Chapman v University of Southern Queensland Student Guild [2010] QDC 318

DISTRICT COURT OF QUEENSLAND CITATION: Chapman v University of Southern Queensland Student Guild [2010] QDC 318 PARTIES: CHRISTIAN JAMES CHAPMAN (Plaintiff) AND UNIVERSITY OF SOUTHERN QUEENSLAND STUDENT GUILD (Defendant) FILE NO/S: TD55/08 DIVISION: PROCEEDING: Civil ORIGINATING COURT: District Court, Toowoomba DELIVERED ON: 12 August 2010 DELIVERED AT: Brisbane HEARING DATE: 18 – 20 May 2010 JUDGE: Reid DCJ ORDER: Judgement for the Defendant CATCHWORDS: EMPLOYEE’S WORKPLACE INJURY – trivial incident – no negligence – prima facie breach of statutory duty – defence under Workplace Health and Safety Act – assessment of damages Workplace Health and Safety Act 1995 (QLD) – ss 27, 28, 37 Bourk v Power Serve Pty Ltd & Anor [2008] QCA 225 – considered Parry v Woolworths Ltd [2009] QCA 26 – applied COUNSEL: P. B. de Plater for the Plaintiff R. A. I. Myers for the Defendant SOLICITORS: Schultz Toomey O’Brien for the Plaintiff Bradley’s for the Defendant [1] In this matter the plaintiff claims damages against the defendant, his employer. He alleges he suffered injury on or about 7 April 2006 as a result of the negligence -- 1 of 32 -- 2 and/or breach of contract and/or breach of statutory duty of the defendant. Both quantum and liability are in dispute. Background [2] The plaintiff was born on 2 January 1974 and is therefore now 36 years of age. [3] He was employed continuously by the defendant from late 1996. He was initially engaged to work as a trainee barman at a night club, the USQ Club, but at the time of his alleged injury, and for some significant period prior to it occurring, he was employed as a cleaner or maintenance officer. He generally worked at the Clive Berghoffer Recreational Centre (“the Centre”) at the University of Southern Queensland in Toowoomba. [4] In the course of his employment as a cleaner with the defendant he had suffered injuries to his lower back in November 1998 and August 2001. On each occasion he says he received worker’s compensation benefits for a period of about three months whilst he was off work and then returned to work, initially on light duties for another period of about three months and thereafter on full duties. He said that thereafter he had no further symptoms or pain and was able to do all work and domestic duties (see transcript page 37, line 8). [5] The plaintiff asserts that by reason of the defendant’s knowledge of these earlier injuries the defendant owed to him a “special duty of care”. (As to this see paragraph 6 of the Amended statement of Claim of 14 October 2008.) [6] Neither in the pleadings nor in his submissions did counsel for the plaintiff allege or assert that the fact of these earlier injuries placed the plaintiff’s back at any -- 2 of 32 -- 3 heightened risk of injury from performing the work that he did in the course of his employment. Furthermore, there was no evidence to that effect. [7] In my view, the case is readily distinguishable from cases where an injury, such as the loss of a worker’s eye or hearing, might place such a worker at risk of injury from a reduction in his or her capacity to see or hear imminent danger. In the absence of evidence that his back, to the defendant’s knowledge or means of knowledge, made him particularly vulnerable to injury, I do not think any special duty can arise merely because of his having twice suffered injuries to his back. I make this observation in circumstances where the plaintiff’s evidence at trial was that he had completely recovered from the effects of these prior incidents well prior to the alleged injury of 7 April 2006, and had no ongoing symptoms whatsoever. [8] The plaintiff says that on the day of his alleged injury he performed his usual daily cleaning duties as well as additional duties associated with setting up the centre for a graduation ceremony. The relevant duties alleged were referred to in evidence by the plaintiff and are set out in paragraph 8 of the amended statement of claim as follows: (a) cleaning the toilets within the centre; (b) vacuuming the carpet within the centre; (c) cleaning external windows at the centre; (d) cleaning and clearing out of rooms for use for graduation photography comprising the lifting and moving out of tables, toys and carpets; -- 3 of 32 -- 4 (e) setting up the seating unit comprising the lifting of chairs onto the seating unit and the taking out of planks of wood and the placing of planks of wood behind the seating unit; (f) setting out of carpet squares (measuring approximately two metres long by one metre wide) within the premises; (g) pulling out carpet trolleys containing between 150 and 270 carpet squares per trolley; (h) pulling out of chair trolleys containing 48 chairs per rack; (i) setting up the staging unit comprising the pulling and lifting of decks from the upper stage and placing them between two staging units and adjusting the height of the staging units (j) picking up and collecting hired space heaters with associated gas bottles; (k) lifting, carrying and moving the space heaters; (l) lifting, carrying and moving the gas bottles for the space heaters. [9] In paragraph 9 of the Statement of Claim, it is said that in the course of his duties as set out above the plaintiff began and continued thereafter to experience severe symptoms of back pain. In his evidence the plaintiff made no such assertion. [10] The plaintiff was one of two employees who immediately prior to the alleged incident performed cleaning duties at the centre on a regular basis. The other was Peter Schaffer. He did not give evidence. The Incident -- 4 of 32 -- 5 [11] The plaintiff’s immediate superior was Alison Abbott, previously called Alison Farlow. He described her as the cleaning and maintenance manager. Her superior was Catherine Jacobs, also referred to in some of the evidence as Catherine Aspromorgus, whom he described as the centre manager. Both gave evidence. [12] Mrs Jacobs said she was the sports facilities and member services group manager at the centre from about 1999, having previously been a co-ordinator at the centre. In the course of her employment as manager, she said she would see the plaintiff on a daily basis and had known him from1996 when he started work for the defendant. [13] I was impressed by Mrs Jacobs’ evidence and demeanour, and accept her evidence as accurate of both the system of work in place at the centre and of what she observed on the day of the plaintiff’s alleged injury. [14] She said: (i) The plaintiff was not a quick worker, generally taking five to six hours to do what contract cleaners subsequently did in about four hours. (ii) She had herself done all of the tasks the plaintiff was required to do numerous times and found none difficult or particularly strenuous. This included functions associate with setting up for graduation ceremonies. In this, I note that she was quite a small woman (iii) Despite the plaintiff not being a quick worker, she said he was not pressured to work more quickly. (iv) During a day when the centre was set up for a graduation ceremony, such as occurred a number of times each year, there were adequate staff engaged -- 5 of 32 -- 6 and there might on such a day be up to 20 people in the main room at the centre. (v) If help with performing a task was required, she or other supervisory staff, including Alison Farlow or Shane McNeil who were both working on the day, could readily be approached and all staff employed by that defendant had been told that if help was required they should ask. (vi) She said the defendant was a person who readily and frequently approached her at work to discuss work issues and said she readily discussed all such issues with him. (vii) That at no time had he ever told her that he found his duties too heavy or that he was unable to do the work of a cleaner. She said she and several other staff had gone through the required tasks and made an assessment of them. (viii) A company, Personnel West, had been engaged by the defendant and met with the plaintiff to discuss and work through issues which arose at work. She said these were more related to personal relationship issues rather than difficulties with the work itself. (ix) On 7 April 2006, he did normal cleaning duties initially and then was asked to do jobs associated with the set up for the ceremony. These were all usual duties of the type he’d been doing for 10 years. (ix) She was present in the hall, or gym, as she called it, after about 5pm on the day of the plaintiff’s alleged injury. She said it was at that time “full of staff” and estimated there were about 15 people in the hall at the time, -- 6 of 32 -- 7 including Shane McNeil and Alison Farlow who I have previously referred to. She said she was talking to the general manager of the centre and was about 15 to 20 metres away from the plaintiff when she saw him “starting to stand up and lean up against the stadium wall”. She approached him and he said words to the effect: “It’s my back.” (x) A few days later she signed off on an accident report form, being Exhibit 18 in the proceedings. The document indicates he suffered injury when he was “kneeling down and tried to stand up”. It also states he “was kneeling down connecting a heater to gas bottle and went to stand up, back went into spasm”. The document was signed by the plaintiff and by others. (xi) After his return to work following earlier lower back injuries she said an exercise program was arranged for him in the gym. Subsequently he said he was fully fit and able to do the full range of his duties. [15] Alison Abbott, previously called Alison Farlow, also gave evidence. She also impressed me as an honest and truthful witness. I accept her evidence. I should add that the failure to call other possible witnesses, such as Peter Schaffer or Shane McNeil, does not cause me to doubt her evidence or that of Mrs Jacobs. [16] She said she had been employed by the defendant since 1998, although recently had a period away from work, on maternity leave. From 2002 she was events coordinator at the centre and from 2005 was operations manager. In this role she was the plaintiff’s direct supervisor and had daily contact with him. [17] In his duties the plaintiff often worked alongside Peter Schaffer. Ms Abbott said that the plaintiff tended to clash with Mr Schaffer and indeed, said he did so with whoever was the operations attendant from time to time. She described the plaintiff -- 7 of 32 -- 8 as a “high maintenance” employee. She said that whilst he would sometimes come to talk to her about jobs to be done, he did not ever complain to her that his duties were too heavy or onerous. She said that while she was aware that he had suffered prior back injuries, he was not, during her supervision, ever on restricted duties and did not ever show or complain of any signs of injury. [18] She said that prior to the subject accident the defendant had reviewed cleaning procedures. It engaged a mature age student at the university, Trevor Oyston, who was studying Engineering and Organisation Management, to assist with the preparation of a document described as “cleaning procedures”. It was made Exhibit 17B at the trial. Mr Oyston had also been employed as a casual cleaner by the defendant while he was studying, so was familiar with the duties. She said that in preparing the document, extra time was allowed because the plaintiff tended to be slow in performing his duties. She said Mr Oyston also trained the plaintiff in the necessary procedures, step by step. She said that up to 10 operative casuals were employed on days where graduation ceremonies were held, including the day of the alleged injury to assist with set up of the hall for the graduation ceremony. She said that because of predicted cold weather, a decision was made to hire space heaters for the night of the ceremony. [19] It seems clear that the plaintiff was the employee required to fetch them from the hirer, a company known as Master Hire Pty Ltd. She said she did not recall a conversation with the plaintiff, when he returned, asking for assistance with unloading them. She said if he had asked, her standard response would have been to grab another employee to provide such assistance. I shall refer to this matter later in my reasons. -- 8 of 32 -- 9 [20] Scott Marchant was the managing director of Master Hire Pty Ltd and was called to give evidence. He says that the space heaters are small, compact heaters and weighed about 15 kilograms. He said they are about two foot long. He said the gas cylinders that accompany them weigh about nine kilograms. There appeared to be some misunderstanding about whether or not the company had in fact provided gas cylinders. His recollection was that they did, although the paperwork, being Exhibit 11, suggests this did not occur. The plaintiff himself said he collected four gas bottles and two space heaters and I accept that this was in fact the case, despite the contents of Exhibit 11. [21] Ms Abbott says that she recalls being about 10 metres from the plaintiff and seeing him kneeling down on one leg. She says she saw him put one hand on his leg to get up and that as he attempted to do so, he stopped. She and other people went towards him. She said Shane McNeill was standing next to him and was the first person to attend to him. She went only a short time later. It was clear he was injured and she arranged for the Queensland Ambulance Service to attend. She said they took about 15 to 20 minutes to do so. She said the plaintiff had told her that his pain had “started when he pushed off from his leg”. [22] It seems to me that this history is generally consistent with the observations of Mrs Jacobs, to which I have earlier referred. [23] The record of Queensland Ambulance Service was exhibit 28 in the proceedings. They show the QAS was first contacted at 5.30 pm and that the ambulance arrived both “on scene” and “at patient” at 5.41 pm. [24] The plaintiff himself said he was required to pick up the gas heaters and took a work Utility to do so. He was told to go to Master Hire, about five minutes’ drive away -- 9 of 32 -- 10 from the Centre. When he got there, he handed a copy of the purchase order over at the counter. He dropped the sides of the Ute and said he could not recall if he received help in loading it. He says four gas bottles and two space heaters were loaded and were secured with ropes. He said he then drove back to the Centre, reversed through the double doors that he had left open, again dropped the sides of the Ute, and undid the rope. He says that he asked Alison for assistance but that she told him none was available. He said although he had not asked for assistance during the day, he did ask Alison Abbott for assistance with the gas bottles and space heaters. As I have said, she did not recall this and I do not accept his evidence about such a request. In my view, it would be surprising if he had done so. The heavier item, the space heaters weighed only 15 kilograms. In the course of his duties that day he had lifted significantly greater weights without asking for assistance (for example the punching bag). Furthermore, I was impressed by her as a witness, and, if he had asked her for help, I think she would have recalled it and arranged help. [25] He says he in any case unloaded the bottles one at a time and agreed they were about nine kilograms. He says that were put about 50 metres from the utility. It must also have been the case that he moved the space heaters which, as I have said, weighed about 15 kilograms. He made no compliant of pain as a result of carrying these items from the utility to the position in the hall where they were when he was injured. [26] He says he put a bottle next to a space heater. He then says: “I got up with my hand on top of a gas bottle but couldn’t get up due to low back pain and left leg pain.” -- 10 of 32 -- 11 [27] He says he was on his own in the centre when this occurred, but I do not accept that this was the case. I prefer the evidence of Mrs Jacobs and Ms Abbott in this regard. [28] The plaintiff says he used his phone to call Alison Abbott. I do not accept that evidence either. [29] At the trial there was some dispute concerning the plaintiff’s mobile phone records. They are Exhibit 14. [30] To support the proposition that he was alone in the hall at the time he was injured and so had to ring for help, the plaintiff referred to his phone records. They indicate he called Mrs Abbott at 5.15 pm. He says he phoned her to tell her he was injured. He identifies the phone call made at that time to a mobile phone number which he says was hers. It is not disputed that it was her number. I note, however, that the records show the origin of that phone call as Toowoomba South. Subsequent phone calls at 5.34 pm and 5.35 pm were from Darling Heights. Those two phone calls were to his wife’s mobile and to his home. He said they were made subsequent to the accident and I accept that is so. They were made from the hall, or its environs. It is therefore curious the call at 5.15 pm was made through a different phone tower. [31] In my view, the call to Ms Abbott at 5.15 pm was almost certainly prior to his injury and probably related to some issue about his collecting the space heaters and gas bottles. I so find because of my acceptance of the evidence of Ms Abbott and Ms Jacobs about their having seen the incident, and of the presence of a significant number of people being in the hall at the time. In my view, the fact the call at 5.15 pm appears to have been made through a different mobile phone tower than the two calls at about 5.35 pm reinforces that view, but in the absence of expert evidence about the receipt of mobile phone calls to a particular tower, I do no -- 11 of 32 -- 12 specifically find the 5.15 pm call was necessarily made from a different location to the 5.35 pm call, although I think that very likely. I do not, however, accept the plaintiff’s evidence that the 5.15 call was made after he suffered his injury. In my view the timing of the call to QAS at 5.30pm, also supports the view that the 5.15pm call was before his injury, and while he was transporting or collecting the space heaters [32] I find that the injury occurred some time between 5.15 pm and 5.30 pm, and probably towards the latter part of this period. I do not accept the plaintif’s evidence that he was alone in the hall when injured or that he rang Ms Abbott to tell her of the injury he had suffered. [33] The case that the plaintiff developed at trial was somewhat unusual. In essence, he asserted that the injury he suffered occurred when performing strenuous work during the course of the day, but that it did not manifest itself, that is, he did not feel actual pain, until bending down connecting the gas bottle to the space heaters. No doubt this approach was because of a recognition that the task he was performing when he appeared to injure himself, connecting the space heater and gas bottle, was a trivial one and that proof that it was due to a breach of duty would be difficult. [34] There is of course a dispute about how heavy the work he performed throughout the day was. I have indicated that Ms Abbott gave evidence that she herself had performed all of the work without difficulty. The document, Exhibit 17B, sets out his usual duties but on this day he performed other duties also. It did seem to me that at least some of the duties associated with the set up of the hall for the ceremony might have been reasonably heavy. I note, for example, that he says he had to take down a punching bag used in the gym. Although no evidence was given as to the weight of this item, I suspect that it might have been reasonably heavy. -- 12 of 32 -- 13 Similarly too, some of the tables that he moved might have been heavy. The plaintiff says he was required to overturn these and slide them along their side to a storage place. Nevertheless, he does not say he suffered any onset of pain doing these tasks. Medical Evidence [35] In support of his case, the plaintiff relied on the evidence of Dr Alan Cook, an orthopaedic surgeon. [36] Before considering the oral evidence of Dr Cook, I will refer to his report of 18 March 2008, which is Exhibit 2 in the proceedings. The history as set out in that report is as follows: “Mr Christian James Chapman advised that in the course of his normal duties on 7 April 2006 he was setting up for a large function and that this was heavy work. He advised that towards the end of this job he was connecting a gas bottle to a heater and that he was down on both knees but found that he could not get up again because of sharp low back pain. He advised that he had not been experiencing any pain or even a mild twinge prior to this occurring.” [37] Dr Cook then considered the history of the plaintiff’s pain thereafter, his complaints and past history and the results of his examination and of CT investigations. In respect of diagnosis, he said: “It is felt that Mr Christian James Chapman sustained the following injuries as a result of the incident that occurred in the course of his work on 7 April 2006 and includes:- (i) injury to left sacroiliac joint (ii) soft tissue injury to the lumbar sacral spine resulting in the small L5/S1 disc protrusion (iii) aggravation to degenerative changes to the lumbar sacral spine and aggravation to the previous injuries as described above.” [38] Under the heading Opinion and Prognosis, Dr Cook said: -- 13 of 32 -- 14 “It is felt that the diagnosis listed above is consistent with the history as given by Mr Christian James Chapman and as outlined in the beginning of this report.” [39] He also said that in his opinion, at the time of his examination on 27 November 2007, Mr Chapman was not fit for any form of employment, even of a light part- time nature, and he felt that this was unlikely to change unless there was considerable improvement or reduction in the pain in his lower back on the left side including his left leg. He felt that the plaintiff was essentially unemployable in the open labour market and assessed at 13% whole person impairment as a result of the incident that occurred in the course of his work on 7 April 2006. He said this assessment comprised: (a) 3% whole person impairment as a result of the disc prolapse of L5/S1, which placed him between DRE Lumbar Category I and DRE Lumbar Category II. (b) 5% whole person impairment as a result of the injury to his left sacroiliac joint. (c) 5% whole person impairment as a result of persisting pain that continued to need strong analgesic medication. (d) He said the combined value charts resulted in an overall impairment of 13%. [40] In my view a reading of the report clearly indicated that “the incident” that Dr Cook was referring to, was the incident whereby he suffered sharp low back pain when down on both knees and found he was unable to get up while connecting the gas bottle and space heater. In my view, it is counterintuitive to think that Dr Cook was -- 14 of 32 -- 15 referring when using the term “the incident” to the whole of the work involved in setting up for the function throughout the course of the day, or even to the job of lifting and carrying the heaters and gas bottles, in circumstances where he said the plaintiff had not been experiencing any pain or had even a slight twinge prior to the onset of the sharp pain. [41] Despite this, this is indeed the evidence that Dr Cook gave. At p 114 line 5 and following of the transcript, Dr Cook said: “I considered that he may well have suffered his injury either seconds or minutes before, perhaps while lifting or carrying the gas bottle, or the heater, and that he didn’t feel the pain, though, for some seconds or minutes later.” (my underlining) [42] He continued: “It’s not uncommon for people to suffer an injury, and although they feel some pain at the time, it is more common to feel increased pain or to have onset of pain when they stop and cool down.” (lines 18 to 20) [43] Later, at line 28 of the same page he said: “If he had been doing heavy work through the day, carrying and positioning whatever he was required to do in the set up, particularly the heavy part of it, he certainly would have been hot at the time and physically active. By the time he comes to do what seems to be a relatively minor job of just connecting a hose to a gas cylinder, he’s obviously not working at the – at the same rate, so he would be cooling down if he’s finished all the heavy work and he’s only just in the process of finishing off.” [44] I make a number of observations about this evidence. First, it seems to me that he is raising it as no more than a possibility that “he may well have” suffered the injury seconds or minutes before the onset of sharp pain. He does not assert that it in fact occurred in this way, on the balance of probabilities. He did not assert how this might have occurred or what task he was performing. In my view, his view, even if I accepted it, does not discharge the necessary onus and would not allow me to -- 15 of 32 -- 16 conclude on balance that he in fact suffered an injury in that way. Second, it seems to me inconsistent with the view he expressed in his report of 18 March 2008 when he refers to the injury as being a result of “the incident” that occurred in the course of his work. In my view, the incident Dr Cook was referring to in his report was, as I have said, the sudden onset of pain when he was down on both knees. In my view, it is counterintuitive, as I have already said, to think that he was referring at that time to earlier work performed on the day. If he had, I have no doubt that any experienced medico-legal practitioner, such as Dr Cook, would have clearly said so. I gained the impression that he was really trying to reconstruct the plaintiff’s case, to overcome difficulties associated with the fact of his injury arising from a trivial incident. Furthermore at p 119, line 38 of the transcript, Dr Cook accepted injuries such as the plaintiff suffered can arise from such trivial movements as doing up a shoe lace or picking up a spanner. [45] In any case, I do not accept that the plaintiff was injured at an earlier time. Such a view would be contrary to evidence given at trial by another experienced orthopaedic surgeon, Dr John Morris and by a neurosurgeon, Dr Michael Weidman. [46] Dr Morris and Dr Weidman both gave evidence that it was possible to get a back injury when standing up from a squat and said that if he had suffered an injury from prior work, they would have expected the plaintiff would have felt some pain before he knelt down to connect the gas bottle. This is consistent with what I too would have expected from common experience. When pressed, Dr Morris said he thought there was a 90% chance that the injury was due to getting up from the gas bottle and only a 10% that it was due to some sort of prior work (transcript p 34, lines 20-26). [47] Dr Weidman said the plaintiff was functioning well prior to the injury on the day. He said that in his opinion the plaintiff suffered an aggravation of previous -- 16 of 32 -- 17 degeneration from a trivial injury. He did not accept that it was more likely to have been due to previous activities performed on that day. He pointed out, as is undoubtedly the fact, that people can develop pain and injury from relatively trivial incidents. He said that it was “very conjectural” to suggest the injury was caused earlier, without pain. I agree with his assessment. [48] In my view, Dr Cook does not mount such a case on the balance of probabilities and in any case I prefer the evidence of Dr Morris and Dr Weidman. In my view, the case mounted on behalf of the plaintiff is both conjectural and counterintuitive. I do not accept that the plaintiff suffered an injury on an earlier occasion in the day, but find that he in fact suffered injury to his spine in the course of connecting the gas bottle to the heater, either as he bent down to do so or, as he attempted to get up. Negligence and Breach of Contract [49] The question that remains, of course, is whether or not the defendant is liable for such an injury. The obligation on an employer at common law is to take reasonable care to ensure the safety of its employees in the carrying out of their duties at work. It has a similar contractual duty. I have already indicated that I accept the evidence of Ms Abbott and in particular I accept that she herself had performed all of the duties without difficulty and found none of them particularly strenuous. These included the duties associated with setting up for the graduation ceremony. In any case, as I have said, since the injury occurred in connecting the gas bottle to the space heater, it is really an examination of this task that is of importance. In my view it was a trivial and everyday task that a cleaner could reasonably be expected to perform without a risk of injury. In my view, the performance of all of the duties of a cleaner by Ms Abbott, and the engagement of an experienced cleaner, who was doing an Organisation Management and Engineering course at the university to -- 17 of 32 -- 18 prepare the cleaning procedures document and to train the plaintiff was a reasonable approach to assessing risks associated with performing the task of a cleaner. The cleaning procedure document, Exhibit 17B, sets out the general nature of the regular cleaning duties that were required to be performed. Exhibit 17C sets out a complete break up of the tasks that were required and the reasonable timeframes in which to perform them. Quite clearly, none of the documentation refers specifically to the task of connecting a gas bottle to a space heater. In my view nothing turns on this. The whole of the documentation, and the evidence of Ms Abbott and Ms Jacobs, to which I have referred, supports the view that the defendant’s approach to assessment of the risks associated with being a cleaner was satisfactory. It is of course impossible to envisage every task that someone might ever undertake. In my view, the failure to have specifically considered, in the preparation of the documents what was involved in bending over to couple a gas bottle to a space heater is irrelevant. If it had been considered, nothing could or would have been done differently or in any way which would have resulted in the plaintiff not suffering the injury he did. There is no suggestion that the way in which he was connecting the gas bottle or kneeling down as he did so, placed him at particular risk. In my view, as Dr Weidman said, it is just one of those injuries that can, from time to time, occur as a result of a trivial incident. In the circumstances, I find that there was no negligence or breach of contract. Statutory Duty [50] The plaintiff also relies on breach of s 28 of the Workplace Health and Safety Act (“the Act”). The relevant provisions of the Act are set out in detail in two relevant Court of Appeal decisions: Bourk v Power Serve Pty Ltd & Anor [2008] QCA 225 and Parry v Woolworths Ltd [2009] QCA 26. -- 18 of 32 -- 19 [51] Consistent with those decisions, I find that there was a prima facie breach of s 28 of the Act in that the employer did not ensure the safety of the plaintiff at his work. In my view, this flows from the fact that the plaintiff was injured in the course of his employment. No questions of foreseeability of risk of such injury are implied in the obligation under s 28(1) of the Act. Although the risk of injury was a trivial one, this is not relevant in determining whether there was a prima facie breach of s 28. [52] In paragraphs 35 and 36 of his judgment in Parry v Woolworths Ltd (supra) Fraser JA, with whom McMurdo P and White AJA (as she then was) agreed, said: “[35] However, Jerrard JA1 was not there concerned with the question raised here by the respondent, which is whether the onus shifts to the employer to establish compliance with s 27 or a defence under s 37 once the employee has proved that a workplace activity exposed the employee to a risk of injury, even if the risk is characterised as a trivial one. Furthermore, Jerrard JA introduced that part of the judgment by observing that it was strictly unnecessary to rule on the argument there under discussion. [36] My own view is that the judgment in Schiliro2 made it clear that though the workplace activities there in question exposed the employee only to a trivial risk of injury, a prima facie contravention was established because of the absolute nature of the obligation in s 28(1). The significance of the triviality of the risk lay in the relative ease with which the employer could rebut the prima facie case of liability established by proof of an apparent contravention of s 28. [53] The relevant exculpatory provisions of the Act, namely s 27 and s 37, provide as follows: “How obligations can be discharged if no regulation etc. made 27(1) This section applies if there is not a regulation or ministerial notice prescribing a way to prevent or minimise exposure to a risk, or an advisory standard or industry code of practice stating a way to manage the risk. 1 Referring to His Honour’s judgment in Calvert v Mayne Nickless Ltd; [2006]1 Qd R 106 at [86]; 2005 QCA 263 2 Shiliro v Peppercorn Childcare Centres Pty Ltd (No. 2) (2001) 1 Qd R 518; [2000] QCA 18. -- 19 of 32 -- 20 (2) The person may choose any appropriate way to discharge the person’s workplace health and safety obligation for exposure to the risk. (3) However, the person discharges the workplace health and safety obligation for exposure to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged. Defences for div 2 or 3 37(1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 for the person to prove— (a) if a regulation or ministerial notice has been made about the way to prevent or minimise exposure to a risk—that the person followed the way prescribed in the regulation or notice to prevent the contravention; or (b) if an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to a risk— (i) that the person adopted and followed a stated way to prevent the contravention; or (ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or (c) if no regulation, ministerial notice, advisory standard or industry code of practice has been made about exposure to a risk—that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention." [54] I was told of no regulation or ministerial notice prescribing a way to prevent or minimise exposure to the risk associated with bending down to connect a gas bottle to a heater. Similarly, I am unaware of any advisory standard or industry code of practice and none was suggested to me by counsel for the plaintiff. Consequently, in order to establish a defence under s 27 of the Act, the defendant must show it chose any appropriate way to discharge its workplace health and safety obligation for exposure to the risk. [55] It did so only if it did “take reasonable precautions, and exercise proper diligence, to ensure the obligation is discharged.” -- 20 of 32 -- 21 [56] In my view, the matters I have referred to, including having Ms Abbott perform all of the functions to satisfy herself that the tasks the plaintiff was required to perform were not too onerous, have an experienced cleaner and mature age student prepare the cleaning procedures document and an estimate of the time with necessary meal breaks, for performing each task referred to in paragraph 17C and to instruct the plaintiff in his duties, should be considered an appropriate way, involving reasonable precautions and the exercise of proper diligence, to ensure the obligation to ensure the plaintiff’s workplace health and safety was discharged Consequently, I find that the plaintiff has discharged its obligation by reason of its compliance with s 27 and s 37 of the Act. [57] Consequently, I find there to be no breach of the defendant’s relevant statutory duty. In making these determinations of defence under s 27 and s 37, I am particularly fortified by the last sentence of paragraph 36, quoted above, from the judgment of Fraser JA, namely that the significance of the triviality of the risk lay in the relative ease with which the employer can rebut the prima facie case of liability established by proof of an apparent contravention of s 28. [58] In the circumstances, the plaintiff fails in his action. In case I am wrong, it is necessary, however, for me to assess the quantum in this claim and I proceed to do so. Quantum [59] The plaintiff was at the time of his injury 32 years of age and is now 36. [60] He had twice previously injured his back but at the time of the incident had no ongoing symptoms. He said he was able to do the normal duties of a cleaner without difficulty and I accept that to have been so. -- 21 of 32 -- 22 [61] Examination of his financial records discloses the following earnings from employment up to the year of the accident: Year ended June Gross (from group certificates) 2003 $24,375 2004 $25,407 2005 $25,867 2006 $27,6363 [62] Since the incident his gross earnings from employment have been as follows: Year Employer $ Gross (from group certificates) 2007 Defendant 6885 2008 - - 2009 Q-Transit Pty Ltd Stonestreet Coaches Pty Ltd 10294 10354 20104 Stonestreet Coaches Pty Ltd 24276 [63] The earnings in YEJ2007 from the Defendant related to payment of holiday and other such payments and he did not in fact return to work with the defendant after the incident. [64] He commenced work as a bus driver with Q Transit Pty Ltd on about 1 August 2008. He currently works in a similar role with Stonestreet Coaches Pty Ltd. In the period 1 July 2009 to 3 May 2010 his average weekly gross earnings were about 3 This figure comprises $22,052 gross earnings from the defendant and $5,584 from WorkCover. 4 To 3 May 2010, that is for 44 weeks of the year. -- 22 of 32 -- 23 $552, the equivalent of about $28,700 gross per annum. It can be seen that this is a little above his earnings with the defendant and is probably generally equivalent to his earnings from such employment if some allowance is made for inflation. He had been so employed with the defendant from 1996 and it seems he would, barring accident, probably have tried to continue working there into the indefinite future. [65] In his evidence he said he was currently taking no medication at all. He said he had last taken pain relieving drugs soon after he started work with Stonestreet Coaches. He said his back seemed to have calmed down, so that he no longer was bothered by it. He said nevertheless that he restricts himself from doing some things. He expressed the view that he would not be able to work 40 hours per week as a taxi driver. He also gave evidence that he would be unable to work a full eight hour day as a bus driver. [66] I note from his payslip with Stonestreet Coaches, being part of Exhibit 8, that in each of the weeks ending 31 August 2009 and 4 May 2010, which are the only weeks for which I have such payslips, he worked 30 hours. His weekly pay in the later of these two weeks was $575.84, which is broadly consistent with his average earnings with the bus companies. Consequently, I assume that he was generally working an average of about 30 hours per week. [67] In his oral evidence he said he works four hours per day, from 7 am to 9 am and from 3 pm to 5 pm, driving a school bus. He says that on Wednesdays and Fridays he does a small number of additional hours driving children to school sports. He says, somewhat curiously, that he is paid holiday pay over the Christmas vacation, but that during other term holidays does not get paid and instead receives Centrelink payments. If this was so, it would suggest that his average earnings during periods -- 23 of 32 -- 24 of actual employment are slightly greater than I have calculated. He did say that on odd occasions he gets some work during the school holiday periods. [68] Whatever be the true position about his hours of work, or about the extent of his paid holidays, his earnings with Stonestreet Coaches appear to be, as I have said, broadly commensurate with his earnings, if he had still been so employed, with the defendant. I have real reservations about his evidence of the hours he says he is working, and more particularly do not accept that he is only able to work those limited hours. I note that after he had ceased taking pain medication he continued to work the same hours. The view I formed, on the whole of the evidence, was that if longer hours were available he could very probably have performed them. Certainly, the fact that he is not currently taking any pain medication would suggest that with perhaps some initial ingestion of pain relief, and further work hardening, he would have been able to complete longer hours. [69] I found his explanation of his incapacity to work a normal working week as a bus driver unconvincing. The job entails no lifting. In circumstances where he was taking no medication and worked longer hours on Wednesdays and Fridays, I think there is a very significant likelihood that if he commenced working longer hours, with time and work hardening, he would be able to perform a normal working week in his current employment. [70] I am fortified in this view by the opinions of Dr Morris and Dr Weidman, whose evidence I preferred to that of Dr Cook, who was called on behalf of the plaintiff. [71] Dr Cook, as I have already indicated, felt the plaintiff was “essentially unemployable” in any form of employment. Despite this opinion, it is clear the plaintiff’s condition has improved very significantly since the time of Dr Cook’s -- 24 of 32 -- 25 examination. He was able to return to work on about 1 August 2008 with Q Transit Pty Ltd and was at the time of trial apparently working about 30 hours per week. While Dr Cook did qualify his opinion by saying that the views he expressed was his opinion “unless there is considerable improvement”, I think he generally felt that this was unlikely to occur. Time has shown this view to have been incorrect. Contrary to Dr Cook’s opinion, the plaintiff was able to return to work as I have indicated. [72] By comparison, Dr Morris in his report of 15 September 2006 said that the plaintiff had aggravated a pre-existing condition by kneeling on the floor on 7 April 2006. In his later report of 17 January 2007 he said that on examination findings were a little inconsistent. He spoke of a voluntary restriction of his back movements in a standing position, compared to a normal back roll when sitting, and of complaints of pain with pressure on the top of his head, which is a well known inconsistency on orthopaedic presentation. Dr Morris suggested that a return to work on a “partial return to work basis” (which I take to mean on an initial part-time or light duty basis) and recommended that he lose weight and get fitter. In my view this is generally consistent with my own observations about work hardening. [73] Dr Weidman, in a report of 20 August 2007, said that the incident of back pain on 7 April 2006 resulted from a fairly normal work activity and would not result in a significant back injury in a patient with a normal healthy lumbar disk. He said changes noted on an MRI scan predated the subject accident. Dr Weidman said the plaintiff who, I interpose, was not then working, was taking mediation and complaining of low back pain and some left leg pain (all of which matters have to some extent improved), was then unfit for employment of a heavy nature requiring -- 25 of 32 -- 26 prolonged bending or heavy lifting. Dr Weidman said that this would preclude his working as a cleaner. He said: “The majority of this restriction is a result of pre-existing and ongoing degenerative condition rather than the work-related aggravation. He is medically fit for any employment that does not require prolonged bending or heavy lifting and that would preferably allow him to sit or stand as necessary.” [74] I prefer the opinions of Dr Morris and Dr Weidman to that of Dr Cook. They accord with my own view of the plaintiff and are generally more consistent with the fact of his return to work, and continuation in such work, since 1 August 2008. [75] In the circumstances I find that as a result of the incident on 7 April 2006: (i) that the plaintiff suffered an aggravation of his pre-existing degenerative condition; (ii) that the aggravation had abated by no later than 1 August 2008 to allow him to return to work; (iii) that thereafter his aggravation has further abated and allowed him to cease medication and work without significant restriction for at least the last 12 months; (iv) that he is currently very probably able to work in a full-time capacity as a bus driver or similar occupation; (v) that in any case his capacity to work as a cleaner was compromised by his pre-existing degenerative back. This view is supported by the views of Dr Morris and Dr Weidman, and by the fact of injury from such a trivial incident. I think it likely, even if the subject injury had not occurred, that he would, in the relatively near future, have been precluded from the sort of -- 26 of 32 -- 27 work which is currently denied to him, and may have had a period of time away from work. [76] In the circumstances it is apparent that the measure of his damages, if I am wrong about liability, will not be great. [77] I assess his general damages in the sum of $20,000, having regard to the passage of a little over two years from injury until his return to work and a relatively slight ongoing effect of the aggravation thereafter. [78] I will allow interest on three-quarters thereof at 2% per annum since 7 April 2006, amounting to 4.33 years. This totals some $1,300. [79] I assess past economic loss at $550 gross per week from 7 April 2006 to 1 August 2008 (120 weeks) less tax of some $60 per week. This amounts to the net loss of some $58,800. I would discount this to $50,000 because of the matters referred to above, in particular the possibility that he might have been injured, perhaps at home, performing a trivial task, at some time after the subject accident. [80] I will allow interest on only $6,752, having regard to his net WorkCover payments of $22,056 and net Centrelink of $21,202 at 5% per annum for 4.3 years. This amounts to some $1461 [81] I have not deducted the net income he received from the defendant for the year ended June 2007, after the subject accident, because I have assumed that this was holiday pay or some sort of long service entitlement that he would have received in due course in any case and did not arise out of any work he performed after 7 April 2006. [82] For the future I asses economic loss at only $10,000. I do so because: -- 27 of 32 -- 28 (a) he is earning a commensurate income at the moment; (b) in my view he is likely to work greater hours in the future; (c) his incapacity for heavier work is only partially related to the incident and is more due to his pre-existing degenerative condition, which would quite probably have caused him to change the nature of his employment in any case. [83] I will allow superannuation at 9% on past and future losses amounting in all to $5,400. [84] The plaintiff claims out of pocket expenses in Exhibit 9 as follows: 1. Pharmaceuticals ($40 per month from 7 April 2006 to February 2010) $1840.00 2. Massage/acupuncture $100.00 3. CRS refund $6385.50 4. Travel (1,500 kilometres at $0.60 per kilometre) $900.00 5. Medicals $176.15 6. WorkCover – hospital $715.00 – medical $8,702.10 – rehabilitation $2,474.54 – other $138.00 7. Fox v Wood $3,808.00 [85] Items 1, 2 and 4 were in dispute. There was in my view no satisfactory evidence about such matters and I will allow only a token sum of $400 including interest -- 28 of 32 -- 29 [86] In the circumstances I would allow special damages including Fox v Wood damages in the sum of $22,799.29. [87] I will allow nothing for future expenses. [88] I note the WorkCover refund is $37,893.64. [89] In all therefore, I assess the plaintiff’s damages, if he had succeeded with liability, as follows: General damages $20,000.00 Interest $1,300.00 Past economic loss $50,000.00 Interest $1461.00 Future economic loss $10,000.00 Superannuation $5,400.00 Special damages $22,799.29 $110,960.29 Less Refund $37,893.64 TOTAL $73,066.65 [90] I give judgment for the defendant. [91] I will hear argument as to costs. Addendum [92] In my judgment in this matter I have said that no Advisory Standard was given to me or suggested as applicable. In fact, at the commencement of submissions, counsel for the plaintiff had referred to the Manual Task Advisory Standard 2000 but he was unable to provide a copy thereof due to a glitch with his computer. He did not make any detailed reference to its provisions or suggest any particular breach of it. After completion of the trial, and after my return from circuit, he -- 29 of 32 -- 30 provided a copy of the Standard to my associate. Due to an oversight it was not given to me. [93] The applicable Standard commenced on 1 February 2000. [94] In order to comply with an Advisory Standard, an employer had to: 1. do what the standard required, or 2. adopt and follow another way that gave the same level of protection against the risk. [95] If one assumes, appropriately, that the plaintiff was performing a manual task when injured, it would seem the Standard applied. Clause 2.1 of the Standard provides that preventing or minimising exposure to the risk of musculoskeletal disorders caused by manual tasks requires: (i) management of risk; (ii) plan, design and purchase to reduce risk; (iii) consultation; (iv) training; (v) workplace health and safety plans and inductions. [96] It is said that the first step in managing risk is to target potentially risky jobs or tasks for assessment (see Chapter 7, p 20 of the Standard). [97] The next stage is to assess the problem job/task to: (i) determine the specific risk factors; (ii) evaluate their importance; -- 30 of 32 -- 31 (iii) prioritise the risk factors needing attention; (iv) determine the source of the problem and what needs to be controlled to remove the risk (see Chapter 8). [98] After identifying the significant risk factors, Chapter 9 requires an employer to determine controls that will eliminate or minimise exposure to the risk factors. [99] Chapter 10 deals with particular identified risk factors. These include, for example, forceful exertion or abnormal working postures. [100] The standard is not, however, a document setting out a precise schematic approach required with respect to every task that might be performed at work. Rather, it is a document designed to cause employers to think about, plan and implement a safe work place. In this case, the defendant had undertaken the steps I have identified in my judgment to address the safety of, inter alia, the plaintiff whilst at work. It might be argued therefore that it had complied with the relevant Standard. [101] Evidence, however, was not called from the person who carried out the assessment of the jobs the plaintiff or other cleaners were required to undertake. Furthermore, it does not seem he was involved in a similar assessment of the tasks associated with preparing the Centre for a graduation ceremony. Rather, it seems the defendant satisfied itself of the safety of such tasks by having management perform all such tasks and assess them as safe or modify them so that they were. [102] The specific task the plaintiff was performing at the time I have found he was injured was not one usually undertaken. No specific assessment of the risk associated with it was undertaken. I my view, the Standard does not require there to -- 31 of 32 -- 32 have been such an assessment. It was a trivial task. That appears to me to be obvious and there was medical evidence to that effect. [103] In my view nothing turns on the fact that a specific risk assessment of that and other jobs was not undertaken. In my view, no risk assessment would have dictated that the plaintiff do the job in other than the manner he was doing it. It would not have prevented the plaintiff from injuring himself in the way I have found he did. [104] In my view, the defendant even if it was in breach of the Standard, has in any case established a defence under s 37(1)(b)(ii) of the Workplace Health and Safety Act in that it adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention. I have identified how it did that in the judgement. In my view, the approach it adopted involved following a way that gave the same level of protection from the risk as would have been adopted if all of the provisions of the Manual Task Advisory Standard 2000 had been followed. [105] In the circumstances, there is no basis for finding against the defendant because of a breach of the Manual Task Advisory Standard 2000. -- 32 of 32 --