Bidwell v Woolworths (Queensland) Pty Ltd [2007] QSC 45

SUPREME COURT OF QUEENSLAND CITATION: Bidwell v. Woolworths (Q’Land) Pty Ltd [2007] QSC 045 PARTIES: DAVID WARREN BIDWELL (plaintiff) v. WOOLWORTHS (Q’LAND) PTY LIMITED ACN 000 034 819 (defendant) FILE NO: SC no 5286 of 2006 DIVISION: Trial PROCEEDING: Claim ORIGINATING COURT: Supreme Court DELIVERED ON: 14 February 2007 DELIVERED AT: Brisbane HEARING DATES: 13, 14, and 15 November 2006 JUDGE: Helman J. CATCHWORDS: TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – plaintiff suffered knee injury at work – whether plaintiff slipped – whether defendant provided a safe system of work – effect of incentive scheme – assessment of damages WorkCover Queensland Act 1996 s. 312, s. 318 Workplace Health and Safety Act 1995 s. 28(1) COUNSEL: Mr J.W. Lee for the plaintiff Mr R.J. Lynch for the defendant SOLICITORS: Keith Scott & Associates for the plaintiff Phillips Fox for the defendant [1] This proceeding arises from a knee injury suffered at work by the plaintiff in October 1997 when he was employed as an order assembler by the defendant at its warehouse, a distribution centre at 338 Bradman Street, Acacia Ridge, Queensland. He says his injury was caused by his slipping on something on the floor of the warehouse and that in consequence the defendant is liable to pay him damages. [2] The plaintiff was required to assemble orders by placing cartons of goods on a battery-powered Crown double-pallet truck, a machine with two tines at the rear on which the pallets rested. It was controlled on a platform from which the employee drove it along the aisles of the warehouse. A video tape recording made on 25 July 2003 by Dr Johnn Olsen, consultant physician in occupational and environmental medicine, shows a man performing, at a steady rate, the work the -- 1 of 14 -- 2 plaintiff was required to do. Before beginning a day of this work the employee was given a number of sheets of paper with adhesive labels on them showing which cartons were part of an order. One side of the backing sheet was glossy and slippery. The employee drove the pallet truck to places where the relevant cartons were stacked, removed a label corresponding to a carton from the backing sheet, stuck it on the carton, put the carton on a pallet, and then proceeded to do the same for the next required carton. When all the labels had been removed from a backing sheet the sheet was discarded. The instruction to employees was to place the backing sheets from which all labels had been removed in a plastic bag placed on the truck for that purpose, but some backing sheets, which were light in colour, fell on the floor, which was of dark, smooth concrete. If the employees achieved a specified rate of working – defined by completing allocated work in a set time - they would qualify for a bonus payment. If they failed to achieve the rate they would receive only their normal rate of pay as provided for in the applicable enterprise agreement but not less. The plaintiff said that he had been instructed not to discard the backing sheets on the floor and to put them in the bag on the pallet truck but no-one told him it was dangerous to drop them on the floor. He did not ‘observe’ anyone telling any other person not to discard the backing sheets on the floor. He denied receiving any warnings as to the risks there might be in the workplace. There was always one plastic bag on the pallet truck and sometimes there were two. [3] At the trial the plaintiff gave the following account of the incident that has given rise to his claim. At 6.45 a.m. on 8 October 1997, after beginning work at 6.00 a.m., he was engaged in assembling an order. He was working a little faster than the man seen on the video tape. He stepped off the platform of the pallet truck, which was then no more than about 25 cm above the floor. The truck was stationary. He put his right foot down onto the floor of the aisle. His right foot slipped, his right knee twisted, and he fell to the floor. He felt severe pain in his right knee. He did not see what he slipped on, even when he was sitting near the truck immediately after his fall. He slowly climbed back onto the truck and went to the emergency room in the warehouse where he was treated with an ice pack and the knee was bandaged. He was advised to see a doctor. [4] The plaintiff went to the Waterford Medical Centre, where he was seen by Dr Mary Cohn on the day of the incident. On 17 October 1997 he was referred by Dr Ken Wilkie of the Waterford Medical Centre to Dr Peter Johnstone, consultant orthopaedic surgeon, who performed an operation on the plaintiff’s right knee on 24 November 1997. On 20 April 1998 Dr Johnstone performed a second operation on the plaintiff’s right knee. After a review on 7 August 1998, Dr Johnstone did not see the plaintiff again until 30 October 2006, when he was reviewed at the request of the plaintiff’s solicitors. I shall return in more detail later to the subject of the plaintiff’s injury and its effects. [5] It is convenient to refer now to evidence concerning accounts of the incident given by the plaintiff before he gave his account in the witness box. On behalf of the defendant it was submitted that consideration of that evidence should lead to the conclusion that the plaintiff’s allegation of slipping cannot be accepted as having been established on the balance of probabilities. [6] In an account the plaintiff gave in the emergency room when he was being treated immediately after the incident he did not mention his having slipped. That appears -- 2 of 14 -- 3 from the incident record/report dated 8 October 1997. The injury is shown as ‘strain’ of the right knee. The mechanism of injury is shown as ‘Stepping off’ and not ‘Slipping/Tripping’, which is another mechanism provided for in the form. The description of the incident given was: ‘David stepped off his machine pulled or strained knee’. On the same day he told Dr Cohn that his right knee ‘gave way’ and he complained of pain when walking. Again he failed to mention that he had slipped. He did, however, tell her that he played basketball once or twice a week. It was only after some time, the length of which he was unable to specify, when the plaintiff ‘got [his] thoughts back’, as he put it in his evidence, that ‘a couple of things recurred to [him] what happened’. [7] In an application for workers’ compensation the plaintiff signed on 13 October 1997 he described his injury as a strain to the knee area and gave this account of the incident: WAS DRIVING MACHINE DOWN ISLE. STOPPED. STEPPED OFF AND KNEE GAVE WAY DUE TO SLIGHT TWIST. The application also showed he had returned to work at 6.00 a.m. on 9 October 1997. [8] The plaintiff did not mention his slipping when he was examined by various doctors in connexion with claims arising from his injury, although he gave each a history of the incident: Dr John Livingstone, orthopaedic surgeon, on 10 March 1998; Dr Thomas Parkington, consultant orthopaedic surgeon, on 17 December 1998; Dr Gregory Gillett, orthopaedic surgeon, on 22 January 1999; and Dr John Fraser, orthopaedic surgeon, on 11 January 2000. [9] In the plaintiff’s notice of claim for damages of April 1999 – the day is obscured by the stamp put on by the Commissioner for Declarations – he gave this account of the incident: WAS DRIVING FORKLIFT MACHINE DOWN AISLE. STOPPED AND STEPPED OFF AND KNEE GAVE WAY DUE TO SLIGHT TWIST. [10] On 28 July 1999 the plaintiff made a statutory declaration concerning the incident and its effect in which he asserted that the system of work at the defendant’s warehouse was inherently unsafe. Paragraphs 4, 5, and 6 were as follows: 4. In response to Schedule “B”, B1, I say that the system of work operating at the Woolworths Distribution Centre, is inherently unsafe. 5. As a general work practice, when operating the forklift machine, boxes are progressively loaded onto a pellet, situated on a metal fork. The number of cartons to be loaded is predetermined by central handouts. This includes an amount displayed on stickers, representing the weight. The machine during operation is adjusted according to the increasing weight load. The driver must embark from standing on the platform on the machine, each time a carton is to be loaded. As the load increases it is necessary to raise the whole forklift. This action raises the standing platform proportionately. 6. The system of work fails to provide adequate regulation of the weight and size of loads. The forklift machine does not have an intermediate step to stand on when enlighting from the machine. Were a step fitting and less weight loaded onto the -- 3 of 14 -- 4 machine, the injury would not have occurred. There is no supervision during the process of loading pellets and cartons using the machine. Instructions have not been provided to indicate safe operation of procedures when undertaking loading tasks. The system also fails to provide adequate assistance specifically for procedures, when heavy or large loads are involved. It can be seen that there was no mention of the presence of pieces of paper as a hazard, and the incident was attributed to the absence of an ‘intermediate’ step. [11] Mr Lynch, for the defendant, cross-examined the plaintiff on the first day of the trial about his accounts of the incident that resulted in the injury to his right knee. The questions and responses by the plaintiff were as follows: Why was it, Mr Bidwell, that on all the occasions when you are asked to recall the injury from the date of the injury right through to when you saw Dr Fraser on 11 January 2000, about two and a half years later, you hadn’t mentioned it? - - [Indistinct] Let me finish my question. You hadn’t mentioned to anyone in any form you had slipped? - - I had it in my original statement. [12] In later evidence, on the second day of the trial, given after I had permitted it in a ruling appearing at pp. 82-83 of the transcript following argument that appears at pp. 73-82, the plaintiff swore that he had annotated a signed written statement provided to his solicitors and dated 30 November 1998 as follows: In regards to stepping off machine. The floor has known to be slippery from the polishing machine and paper being littered. But I’m not sure whether that contributed to the accident. It was that statement, the plaintiff swore, he had referred to as his ‘original statement’. In a notice of claim for damages dated 4 October 2000 the plaintiff included a statement to the same effect, and a statement that there ‘should have been an intermediatry step either in line or in conjunction with the fact that object or substance on the floor caused the Claimants foot to slip, resulting in the twist which caused his knee to be damaged’. [13] The system of work under which the plaintiff was employed was described by a number of witnesses. In June 1995, when the plaintiff began working for the defendant, he was given, as all new employees were, safety footwear and training by a ‘sponsor’ over four days. He was given further training on 4 August 1995 because soon after he began work he was absent after he had hurt his wrist. In late 1995 he had further training: on 2 November from Mr Peter Malaitai and on 23 November from Mr Peter Esposito. He had a further session of advanced training by Mr Malaitai on 2 April 1997. He agreed he had been trained about safe methods and practices at all times, but maintained that all employees, including Mr Malaitai, threw the backing sheets on the floor. In giving his evidence on 15 November 2006, Mr Malaitai denied that he had done that. Mr Malaitai said that in training sessions it was his practice to instruct employees to put ‘backing labels’ in the rubbish bags provided on the pallet trucks. Mr Malaitai agreed, however, that -- 4 of 14 -- 5 he could not remember the exact words he had used, if he used any, and he could not recall whether in fact he gave the instruction to the plaintiff. Mr David Robertson, now relieving operations manager and employed by the defendant from 1979, swore that it was the practice to give instructions to employees concerning the disposal of the backing sheets at the initial training and at advanced training. I see no reason to doubt the truth of Mr Robertson’s evidence as to that practice. [14] On 9 October 1997 the plaintiff was counselled by Mr Robertson, as shift manager, concerning two aspects of his work performance: his having taken excessive sick leave in the previous twelve months (177.61 hours when the annual allowance was sixty-four hours), and poor productivity. In the record of disciplinary interview made by Mr Robertson the plaintiff is shown as having responded to the complaints by saying that injuries caused some of his absenteeism. [15] There were rubbish bins about every thirty metres in the aisles of the warehouse. Pedestrian cleaners swept the aisles with brooms, emptied the bins, and cleared rubbish from the aisles. A scrubbing and sweeping machine, and two sweeping machines were also used. There were at least eight pedestrian cleaners on any shift. A sweeping machine would sweep any one aisle up to twelve times a day. [16] The tines of the pallet truck could be raised and lowered. They were raised as required to ensure the load was clear of the floor. When the tines were raised the platform on which the employee stood was raised too, but to no more than approximately 25 cm above the floor - just enough to make ‘a normal step’ as one witness, Ms Debra Munro an order assembler employed by the defendant since 1991, put it. The pallet trucks could be used fully loaded when the platform was as low as approximately 17 cm above the floor. [17] I now return to the evidence concerning the plaintiff’s injuries. On 24 November 1997 Dr Johnstone performed a right knee arthroscopy and partial lateral and medial meniscectomies on the plaintiff. A healed peripheral tear of the medial meniscus was found, in Dr Johnstone’s opinion probably caused in the incident of 8 October 1997, but, because it had healed, he could not discount the possibility that it was caused before 8 October 1997. It was noted that the meniscus was moving at least 4 mm more than normal. By 9 March 1998 the plaintiff was complaining of more pain in the right knee with ‘clunking’. On 20 April 1998 Dr Johnstone performed a further arthroscopy and open medial meniscal repair. After the operation there was stiffness still present when Dr Johnstone reviewed him on 7 August 1998. In a report dated that day to WorkCover Queensland Dr Johnstone recorded his opinion that the plaintiff had arthrofibrosis secondary to the surgery requiring manipulation and right knee arthroscopy and arthrolysis. Dr Johnstone requested approval for surgery at the Mater Private Hospital. [18] Dr Johnstone did not see the plaintiff again, however, until 30 October 1996 when the latter complained of anterior, peri-patellar to medial patellar pain in the right knee, an inability to bend the knee fully or to squat on the right side, pseudo-locking, giving way, and poor balance on the right side. He complained of difficulty in negotiating stairs, and discomfort following activity and when sitting. Dr Johnstone gave the results of his clinical examination of the plaintiff on 30 October 2006 on p. 2 of a report dated 13 November 2006 to the plaintiff’s solicitors: -- 5 of 14 -- 6 Clinical examination 30 th October, 2006: Mr David Bidwell is a pleasant man of average height and weight with multicoloured hair and multiple piercings and tattoos. He appeared to walk with a satisfactory gait. The right thigh measured 46.5 cm compared with the left thigh measurement of 47 cm at one hands length above the patellar. The right knee had a range of motion of 0-95 degrees compared with 0-130 degrees on the left. There was tenderness in the right knee over the medial joint line tibial tubercle, inferior patella and superior patellar quads insertion. Maximal pain was felt at the quadriceps muscle insertion on the patella. There was no effusion. Pushing on the ankle gave rise to an electrical shock type sensation through the knee. The patellofemoral joint was irritable but stable. There was a 5 degree extensor lag. The ligaments of the knee were stable. There was no abnormality of the right hip noted and there was no circulatory or neurological abnormality noted in the lower limb. Dr Johnstone recorded his conclusion concerning the plaintiff’s condition and his response to questions by the solicitors as follows: Conclusion: It is my conclusion as a result of my interview and examination of Mr David Bidwell on 30.10.06 that there is some internal derangement within the right knee. This may relate to my last clinical assumption of arthrofibrosis in 1998 or that he may have further damaged the menisci within the knee or have some other internal derangement. He needs to undergo further investigation with an MRI scan of his right knee. As an old patient of mine I have offered him the opportunity to be reviewed at QEII Hospital Brisbane as he is likely to be seen earlier than at Logan Hospital. In answer to your specific points:- a) Mr David Bidwell has suffered from meniscal injury to the right knee and suspected arthrofibrosis following the surgeries of 1997 and 1998. At the present time he suffers from a loss of motion, clunking and pain which could be consistent with further meniscal injury. b) Mr David Bidwell needs to undergo MRI assessment of his right knee first to confirm any internal derangement and on the basis of that may need to undergo further arthroscopic assessment and treatment depending on the clinical pathological findings. c) If the MRI confirms internal derangements of the menisci then the original injury of 1997 will be the originating cause for any further damage to the medial meniscus. However, if there is -- 6 of 14 -- 7 lateral meniscal damage then this would have to be suspected as being from an injury other than his work. d) The prognosis of his right knee at the present time is that his symptoms are unlikely to change without further treatment. However, MRI is mandatory to be undertaken before any further surgical treatment, so as to confirm definite pathology before proceeding with any surgical treatment as evidence from his past surgeries the development of arthrofibrosis could reoccur and cause him to end up with an even more stiff and painful knee than he currently has. e) It is my conclusion at the present time that until assessment by MRI an assessment of permanent impairment is not appropriate yet. f) The initial work related injury of 1997 which caused the meniscal tear whilst getting off a forklift. There is a common root of damage to the menisci due to the loading and flexion rotation. g) Until assessment by MRI the impact of any previous injuries on the claimant’s current knee symptoms is not entirely clear. However, it is my clinical opinion that the current symptoms in his right knee have a majority of cause attributed to his original injury of 1997. h) At the present time Mr David Bidwell is not able to undertake the work duties of an order assembler due to his current knee symptoms. i) It is my opinion that had the claimant not sustained the original right knee meniscal injury then he would still be working as an order assembler. j) At the present time the claimant is fit only for sedentary work and in respect of his qualifications previous skills and experience it is unlikely that any sedentary employment would be suitable. k) The claimant is unable to undertake heavy, moderate or light manual work if he is required to stand, but could undertake sedentary duties, if duties could be found with his work experience and education levels. l) I clinically suspect that further treatment in the form of a right knee arthroscopy is going to be required, but as outlined above MRI assessment first is mandated. The cost of a private arthroscopic meniscectomy is around $3,500-$4000. m) The Claimant is using intermittent Panadeine Forte for his current knee pain and this will be required as an ongoing treatment if no other treatment is undertaken. n) I see no need for the claimant to be reviewed by any specialists outside the file of orthopaedics. o) It is my conclusion that I did not see any overstatement of his symptoms or exaggeration and the claimant appeared credible today. p) It is my conclusion that this man needs an urgent MRI scan. I will attempt to expedite these matters through the public hospital for him. However, if you can confirm to me that the -- 7 of 14 -- 8 costs of this scan can be performed privately, then I will arrange this can forthwith to be concluded. Dr Johnstone conceded when cross-examined that an injury can occur ‘merely by the knee being loaded as one steps off’ a machine of the sort the plaintiff was using. Dr Parkington, in his report of 21 December 1998, recorded that after the time that had then elapsed, it was difficult to say whether the plaintiff injured his knee because it gave way or whether the knee gave way because he already had a meniscal tear, adding, ‘He has been an active sportsman in the past’. [19] Dr Johnstone’s opinion expressed in his oral evidence was that ‘a sedentary type of employment’ would be most appropriate for the plaintiff ‘at the present time’. Dr Johnstone did not agree that forklift driving would be suitable for the plaintiff because he thought it would only be a matter of time before the plaintiff suffered another injury. [20] The plaintiff has then had two surgical operations on his right knee. He has followed Dr Johnstone’s advice to have physiotherapy and to perform exercises with his right leg. He joined a gymnasium. None of the treatment has relieved the pain in his right knee that he has had since the incident. The knee is stiff and he has locking sensation in it. He takes six to eight tablets of Panadeine Forte and two tablets of Valium a day. He has been taking anti-depressants prescribed by Dr Wilkie for about six years. He has been taking Valium for about six years. The weekly cost of the Panadeine Forte is $14.10 and that of the Valium and anti-depressants is $2.35. [21] On 30 October 2006 Dr Johnstone recommended a magnetic resonance imaging scan and a possible third operation. He intends following Dr Johnstone’s advice. [22] For approximately two hours a day for about six weeks the plaintiff’s former wife helped him with his dinner, changing bandages, bathing, and going to the lavatory. [23] As a result of the injury to the plaintiff’s right knee he is now unable to engage in activities he enjoyed before he was injured: playing basketball, rugby league football, or ten-pin bowling. He walks with a limp, but when he walked into Dr Johnstone’s room on 30 October 2006 the doctor did not discern a limp. He enjoyed walking and jogging before he was injured and is now unable to do so. He can walk for no more than a few hundred metres. His right knee is painful after sitting or standing for long periods. [24] The plaintiff was born on 1 February 1973. He completed Year 10 at school and two subjects at a secondary college. After he left school he worked as a bricklayer’s labourer for about a year and a half, and later as a storeman for about another year and a half. He was unemployed for lengthy periods: a year to a year and a half after finishing work as a bricklayer’s labourer, and approximately a year before he began work for the defendant. He enjoyed the work he did for the defendant. He has no trade or professional qualifications. He intended working until he reaches the age of sixty-five years. He resigned his job with the defendant as from 14 August 1998. He now receives a disability support pension. He hopes to return to the workforce. He began a fitness course but was unable to complete it because his right knee was too painful. It was not in issue that the plaintiff had suffered an impairment of his earning capacity up to the trial or that he would continue to suffer some impairment in the future. -- 8 of 14 -- 9 [25] The plaintiff’s case rests on the allegation in paragraph 4 of his further amended statement of claim, filed by leave on 13 November 2006, that on the day of the incident, alleged as on or about 8 October 1997, in the course of his employment he was in the premises of the defendant ‘where something caused him to slip’ and thereby caused him injury. He then alleged, in paragraph 5, that the incident was caused by breaches of duty by the defendant in failing to provide him with a safe place of work and/or safe system of work, failing to take reasonable steps to ensure his health and safety at work, failing to take any or any adequate steps to supervise him, failing to provide him with any or any adequate assistance, failing to ensure his health and safety at work in breach of s. 28(1) of the Workplace Health and Safety Act 1995, and requiring him to work at an excessive speed as a result of its incentive scheme. [26] In paragraph 3 of the defendant’s further further amended defence, filed by leave on 14 November 2006, it admitted that on or about 8 October 1997 the plaintiff was at work in the course of his employment but denied that something caused the plaintiff to slip as alleged or at all. In paragraph 4 the defendant denied the allegations in paragraph 5 of the further amended statement of claim asserting that it believed the allegations were untrue or could not be admitted because: (a) the defendant provided a safe place and system or work; (b) the defendant took all reasonable steps to ensure the health and safety at work of the plaintiff; (c) the defendant took all necessary steps to supervise the plaintiff; (d) the defendant provided to the plaintiff the assistance which he may have required, and says that in fact no assistance was required to be given to the plaintiff when working as an order assembler on 8 October 1997; (e) the defendant took all steps reasonably necessary to ensure the health and safety of the plaintiff at work and did not breach the Workplace Health and Safety Act 1995; (f) the defendant employer made a genuine and reasonable attempt to put in place an appropriate system or work to guard the plaintiff worker against injury arising out of events that were reasonably readily foreseeable; (g) the defendant’s incentive scheme did not require the plaintiff to work at an excessive, unsafe or unreasonable speed. [27] The allegation that ‘something caused him to slip’ is vague to say the least, but, as Mr Lee for the plaintiff made clear at the trial, the plaintiff bases his case on the contentions first that as he put his right foot on the floor when stepping off the pallet truck his foot slipped on something thereby causing the twisting of his knee and his fall, and secondly that what caused his foot to slip was a piece of backing sheet, the presence of which is to be attributed to a breach of duty or duties owed by the defendant to the plaintiff. In a letter dated 7 August 2002 from the plaintiff’s then -- 9 of 14 -- 10 solicitors to the defendant’s then solicitors, particulars of the plaintiff’s statement of claim as originally drawn were given. In the particulars it was asserted that the plaintiff slipped but he could not recall whether it was the floor or something on the floor (such as paper or water) on which he slipped. At the trial the plaintiff did not give evidence that there was water on the floor. His case at the trial was not that the floor was slippery or that he slipped on water. [28] To make out his case the plaintiff must then first establish on the balance of probabilities that his right foot slipped on something. On behalf of the defendant this aspect of the plaintiff’s case was challenged with some vigour. Mr Lynch pointed to the evidence of the plaintiff’s repeated omission to mention slipping in his early accounts of the incident, beginning with his account in the warehouse emergency room on the day of the incident and continuing through to this account to Dr Fraser on 11 January 2000. The annotation to the statement dated 30 November 1998 refers to his stepping off the pallet truck, but does not mention a slip. In it the plaintiff does not assert that the floor was slippery at the time of the incident, and it amounts to no more than speculation. That speculation, however, later underwent a transmutation into an apparently confident recollection that culminated in the plaintiff’s giving evidence at the trial of his slipping on ‘something’. I do not conclude that he deliberately fabricated his case of slipping on ‘something’, although he would of course have a motive to do so. He now probably genuinely believes that that was what happened, but my conclusion is that that explanation for the incident, though a possible one, is not one established on the balance of probabilities. It is possible that the plaintiff’s knee simply gave way with or without a slight twist, possibly as a result of some weakness caused by his playing basketball. [29] That is sufficient to dispose of the plaintiff’s case, but recognizing that I may be thought to be wrong in that conclusion, I shall record my findings on the remaining issue as to liability, i.e. whether the defendant was guilty of any breach of duty to the plaintiff, and on the quantum of damages. [30] Because it has not been established on the balance of probabilities that the plaintiff slipped on something, it cannot be concluded that any breach of duty or duties relating to the state of the floor of the warehouse caused the incident, but in any event I am not satisfied that it has been proved that the defendant failed in its duty to provide a safe system of work within the warehouse, which is in essence what the plaintiff’s case is, despite the various ways it is formulated in paragraph 5 of the further amended statement of claim. [31] The defendant had an elaborate system of sweeping and cleaning the floor of the warehouse: regular sweeping with brooms, sweeping with two sweeping machines, and sweeping with a scrubbing and sweeping machine. Rubbish bins were in the aisles. The practice was to instruct employees to dispose of the backing sheets in the plastic rubbish bags provided on the pallet trucks. The training given to the order assemblers was comprehensive. The tasks were in essence simple ones requiring no assistance. The incentive scheme was just that: the employee was assured of a rate of pay provided for in the applicable enterprise agreement. There was no penalty for failing to reach the target for the bonus. The man shown in the video recording working in the warehouse was not working at more than a steady rate. He was not rushing, and, on the evidence given by the plaintiff comparing his -- 10 of 14 -- 11 rate of work with that of the man, I am not satisfied that he was working at more than a steady rate at the time of the incident. [32] The WorkCover Queensland Act 1996 applies to this claim. Section 312 relates to the liability to employers and workers: Liability of employers and workers 312.(1) In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim – (a) that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable; (b) that the actual and direct event giving rise to the worker’s injury was actually foreseen or reasonably readily foreseeable by the employer; (c) that the worker did not know and had no reasonable means of knowing that the actual and direct event giving rise to the injury might happen; (d) that the injury sustained by the worker did not arise out of a relevant failure of the worker to inform the employer of the possibility of the event giving rise to the injury happening, in circumstances in which the employer neither knew nor reasonably had the means of knowing of the possibility; (e) that the worker did everything reasonably possible to avoid sustaining the injury; (f) that the event giving rise to the worker’s injury was not solely as a result of inattention, momentary or otherwise, on the worker’s part; (g) that the injury sustained by the worker did not arise out of a relevant failure of the worker to use all the protective clothing and equipment provided, or provided for, by the employer and in the way instructed by the employer; (h) that the worker did not relevantly fail to inform the employer of any unsafe plant or equipment as soon as practicable after the worker’s discovery and relevant knowledge of the unsafe nature of the plant or equipment; (i) that the worker did not inappropriately interfere with or misuse or fail to use anything provided that was designed to reduce the worker’s exposure to risk of injury. -- 11 of 14 -- 12 (2) If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove the matter mentioned in subsection (1)(a), the court must dismiss the claim. (3) If the claimant fails to prove the matter mentioned in subsection (1)(b), the court must dismiss the claim. (4) If the claimant fails to prove any of the matters mentioned in subsection (1)(c) to (i), the court must – (a) dismiss the claim; or (b) reduce the claimant’s damages on the basis that the worker substantially contributed to the worker’s injury. (5) In deciding whether a worker has been guilty of completely causative or contributory negligence, the court is not confined to a consideration of and reliance on the matters mentioned in subsection (1)(c) to (i). [33] In my opinion, the plaintiff’s claim is, as I have indicated, one that relies exclusively on the failure by the defendant to provide a safe system of work. It is also my opinion that he has failed to prove that the defendant had made no genuine and reasonable attempt to put in place an appropriate system of work to guard him against injury arising out of the state of the floor in the warehouse. It follows that s. 312(2) applies to the case and so the plaintiff’s claim should be dismissed for that reason. [34] It was submitted on behalf of the defendant that the plaintiff had not proved the matters set out in s. 312(1)(e) and (f) and that in consequence by operation of s. 312(4) the court must either dismiss the plaintiff’s claim or reduce his damages, but the question of causative or contributory negligence on the part of the plaintiff does not, on my assessment, arise on the facts of this case. [35] I am not satisfied that the plaintiff has established a breach of the Workplace Health and Safety Act 1995. The defendant took all steps reasonably necessary to comply with s. 28(1). [36] It remains for me to assess the plaintiff’s damages. On behalf of the plaintiff it was submitted that his general damages for pain and suffering and loss of amenities should be assessed at $45,000. For the defendant $30,000 was contended for. In view of the extent to which his activities have been interfered with I conclude that $40,000 is appropriate and by no means excessive: $20,000 for the past and $20,000 for the future. No interest is payable on damages for past pain and suffering and loss of amenities: s. 318 of the WorkCover Queensland Act 1996. [37] For past impairment of earning capacity I arrive at $144,000. On behalf of the plaintiff it was contended that the assessment under this head should be based on earnings of $400 a week after the deduction of income tax. The figure of $400 a week was based on his rate of earning at the time of the incident. That figure can be derived from the evidence of his earnings in the last complete financial year before -- 12 of 14 -- 13 the incident, the year that ended on 30 June 1997. In that year the defendant paid him $25,817 and deducted $5,224.20 as tax instalments. His taxable income was assessed by the Australian Taxation Office at $25,319 with tax of $4,630.46 payable on it. To base the assessment of the damages for past impairment of earning capacity upon those figures, however, would be to ignore the evidence of the plaintiff’s earning capacity - or lack of it - in the three years prior to the year ending on 30 June 1997, which are the only previous years for which details of income are available. [38] In the year that ended on 30 June 1994 he earned $11,697 from employment with Vox Retail Group Ltd from which $1,813.68 was deducted as tax instalments, some of which was refunded to the plaintiff. His taxable income for that year, which included social security payments of $1,090.20 from which $19 in tax instalments had been deducted, was $12,787 with tax assessed at $1,477.40. Those figures would indicate that his earning capacity from employment in that year was approximately $200 a week after the deduction of income tax. In the following year, the year that ended on 30 June 1995, his taxable income was assessed at $8,892 upon which $698.40 tax was payable: he earned only $1,814 from Vox Retail Group Ltd and $358 from the defendant from which tax instalments of $293.43 and $57.80 respectively were deducted. Most of his income in that year was from social security payments which came to $6,737.10 from which tax instalments of $135.60 were deducted. Taking those figures into account, I assess his earnings from employment in that year at only approximately $42 a week. In his tax return he noted that he was unemployed for most of the year. In the year that ended on 30 June 1996 he was employed by the defendant and received $21,581 from the defendant. His taxable income was assessed at $21,123 upon which tax of $3,203.82 was payable. I calculate his income in that year at approximately $350 a week from paid employment. Taking into account the plaintiff’s history of employment over those four years I think it reasonable to assess his damages for impairment of past earning capacity based on an income of $300 a week after the deduction of income tax. In the year ended 30 June 1998 his taxable income was $25,881 and the tax payable was $4,821.54. His sources of income were however the defendant ($8,829 before the deduction of tax instalments) and WorkCover Queensland ($17,142 before the deduction of tax instalments). The plaintiff was, it seems, paid by the defendant for some time beyond the day following the incident, which was his last day at work at the defendant’s warehouse, but no details were given in the documents relating to his income and the tax on it relied on before me. The plaintiff claims damages for past impairment of earning capacity from 8 October 1997, but some adjustment is required for payments made after his last day at work. Accordingly I arrive at the figure that I referred to of $144,000: nine and one third years at $300 a week gives $145,600, from which I deduct $1,600 for payments from the defendant after 9 October 1997. [39] Interest on his damages for past impairment of earning capacity was agreed at five per cent. per annum of the figure arrived at for past impairment of earning capacity less $90,000: $25,200. [40] It was not in issue that the plaintiff would be entitled to a sum equal to six per cent. of the figure arrived at for his damages for past impairment of earning capacity for loss of superannuation benefits: $8,640. -- 13 of 14 -- 14 [41] It is difficult to estimate damages for future impairment of earning capacity because it may be that the third operation proposed by Dr Johnstone will provide the plaintiff with relief and enable him to return to some form of paid employment. Allowing for that and also taking into account his history of unemployment I think it is reasonable to have any calculation of damages under that heading based on a weekly income of $200 after the deduction of income tax. Applying the five per cent. table to that figure for thirty-one years I arrive at $166,800. Discounting for contingencies by fifty per cent., as suggested on behalf of the plaintiff, I arrive at $83,400. [42] It was agreed that the plaintiff would be entitled to a sum equal to nine per cent. of the figure arrived at for his damages for future impairment of earning capacity for loss of superannuation benefits: $7,506. [43] The damages based on the principles explained in Fox v. Wood (1981) 148 C.L.R. 438 were agreed at $4,018.20. [44] On behalf of the plaintiff $13,900.25 was sought for future medication based on the plaintiff’s taking Panadeine Forte, Valium, and anti-depressants at a total cost of $16.45 a week for the rest of his working life, i.e. rather than the rest of his life. To assess that part of the plaintiff’s claim in that way one would however overlook the possible improvement in his condition if he has further treatment. In addition it is not clear that the Valium and anti-depressants are needed as a result of the condition of his right knee. Taking those matters into consideration, I should allow $7,500 for that aspect of his claim. [45] Hospital, medical, and other expenses were agreed at $6,909.86. [46] Special damages were agreed at $17,662.67. [47] It was agreed that the refund to WorkCover Queensland would be $27,146.34. [48] There can be no allowance for damages for the value of gratuitous services: s. 315 of the WorkCover Queensland Act 1996. [49] There will be judgment for the defendant. I shall invite further submissions on costs. -- 14 of 14 --