Carr v State of Queensland [1999] QSC 187

IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: CATCHWORDS: Counsel: Solicitors: Date of Hearing: No. 153 of 1995 CHERYL ANN CARR Plaintiff STATE OF QUEENSLAND Defendant REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 12 August 1999 TORTS - NEGLIGENCE - ESSENTIALS FOR ACTION FOR NEGLIGENCE Pl/employee injured back while working as an apprentice wood machinist - Whether injury occurred or aggravated as a result of the use of machinery & handling heavy materials Whether safe system of work TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE Whether contributory negligence - Whether the plaintiff failed to take care of her injury & exposed herself to further risk - Whether the plaintiff concealled her pre-existing back problem DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION Whether an earlier incidence initiated the back injury - differing medical opinions Mr D.C. Rangiah for the plaintiff. Mr W.D.P. Campbell for the defendant. Maurice Blackburn & Co for the plaintiff. Crown solicitor for the defendant. 25,26,29 and 30 March 1999. -- 1 of 20 -- ( IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: CHERYL ANN CARR STATE OF QUEENSLAND REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 12 August 1999 No. 153 of 1995 Plaintiff Defendant The plaintiff was employed by the defendant as an apprentice wood machinist between 4 February 1992 and 1 January 1995. She has a disability on account ofa back problem which she alleges is due to the defendant's breach of the duties it owed her as an employee. 2 The plaintiff alleges that between the commencement of her apprenticeship on 4 February i, .. / 1992 to about 3 June 1993 in the course of her employment she was required to lift, carry and manoeuvre timber material of various weights without assistance and to use a pedestal grinder during the course of which she was obliged to bend at the waist and workin a hunched position to carry out the work accurately and efficiently. The plaintiff alleges she suffered an injury to her lower back either as a consequence of an incident which occurred on or about 3 June 1993" or progressively during the course of her employment up to that date. As a result she ceased work, resuming again in mid-January 1994. She goes on to allege that as a consequence of being required to lift, carry and manoeuvre specified materials and to use what is referred to as a -- 2 of 20 -- 3 2 rounding machine, she suffered either a further injury to her lower back or an aggravation of the first injury. This second injury or aggravation was allegedly suffered on or about 2 November 1994 when the plaintiff was assisting a tradesman in the use of a machine called an edge binder or progressively between her resumption of work in mid-January 1994 and 2 November of that year. The plaintiff did not return to work and her apprenticeship was terminated in January 1995. The defendant's negligence is particularised as:- (a) requiring or permitting the plaintiff to work in a bent posture for extended hours when using a pedestal grinder; (b) requiring or permitting the plaintiff to lift, carry and manoeuvre excessively heavy material; (c) failing to provide the plaintiff with any or adequate assistance to lift, carry and manoeuvre excessively heavy material. There are then general allegations of a failure to provide a safe system of work or to take reasonable care for the plaintiff's safety. In addition or alternatively, the plaintiff relies on alleged breach of s. 9(1) of the Workplace Health and Safety Act 1989 which is particularised in the following terms:- (a) failing to provide and maintain systems of work that were, so far as practicable, safe and without risk to the safety and health of the plaintiff; (b) failing to make arrangements for ensuring, so far as was practicable, safety and absence of risk to the plaintiff in connection with the handling of materials; (c) failing to provide so far as was practicable such supervision to the plaintiff as would enable her to perform her work in a manner which was safe and without -- 3 of 20 -- 5 ( \. 6 3 risk to her health and safety. The defendant put in issue the essential allegations relied on by the plaintiff, alleged contributory negligence in terms of the plaintiff's failing to take care for her own safety, exposing herself to a risk of injury of which she ought to have been aware of and failing to follow directions to seek assistance. It also pleaded the plaintiff's failure to advise the defendant of her pre-existing back condition. It should be noted that it was never part of the plaintiff s case as pleaded or conducted that the defendant owed the plaintiff a duty of care reflecting a pre-existing back condition. The plaintiff was born on 6 July 1973. She had early formed an interest in becoming a cabinet maker, a joiner, or a wood machinist. She did a manual arts course at school and a prevocational year at TAFE before commencing her apprenticeship with the defendant as a wood machinist on 4 February 1992. The plaintiff's ambition was to serve her apprenticeship, to spend the requisite five years working in her trade and then become a TAPE teacher. She would in all probability have succeeded although it may well have taken some time beyond the five years for her to be accepted into a TAFE position. The plaintiff impressed me as honest, determined person who went and goes about her life in a planned, methodical way. She has coped well with the fact that she will never fulfil her ambition to become a wood machinist and obtain a TAPE position, that her back condition restricts her in many respects. With her experience of the legal, compensation and medical assessment processes, she has, for example, been seen many times by various doctors for examination, treatment or report, I have the impression that the plaintiff does her best to cope with her disability in an uncomplaining way. That she did not seek medical or similar attention or treatment more frequently than she did is more as a result of not having the -- 4 of 20 -- 7 4 money to do so and her wish to continue in her work than it being indicative of the effect on her of her pain and disability. As will emerge it does not follow from the overall favourable view I have of the plaintiff that I unreservedly accept every aspect of her evidence. In November 1987 the plaintiff was involved in an incident at school where she was poked , in the back with a chair leg but that seems of no consequence for present purposes. In about MarchiApril1989 (she was then in year eleven) the plaintiff bent over to pick up or put away (it is not altogether clear which) a tool box which she had manufactured as part of her manual arts course. As she straightened, she suffered severe pain across her back and running down her leg. She was taken to hospital by ambulance. The significance of this incident in relation to the plaintiff's subsequent back condition is controversial. One orthopaedic specialist who gave evidence thought it was irrelevant, others thought it relevant but differed as to the nature and extent of the relevance to the issues in this case. The records of the general medical practice which the plaintiff regularly attended show she attended on 14 March 1989, apparently some two weeks after the incident and again on 21 April 1989 with persisting lower back pain and left side sciatica. Conservative treatment with rest, physiotherapy and anti-inflammatory medication was instituted. 9 The plaintiff returned to school. She was excused involvement in sporting activities and 10 was restricted in some activities. Her symptoms did not fully resolve and she was 'referred to Dr , David Morgan, an orthopaedic surgeon. Dr Morgan saw the plaintiff on 21 August 1989 but did not see her again. He was -- 5 of 20 -- 11 12 5 confident that the plaintiff was suffering a discogenic lower lumbar anomaly and thought it involved the LS/S 1 disc. He considered that she had a bulge in the disc giving rise to stretching of the sinuvertebral nerve with associated lumbar pain. He thought there was compression of the left side of the S 1 nerve root giving rise to left lower lumbar symptomology (tingling). He advised exercise and thought her symptomology would gradually settle but that it was "remotely .. possible" that she could extrude part of the disc in which case she would "probably notice. a marked increase in the sciatica". Dr Morgan thought that to have an anomalous disc at 16 giving rise to sciatica to the extent that the plaintiff's did was an extremely unusual event indicative of a "markedly degenerate disc" at a very early age. Had he known at the time that the plaintiff was contemplating becoming a wood machinist, he would have counselled against it and advised sedentary or semi-sedentary work avoiding repetitive bending, lifting, twisting and the like. The plaintiff's back seems to have settled down after she saw Dr Morgan. The plaintiff completed year 12 in 1990 and in 1991 did a T AFE pre-vocation course. In this context, she undertook a gym program to build her strength. I gather this was encouraged generally for course participants but the plaintiff and the instructors developed a specific program for the plaintiff which took into account the problems she had had with her back. As a result, the plaintiff was persuaded, justifiably from her state of knowledge, that she was able to embark on her apprenticeship. At the trial the defendant made much of the plaintiff's alleged failure to notify it of her back injury and the problems she had and what she had done to overcome them and it is necessary to consider that issue in some detail. -- 6 of 20 -- 13 6 Before completing and lodging her application for an apprenticeship, the plaintiff made enquiries ofQ-Build (the name under which the defendant conducted the particular enterprise in which she was employed) as to lifting practices and was reassured that there would be assistance in lifting anything which was too heavy to be lifted unaided. The plaintiff completed an application form, was interviewed and participated in an induction process. She was in the first . intake offemale apprentices, Q-Build was keen to have her and she was well qualified and keen. The application form had a section which stated to the effect that Q-Build implemented an equal employment opportunity program aimed at ensuring the fairest possible consideration to all applicants. Applicants who were "Aboriginal, come from a non-English speaking background or \ / have a disability may wish to indicate this in the appropriate box" so that the selection committee "could be appropriately structured to consider the application adequately". The plaintiff did not 14 complete the provision for notification of "nature of disability". That she did not is hardly surprising; completion was optional. The section was not, by its terms, apposite to the plaintiff's situation. In any event, the plaintiff had undertaken the gym course, was not then troubled by her back and had assurances about assistance in heavy lifting. She did not consider that she would have any difficulty in carrying out the duties of a wood machinist. That was not unreasonable, she had no real appreciation of the nature of the injury she had suffered or its potential long term consequences. The plaintiff's evidence was that she raised her previous back injury at her job interview, explained that she had sciatica when she was 16 and that she had gone through a course of physiotherapy and a gym program and that she had not had any problems with her back and again sought reassurances that she would have assistance in heavy lifting. Not surprisingly, the interview took place more than seven years before the trial, neither of the persons comprising the -- 7 of 20 -- 7 interview panel had any recollection of the interview with the plaintiff One of them was asked whether she would have considered it to have been of any importance had the plaintiff stated she had suffered ofa back problem in the past and frankly answered that she did not know. The other thought he would have asked further questions and pursued the matter if the answers warranted it but he had no recollection of the matter being raised; his answer no doubt reflects the benefit of hindsight. 15 I don't doubt that the plaintiff was frank and open at the interview and subsequent induction. I don't consider there to be any question that she c.oncealed anything about her back. ( ) , ' In all probability she did raise her experience with her back at the interview much in the terms she says but the matter was not pursued. 16 As part of the induction process the plaintiff completed a new employee details form. That contained a question about known "Physical, medical or emotional conditions likely to affect your work?". The plaintiff initially inserted "N/A", crossed that out and completed "No". The plaintiff may be mistaken as to the location and sequence of this event and as to the identity of the person to whom she spoke. 17 The plaintiff said that in the course of filling out the form that she put up her hand and spoke to a Q-Build officer telling him that she had sciatica when was 16, she hadn't had problems since and that she had done a gym program in the previous year. She had probably inserted the NIA answer by then. He asked whether it was likely to affect her work and she answered, and no doubt believed, that it wasn't. He said to write that down and she completed the form as indicated. • -- 8 of 20 -- 18 8 Mr Henderson, the person responsible for the conduct of the induction program, said that it was his practice to take the group of inductees through the form, reading the question, having them fill in the answer so that anyone having a problem can put up their hand. He says that had the plaintiff put up her hand and raised the fact she had a back problem when she was 16 causing left sciatica but she exercised and it wasn't causing her any problems at the time he would have . asked one of the safety officers present to talk to her with a view to further investigation if that was justified. The plaintiff did not nominate Mr Henderson as the man to whom she spoke. I don't doubt Mr Henderson's honesty, he was, however, being asked to recollect a fairly unremarkable occasion some nine years prior to the trial in the light of the issues raised by the trial. In any event, as I have indicated, the plaintiff is likely to have regarded her back problem as past and have been confident in her ability to pursue her apprenticeship. Although, as I've said she may be mistaken about aspects of these events, I'm inclined to think the form was completed much in circumstances as she says. There is in my view nothing in this whole sequence of events which provides any comfort for the defendant. 19 The plaintiff commenced work on 4 February 1992. Initially she worked with a particular \\. tradesman becoming familiar with the work and the various items of machinery she would be required to use then she worked in conjunction with various of the tradesman working in the workshop. By mid 1992 she was working largely independently but under supervision. In late 1992 she began to develop an ache in her legs and back and by March 1993 she had considerable pain and disability associated, to some extent, with standing but more directly with lifting. She began to find work difficult and had to stop and rest her back from time to time. Late in March, probably on the 29th, the plaintiff consulted a chiropractor, Dr Edwards, who gave her a certificate that she was unable to perform her regular duties over the period 29-31 March. The -- 9 of 20 -- 20 \I A 9 immediate precipitating cause of the episode was a ride at an amusement park on the weekend. Dr Edwards thought that she had acute lumbar sacral sprain in the lower back which he treated by massage and manipulation. This provided some relief for a time. On 18 May 1993, the plaintiff attended at her usual general practice with, as the records show, lower back pain attributed to "a lot oflifting at work". It is recorded that lumbar spine x- rays on 1 June 1993 showed LS/SI reptrolisthesis suggestive of disc pathology but as will emerge there are other views that the indications on the x-ray are within the normal range. On 3 June 1993 the plaintiff was operating a pedestal grinder. In order to relieve the stress that the bending involved in doing so placed on her back, she had earlier adopted the procedure of sitting on a trestle but as her supervisor correctly pointed out to her that this was an unsafe practice. She then adopted what might be described as a straddle stance and was using it on 3 June. It is difficult to reach a conclusion as to precisely what occurred in the incident of 3 June. It seems, however, that while she was engrossed in her task, which in all likelihood was causing her obvious pain and discomfort, she was approached by a fellow employee who wished to speak to her about some transport arrangements. Whether because he startled her or whether he intervened on account of her obvious distress, she suffered an episode of a consequence of which she was in great pain and distress, unable to stand, walk or fully move her legs and toes. She was carried to a car and driven to her general practitioner's surgery. She was later taken from there to the Royal Brisbane Hospital by ambulance for a further assessment. X-rays were taken but were apparently normal and the plaintiff was discharged without being admitted. She was able to walk when discharged. The plaintiff returned to the general practice the next day and arrangements were made for a CT lumbosacral scan. This showed a large central disc protrusion -- 10 of 20 -- \ 22 , 10 compressing both the S 1 nerve roots. The evidence is somewhat sparse about this period. It seems the plaintiff was referred to a rehabilitation specialist and an orthopaedic specialist and underwent what is described as a back rehabilitation program involving a range of therapies. She returned to work but her back . commenced to trouble her again. A medical certificate of 22 February 1994, from her gener:al practitioner, certifies that she suffered from back strain and was unfit for duty on that date. The plaintiff seems to have struggled on, coping, but with increasing difficulty which was probably obvious. It does not seem to have been suggested to her that she ought to reconsider whether she should continue her apprenticeship. On 25 October 1994 the plaintiff suffered a sharp pain in her lower back while she was working at a rounding machine and was putting timber back on the table. On 2 November 1994, she was assisting a tradesman using a machine called an edge bander by tailing out and she lifted some drawer fronts, turned around and took a couple of steps, suffered pain in her back and leg, lost all movement and collapsed. The plaintiff did not return to work after this incident and her apprenticeship was terminated in January 1995 . . ..;;3 The plaintiff was referred to Dr Sugars, an orthopaedic specialist, after the November incident. He saw her on 9 December 1994. He found that she had a very stiff back with limited leg movements but found no neurological sign. A myelogram and CT scan were performed on 13 December, which showed a "huge" central lumbosacral disc protrusion with impingement on the thecal sac at the L5/S 1 level and a minor disc bulge at L4/5. The plaintiff was admitted to the Prince Charles Hospital on 28 March 1995, surgical exploration confirmed the myelogram and CT scan finding and the protrusion was excised. The plaintiff was discharged on 1 April and followed up at outpatients until 5 June 1995, at which stage it is recorded that she had no pain, -- 11 of 20 -- 24 ( 25 11 had regained "better back movements in that she could flex her fingertips to her lower shins". She was advised to wear a removable lumber back brace for all lifting activities and enrolled in an office skills training course with a view to her future employment being in the area of office work. The plaintiff suffers from degenerative changes at the lumbosacral spine producing chronic back pain of varying degrees of severity. She is unable to sit or maintain the same posture so t~at she is restricted in her ability, for example, to drive a motor vehicle for any significant time or for that matter sit without relief She cannot work in any occupation, including her chosen occupation, which involves repetitive lifting or stooping. She will have intermittent flair ups of back pain which will need to be treated from time to time by medication and physio and other therapies. The plaintiffs enjoyment of the amenities of life is greatly reduced. She cannot do many routine domestic activities without assistance, if at all, or to the extent to which she would were it not for her back. She can't enjoy recreational or sporting activities, such as dancing and martial arts, as she previously did. She is dependant on her husband to do things she would previously had done for herself She is unlikely to have children because of concerns about her back condition although she and her husband may adopt. All these things are the consequence of the condition of her back which is unlikely to improve. The medical evidence in this case reveals that there is room for genuine differencesln opinion relating to many aspects of the plaintiffs condition. These include whether the incident in early 1989 was a manifestation of a pre-existing spinal abnormality. Dr Morgan, I think, thought it likely, the other orthopaedic specialists who gave evidence did not consider the issue or were, at most, ambivalent or rejected it. -- 12 of 20 -- 26 27 ( ~, 12 There are differences of opinion as to whether a comparison of x-rays taken in 1989 and in 1993 demonstrate degenerative changes or whether the appearances are within the normal range. These differences of opinion are, in my view, within the range of variation consistent with the sound exercise of a professional judgment as to the significance the x-rays. There are differences of opinion as to whether the 1989 incident disorganised or damaged the L5/S 1 disc in particular so as to initiate degeneration so leading to the plaintiffs present and continuing disability. Dr Sugars thought not - he considered the June 1993 incident was the significant event. Drs Morgan, Gillett and Boys thought to varying degrees that it did. 28 Dr Sugars estimated the plaintiffs disability, in accordance with the workers' compensation 29 30 table, to be a 20% permanent/partial disability. Three other orthopaedic specialists (Drs Boys, Gillett and Morgan) assessed the permanent/partial disability at 10%; in all probability they were using a different scale to that used by Dr Sugars. Dr Gillett thought 2.5% of the disability was due to the 1989 incident and 7.5% to stresses imposed in the course of the plaintiffs occupation. DrBoys attributed 7.5% to the 1989 incident and 2.5% to work related stresses while Dr Morgan thought that 50% was attributable to the 1989 incident and 50% to work. Each of Drs Gillett, Boys and Morgan considered that the probable consequence of the 1989 incident and the plaintiff pursuing, as she did, an occupation which inevitably involved repetitive bending and lifting would inevitably lead to problems, probably by her early to mid- thirties (Dr Gillett), .within five years of 1992 (Drs Boys and Morgan). The scope for these differences is compounded by the fact that there is no medical -- 13 of 20 -- 13 practitioner who has consistently been treating the plaintiff; for example Dr Morgan who saw her in 1989 did not see her again. Dr Sugars did not treat her until December 1994. DrsBoys and Gillett saw her for medico-legal reports. Some of the doctors who saw her for legal reporting purposes in relation to much later events did not see the 1989 x-rays save in the context of the litigation and were reporting initially on the basis of different degrees of detail and of perspective. The 1989 incident may have been more traumatic than Dr Sugars or Dr Gillett, who saw the plaintiff much later, appreciated from the information to hand. 31 The range of issues to which the evidence and these differences give rise are not in my view resolved by simply accepting the view of one of the specialists and rejecting that of the others. Their justifications and explanations offered are equally plausible and by and large within the range of what is essentially the exercise of a professional judgment. No rational way occurs to me of choosing from among them. By the same token there is a limitation to the extent to which it open to select and or reject facets of the evidence of particular doctors. 32 Doing the best I can, in my view, the origins of the plaintiffs subsequent difficulties lie in the 1989 incident. I am unable to reach a conclusion as to whether that was the manifestation of a pre-existing condition or whether it precipitated the disorganisation and insult to the disc which led to the subsequent events. In either event from that time on the plaintiffs L5/S 1 disc made subsequent back problems inevitable. The probability is that what Dr Morgan had described in his report of 21 August 1989 as a remote possibility, in fact occurred in the June 1993 incident and the disc extruded. In any event, the 1989 event made the plaintiffs back vulnerable to disability brought about by the stress brought about by the repetitive bending and lifting involved in following the trade of wood machining. Once again the differences between the doctors is -- 14 of 20 -- 33 34 35 14 within the range of sound professional opinion and there is no rational basis for choosing among them. On the evidence the plaintiff was struggling to cope with her work by late 1992, an ominous sign, in retrospect. She would probably be unable to pursue it any longer than to 1997 at most. It may be accepted that unsafe work practices involving the handling of materials or the use of machinery would have aggravated the process initiated or exposed by the 1989 incident. I therefore tum to consider the extent, if any, to which the plaintiff engaged in work practices the consequences of which the defendant might be liable. The range of machines utilised in the shop and their method of use is described and supplemented by photographs (exhibit 10) and a report by Kenneth Leslie King an expert in work safety issues such as arose here. The descriptions are supplemented by the photograph in exhibit 26. Exhibit 74 is a table of relevant details of machinery and material used in the defendant's wood machinery shop up to June 1993. The schedule of typical duties and physical requirements. for an apprentice wood machinist, which is exhibit 15, deals with physical requirements in terms of material sizes, lifting weight, pushing and pulling pressures and the percentage of time spent on particular machines. This material was supplemented by oral evidence and tested by cross- examination. For reasons which will emerge I find it unnecessary to examine it in detail. The evidence in respect of the issue presently under consideration is clouded by the time which has elapsed since the events and by tensions between the plaintiff and her supervisor, Mr Williamson who gave evidence at the trial. Mr Williamson was a wood machinist who had been employed by Q-Build for 25 years at the date of trial. He had been the foreman in the wood -- 15 of 20 -- 15 machinery workshop for about four years when the plaintiff commenced her apprenticeship. At the relevant time there was a foreman, six tradesmen, an apprentice (the plaintiff) and a labourer in the wood machinery workshop. The foreman's job was essentially supervisory, although from time to time when was needed he would work at the machinery. 36 The plaintiff was the first female apprentice in the wood machinery shop. Before she commenced there the workers were prepared by being spoken to by departmental officers about the implications of having a woman in the work place. There is no issue as to adequacy of this preparation, but there were difficulties between the plaintiff and Mr Willii:l.mson from the start. 'i . j I think the probability is that Mr Williamson was unhappy about a female apprentice, his view to the effect that it was not a woman's work was exacerbated as the plaintiffs back began to deteriorate and cause her problems which effected her work performance. 37 On 16 June 1993 a meeting was convened between departmental officers and the plaintiff, \. where the plaintiff outlined her problems in dealing with Williamson and was provided with the explanation that the reason why Williamson might have been making life "a bit hard" was so as to prepare her for work outside the defendant. It was resolved that the supervisor to be kept advised and that an officer would "talk to Mick Williamson". There was no issue at the trial that Q-Build dealt with the difficulties between the plaintiff and Mr Williamson other than appropriately. 38 My impression is that Mr Williamson was an honest witness who was somewhat bewildered by the course of events. He had an apprentice who was a female who turned out to have a chronic back problem which increasingly detracted from her capacity to perform what he -- 16 of 20 -- 16 regarded as routine tasks. He was called to give evidence years after the events. The plaintiffs experiences had made her, perhaps unconsciously, somewhat resentful and critical. In my view each of the plaintiff and Williamson now had an exaggerated view of the situation; the plaintiff that she did not have the assistance she should have and Williamson that she had what assistance justified by the circumstances. In any event their recollections are rendered less reliable by the passage of time and are distorted by the litigation process which had dragged on and which made demands on their memories which they are probably not capable of satisfying. The evidence of the plaintiff and Mr Williamson is to be approached with a great deal of circumspection. / \ \j It is probable that from time to time the plaintiff, in the course of handling material, lifted unaided weights which were in excess of acceptable limits. On occasion she sought assistance sometimes it was forthcoming but other occasions it was not. I accept that the plaintiff probably complained from time to time about being required to lift. On other occasions, although she had been instructed to seek assistance lifting, she probably did not seek assistance lest she be thought not up to the job or be rebuffed. On some occasions her concerns may have been justified on others not - it is impossible to say. These departures from safe work practices were, on the view I take of the evidence, more towards the exception rather than the rule. In the view I take of the evidence it is impossible to quantify them or to quantify the extent to which they exacerbated the inevitable consequences which flowed from the 1989 incident and the plaintiff following the trade of wood machinist even if the activities were within acceptable limits. 40 The position is less clear with respect to the excessive use of machinery. I am not satisfied there was prolonged use beyond acceptable limits. I am not prepared to conclude that there was any breach of acceptable work practices in respect of this aspect of the plaintiffs work. -- 17 of 20 -- 41 ( 42 43 17 Against this background I tum to consider the two specific instances pleaded. It will be recalled that the incident of3 June 1993 involved the plaintiffs use of a pedestal grinder. Clearly enough the use of this machinery was causing problems for the plaintiffs back and this was evidenced by the posture she was obliged to adopt and maintain. As I have already indicated however, I am not prepared to find that the plaintiffs use involved negligence or breach of duty . on the part of the defendant. The innocent intervention of a fellow employee, in circumstances which are not altogether clear on the evidence, precipitated the acute incident to which I have referred earlier. The outcome was not a consequence of any breach of duty by the defendant but of the pre-existing condition of her back. So far as the incident of 2 November 1994 is concerned if it occurred as the plaintiff described, and I am inclined to accept that it did, it probably was an occasion on which the plaintiff lifted a weight in excess of that which she ought to have lifted unaided with the consequence to which I have referred. By that stage, apparently, the condition of her back was such it was impossible for her to resume her work as a wood machinist. It remains to say certainly by 3 June 1993 the plaintiffs supervisors were aware she had a back disability. She was thereafter given light duties until she recovered from particular episodes but the more fundamental problems were not addressed. These included the need to ensure the plaintiff did not lift loads beyond acceptable limits. I will endeavour to summarise the conclusion which I have been canvassing. In my view the plaintiffs back problem has its origins in the 1989 incident. It was inevitable that the consequences of the incident would be exacerbated by the plaintiffs chosen occupation. Given the difficulties I have canvassed about the differences in medical opinion, the plaintiff has a -- 18 of 20 -- 18 1°percent permanent/partial disability of the order of 2.5 percent of which is caused by the activities she was obliged to engage in as an apprentice wood machinist. These activities included a real but unquantifiable amount of lifting and manoeuvring without assistance of weights in excess of acceptable limits. The lifting and manoeuvring outside acceptable limits had a real but unquantifiable consequence of exacerbating the plaintiffs condition beyond what was brought about by activities within acceptable limits. The occasions when the plaintiff was obliged to engage in lifting outside acceptable limits were avoidable by proper supervision and assistance, human or mechanical. This was particularly so once it was known the plaintiff had a back problem. There is no basis for concluding that steps could not be practicably taken. 44 It is now necessary to assess the plaintiffs damages caused by the defendant's breach of duty. It will be appreciated that, in view of the findings I have made, this is not an exercise which can be done with any precision. It will also be appreciated that on the view I take of it, the defendant's breach of duty was a minor contributor to the plaintiffs back problems. 1. Past and future pain and suffering and loss of amenities $20,000.00 ; \ 2. Interest on past pain and suffering (75% of 1) @ 2% for 5.8 years since first incident 1,740.00 3. Special damages - (a) Medical expenses paid by The Workers' Compensation Board $1,054.28 (b) Hospital and medical expenses 1,013.25 (c) Chiropractic and associated expenses 1,671.00 (d) Travel expenses 3,375.00 7,113.53 -- 19 of 20 -- 19 4. Past economic loss 5. Interest on net past economic loss (after deduction of$14,072.33 nett workers' compensation payments) @ 5% for 3.5 years since compensation ceased. 6. Foxv. Wood 7. Superannuation loss (6% of 4) 8. - Past care 9. Interest on past care @ 2% for 5.8 years since first incident TOTAL Less refund to The Workers' Compensation Board BALANCE . :.... 40,409.20 4,608.95 2,787.45 2,424.55 6,000.00 696.00 $85,779.68 19,450.57 $66.329.11 -- 20 of 20 --