard to some of the unsatisfactory lack of explanation in the plaintiff’s evidence it seems appropriate to limit his loss to the sum of $90.00 nett per week for 117 weeks. That is $10,530.00. [92] The plaintiff makes an additional claim for loss of income because of his vocational disadvantage in the period from about February to October 2011, when he was seeking employment but limited in the jobs he could apply for because of his foot injury. The plaintiff submits that the uncertainty as to whether and when he would have secured earlier employment means any allowance must be modest. A problem for the plaintiff was his obligation to disclose injuries in online applications for employment. I expect the problem is similar with many applications for employment. In his evidence the plaintiff portrayed it as a problem because of the lisfranc injury. I find that any obligation of honest disclosure would include reference to his history of back complaints. The periods of leave due to the back complaint should be more troubling for any reasonable employer than the periods of leave caused by the lisfranc problem. The plaintiff claims $5,000.00. Woolworths submits that there was no evidence that there was any employment available to him from the time of the putative resolution of his back condition in February 2011 which employment he has not been able to take up by reason of his foot. I infer from the plaintiff’s evidence of job application requirements that work was available. His back pain had abated. I accept that the plaintiff suffered minor loss due to a loss of a chance of employment because of his foot. Loss of $2,500 for this period is assessed.29 [93] Thus, total past economic loss is: 1. Lost income while working for the defendant - $1,194.00; 2. Lost income while working in lower-paid employment at Jaycar - $10,530; 3. Disadvantage in the labour market from February 2011 - $2,500.00; 29 Nichols v Curtis [2010] QCA 303 -- 19 of 23 -- 20 4. Weekly benefits paid by the defendant - $1,174.70. [94] The total is $15,398.70. [95] Interest on $14,224 at 5% for 6 years is $4,267.20. Past Lost Superannuation [96] The plaintiff claimed past lost superannuation at 9%. I assess that as $1,385.88. Future Economic Loss [97] The plaintiff has “longstanding degeneration in the lower two lumbar discs”30 which is “concordant with a history of recurrent low back pain extending back to 1990”31. [98] Further, there is a “right posterior-lateral protrusion of the lumbo-sacral disc”32. [99] Dr McPhee opined and I accept: The claimant’s condition is stable and stationary. Although currently asymptomatic, in keeping with his history of chronic recurrent back pain and the underlying degeneration, Mr Duck is at risk of suffering further episodes of acute back pain. This will be limited by his maintaining a rigorous exercise program but will not necessarily prevent further episodes. The degeneration has rendered Mr Duck’s lower back susceptible to injury and recurrent back pain… Although he may be able to undertake work that involves heavy materials handling, given his past history of recurrent low back pain and the underlying degeneration this would be imprudent advice. There is nothing on examination to preclude Mr Duck from undertaking semi sedentary work which includes some light and moderately physical tasks in a full time capacity. His employment is limited by his lack of qualifications, a past history of low back pain. [100] It was submitted for Woolworths that the plaintiff is really only capable of semi sedentary work which includes some light and moderately physical tasks and his foot has made no difference to that. I reject that as too simplistic. The plaintiff will have some intermittent difficulties with squatting and twisting on his feet that would affect his capacity to perform semi sedentary work which includes some light and moderately physical tasks. Woolworths submits that a global award of $30,000 is appropriate. The plaintiff submits that a global award of $100,000 is appropriate. 30 See Ex. 2 p. 28. 31 Ibid. 32 Ibid. -- 20 of 23 -- 21 [101] For the plaintiff it was submitted that relevant factors informing such an assessment are: 1. His age, with 17 years to ordinary retirement age; 2. His working background in employment of a relatively active nature; 3. The difficulties he has experienced in the three jobs he has undertaken since the accident on account of his foot injury; 4. The considerable accommodation necessary to allow him to work in his present employment; 5. The fact that he is now earning some $225.00 nett per week less than he earned with the defendant in 2007, a position which he left because of his work-related injury. While he may earn more in the future, his income with the defendant would have been likely to increase since 2007; 6. The likelihood of degeneration, in Dr Richardson’s opinion33, with the prospect of deterioration in function as a result; 7. The likelihood of surgery, in Dr Richardson’s opinion, with a period of non- weight bearing thereafter of 8 to 10 weeks. [102] In the plaintiff’s present position, he has so far earned $1,787.50 gross for his first month of work. That would equate to approximately $395.00 nett per week, according to current tax rates, and ignoring business-related expenses. However, his contracting activities have only just commenced, and it is likely that his income will change with time. [103] I am not satisfied by the evidence that the difficulties the plaintiff suffered at Jaycar relating to his foot were significant. His foot troubled him but I am not satisfied by his evidence that the foot was the primary cause of his dissatisfaction with work there. Problems with the rest of his body, attributed by him to the orthoses he wore, are not established to be related to the lisfranc injury. There was no evidence of time lost at Jaycar on account of the lisfranc injury. I am also concerned by a degree of unreliability in the plaintiff’s reporting of his lisfranc symptoms. Accordingly I discount the plaintiff’s evidence as to the degree of problems he experienced from his lisfranc injury in performing work at Jaycar and since. [104] I am satisfied that the plaintiff has some risk of minor degenerative change from the lisfranc injury. He would require a non-weight bearing period of 8 to 10 weeks following surgery34 if he elected to have it. For that risk of surgery, which I assess as 20%, some allowance for future economic loss should be included in a global award. [105] A global allowance of $54,000.00 is appropriate having regard to the various factors in this case. By way of illustration, that amounts (on the applicable 5% discount rate of 603 for 17 years) to approximately $90 nett per week. [106] Loss of superannuation benefits at 9% should be allowed, a total of $4,860.00. Special damages 33 T1-24 at l21 34 Report of Dr Richardson of 16/2/07, exhibit 6 -- 21 of 23 -- 22 [107] Special damages are agreed in the total sum of $15,886.32, comprised of the following: 1. Woolworths payments for medical and rehabilitative expenses - $9,262.06 2. Medicare Australia refund - $1,002.35 3. Podiatrist and physiotherapy expenses - $765.00 4. Medication expenses - $40.00 5. Travelling expenses - $4,500.00 6. Fox v Wood component - $316.91. [108] Interest on expenses personally incurred by the plaintiff of $6,624.26 at 5% for 6 years is $1,987.28. Future expenses [109] Each of the orthopaedic surgeons recommends that the plaintiff use orthoses. He gave evidence that the use of orthoses enabled him to perform some activities but he needed to frequently switch orthoses and sometimes experienced pain in other areas of his body after their use. He tries not to use them despite the recommendations. [110] His orthoses were fashioned and supplied by Mr Craig Page. Mr Page detailed the cost of orthoses in his report of 21 November 2011 at $485.00 per pair including fitting fees, and stated that they would require replacement every 12 to 18 months. At present the plaintiff has three sets of orthoses. Assuming that each set needs replacement every three years, the plaintiff would incur weekly costs of $9.33. Given that the plaintiff uses multiple sets of orthoses, it is submitted for him that it is appropriate to round that to a weekly cost of $10.00. [111] The plaintiff’s statistical life expectancy is 37 years. The appropriate factor on the 5% discount tables is 894. It is submitted for the plaintiff that the total sum that should be allowed for future orthotic expenses is $8,940.00. [112] Having regard to the plaintiff’s reluctance to use them I assess $6,000 as the loss. [113] The cost of the surgery to fuse the plaintiff’s mid-foot is $5,000.0035 to $7,500.0036. The plaintiff would also require physiotherapy following the surgery at a cost of $500.0037 and repeat imaging before it is performed38 at further cost. [114] The cost of the procedure requires discounting for present receipt, but the precise period until the operation is carried out is unknown. It is submitted that the sum of $5,000.00 is appropriate for the cost of the surgery. Bearing in mind my finding of a 20% chance of surgery I assess $1,000.00 as appropriate. [115] The plaintiff has given evidence that he has trialled various medications and therapies. He is likely to continue doing so. He has had some physiotherapy. A 35 Report of Dr Richardson of 22/11/11 – exhibit 10, last page 36 Report of Dr Wallace of 23/11/11 – exhibit 5, page 2 37 Report of Dr Richardson of 22/11/11 – exhibit 10, last page 38 Report of Dr Richardson of 22/11/11 – exhibit 10, last page -- 22 of 23 -- 23 modest global sum of $300.00 is submitted to be appropriate for future medication and therapy expenses. I accept that figure. [116] In total, future expenses are assessed at $7,300.00. Summary [117] The above components of damages total $148,180.38, summarised as follows: Component Amount General damages $40,000.00 Interest thereon $2,400.00 Past economic loss $15,398.70 Interest thereon $4,267.20 Past lost superannuation $1,385.88 Future economic loss $54,000.00 Future lost superannuation $4,860.00 Special damages $15,886.32 Interest thereon $1,987.28 Future expenses $7,300.00 Sub-Total $147,485.38 [118] After deduction of the refund owing to the defendant ($10,753.17) there should be judgment for the plaintiff against the defendant in the sum of $136,732.21. [119] I will hear the parties submissions on costs as they requested. -- 23 of 23 --