Austen v East Coast Yacht Finishing Pty Ltd & Anor [2008] QDC 268

DISTRICT COURT OF QUEENSLAND CITATION: Austen v East Coast Yacht Finishing Pty Ltd & Anor [2008] QDC 268 PARTIES: LESLIE CHARLES THOMAS AUSTEN (Plaintiff) v EAST COAST YACHT FINISHING PTY LTD (Defendant) and SHIPWORKS GROUP PTY LTD (Third party) FILE NO/S: 685 of 2007 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: Brisbane DELIVERED ON: 19 November 2008 DELIVERED AT: Brisbane HEARING DATE: 27-30 October 2008 JUDGE: Robin QC DCJ ORDER: Claim dismissed CATCHWORDS: Plaintiff injured in fall at work in defendant’s employ when he slipped on a staircase – workplace was a luxury yacht being constructed by the Third Party which allegedly agreed with the defendant to be responsible for workplace health and safety – whether negligence or breach of statutory duty in condition of staircase – whether plaintiff’s disability attributable to the injury, rather than pre-existing degeneration, subsequent work injury in other employment or a football injury COUNSEL: Stobie for the Plaintiff Myers for the Defendant Lane for the Third Party SOLICITORS: McNamara & Associates for the Plaintiff -- 1 of 26 -- 2 Hede Byrne & Hall for the Defendant Hopgood Ganim for the Third party [1] The plaintiff, Mr Austen, born on 29 June 1974 suffers from a moderate back disability. The issues for the court are whether the defendant company is responsible for that (with or without recourse to the third party) and, if so, what the plaintiff’s damages should be. Dr Wallace saw him once only on 10 September 2008, and reported in Exhibit 2, which constitutes the plaintiff’s medical evidence: “…Stated height was 6’2” and he weighed 90kg. He walked with a normal gait and there was no spinal deformity. He was tender over the mid-thoracic spinous processes. He was tender over the lumbosacral junction and over the right sacroiliac joint. Forward flexion was unimpeded. He was able to extend normally although there was pain on full extension. Lateral flexion to the left was restricted when compared to lateral flexion to the right. When examined recumbent he had normal straight leg raising of 40 degrees on the right and 60 degrees on the left. He had no peripheral sensory loss. He had normal muscle bulk, tone and power in the lower limbs. He had symmetrical deep tendon reflexes of normal amplitude and down going plantar responses. OPINION Your client has been involved in a work related accident in 2003 and since that time he has had ongoing lower back pain with acute exacerbations. In my opinion he suffers from a discogenic back pain syndrome related to the original accident. He has been appropriately investigated and treated and does not require any additional investigations and he will not require any surgical treatment. He has reached maximum medical improvement. Your client’s continued treatment should be with an exercise program and simple analgesia and the avoidance of any activities which aggravate his back pain. In my opinion your client has been left with a significant disability which has prevented him from returning to work as a shipwright and he would not be able to return to work as a concreter or tiler. He may be able to do some light manual work or sedentary work. In my opinion he should also be offered formal rehabilitation through a back rehabilitation program with psychological support. ASSESSMENT USING AMA GUIDES, 5 th EDITION Your client has a DRE 2 category impairment of the lumbar spine according to Table 15.3 of the Guides which allows a range of -- 2 of 26 -- 3 impairments between 5% and 8%. In my opinion your client has an 8% whole person impairment.” [2] The impairment was assessed more conservatively by Dr Gillett: “EXAMINATION I have personally performed the physical examination. Examination on 18 April 2008 reveals a man who is 6 feet tall weighing 89 kilograms. He indicates lower back, right sacroiliac and left iliac crest area pain. Today’s assessment indicates asymmetric range of motion with a flexion range to the upper tibia, extension is with dysrhythm to neutral. Rotation is normal, lateral flexion is 80 degrees bilaterally. There is no objective neurological deficit in the lower limbs. OPINION In response to the specific questions as posed: 1. The injuries as a consequence of the event of 23 April 2003 are a musculoligamentous strain injury involving the lumbar spine with referred symptomatology towards the right sacroiliac area. The injuries are consistent with the accident in question. The event of December 2003 is a further event which has caused aggravation of that condition. The event that occurs in 2007 is just part of the pathological process that has been ongoing since the events of 2003. 2. The injuries have caused pain of an acute nature and now chronic pain with intermittent acute pain related to muscle spasm. 3. In relation to impairment I assess his condition as a DRE II impairment measured at 5% impairment of whole person function due to the events in question. I apportion 3% impairment due to the first event of April 2003 and 2% related to the event of December 2003. He is a DRE II impairment related to his asymmetry of motion. In relation to work he is best suited for work that he can pick and choose in a lighter capacity not involved in heavy lifting or confined spaces. Working as a boat builder he is managing at this time with the restrictions as described and he should continue with those restrictions. -- 3 of 26 -- 4 4. Ongoing management of his condition involves the principles of living with the condition, modifying activities to accommodate the condition and persisting with exercise stretching modalities. In general terms he needs to accommodate and live with the condition. He needs to avoid activities that aggravate the condition. He will not require surgery. He has permanency associated with his back and he needs to undertake care in daily life, recreation and employment.” [3] Dr Gillett first saw Mr Austen at the request of solicitors on 4 November 2004 and reported on that date: “It is my opinion based on material facts that as a consequence of a work event in April/May 2003 Leslie Austen sustained injury to his lumbar spine. He has persistent symptoms post that event and a further event occurred on 8 December 2003. The events of April/May 2003 and 8 December 2003 are consistent with events that would produce injury to the lumbar spine. Consequent to these events Mr Austen complains of ongoing symptomatology and that is a direct consequence to the accident. If the MRI shows no structural abnormality then the diagnosis of chronic musculoligamentous strain injury involving the lumbar spine. He has persistent ongoing symptoms. He was asymptomatic prior to the accident. It is my view he is assessed as a 5% impairment of bodily function due to the sequelae of this accident. This reflects criteria of AMA 4 with a history and examination consistent with injury and observation of findings. He has persistent symptomatology in the presence of good range of motion and utilising the criteria of AMA 4 he is assessed as a DRE II Category, 5%. If the MRI scan can be sourced or radiological report be provided it would be of benefit. It is my view he requires ongoing diligence with his spinal posture and should persist with the exercise strengthening regime as prescribed by the physiotherapist. In general terms downgrading activities to work in open spaces with good lifting equipment is appropriate. The difficulties he describes in relation to his employment in the marine industry is consistent with the sequelae of this accident. You have asked me to comment regarding his injuries in relation to the AMA 5 th Edition Guidelines. The different between the AMA 4 th and 5th Edition Guidelines is that AMA 4 th Edition Guidelines is an injury related model. The 5th Edition Guidelines he would be categorised as a DRE Category I impairment based on his good range of motion. He is categorised in that level because he doesn’t fit the descriptor of Category II. Impairment range would be zero to -- 4 of 26 -- 5 3% related to the AMA 5 with reference to page 373. I would assess him as a 3% impairment using that criteria. No uplift is required utilising the Pain Impairment Chapter of Chapter 18. I have assessed him in the 4th Edition Guidelines and it is my understanding this reflects his WorkCover assessment. Each injury in my view contributes equally to his impairment.” [4] The defendant company was Mr Austen’s employer on 23 April 2003. He was part of a team of 20 or so working for the third party at its premises at Hemmant; the 20 were about one tenth of the workforce constructing a large luxury yacht then known as SB1. By the relevant date, the aluminium structure of the vessel was complete and “fairing” to produce functional and visually pleasing finishes (in which the defendant specialises) was underway. The design incorporated curved stairwells allowing movement between the various decks, which were availed of by the workforce. During construction, external scaffolding provided alternative (perhaps the principal) means of access. [5] Mr Austen fell down the stairs as he was descending from the “fly bridge”, hurting his back in a couple of places as he slid to the bottom. It may well be that by this time access by external scaffolding was not available. The stairs were a metre or a little more in width, bounded by walls on both sides. The treads (goings) and risers were steeper than, but more akin to those encountered in domestic and other contexts on land than to the more ladder-like companionways on more modest boats which should be negotiated by descending backwards. [6] Mr Austen gave his version of what happened on day one of the trial at page 17 of the transcript: “…I was working on the fly bridge with a couple of guys. The smoko hooter had gone off. I went to go down the stairs, slipped and fell all the way down, hurt my back – and then I wasn’t allowed back on site. When you first slipped had you in fact taken any steps down the companionway? – I took one step. Which foot slipped?—My right foot. You were setting forwards down the companionway? – Yes. It sort of bends around to the right, if you’re looking to it from behind – from transom to bow. The staircase goes up and winds around. So as I took my first step I was getting in position to move around till my foot – foot just slipped and I just fell all the way down. Did you strike any parts of your body? – The middle of my back and the lower part of my back. At what stage did you strike the middle part of your back? – Same time as when I fell – all hit at the same time and I fell all the way down. -- 5 of 26 -- 6 What was the height of the staircase? -- From memory about two metres, maybe three metres. And can you describe the way it was set up? Was it set up like a ladder or a staircase? Can you describe the size of the steps? – It was just a staircase – just a staircase. It’d just been sprayed the night before – with a coating – so it was quite slippery. It’s just like a normal staircase on a vessel. Can you estimate the depth of each tread of the companionway? – Yeah, probably about 180 mil. And how about the height of each step? – Um, probably 150, maybe – 200. It’s quite small. And can you say anything about the steepness of otherwise of the companionway?—Yeah, the degree gradient was quite high. Was there any dust that you saw or residues? – There was microballoons – there was microballoons, aluminium shavings, dust from, you know, the fitters inside, sanding ducts, timber dust – just various dust from all over the vessel. Was there any dust like those on the actual steps? – Yes. And it was covering other areas of the vessel as well? – Absolutely. Was there anything to hang on to? - - No. Were the stairs fitted with any handrail? - - No. Were they fitted with any type of non-skid coating? - - No, there was no temporary non-skid on those steps at all. Was there any other way of getting down from the fly bridge to the next step – next deck, sorry – below? - - You could’ve if the scaffold was set up right. There was no safety officers so they probably didn’t have a clue that day anyway. Had you used that companionway as an access before? - - Yes, yes. … Were you assisted when you landed at the bottom of the companionway? – Sorry, Andrew, I missed something. Yes. Did anybody give you help when you landed at the bottom of the companionway, after the fall? -- Yes, Steve, the painter, and one Shipworks officer was there. Other than that there was no one on -- 6 of 26 -- 7 board because it was smoko. There was no safety officer; there was nobody. Were you feeling any symptoms at the time? -- Yes. Can you describe those? -- Severe pain in my lower back and I couldn’t move. In which areas of your lower back in particular? – In my right-hand side – and in the middle of my back where I fell on the stair. Yes. Did you in fact move? – No. You were taken to Wynnum Hospital? – That’s correct. How did you get to hospital? -- Our foreman drove me. Were you able to walk? -- Very gingerly. And what advices were you given at hospital? -- They took an x- ray, gave me painkillers and sent me home. Did you do any further work that day? -- No. What was the reason for that? -- I was in too much pain.” (“Microballoons” are mixed into a kind of slurry that can be applied or plastered to surfaces then sanded back.) [7] I accept that it was at the instance of the defendant’s principal, Mr Luke (contacted by telephone), that the leading hand on site, Mr Rampton, drove Mr Austen to Wynnum Hospital for investigation. There is controversy as to whether Mr Austen went back to work on the day after he fell, and whether the smoko was around 9am as Mr Rampton said, a couple of hours later. The hospital triage nurse at 1:15pm recorded being told, “fall at work at midday”, which tends to favour Mr Austen. [8] We might not be here had Mr Austen not suffered another work injury which led to his signing and providing to WorkCover Queensland the following statement, Exhibit 7 dated 23 January 2004, which loomed large throughout the trial: “I have been employed with Advance Marine Services for around 6 months as a shipwright. My main duties are to build and repair boats. The size of the boats vary and are made out of timber, fibreglass and aluminium. I am required to take out all the old equipment and fit new ones. I also do painting, and hull repairs. There is a lot of heavy lifting required in the job. I also have to work in confined spaces such as engine bays. I am always bent over in these spaces uses hand tools such as sanders. -- 7 of 26 -- 8 In around April/May 2003, I was working for East Coast Yacht Furnishings. I was working on a top deck of a boat. It was smoko time and there had been a slippery substance sprayed on the steps and there were no hand rails or ropes on the steps. I took a step onto the first step and my foot slipped. I fell and landed on my lower back on the corner of the step. I then fell all the way down to the bottom of the staircase. Richard, and Adrian witnessed this fall. I do not recall their last names but I do recall that they were English. There was no safety officer on site and we then went to see, our safety officer, Steve. He took me to the safety office to complete an incident report, which I did, and then Richard drove me to Wynnum Hospital. At the hospital they took and x-ray and they said the x-ray was normal, and they then sent me home. I am not sure if the hospital gave me a medical certificate or not. I had the next 2 days off work and then went back to work. I was still in pain in the middle of my back when I went back to work. I had to sit on the bed to get dressed with my wife assisting me. I continued to work and put up with the pain for a couple of weeks and then the pain went away. So I thought there was nothing. In the meantime Peter Lukes said that he would put a claim in for WorkCover and take photographs of the area where the accident occurred. I am not sure if I filled out an application for compensation at the time. Any forms that I got from the hospital I gave to Peter Lukes. So from then on I had assumed that Peter had put in a claim for me. I worked for Peter for a couple more months before starting with Haines Signature at a Wacol as a foreman. I had no problems with my back while I was there and I was there for around 5-6 months. I then went to work for Conor Kinsella at Advanced Marine Services. My brother-in-law has since bought this business. When I started work on 8 December 2003, I would say that I was pain free and feeling 100%. During the morning I had been lifting a petrol tank out of a yacht using 2 jacks. I would say that I had been bent over for most of the morning. Then at about 12pm, I was working Chris, I do not recall his last name, I had hit the shaft with a hammer to loosen it and thought that it was loose enough to pull out. I then had my back up against the hull of the boat to have some leverage, and Chris was on the other side, and the shaft was behind me on my right hand side. As I was trying to pull the shaft out, I was slightly bent and twisting to the right hand side. As I tried to pull the shaft out, I had a stabbing pain in the right hand side of my lower back. I fell to the ground and laid there for around 10 minutes, and my brother-in-law drove me to Wynnum Hospital. There I was given 2 morphine shots and 2 Valium tablets, as well as some Panadeine forte to take later. The doctor knew exactly what -- 8 of 26 -- 9 had happened. He gave me a certificate for a muscle spasm as he felt that I had torn some muscle from my right hip. He gave me a medical certificate for time off until 10 December 2003, and he then cleared me from 11 December 2003. I then went back to work in a lot of pain and did some light duties, which was bending over using an orbital sander. However I only could work until around lunchtime, and then I went home due to the pain. I tried to get into see my normal doctor, Dr Occhino, but could not get in until 16 December 2003. In the meantime I stayed at home and rested. I saw Dr Harvey on 16 December 2003. He said that I could go back to work but I was not ready. So I went back to the doctor and I have been certified totally incapacitated since. I was sent for further x-rays and Dr Occhino feels that the muscle has been pulled out of the joint. So at the moment I keep having muscle spasms in my lower back, and feels tight all the time. I am still taking Panadeine Forte and anti-inflammatories. I have not been referred for any physiotherapy at this stage but I have been referred to a musculo-skeletal physician at the Wesley Hospital. I am seeing him on 3 February 2004. I cannot recall his name. I last saw the GP on 15 January 2004. Dr Occhino is due back from holidays on 13 February 2004 and I will see him after this. Outside of work I did play some golf and do some sailing. I would do this whenever I could. I have never had an injury while I have done this. I don’t think I did anything physical previous to the 8 December 2003. Prior to 2003, I have never had a back injury at all. This is my only form of income. I am not employed or self employed anywhere else. I do not do any volunteer or charity work outside of my employment.” (Dr Harvey worked with Dr Occhino.) [9] Exhibit 7 led Dr Gillett to opine on 17 October 2008: “1. In relation to the events of the accident of April/May 2003 (East Coast Yacht Furnishings slip injury) I believe, based on the statement that the injury had recovered and there were no residual problems from that accident. His best diagnosis would be a soft tissue injury which recovered. 2. I would think on the balance of probabilities that the incident of April/May 2003 would not predispose him to suffering the injury of 8.12.2003. I do not believe the -- 9 of 26 -- 10 incident of April/May would cause him to be more vulnerable to decompensation on 8.12.2003. I think the event of 8.12.2003 in its own right is an event that could cause injury to his back and with reviewing the Statement as well as previous information I have reviewed I do not believe there are any long term sequelae of the event of April/May 2003. This is based on the medical information and Mr Austen’s Statement. 3. I think that the Wynnum Hospital records with pain in the mid pain (sic) and x-ray of the thoracic spine would suggest that the accident had caused injury to the thoracic spine rather than the lumbar spine. 4. I do not believe, based on all this information, that there is any causal connection between Mr Austen’s persistent lower back pain and the incident of April of 2003.” [10] Dr Labrom had reported on 18 February 2004, 15 days after seeing Mr Austen (Exhibit 37): “I believe Mr Austen has most likely sustained a musculoligamentous strain to his lower back on the two occasions mentioned above. He may have a discal injury, in the fashion of a annulus tear. There may be the chance of a disc herniation on the left side compressing the S1 nerve root, considering he has left buttock pain, and I believe that these would be best assessed with an MRI scan. I have asked him also to get some x-rays of his lower back, and he will come back and see me with these results. In the meantime, I recommend Mr Austen commences some physiotherapy, and I have given him a certificate until the end of March. I believe that there is a good chance that he should reach his maximal medical improvement after the appropriate therapy rehab in this time, to at least return to work on some suitable duties programme. He may require an occupational health assessment at his workplace in that time. I would recommend this, if WorkCover is able to arrange it. I believe Mr Austen had sustained an acute injury on 8 December 2003. After questioning, he denied any previous back or neck complaints and denied any chronic medical conditions. I believe his diagnosis most likely to be a musculoligamentous strain to the paravertebral muscles in the lower thoracic and lumbar spine. I also raised the suggestion of a discal injury in the lumbar spine, as was evidenced by his clinical symptoms and signs. I believe that he was not obviously suffering a right sacroiliac joint strain.” He made a further report on 26 October 2005: -- 10 of 26 -- 11 “9. Details of any referral to other medical providers or specialists: There were no further referrals to any specialists except for the MRI scan. His MRI scan was performed on the 4th February 2004 and at the same time an x-ray of his thoracolumbar spine was included. There was no abnormality upon these x-ray series. 10. Planned future treatment including rehabilitation such as physiotherapy/gym strengthening programme: Planned treatment should include ongoing self directed physical therapy and aerobic fitness training. 11. Current Capacity for work including ability to return to work in an alternative position: The current capacity for this fellow to work based upon my previous examination in 2004 would be the recommendation of him returning to his usual employment. 12. Prognosis including an estimation of when maximum medical improvement may occur: The prognosis for this fellow remains good. I would suggest that he has reached maximal medical improvement and based upon my previous examination and more recently the MRI scan supplied to me, I would assess Mr Austen as having no measurable loss of function including no permanent impairment. Having said that, Mr Austen has sustained a significant musculoligamentous strain injury and he will benefit from further caution while working in his position on boats. He should also continue his self directed core abdominal and lower back strengthening exercises. He may have ongoing amounts of lower back ache which are related to the physiologically degenerating lumbosacral discs. This condition is pre-existing and his work related injury related to his musculoligamentous strain by this stage, should be expected to have resolved. On 22 October 2008 he reported (Exhibit 28): “When I provided my report I had been given to believe by Mr Austen that he had ongoing lower back pain and spasming in his lower back and left buttock, following the incident of the 23 April 2003. Although I was of the opinion that any symptoms resulting from any work related injuries had resolved by the 3 February 2004, I had nevertheless considered that the incident of the 23 April 2003 had resulted in some musculo ligamentous strain persisting on Mr Austen’s history, until at least the 8 December 2003. -- 11 of 26 -- 12 I have now had the opportunity to consider Mr Austen’s statement of the 23 January 2004. … … In light of Mr Austen’s account, it is clear that his fall on the 23 April 2003 resulted in a musculo ligamentous strain injury, persisting for two weeks or thereabouts. On Mr Austen’s account, the strain was completely resolved by early May 2003 and would not have rendered him any more susceptible to injury than was the case prior to the 23 April 2003. The nature and extent of the minor musculo ligamentous strain evidenced in the Plaintiff’s statement of the 23 January 2004, resolving within a period of 2-3 weeks of the incident, is completely consistent with a fall of the nature of that described by Mr Austen – a relatively young (29 years) fit man. …” [11] Dr Wallace, who gave evidence by telephone, (like the other orthopaedic specialists and Dr Ratnam), learnt of the contents of Exhibit 7 only in cross-examination. At page 11 of the transcript for day two, having agreed it was unlikely that a person could participate in A Grade rugby league in the Ipswich competition with a bad back, he said that in the light of the indications in Exhibit 7 that any back problems arising in April 2003 had resolved, his opinion would now differ, that he would depart from his earlier view that Mr Austen suffered from a discogenic back pain syndrome related to the incident in that month. Adhering to his view that Mr Austen’s back pain was severe enough to prevent his returning to certain types of work, he agreed that “that would be more related to either the incident of 8 December 2003 or perhaps even the football injury of 4 August 2007” and that, if Exhibit 7 were correct, it was “quite unlikely that any disability for that sort of employment would be in any way, shape or form related to the incident of 23 April 2003.” [12] In determining whether Exhibit 7 is reliable, it is helpful to consider the following chronology: • 17/08/00 – Plaintiff signs application to WorkCover in respect of injury suffered in employment of Australian Meat Holdings on 27/07/00. • 20/02/03 – Plaintiff commences employment with defendant. • 23/04/03 – Plaintiff’s back injured while working for defendant at third party’s premises. Plaintiff seen within hours at Wynnum Hospital. Notes referred to hurting back of head, mid back and chest, thoracic spine and chest x-rayed, Panadol recommended or given. -- 12 of 26 -- 13 Within a couple of days, plaintiff returns to defendant’s employ, but at the defendant’s own premises at Coomera doing lighter work more suited to a shipwright. • 09/05/03 – Plaintiff’s last day of employment with defendant. Mr Luke says he just didn’t appear for work after that. • 20/06/03 – Plaintiff’s job application to Haines Hunter denies any medical condition that would affect ability to perform allotted duties, indicating willingness to undertake a back examination (Exhibit 9). • 23/06/03 – Plaintiff commences work with Haines Hunter Marine Industries Pty Ltd. • 03/09/03 (Exhibit 10) – Pre-employment health assessment for Haines Hunter prepared by Dr Thomas and signed by him and Mr Austen denying “back or neck trouble” in a checklist and stating specifically in the doctor’s certificate: “Back (a) any history of back trouble or back problems – Nil (b) details of Workers Compensation claims associated with back problems – Nil (c) other comments concerning back problems – Nil” • 22/10/03 – Plaintiff begins work with Advanced Marine Services. • 08/12/03 – Work injury (right side lower back pain) after pulling on the shaft of a propeller underneath a yacht. Plaintiff seen at Wynnum Hospital and given Torodal, Valium, Pandadom (sic) and a medical certificate for three days. • 16/12/03 – Plaintiff seen at Dr Occhino’s practice (general practitioner). • 24/12/03 – Plaintiff completes workers compensation application for injury sustained during his current employment with Advance Marine Services, no date of injury or cessation of work because of it being given (Exhibit 24). • 31/12/03 – WorkCover received application. • 23/01/04 – Plaintiff provides signed statement for WorkCover suggesting back pain from April incident persisted for a couple of weeks and then went away: “pain free and feeling 100% at work on 8.12.03”. • 03/02/04 – Plaintiff sees Dr Labrom whose report (Exhibit 37) notes the April injury (“landed on his lumbar spine and had a hyper-extension type injury…required two days off work”). The report of 18.02.04 says, “has some issues with his current employer and…is taking legal action against the East Coast Ship Finishing Company.” The doctor recommended physiotherapy and gave the plaintiff a certificate until the end of March – conflicting with the plaintiff’s telling Dr Wallace that there was physiotherapy undertaken after the April, 2003 injury (Exhibit 2). -- 13 of 26 -- 14 • 05.02.04 – The plaintiff’s first physiotherapy (Exhibit 40). • 27.05.04 – Plaintiff signs a player’s agreement with Queensland Rugby League: Northern Suburbs Senior Rugby League Football Club in Southern Division (Ipswich). • 07.06.04 – (Exhibit 25) WorkCover advises plaintiff of determination to cease his claim from 16 June 2004 on the basis that there was no longer incapacity because of the “work related injury” and that Mr Austen was no longer suffering the effects of the “work related injury” (that being the one of 8 December 2003). • 08.06.04 – WorkCover’s Notice of Assessment for the injury of 8 December 2003 that the Work Related Impairment (WRI) is “nil”. • 27.10.04 - Boral job application indicates “no” back, neck or joint problems “now or in the past” (Exhibit 11). • 04.11.04 – Plaintiff sees Dr Gillett on 9 November 2004. • 24.02.05 – Plaintiff signs QRL player’s Agreement for 2005. • 15.04.05 (Exhibit 12) – Centrelink receives Dr Occhino’s Medical Certificate advising unfitness for work from 25 March 2005 to 25 June 2005 inclusive for “right sacroiliac joint strain and lower thoracic muscle strain said to have started to make it difficult to work full time in December 2003 when “treatment commenced”. The “date of onset” is given as 09/12/03. • 31.08.05 – Plaintiff signs Notice of Claim for Damages under WorkCover Queensland Act 1996 (Exhibit 26). • 26.10.05 – Dr Labrom reports (Exhibit 38). • 07.03.06 – Plaintiff signs QRL player’s Agreement for 2006. • 16.03.06 – Plaintiff provides statutory declaration pursuant to WorkCover’s requirement (Exhibit 8) stating “I am now unable to play rugby as there is too much contact.” (Exhibit 8) .1 1 The declaration concludes: “m. I was engaged in my usual occupation at the time of the incident. n. I find that I am mechanically stiffer and find it harder to get into position to work and am in constant pain. I have a constant feeling that my back is twisted. I am unable to work in confined spaces or do any work involving bending or twisting. I am unable to do repetitive work that is involved in detailing and repairing boats. I am restricted when playing soccer. I am unable to run freely and am not quick off the mark. High kicks cause me pain (e.g. lifting leg above horizontal). General fitness also causes pain and this is a factor as I am unable to train fully. Before the incident I played A Grade for Brothers Rugby League; State League for Wynnum Soccer Club, and Ethnic World Cup Soccer. I am now unable to play rugby as there is too much contact. I am unable to tackle effectively and I experience back spasms all the time during a game. I fear that I will re-injure my -- 14 of 26 -- 15 • 12.04.06 – In a further statutory declaration (Exhibit 19) the plaintiff says he made no job application since December 2005 because of childcare responsibilities • 30.01.07 – Plaintiff signs QRL player’s agreement for 2007. • 27.03.07 – Plaintiff plays first of his A-Grade rugby league games of the season for Norths (of at least 10). • 13.06.07 – Application for work with AMH conducted by Dr Ratnam. • 04.08.07 – Plaintiff injured in Norths-Laidley Rugby League Match: “stretchered” by ambulance and taken to Laidley Hospital, given Torodal and Valium, and discharged himself despite advice to remain in hospital overnight. • 18.04.08 – Plaintiff examined by Dr Gillett again; according to his report: “PROGRESS Mr Austen had physiotherapy treatment in 2006 which was of some assistance. In 2007 he also had some more physiotherapy after he was playing rugby league and was running back out of the line when his back went into spasm. There was no contact. He had played about 4 or 5 games of rugby league and had previously got himself fit to play but didn’t play after that back spasm which occurred for no real reason. He then had physio with that.” • 10.09.08 – Plaintiff sees Dr Wallace. [13] Dr Ratnam’s assessment and what happened in the Norths v Laidley match are contentious. The doctor surmises that the football injury explains the deterioration in the plaintiff’s abilities noted by the orthopaedic specialists in the following year. Mr Austen’s case is that nothing significant happened during the match, that he was simply running on the field when his back went into spasm. Mr Heidke is the club nominee for the Northern Suburbs League Club. He was at the match and claims to have seen Mr Austen injured during the play in a tackle which brought him to the ground in circumstances where he could not move or could not be moved and play was stopped for 10 minutes until the ambulance took him away. In the subpoenaed material from Laidley Hospital (Exhibit 22) there is a “nursing assessment” which records “2002 – sciatic pain – fell from a boat – six months physio. Today felt back “lurch” to the right while running on footy field.” It may be seen as supporting Mr Austen’s version. On the other hand, the Queensland Ambulance Service report form allocates the case as “traumatic injuries; possibly dangerous,” the pain being in the lumbar region; the internal referral by Dr Chitchit gives the reason for referral as back if I continued with this sport. I am also unable to sit in a car for prolonged periods. Every two (2) hours I need to stop and rest before continuing on. o. Following the incident I did return to work as outlined above, however have now ceased working.” -- 15 of 26 -- 16 “low back pain after football tackle”. The match report in Exhibit 16 records approximately 10 minutes lost in first half “due to injury”. No reason was suggested to Mr Heidke why he would make up his account of a tackle. The challenge to him was essentially on the basis that he was not paying close enough attention to the game. It would appear that the “spasm” or whatever it was on this occasion, unlike earlier ones, put an end to the plaintiff’s playing of rugby league. I accept Mr Heidke’s evidence. [14] I took the challenge to Dr Ratnam to be that he had not effectively carried out the various physical tests he had set for the plaintiff. There was nothing like a suggestion that he was consciously certifying as fit for work for AMH someone whose fitness was questionable (whether because that employer was finding it difficult to get workers or for any other reason). I took the plaintiff’s assertion to be that Dr Ratnam carried out his task in a perfunctory way, accepting without question Mr Austen’s (assertedly dishonest) representations there was nothing wrong with his back. The doctor described an examinee displaying an unusually high level of fitness, with straight leg raising to 90 degrees, for example. Dr Ratnam’s evidence is accepted. Liability [15] A case for the defendant’s liability is not made out. [16] Mr Austen, whose account is reproduced in paragraph [6] above, said that he was working on the sundeck or “fly bridge” of the vessel under construction; it sits above the upper deck, main deck, lower deck and machinery deck. He said he had seen stairs or companionways on vessels fitted with temporary handrails (indeed, fitted them himself) and temporary or permanent non-slip coatings applied to the treads. [17] Without objection, there was tendered an engineering report bearing on safety issues by Charlotte Nash-Stewart (Exhibit 3). It attests to the dangers inherent in any stairs for a person descending them; it places reliance on the standards adopted in s E6 of the Uniform Shipping Laws Code which the Australian Transport Council has adopted. Exhibit 3A is subsection E; Passengers, Passenger Accommodation, Guardrails and Bulwarks. Highlighted in the report were requirements that stairways: “… (vi) Have a going of not less than 150mm. (vii) Have an angle to the vertical of not less than 45 degrees when the number of passengers exceeds 200 and 37 degrees when that number is 200 or less. … (x) Have a non slip surface on the tread. …” I agree with the submission for the defendant that the “standard” applies to what should be provided for passengers on a completed vessel, not to conditions during construction, when, inevitably, the conditions of a building site will exist. Further, I do not regard the stairway here as “access” in the author’s sense. It was part and parcel of Mr Austen’s workplace in the sense that his “fairing” activities were carried out there as much as on the decks. I am inclined to accept Mr Rampton’s evidence (given later, and unfortunately not put to Mr Austen – I assume Mr Myers did not -- 16 of 26 -- 17 know it was coming) that on the very day of the incident Mr Austen was working on that stairway. [18] Ms Nash-Stewart helpfully summarises the “counter measures” she suggests could have been taken: “… 1. Prevent access (substitution or isolation control). The first, and most preferred, risk control method for the stairway was to eliminate the need for workers to use it, at very least until slip resistant surfaces were in place. … 2. Textured treads (substitution control). Improvement to the available underfoot friction could have been achieved by securely fixing in place a temporary tread cover, such as carpet or textured rubber matting. Materials suitable for this purpose are readily commercially available, and maintain their slip resistance even when contaminated. Such a system could have been installed quickly and at minimal cost when compared to the value of the vessel. 3. Handrails (engineering control). Affixing temporary handrails (preferably on both sides of the stairway) would have provided additional points of body support for a person descending the stairway. Mr Austen relates that providing such temporary handrails or similar (such as a knotted rope) was the usual practice on other construction sites in his experience. Given that the stairway was the only means of access to the fly/sun deck, and that workers were required to carry equipment up and down it, the author considers it inappropriate that no handrail was fitted. As the vessel was under construction, a temporary handrail could have been installed rapidly and at very minimal cost. 4. Housekeeping (administrative/procedural control). The presence of contaminants on the stairway, such as from sanding or other finishing work, could have been reduced by implementing housekeeping procedures to clean down high risk areas (such as stairways) before being used for access. When clean and dry (i.e. no contaminants), it is unlikely that even the smooth surface of a gel-coated tread would fail slip resistant requirements according to Australian Standards2 .” There is allusion here to the terms of s 27A(2)(b) of the Workplace Health & Safety Act 1995. [19] In all of these respects, I prefer the practical views of Mr Luke and Mr Rampton. Their experience far outweighs that of Mr Austen, which I would decline to rely upon; indeed, his experience of comparable “construction sites” I would assess as 2 Dravitzki, V.K., Potter, S.M., Ball, G.F.A. (1992) Guidelines for assessing the potential slip hazard of pedestrian surfaces, Report No: 92-27124, Central Laboratories, New Zealand. -- 17 of 26 -- 18 too limited to be of assistance in establishing accepted practice. I accept that the repeated installation and removal of temporary tread covers and handrails every time another of the numerous coats or layers had to be applied and sanded back would be inconvenient, impractical and unreasonable – it may be uneconomic as well. I accept the view that temporary handrails would pose problems of their own in the area of safety. There was no evidence (Mr Austen’s based on limited experience apart) to show that such measures were adopted at all generally. The idea of preventing access seems impractical to me – elaborate scaffolding would be needed to give safe access to the fly bridge, set back as it is from the lines of all decks below. As to “housekeeping”, the evidence is unsatisfactory. The defendant was said to be precluded by the contractual arrangements which the third party wanted from engaging in cleaning, the third party supposedly engaging a large number of cleaners (at much lower hourly rates of remuneration and the defendant’s workers commanded). [20] An essential part of the fairing operations was sanding or grinding back of coat after coat of resinous or like material applied over virtually the whole of the large aluminium vessel. Creation of considerable amounts of dust was part and parcel of the job. Masks had to be worn. Inevitably, there would be dust settling on the horizontal surfaces. It would not be practical to have cleaners constantly vacuuming it up and likely getting in the way of those engaged in fairing. Although Mr Austen (who suggested at one stage that he cleaned up his own dust) presented at trial the case that it was the presence of dust which created a slippery condition on the relevant step, in statements of his on earlier occasions, it does not appear to be suggested that dust played a relevant role. [21] Mr Austin describes himself in his application of 20 June 2003 for his next job as having the qualification of a 3rd class shipwright. The shipwrights and others on the vessel could, in my opinion, be trusted to have sufficient experience to understand the nature of the workplace and the predictable presence of dust where they might have to walk – serving to reduce friction on surfaces that were likely to be “quite slippery” anyway, to quote Mr Austen. Just as stairs are hazardous, some jobs necessarily involve hazardous aspects – which in other contexts might be pertinent to a finding of negligence or breach of statutory duty. One such, in respect of dust, is fairing. [22] A recent authoritative statement confirming the “absolute” nature of an employer’s duty under s 28 of the Workplace Health & Safety Act 1995 is Bourk v Power Serve Pty Ltd [2008] QCA 225, where Muir JA with the concurrence of other members of the Court of Appeal said: “[32] Under s 28(1) the employer’s duty to ensure the employee’s safety is absolute. It is not expressed as a duty to supply equipment, advice, training, conditions, or assistance of a particular type or at all. Subject to the operation of s 26, 27, and s 27, if an employee such as the appellant is injured through the failure of a piece of necessary safety equipment provided to him by his employer there is a breach of the obligation imposed by s 28(1). The employer has failed to ensure the safety of the employee. Causation is established. If the employee’s safety had been ensured, the employee would not have been so injured. -- 18 of 26 -- 19 [33] A requirement that the appellant prove that “had there been a system of inspections and checks the defect in the pole strap would have been detected” is not to be found in s 28(1). Nor is it justified by s 27. An employer can avoid liability, where there is no regulation, ministerial notice, advisory standard or industry code within the meaning of s 27(1), by choosing “any appropriate way to discharge the…workplace health and safety obligation for exposure to the risk”3 and by taking “reasonable precautions” and exercising proper diligence to ensure the obligation is discharged.4 The employer may also establish a defence under s 375 or discharge the obligation imposed by 28(1) by acting in accordance with s 26. Section 26 has no relevance for present purposes. Section 27 however does not define the obligation under s 28(1). It states, in quite general terms, a means by which such obligation may be discharged. [34] The unchallenged finding at first instance was that the first respondent did not have the benefit of a defence under s 27. That being the case, the appellant was entitled to succeed. Whether the defect in the pole straps would have been detected by a proper “system of inspections and checks” diligently carried out would have been relevant to the application of s 27 or s 37 had there been such a system. Absent such a system and the application of s 27(3) or s 37(1)(c) what such a system may or may not have detected was irrelevant. It sufficed for the appellant’s purposes that he was provided by his employer with a defective pole strap which failed, causing him injury.” [23] It may be worth noting the authorities relied on by Mr Myers which, if I may say so, were on the venerable side. Mr Stobie did not suggest it would be inappropriate to apply the principles advanced in them. It should be borne in mind that the plaintiff relies on breach of statutory duty (as in Bourk) as well as on common law negligence. In Latimer v AEC Limited [1953] AC 643, Lord Tucker said at 659: “… The learned judge seems to have accepted the reasoning of counsel for the plaintiff to the effect that the floor was slippery, that slipperiness is a potential danger, that the defendants must be taken to have been aware of this, that in the circumstances nothing could have been done to remedy the slipperiness, that the defendants allowed work to proceed, that an accident due to slipperiness occurred, and that the defendants are therefore liable. 3 The Act 1995 s 27(2) 4 The Act s 27(3) 5 Schiliro Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 at 532 -- 19 of 26 -- 20 This is not the correct approach. The problem is perfectly simple. The only question was: has it been proved that the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work? The learned judge does not seem to me to have posed this question to himself, nor was there sufficient evidence before him to have justified an affirmative answer. The absence of any evidence that anyone in the factory during the afternoon or night shift, other than the plaintiff, slipped or experienced any difficulty or that any complaint was made by or on behalf of the workers all points to the conclusion that the danger was in fact not such as to impose upon a reasonable employer the obligation placed upon the respondents by the trial judge.” [24] Paragraphs 11, 33 and 35 of Mr Myers’ written submissions collect more authorities: “11. In Quintano v Cable Makers of Australia Pty Ltd [1966] 2 NSWR 496 the Court of Appeal of New South Wales observed at p 499- “Any employer would envisage that in the course of performing almost any type of factory work, a worker may sustain muscular strain or other physical lesion, but it is a non sequitur to ascribe the happening of such an event to negligence on the part of the employer – these cases are taken care of in the field of statutory compensation.” 33. In terms of liability, in defining the employer’s duty in Vozza v Tooth & Co Ltd (1964) 112 CLR 316, Windeyer J says at p 319: “For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.” 35. The plaintiff was an experienced shipwright. There were some 200 or so men working on this construction site. Many of them were generating dust. All of the men were aware of the dangers inherent in the construction of ships. As Gibbs CJ said in McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423 at p 425: “It is not reasonable to expect that the employer of an experienced deck hand should be obliged to warn him of a danger which is obvious, and which he is in fact fully aware, -- 20 of 26 -- 21 unless there is some circumstance that indicates that a warning is necessary – and there was no circumstance of that kind in the present case. The respondent said that although he had never received any warning of the danger of trapping his arm between the barge rail and the pile, he thought that the employees were all cautioned at different times to be careful, anyway, on any boat. No more explicit warning was shown to be necessary.” [See also 54 ALR 3 at 8.] The plaintiff recognised the need for care at [transcript] p 18 1.20.” [25] In the expectation that (as has happened) the court regards Mr Austen as a less than satisfactory witness, if only because of his repeatedly confusing what followed the April 2003 incident and what followed the December 2003 incident in his attempts at reconstructing the story of the first (as to which he never seems to have given any detail until the year following), Mr Myers also relied on his forensic triumph in Farrell v Queensland Newspapers Pty Ltd (55 of 1994), Muir J, 30 May 1997, affirmed at [1998] QCA 18, where the Court of Appeal said: “The appellant lost his case because he was unable to convince the primary judge, who regarded him as an unreliable witness, that he remembered sustaining injury on a particular occasion, or that he was injured while pulling a table. The appellant was able to produce only his own evidence to prove that he was injured as alleged; no-one was called to say they saw this happen. And there were some documents which were written shortly after the relevant date which tended to throw doubt on his version.” [26] Lastly, the court was referred to Lynch v Shooters Saloon Bar Pty Ltd [2006] QCA 63 in which McMurdo J said in the principal judgment: “[12] The appellant’s case is that there was a safer way for the respondent to divide up the walkway than by this rope. It was to use a barrier as commonly found for queues at airports, in which the barrier is a belt of a uniform height, which is about hip height. In the appellant’s case, a witness was called to give opinion evidence to the effect that this was a safer alternative. That witness emphasised the ease with which such belts can be uncoupled so that someone can pass through. But in that respect there was no difference from the ropes which the respondent had put in place. Ultimately, the possible advantage of the alternative was that few people were likely to attempt to step over it. Yet there was a disadvantage in that some people might attempt to go under it, an exercise which for some at least would also involve a risk. As the trial judge found, the alternative would have not removed the risk that someone would be injured trying to move from one side of the barrier to the other. -- 21 of 26 -- 22 [13] The trial judge rightly observed that the expert’s evidence did not contain a persuasive or detailed comparison of the risks associated with these two alternatives. He said that it was difficult to conclude that the suggested alternative “would have presented a significantly lower overall risk of injury”. He was unpersuaded that the alternative was of such a low overall risk as to require a reasonable person in the defendant’s position to have used it. [14] He accepted that the alternative system was no more expensive. And clearly it was an alternative which was widely used. But the appellant simply failed to prove that it was such a preferable option that any reasonable person must have used it. I see no error in that conclusion. The trial judge was not compelled to find negligence by the evidence of a witness whose opinion was that the alternative had some advantage over this barrier. He did not have to accept that evidence, and indeed it offered an opinion on a question which required no specialised knowledge. Some case could be made for each system against the other. But the defendant was not negligent for using this one. The question is not whether the appellant’s accident might have been avoided with the use of the other system, because the respondent’s duty of care required it to act reasonably to avoid the risk of injury to all persons using this area. A reasonable occupier might have thought that there was no more risk overall from a barrier of these ropes.” [27] Williams JA, agreeing, said: “[5] The rope was intended to be a barrier and the appellant fully appreciated that it was meant to be a barrier. But there will always be people, like the appellant, who decide to cross such a barrier. Depending upon the height of the rope such a person would either step over it or bend under it. Either procedure involved a risk element which was known to the transgressor. In attempting to step over the rope one could readily trip and fall. In bending under the rope there was a risk of falling, or, because one’s view of other patrons was obscured, of being bumped into by someone using the path on the other side of the barrier. Either stepping over the rope or bending under it involved a risk of injury which was obvious.” The Chief Justice agreed with both. This was Mr Lane’s opportunity to remind the court of a forensic triumph. [28] The court was grateful to hear from counsel that this proceeding is largely unaffected by the complexities of current or recently enacted legislation such as the Civil Liability Act 2003, or, in the workers compensation field, the WorkCover Queensland Act 1996 and the Workers Compensation Act 2003. A notice of (“Nil”) assessment under the 2003 Act (Exhibit D) in respect of the plaintiff’s Notice of -- 22 of 26 -- 23 Claim for Damages (Exhibit 26) under the 1996 Act (it seems to be accepted) freed him to commence this proceeding for common law damages. See Mr Myers’ comments on day 3 (p 55). There is no limitations point, notwithstanding the claim’s coming outside the ordinary limitation period, given the effective extension of time resulting from the taking of the steps alluded to. There never was a claim for the compensation potentially made available to injured workers by statute in respect of the injury of 23 April 2003. [29] The circumstances are complicated by Mr Austen’s having made such a claim, successful to the extent of attracting periodical compensation payments to the end of June 2004 and a payment of costs of medical advice, physiotherapy and the like, founded on a lower back injury suffered in a different employment on 8 December 2003. During the trial I indicated some sympathy for Mr Austen, from whose point of view the essential consideration would probably be that he was relevantly hurt at work and that it should not matter whether responsibility lies with his April 2003 employer or his December 2003 employer. He was told in June 2004 that his claim was being treated as finished because any continuing problems came from the earlier work injury or from some pre-existing condition of his back (Exhibit 25). [30] The defendant, with the support of the third party, now contends that the culprit was either a condition existing before April 2003 or the December 2003 injury, which occurred long after the consequences of the April one had completely resolved. [31] The court cannot do ultimate justice here, because if some entity were responsible for the second back injury, that entity is not before the court, and cannot be required to bear its share. It is not possible to reason that everything is linked through WorkCover. Mr Austen has got himself into the position where he may “fall between two stools”. WorkCover’s letter of 7 June 2004 advised of a “0%” assessment of permanent impairment by a Dr English, which I take it would have freed Mr Austen to proceed in the court against the relevant employer; and also told Mr Austen of his entitlement to have the decision advised to him reviewed within 3 months. It is unknown whether he took up either possibility. [32] To add to the complications, work injuries may well not be the only (or the main) contributor to present back problems. One particular injury suffered playing rugby league on 4 August 2007 could be the main culprit; as it happens, Mr Austen was taken off to hospital on all three occasions and hospital records appear to indicate that this August 2007 incident was the one causing greatest concern to medical staff. [33] For the plaintiff’s proposition that he had chronic back pain continuing after 23 April 2003 to 8 December 2003 and beyond we have his evidence to that effect, and a note made in Dr Occhino’s records referring to Mr Austen complaining of “chronic upper lumbar pain since back injury at work seven months ago” (Exhibit 20). Similar complaints were made to other medical personnel later, continuing until September 2008 (Dr Wallace). One would think the first complaint along those lines would be the most significant one. Doubt creeps in when one consults Dr Occhino’s medical certificate for Centrelink (Exhibit 12 received 15 April 2005). The disabilities/injuries making it difficult to work full-time (right sacroiliac joint strain and lower thoracic muscle strain) were said to have started having that effect in December 2003 (apparently by Mr Austen) and by Dr Occhino to have had their onset on 9 December 2003. The treatment regime of analgesia and physiotherapy indicated by him plainly relates to the future. Mr Austen is totally wrong in linking -- 23 of 26 -- 24 that treatment to the April 2003 incident. Both the first prescribed pain killers (Panadeine Forte, 30 December 2003) and the first physiotherapy (Exhibit 40 shows this to have been 5 February 2004) were associated with the December incident. There were only a couple of attendances on Dr Occhino in the intervening period, in July 2003, for different complaints entirely; there is no mention of back problems. There are a couple of unexplained entries for 3 September 2003 and 15 October 2003 regarding letters written re WorkCover Queensland: “No claim to patient”. Mr Austen was wrong to tell Dr Wallace or anyone else that he had consulted Dr Occhino in relation to the April incident and been recommended treatment. [34] There is no reason for linking any September or October letter to the injury of the previous April; if there had been any sort of a claim to WorkCover about that, Mr Austen was still within the six month time limit for an application for compensation under s 158 of the WorkCover Queensland Act 1996. [35] I think that Mr Austen would have been well aware of the necessity of applying and signing personally from his 2000 application, and that he knew there was no application made. He may well have discussed with Mr Luke the providing of assistance if the matter was appropriate for an application. It is clear that he was quickly back at work in circumstances where WorkCover would have no liability. Any suggestion that Mr Luke was pursued about getting an application in is rejected. [36] Against the idea of pain in any part of the back persisting after early May 2003 is Exhibit 7. There is evidence of some employees and work colleagues that Mr Austen appeared to work in a normal way, giving no indication of back problems. Both before and following 8 December 2003, there are statements provided to employers or potential employers, on the odd occasion to a doctor supplying a certificate of fitness, denying any present or past back problems. I would not set great store by those matters, accepting that job applicants genuinely (and probably reasonably) fear that revealing problems will jeopardise their prospects of getting a job they want. It is difficult, however, to explain away Exhibit 7. One may theorise that it was an attempt, possibly abetted by the WorkCover representative who took the statement and prepared it for signature, to load Mr Austen’s problems at the time onto the December incident, out of awareness that the April one was now “statute-barred”, to preclude WorkCover’s limiting its responsibility by identifying the April injury as the underlying cause of problems (as Dr English apparently had done6 if Mr Austen had any expectations along those lines – in June 2004). The court is not entitled to speculate in this way. To the extent that Exhibit 7 was explored with him in the witness box, he said the statement was factually wrong, rather casting blame on the WorkCover representative, even suggesting that assertions denying pain were a “typo”. In the result, the court is driven to the same conclusion as Dr Wallace, Dr Gillett and Dr Labrom, who all saw fit to revise their opinions in line with Exhibit 7 representing the true history, rather than what Mr Austen gave them. Damages 6 See Ex 25. Although the writer of the exhibit placed reliance on Dr English, it is not open to the court to do so; he was not available for cross-examination and Exhibit 25 does not establish the full extent or context of any report he may have provided. -- 24 of 26 -- 25 [37] Although the claim is dismissed, damages have to be assessed against the possibility that it is ultimately established that the defendant bears responsibility for the April 2003 injury. The plaintiff’s offer to settle was very close to the limit of the court’s monetary jurisdiction. Mr Stobie more modestly proposed the following: For pain, suffering and loss of the amenities of life $50,000.00 Past economic loss $20,000.00 Interest thereon at 5% for 5.5. years $990.00 Past loss of superannuation $1,800.00 Interest thereon at 5% for 5.5 years $495.00 Future loss of earning capacity, including loss of superannuation $80,000.00 Past pharmaceutical expenses $500.00 HIC refund $380.80 Future medical and pharmaceutical expenses $2,000.00 Total $156,165.80 [38] In respect of damages, the plaintiff’s difficulty lies in Exhibit 7 and the medical evidence which is to the effect that impacts of the relevant injury quickly dissipated, were gone within a few months, in other words, that there are no long term effects. The consequence is that economic and loss of amenity impacts, pain etc were of short duration. That distinguishes the quantum decisions located by Mr Stobie in which general damages in broadly comparable circumstances were assessed at levels more parsimonious than $50,000 for 5% or 7.5% whole person impairments (which Mr Austen may show he suffers, but cannot link to the relevant injury). In one of the cases, pre-existing degenerative changes were aggravated. In another a second injury aggravated the first; both employers were before the court. Here, I allow $7,500. [39] As to past economic loss, I allow $1,000 and $300 interest. Mr Austen’s contention that he was not paid for the two days work lost apart, there is no evidence of any employment lost, refused or brought to an end because of some direct or indirect effect of the injury. Mr Austen does not have difficulty getting jobs. There is a pattern of him staying only weeks or months, then departing voluntarily (except in one case); some employer witnesses complained of absenteeism, including absenteeism justified inadequately or not at all, and lateness. There were some, including Mr Luke, who indicated willingness to keep (or take) Mr Austen on. He volunteered that the nature of the boat building industry was that employment for shipwrights could be expected to be sporadic. In the 2003/04 financial year (when it appears there was additional undeclared income from private contracting), Mr Austen did much better than before ($27,451.00 against $11,736.00 the previous year, of which $3,705 was attributable to Commonwealth government benefits). Mr Stobie did not pursue the idea of assessing this item by subtracting actual earnings since the injury from a notional $600 per week clear. [40] Lost superannuation should be scaled back to $90; interest is $25. [41] There is no loss of future earning capacity, which can be linked to the injury. [42] Past pharmaceutical expenses are assessed at $100. Nothing is allowed for future medical and pharmaceutical expenses. [43] The HIC refund amount is agreed at $380.80. -- 25 of 26 -- 26 [44] The claim is dismissed with costs to be assessed, subject to whatever special requirements may arise from the plaintiff’s being bankrupt. At the beginning of the trial, the court gave him leave to pursue his claim, which is of a kind traditionally seen as falling outside an injured person’s bankruptcy. [45] Mr Myers asked that costs issues between the defendant and third party be argued later, when Mr Lane indicated that, in the outcome which occurs, the third party would want its costs against the defendant, rather than against the plaintiff direct. The plaintiff’s likely financial situation and the defendant’s having brought the third party into the proceeding would point to Mr Lane’s submission being accepted. However, Mr Myers has not yet put his contrary submissions. There may be special features to consider, especially if, by these parties’ contractual agreements, the third party sought and accepted the responsibility for safety in the workplace. I may say I was unimpressed by the lack of evidence of systems adopted to ensure safety (notwithstanding my view that no feasible “housekeeping” or cleaning system would have removed the risk of injury which happened) and by the apparent lack of any record the defendant or the third party made or kept of the incident. -- 26 of 26 --