DISTRICT COURT OF QUEENSLAND
CITATION:
Cosic v G James Safety Glass (Qld) Pty Ltd [2019] QDC 170
PARTIES:
DOBRICA COSIC
(plaintiff)v
G JAMES SAFETY GLASS (QLD) PTY LTD
(defendant)FILE NO.:
4205/16
DIVISION:
Trial Division
PROCEEDING:
Civil
DELIVERED ON:
20 September 2019
DELIVERED AT:
Brisbane
HEARING DATE:
14, 15, 16, 17, 20, 21 May and 5 June 2019
JUDGE:
Rosengren DCJ
ORDER:
Judgment for the plaintiff in the sum of $469,931.45
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff claims damages for injuries suffered in the course of employment with the defendant – where both liability and quantum of damages are in contention
TORTS – NEGLIGENCE – BREACH OF DUTY – where the plaintiff was operating a lifter and attempting to unload a glass pane on a production line and sustained an injury to his lower back – whether the risk of injury was foreseeable and not insignificant – where it was the plaintiff’s case that he was not trained to operate the lifter and was pulling the lifter laterally across his body – where the defendant’s case is that the plaintiff was not injured when operating the lifter in the manner alleged and that he was trained – whether unknown to the defendant the plaintiff was vulnerable to a lumbar spine injury on account of pre-existing degeneration and/or a rheumatology condition – where the defendant did not have a record of previous similar incidents
TORTS – NEGLIGENCE – CAUSATION – where the plaintiff experienced symptoms consistent with the lumbar injury after he felt the twinge in his back when operating the lifter – whether the forces involved in operating the lifter were sufficient to cause the lumbar spine injury
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR AN ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL DAMAGES – where the parties are agreed as to moderate lumbar spine injury – where in the range the assessment should be
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR AN ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – PAST ECONOMIC LOSS – where the plaintiff was a valued employee and wanted to keep working – where there was medical evidence predicting that the plaintiff would have had symptoms arising from his psoriatic arthritis and/or pre-existing degeneration likely to be responsible for curtailment of the plaintiff’s ability to work beyond aged 60 – whether the medical evidence can be taken as likely that the plaintiff would have had symptoms sufficient to prevent him working by this time – whether the calculation of past economic loss should be further discounted to allow for various contingencies
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR AN ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – FUTURE ECONOMIC LOSS – where the plaintiff has no residual earning capacity – where a claim is made assuming full time employment until the age of 70 – whether the plaintiff would have remained in full time employment with the defendant until this time
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305D, s 305E, s 306N
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) sch 9, sch 12
Uniform Civil Procedure Rules 1999, r 380COUNSEL: J McClymont for the plaintiff
W P D Campbell for the defendantSOLICITORS: Shine Lawyers for the plaintiff
Jensen McConaghy for the defendant
Table of Contents
Introduction
Pleaded incident
Plaintiff’s work with the defendant
Double glaze line
Credibility
The plaintiff
Peter Hansen
The incident
Engineering evidence
Duty of care and breach
Foreseeable and not insignificant risk of injury
Risk assessment
Training
System of work
Conclusion re breach of duty
Causation
Quantum
Plaintiff’s medical history
General damages
Past economic loss
Interest on past economic loss
Fox v Wood
Past loss of superannuation
Future economic loss
Future loss of superannuation
Special damages
Interest on out of pocket expenses
Future out of pocket expenses
Summary of damages award
Orders
Introduction
[1] The defendant is a producer of glass and aluminium based products. The plaintiff was employed by the defendant as an assembler. He claims he injured his lower back in the course of his work duties in January 2014. At the time he was operating a vacuum lifter that was being used to transfer a glass pane from a trolley to a production line.
[2] In October 2016, the plaintiff commenced this proceeding against the defendant for damages and other orders.
[3] In May and June this year, this matter was heard before me over seven days. Both liability and quantum are in dispute. At the commencement of the trial, the plaintiff sought and was granted leave to file a further amended statement of claim pursuant to r 380 of the Uniform Civil Procedure Rules 1999 (Qld). A further amended defence and a further amended reply were also filed. Fourteen witnesses gave evidence, of which seven were lay witnesses, five were medical practitioners and two were engineers. There were 55 exhibits tendered. The plaintiff is Serbian and gave his evidence with the assistance of two different interpreters. The parties have provided detailed written and oral submissions.
Pleaded incident
[4] The plaintiff’s claim is that on or about 21 January 2014, he was instructed to use an Armatec Vacuum Lifter (‘the lifter’) to move large panes of glass from a trolley to the production line (‘the double glaze line’). The panes were of varying dimensions. It is pleaded that at least one pane was approximately 8mm thick, 1920mm high and 2502mm long. It is further pleaded that the panes weighed about 50 kilograms, although some of them weighed up to approximately 96 kilograms.
[5] It is alleged that the plaintiff was positioning the panes in preparation for the first job of the day to commence. He was required to move them quickly to maintain a constant supply of glass to the double glaze line. Multiple panes were to be placed on it with approximately 50 millimetres between them. The plaintiff had placed the first pane on the double glaze line and was attempting to place the second pane on it and next to the first pane. This required him to push and pull the lifter laterally across his body when he was standing close to the support post for the lifter. While doing this, he suffered an injury to his lumbar spine.[1]
[1] Further amended statement of claim, para 8.
[6] In response to the plaintiff’s pleaded claim as to how the subject incident occurred, the defendant:
(i) admits the plaintiff was:
(a) instructed to use the lifter to move panes of varying dimensions from trolleys to the double glaze line;
(b) required to position multiple panes of glass on the double glaze line;
(ii) does not admit:
(a) one of the panes of glass was approximately 8mm thick, 1920mm high and 2502mm long;
(b) each of the panes being moved weighed approximately 50 kilograms;
(iii) denies:
(a) some of the panes weighed approximately 96 kilograms;
(b) the plaintiff moved some panes that were 8mm thick, 1920mm high and 2502mm long;
(c) the plaintiff was required to move the panes quickly;
(d) the panes had to be positioned on the double glaze line 50 millimetres apart;
(e) the plaintiff injured his lumbar spine while positioned close to the support post and while pushing, pulling and rotating the lifer to move it towards the double glaze line to place it next to a pane that was already there;
(iv) further says, it was not necessary for the lifter to be positioned close to the support post in order to place the pane on the double glaze line.[2]
[2] Further amended defence, para 5.
[7] The plaintiff’s case on liability as argued, is that the defendant breached the duty of care owed to him as their employee by failing to assess the risk associated with operating the lifter, to implement a proper system of work and to train the plaintiff in relation to it. The pleaded case included an alleged failure to make modifications to the lifter. That aspect of the case was not pursued by the plaintiff at trial or in submissions.
[8] The defendant’s case is that it had assessed the risk, implemented a system of work and trained the plaintiff as to the correct method to be used when operating the lifter. This method is demonstrated in the video footage taken at the time Dr Grigg inspected the workplace in May 2018 (the video footage’)[3]. The defendant further contends that the injury the plaintiff sustained was insignificant and not foreseeable in circumstances where it was not known that the plaintiff was vulnerable to sustaining an injury to his lumbar spine on account of pre-existing degeneration and psoriatic arthritis. The defendant also points to the lack of any documented incidents of injuries being sustained by other workers in similar circumstances.
[3] Exhibit 7.
Plaintiff’s work with the defendant
[9] The plaintiff commenced full time employment with the defendant in March 2008. He had applied for the job as his father had worked in the glass industry. Approximately three years earlier he had emigrated from Bosnia and had limited English. His wife had acted as an interpreter for him at the job interview.
[10] The defendant operated its Queensland business operations from three sheds at Narangba and three sheds at Eagle Farm in Brisbane. It also produced glass in New South Wales and Victoria. One of the three sheds at Eagle Farm, known as Shed 22, was dedicated to double glazing and glass coating. There was an annex to the shed which was used to construct wooden cases. It was in this shed that the subject incident occurred. The other sheds housed other production lines for other parts of the defendant’s manufacturing process.
[11] A variety of vacuum lifters were used by the defendant to move panes around its production lines and to other parts of the manufacturing process. There were 162 of these lifters throughout Australia, some of which were permanently fixed to posts and others which could be temporarily affixed to lifting equipment. Of the 162 lifters, 80 of these were at the defendant’s Eagle Farm premises and of these, four were in Shed 22. It is one of these lifters that the plaintiff was operating at the time he was injured. This is discussed in further detail below.
[12] While the defendant’s records describe the plaintiff as having been employed as an assembler, he performed a variety of manual and unskilled tasks. These included unloading glass at the end of a cutting line, loading and unloading trucks, sorting glass and packing glass for transportation. After some time, he also started operating the lifter on an ad hoc basis.
[13] The plaintiff would generally work weekdays from 6am until 2pm. There would be occasions when he would work overtime. He would usually work under the instruction of a supervisor. This person would vary depending on the task he was required to perform.
Double glaze line
[14] The double glaze line was in Shed 22 and was known as IGU line 1. There was another similar production line known as IGU Line 2. This was a back-up line to the double glaze line. Single and multiple units would be processed along these lines.
[15] An order by a customer for panes to be processed on the double glaze line would be recorded on a customer order that was entered electronically. Job sheets would then be generated recording the number and dimensions of the panes to be processed for each shift. The job sheets each had barcodes.
[16] The loading area of the double glaze line is depicted in exhibits 29 and 30. There are three grey panels with rollers at the base of them. There is a black felt panel next to the far right grey panel. It too has rollers at the base of it. Exhibit 30 shows a yellow cage in front of the right hand end of the black panel. This housed the edge deletion machine. On top of the rollers at the base of the black felt panel was an optical sensor. For a pane to go to the edge deletion machine, it would need to be loaded so at least part of it would be resting so as to activate the sensor.[4] At the other end of the loading area, the washer can be seen. This washed the panes before they proceeded further down the double glaze line.
[4] T3-88, ln 23-33.
[17] The panes, whether they be single or in multiple, would vary in shape and would include square and rectangular panes. Others were triangular or had radius corners. The panes would also vary in size and could be as small as 400 millimetres by 400 millimetres and as large as four metres by two and half metres. The double glaze panels would consist of two panes. One would have had a coating applied to enhance the insulation properties of it and the other pane would not.
[18] While all panes would go through the washer, it was only the coated panes that were put through the edge deletion machine. It would remove some of the coating at the edges of the coated panes. This would then enable an aluminium frame to be applied to it. The process of edge deletion for the coated panes would happen before those panes were washed. This meant that coated panes would be loaded onto the double glaze line and be sent right to the edge deletion machine, before being sent left to the washer and then downstream to a further four stations. The time taken for the edge deletion process would vary depending on the size of a pane but would take no longer than a minute. The washing process for a pane would take a similar amount of time.
[19] The closest downstream station to the washer was the inspection station. A worker was routinely positioned at this station to visually inspect each pane of glass that had come out of the washer. If the pane passed the inspection it would have a sticker placed on it with a barcode. The next station down the line was the spacer placement station. Whether a worker was positioned at this station would depend on the size of the spacer being placed and or the shape of the pane which was having the spacer applied. The next station was the IGU press station. This is where the panes for double, triple, or quad glazed panels would be pressed together. There was a computer scanner at this station and a worker would scan the barcode from the job sheets to ensure that the pane coming down the double glaze line matched the job order. The final station was the silicon station. A worker was positioned at this station to unload the panes or panels from the double glaze line.
[20] At the commencement of each day all the machines and/or other equipment along the double glaze line would be started up. This process would usually commence at the silicon station and then progressively move upstream to each station.[5]
[5] T5-19, ln 18-21.
[21] The equipment being used by the operator in the loading area of the double glaze line in exhibits 29 and 30 is the lifter. It was used to transport and manipulate large glass panes from the trolleys to the double glaze line. Only the larger panes required the use of the lifter. It was mounted on a yellow slewing jib crane which was attached by a hinge to the yellow post directly behind the grey panel furthest to the right (‘the yellow post’). The mass of the lifter and the crane jib are not known. Mr McDougall estimated them to be at least 100 kilograms. The top end of the vertical cylinder supporting the lifter was attached to a trolley that ran on tracks in the horizontal lower members of the crane.
[22] Prior to approximately 2009, the crane had been attached to the thinner structural grey steel pole with a yellow marking around it, seen in the upper left corner in exhibit 29. The repositioning to the yellow post meant that the attachment point of the crane was moved approximately 1.1 metre closer to the loading area of the double glaze line.[6] It is admitted by the defendant that the lateral force to move the lifter was greatest when the lifter was positioned closer to the yellow post.[7]
[6] T6-24 ln 15-36.
[7] Further amended defence, para 4(d)(i).
[23] The lifter had a suction frame which had six suction pads, two in the middle and four on the outside. These could all work independently from each other. The number of suction pads used depended on the size of the pane to be moved.
[24] The operator of the lifter needed to manually apply force to rotate the jib of the crane about its articulation point at the yellow post. The operator would also need to manually apply force to move the lifter radially in and out along the jib.
[25] When a pane was to be loaded from a trolley onto the lifter, it would be suctioned by a partial vacuum in the suction pads and held in position. Once the lifter was attached to the pane, the worker would operate the lifter to lift the pane and ensure that only one pane was attached. The lifter could be turned, tilted, rotated or inclined. While using the lifter, the operator would hold the handles with both hands and in an outreached position.
[26] The lifter would transport the pane to the double glaze line. If the pane was to be washed, it would be placed on the rollers at the base of the two grey panels to the left. They were activated by pushing a pedal that would move the pane left towards the washer. The speed of the rollers was variable.[8]
[8] T3-88, ln 40-44.
[27] If a coated pane was to have its edges deleted it would be placed on the rollers at the base of the far right grey panel and on at least some of the rollers and the sensor at the base of the black panel. These rollers were also activated by a pedal and were operated independently to the rollers used to transport panes to the washer. They could move in either direction depending on whether the pane was going to or from the edge deletion machine.
[28] As to the staffing arrangements, David Waldock had been the defendant’s Queensland workplace health and safety co-ordinator since January 2006. Bruce Moy was the chief engineer. Michaela Robbins was the supervisor of Shed 22 and Jason Hill was the leading hand. He had worked for the defendant from about 1994 to 2009 and he recommenced working with the company in 2013. Chris Hansen also worked for the defendant. While he was not formally described as a supervisor, from approximately 2007 he was required to supervise other workers on the double glaze line.[9] In the further amended defence it is admitted that on occasions Mr Hansen acted as the plaintiff’s supervisor on the double glaze line.[10] Mr Hansen would also operate the lifter. Kyle Winters occupied the same position as Mr Hansen. He did not give evidence.
[9] T5-36, ln 28-47 to T5-37, ln 1-3.
[10] Further amended defence, para 5A(b)(iii).
[29] It would usually be Ms Robbins or Mr Hill who would assign workers to particular tasks in Shed 22. If those tasks involved the double glaze line, Mr Hansen or Mr Winters would supervise the workers for those tasks. The only evidence from lifter operators was that of the plaintiff and Mr Hansen.
Credibility
[30] It is unsurprising that the witnesses who gave evidence did not have perfect recollections of each of the matters about which they testified. In some instances witnesses were attempting to recall details of events and conversations that occurred more than five years earlier.
[31] I am cognisant of the need to exercise caution in drawing conclusions about the credibility of a witness substantially from their demeanour in the witness box.[11] It is but one of the considerations. The others are the inherent consistency of their account, the consistency of their account with other witnesses and undisputed facts, and the inherent probabilities of the evidence in question.
[11] Fox v Percy (2003) CLR 118, 129 at [30].
[32] The critical issue in this trial is whether the plaintiff was an honest and reliable witness. He bears the onus of proof to satisfy the court on the balance of probabilities that his version of the incident should be accepted.
[33] Counsel for the defendant urges upon me a finding that neither the plaintiff nor Mr Hansen were credible witnesses.
[34] As to the plaintiff’s credibility, the defendant’s contention is summarised by its counsel in oral submissions in the following way:
“The defendant doesn’t dispute that the plaintiff is a fundamentally decent working person, and that he was a valued employee of the defendant. The great difficulty is, he’s been dragged in here, perhaps unwittingly, into a common law “no win no fee” case. Where, in order to construct a case which might entitle him to damages, he’s effectively been encouraged to reconstruct a version of events that quite simply never occurred.”[12]
[12] T7-7, ln 14-19.
[35] Further, a significant issue in this case is whether the plaintiff was trained to use the lifter. The plaintiff said he was not. The defendant submits that this is a deliberate fabrication by the plaintiff to improve his prospects of success in this case.
[36] As to Mr Hansen, the defendant would have the court believe that he has an ‘axe to grind’ and has given intentionally false evidence to support the plaintiff.
[37] I reject each of the defendant’s submissions in this regard for the reasons detailed immediately below. Otherwise, where appropriate, I have indicated later in these reasons the extent to which I have accepted or rejected the evidence of particular witnesses.
The plaintiff
[38] It is submitted by the defendant that the reconstruction on the part of the plaintiff probably commenced at the time Mr McDougall, mechanical engineer inspected the workplace on 2 May 2017. This was the time when it is alleged that the plaintiff realised that he had gaps to fill if his claim was to succeed. According to the defendant, from this time the plaintiff set about inventing additional pieces of evidence to fill these gaps. It is said that this process of reconstruction continued after Mr McDougall inspected the workplace.
[39] There are several observations to be made about this. First, the defendant relies on the evidence of Mr McDougall to the effect that the plaintiff would not have a case unless he had been moving quickly when operating the lifter at the time of the subject incident. It says that the plaintiff has effectively ‘latched on’ to Mr McDougall’s view in this regard and has moulded his case accordingly. I am in no way persuaded by this. Mr McDougall only met the plaintiff on the one occasion. There is no evidence that Mr McDougall’s view in this regard was ever conveyed to the plaintiff.
[40] Second, this submission assumes levels of sophistication and calculation on the part of the plaintiff, both of which are inconsistent with my impression of him. He did not present as someone who was likely to falsify his account of the incident for personal gain.
[41] Third, the defendant points to the fact that prior to 2016 there are references in four separate documents to the plaintiff twisting to the left when he initially felt pain in his lower back. This is in circumstances where the plaintiff’s case is that he was twisting to the right at the relevant time. These references appear in the record of the plaintiff’s consultation with Dr Osborne, general practitioner on 28 January 2015; the file note of an employee of the plaintiff’s solicitors dated 19 February 2015; the notice of claim for damages; and the letter of instruction from the plaintiff’s solicitors to Dr Campbell. [13]
[13] Exhibits 1, 39, 40 & 41.
[42] I accept these references exist. However, a close analysis of the circumstances in which they came to be recorded does not support the defendant’s reconstruction argument. There are a number of reasons for this. None of the versions of the incident in any of these four documents were written or otherwise recorded by the plaintiff. They were also not provided to the respective authors by the plaintiff directly. His wife, Mirjana Tabak interpreted for him on each occasion. While she had a much better grasp of the English language when compared to the plaintiff, it is also not her first language. As Ms Tabak explained in evidence, she would not interpret exactly what the plaintiff told her. Rather, she would explain it in a way that she thought could be more easily understood from the information that had been conveyed to her by the plaintiff. She said that it was not until she attended the workplace in May 2017, when Mr McDougall carried out his inspection, that she saw the double glaze line and gained a better understanding as to what the plaintiff had relayed to her. Prior to this time, she had found it difficult to visualise and otherwise understand what the plaintiff had been telling her.[14] Against this background it is likely that many of the defendant’s criticisms of the versions provided by the plaintiff are explicable by the language barrier resulting in relevant facts getting ‘lost in translation’.
[14] T4-48, ln 11-24.
[43] The only one of the four documents the plaintiff signed is the notice of claim, which is some 14 pages. He could not and did not read it. He accepted that his wife would have read it to him. He did not read or have read to him the contents of any of the other three documents. He thought he signed the notice of claim in the presence of his wife and the solicitor.
[44] It is instructive that the notice of claim contains other inaccuracies which suggest that the author of it, the plaintiff’s wife or indeed both of them did not fully appreciate what was being explained to them by the plaintiff. For example, the double glaze line is described as a ‘track’ which was simply used to transport the panes to the ‘packaging area’. Further, the lifter is described as a lifting bar when it had two handles. The author of this document was Ms Meakins.[15]
[15] The plaintiff did not call Ms Meakins and the defendant contends that a Jones v Dunkel inference ought to be drawn. However, such an inference is not open in relation to privileged communications between a party and his lawyer (Donaghue v Donaghue & Anor [2015] QSC 54 at [21]).
[45] The letter of instruction to Dr Campbell contains the same inaccuracies. It is dated two days after the date the notice of claim was signed. It is readily apparent from the contents of it, that it was taken from the notice of claim.
[46] Dr Osborne’s notes also contain another inaccuracy. They record not only the plaintiff having twisted to the left but also having felt a twinge of pain to his left lower back. This is clearly a mistake because all the objective evidence is that the injury was to the plaintiff’s right lower back. For example, during this very consultation Dr Osborne provided the plaintiff with a referral for a MRI scan which detailed a clinical history of signs and symptoms of a right sided L5/S1 disc prolapse.[16] The plaintiff ultimately underwent surgery for a right sided disc protrusion. Ms Tabak said that the plaintiff had told her that the pain was in his lower back and right leg.
[16] Exhibit 4.
[47] The plaintiff was extensively cross-examined about these references to having twisted to the left. He explained that while he was turning to the right when he felt the twinge, that shortly prior to this, he had turned left towards the double glaze line.[17] In oral evidence, the plaintiff consistently maintained that when he first felt pain in his lower back, he was twisting towards the right. I accept the plaintiff’s evidence in this regard.
[17] T2-26, ln 15-19; T2-48, ln 20-26.
[48] The defendant asserts further support for its submission that the plaintiff has reconstructed the subject incident can be found in the additional detail the plaintiff provided about it at Mr McDougall’s May 2017 workplace inspection and subsequent to this. Examples of the additional detail include the positioning of the trolleys, that the plaintiff was working quickly and that he was unloading the pane to the right of the yellow post. It is true that these details do not appear in the incident report completed by Mr Waldock on 22 January 2014, Dr Osborne’s record of 28 January 2014 and the versions documented by the employees of the lawyers for the plaintiff.
[49] As to the incident report, this was completed by Mr Waldock as the defendant’s workplace health and safety co-ordinator. It was he who was ‘investigating’ the incident to ensure measures were taken to prevent a similar incident in the future. In these circumstances it is somewhat surprising that he did not elicit from the plaintiff the sorts of details which the defendant now complains are missing in that report. This is certainly not something that should be held against the plaintiff now.
[50] In relation to Dr Osborne’s entry of 28 January 2014, the level of detail recorded is that which would be expected with such an entry. Medical records have their limitations in the context of litigation. They are generally short and made for the purpose of dealing with the presenting problem and recording the future plan for the management of the presenting problem. Their purpose is not to provide comprehensive information of the circumstances surrounding an incident for a forensic analysis for examination later by a court.
[51] The various versions recorded by the lawyers are dependent on the questions asked and the plaintiff’s limited understanding of what information was relevant to give. The plaintiff is not a sophisticated man and communications with him have been hampered by his limited English. Further, the different persons who took the various versions may well not have appreciated the significance of the various details now relied on by the defendant and so have had the plaintiff address what has proved to be some significant matters from the defendant’s perspective. In my view nothing turns on this.
[52] It is accepted that the first occasion the plaintiff mentioned the pace at which he was working was in response to a direct question from Mr McDougall at the workplace in May 2017. Once again, in my view nothing turns on this. It would seem most unlikely that the plaintiff had any understanding of its relevance to the injury he sustained. It has become important in the context of the engineering evidence. It is relevant to the acceleration force the plaintiff is likely to have applied when he attempted to move the lifter laterally across his body.
[53] The defendant is critical of the plaintiff for not having told Mr McDougall that he had been attempting to unload the pane to the right of the yellow post. However, this criticism does not withstand scrutiny. The plaintiff was adamant in his evidence that he told Mr McDougall this, which is not disputed.[18] Rather, Mr McDougall said that he was not clear from his discussion with the plaintiff, parts of what was being described to him. Mr McDougall did not seek to clarify this with the plaintiff but instead simply assumed that the plaintiff had been loading it to the left based on the documentation he had been given by the solicitors. Mr McDougall’s lack of clarity around this discussion does not reflect adversely on the credibility of the plaintiff.
[18] T5-61, ln 12-13; T5-62, ln 1-9 & ln 25-30.
[54] I reject the defendant’s submission that the plaintiff deliberately fabricated his evidence that he was not trained to operate the lifter. I accept the plaintiff’s evidence on this point. The reasons for this are detailed below.
[55] The defendant also submits that there is some discrepancy in the evidence as to when the subject incident occurred and that this reflects adversely on the plaintiff’s credibility. However, a careful consideration of the evidence reveals that no such discrepancy exists and I accept the plaintiff’s evidence on this point. The plaintiff recalled being injured at approximately 7am while performing the first job for the day. His shift had commenced at 6am. The first person he reported it to was a co-worker who had come to see him to ascertain why the panes had not yet been sent down the double glaze line.
[56] The defendant attaches significance to the evidence of Ms Robbins to the effect that it was her recollection that the plaintiff had come to her office to report the incident at approximately 9am and that Mr Waldock had recorded this later time in the incident report. The first occasion she was asked to recall anything to do with the subject incident was a couple of weeks prior to the commencement of the trial and therefore more than five years after the relevant events. Her estimate was based on the fact that smoko usually commenced at 10 am and it was her recollection that the plaintiff had come to see her prior to this. She did not know whether she was the first person the plaintiff had reported it to and whether there had been a period of time between the incident having occurred and the plaintiff reporting it to her.[19] As to the time of 9am in the incident report completed by Mr Waldock, he was unable to say whether this referred to the time that the plaintiff reported it to Ms Robbins.[20]
[19] T5-42.
[20] T6-20, ln 1-7.
Peter Hansen
[57] According to the defendant, Mr Hansen has an ‘axe to grind’ against it and has therefore given evidence to assist the plaintiff’s claim. This is said to arise out of the circumstances in which Mr Hansen left his employment with the defendant. He gave evidence that he resigned as his wife had received a promotion in her work and they had made the decision for him to become a stay at home father. Shortly prior to his resignation, the defendant had requested Mr Hansen to sign a written warning which he did not sign as he did not believe such action was warranted. He expressly denied that this contributed to his decision to resign.[21] Even if it did, I did not get the impression that Mr Hansen and the plaintiff were friends or that there was any other reason why Mr Hansen would deliberately give false evidence to the court. While he clearly regarded the plaintiff as a valuable and dedicated worker, it would be difficult to believe that he would let that high regard interfere with his duty to the court. Further, Mr Hansen was not cross-examined to the effect that because of some perceived grievance in relation to the defendant that his evidence was in any respects untrue. Therefore, I am not satisfied that there is any reasonable hypothesis as to why Mr Hansen may have invented his evidence. In my view, his credibility was not damaged on that account.
[21] T3-88, ln 1-20.
[58] Mr Hansen’s evidence was that while he could not be certain, it was likely he was working on the day of the incident. He recalled being told by Mr Hill that the plaintiff had gone home. He thought he was told this on the day of the incident. Counsel for the defendant initially cross-examined the plaintiff on the basis that Mr Hansen had been the plaintiff’s supervisor on the day. It was later discovered from the defendant’s records that Mr Hansen did not work on this day. When Mr Hansen was informed of this he readily accepted it and said that he may have been told this on the day that he returned to work.[22] I do not consider this to be significant. It is the kind of detail about which honest witnesses make mistakes. Overall, I accept that Mr Hansen was a truthful witness.
[22] T3-87.
The incident
[59] It is not in dispute that the plaintiff was using the lifter in the loading area of the double glaze line on Tuesday 21 January 2014. Neither the double glaze back-up line nor the coating lines were being used on this morning. The plaintiff had worked the previous day. He had not worked for the month prior to this as he had been on annual leave.
[60] At the commencement of the shift the plaintiff had been told that he would be working in the loading area of the double glaze line. His evidence was that he was instructed to use the lifter to transport large panes from the trolleys to the double glaze line to be unloaded onto the rollers. The plaintiff could not remember who gave him this particular instruction. The fact that he would have been given such an instruction is not in dispute.[23] Ms Robbins said that while she had no recollection of this day, it was part of her duties to allocate workers to tasks in the way described by the plaintiff. She said that she would have simply told any workers allocated to the double glaze line to run it with the work that was waiting there.
[23] Further amended defence, para 5(b)(i).
[61] The plaintiff was also unable to recall who his supervisor was while he was working on the double glaze line. As discussed above, the defendant’s records show that it was Mr Winters. He was not called by the defendant to give evidence.
[62] According to the plaintiff, when he commenced working on the double glaze line there were four large panes to be loaded from trolleys onto the rollers followed by a number of smaller panes. These panes were on four trolleys. The positioning of these trolleys are marked with four numbers, being 1 to 4 in exhibit 29B. Mr Hansen said that these markings represented “a general day to day positioning of trolleys.”[24] Mr McDougall’s evidence was that the plaintiff told him that there had been multiple trolleys in the loading area.[25] These trolleys could be difficult to move particularly when they were fully loaded, as they were at the relevant time.
[24] T3-67, ln 41-47; T3-93, ln 42-47.
[25] T4-20, ln 11-16.
[63] Mr Hansen explained that he and some other workers would on occasions, commence work at 4am. In the two hours prior to the 6am shift starting, they would prepare the panes for production for the day. This would include pairing the panes to be used to make multiple panels, placing them on a trolley and then moving the trolley to the loading area of the double glaze line ready for production.
[64] The precise measurements of the pane the plaintiff was transporting with the lifter at the time he was injured is not known. Prior to Mr McDougall’s inspection it does not appear that anyone questioned the plaintiff about this. This is despite Ms Robbins and Mr Waldock’s knowledge of the incident shortly after it occurred. Mr Waldock even went over to the double glaze line to inspect the lifter but surprisingly did not measure the pane. The plaintiff continued working in Shed 22 for the following three days after he was injured and his employment with the defendant was not terminated until some 21 months later. No-one sought to clarify this matter with the plaintiff over this time. Further, the dimensions of the pane would have been recorded on the electronic job order sheet that the defendant would have retained for at least three years.[26] These were not disclosed at trial.
[26] T6-26, ln 16-27.
[65] In was pleaded in the plaintiff’s initial pleading that he estimated the weight of the pane to be approximately 50 kilograms.[27] This can be regarded as nothing more than a guestimate. The plaintiff’s evidence, which I accept, was that he did not know how heavy it was given that the purpose of the lifter was to mechanically take the weight of it.
[27] Statement of claim, para 8(c).
[66] At the time of Mr McDougall’s inspection, the plaintiff did not see a pane of a similar size to that he recalled moving with the lifter when he first felt the twinge in his back. Rather, he saw a pane that had a similar length and another that had a similar height. Mr McDougall was then told by the defendant of the thickness and weight of panes that had such dimensions. It is against this background that it was pleaded in paragraphs 8(b) and 8(c) of the statement of claim that the panes were large and of varying dimensions with at least one pane having the dimensions of approximately 8mm thickness x 1920mm height x 2502mm length. Mr McDougall was initially told by someone on behalf of the defendant that these panes weighed 96 kilograms and then subsequently told that they in fact weighed 79 kilograms. In exhibit 29A, the plaintiff marked the approximate size and position of the first pane on the double glaze line at the time that he was attempting to unload the subject pane. It is about half a metre longer than that which he identified at the inspection with Mr McDougall. The plaintiff reiterated in his evidence that this was an approximation only.[28] Mr Hansen said it was not uncommon for panes this size to be loaded onto the double glaze line.[29]
[28] T1-60, ln 32-46 to T1-61, ln 1-5.
[29] T3-68, ln 20-22.
[67] The defendant contends that the court ought to be cautious in accepting the plaintiff’s evidence that he was moving a pane as large as this. In support of this, the defendant points to the measurement of 8.10 lineal metres recorded under the heading ‘Grind.Length’ in the Daily Production Summary Report (‘the DPS Report’) in relation to IGU Line 1, which is the double glaze line.[30]
[30] Exhibit 48.
[68] I am not persuaded this measurement assists the defendant in the way contended for. It was not taken from the edge deletion machine. Rather, it was recorded further down the double glaze line at the press station from the scanning of bar codes that related to completed customer orders. The measurement does not include those panes that went through the edge deletion machine but then failed the visual inspection at the station immediately following the washer. There would be occasions where panes would not pass this inspection. The frequency of this was variable. [31] Further, the number of panes that comprise this measurement are unknown as the source documents were not before the court. It could well be as few as one or two.[32]
[31] T5-85, ln 16-30; T5-100, ln 18-32; T5-101, ln 1-9.
[32] T5-35, ln 8-11.
[69] I am satisfied that it is more likely than not that the lifter was loaded with a pane of those dimensions approximated by the plaintiff. He has consistently maintained that the pane was a large one. The defendant does not dispute that it was processing panes with such dimensions. As previously mentioned, the lifter was used to transport only the larger panes.
[70] The plaintiff also alleges that he was required to move the panes quickly from the trolleys to the double glaze line in order to maintain a constant supply of panes to it.[33] He gave evidence that there were other workers at stations downstream from the washer waiting for the panes. Mr Hansen explained that this would usually be the case. This evidence was not challenged. It was also not in dispute that there were additional panes on the trolleys for subsequent jobs to be completed.
[33] Further amended statement of claim, para 8(c1).
[71] The defendant denies that there was a requirement for the plaintiff to work at a faster pace than demonstrated to Mr McDougall and Dr Grigg at the times of their respective inspections. Dr Grigg described this as a “relaxed pace, with no need to hurry or for rapid acceleration”.[34]
[34] Exhibit 5, pg 7.
[72] According to the defendant, support for this can be found in the DPS Report where nine hours and forty five minutes is recorded under the heading ‘Estimated Time’ for the double glaze line. It is contended by the defendant that it can be inferred from this that there was more than a four minute interval between each pane being loaded onto the rollers during the course of the shift. This interval time was one of the assumptions adopted by Dr Grigg.
[73] I am not persuaded that such an inference can be drawn. The defendant’s own witnesses gave evidence that this time represented the period of time over which a worker was logged onto the double glaze line, rather than the time it was being used to process the panes.[35] Further, it is premised on an assumption that is not borne out in the evidence, namely that the panes would be unloaded from the lifter to the rollers at equal intervals. Mr Hansen explained that there could be delays or malfunctions along the line. It was also his evidence that some panes would take longer than others to process. These included ones that were new, had radius corners or required the application of a larger than normal spacer.[36]
[35] T5-35, ln 33-36; T5-39, ln 35-40.
[36] T3-77, ln 14-25.
[74] As previously mentioned, apart from the plaintiff, the only witness that gave evidence who had worked on the double glaze line was Mr Hansen. He described the pace shown in the video footage as slow and robotic. He said that he operated the lifter at a much faster pace than that shown. It was his evidence that if he had seen a worker operating the lifter at that pace that he would have told them to hurry up.[37]
[37] T3-80, ln 30-45.
[75] Mr Hansen explained that workers operating the lifter would have tried to complete the work as fast as possible. The following exchange occurred between counsel for the plaintiff and Mr Hansen:
“Mr Hansen, Mr Cosic’s account is he was told one job had to be done quickly so that another job could be started quickly. I don’t want to be too specific in the proposition I put to you. He was told that there was one job to be done quickly so that another job could be started quickly. Could you inform the court, please, how that accords with your experience of the way jobs were allocated at the start of a working day with the double glaze line?---
At the start of the working day, we try to get as many of the urgent jobs done as fast as possible. As I described before, they had to have silicon put in them. That required time to dry. So if a job was due out that afternoon, we tried to get it done as fast as possible so that it could be ready to go when it needed to go out.
So what might be some reasons that a job might be urgent?‑‑‑
If we had a – because it was coated, as it was described before, we may have had to coat that one particular glass on a number of times due to being rejected for coatings previously. We could’ve been waiting for a particular component. The clear piece of glass to go with that glass. A job could’ve broken on site, so we had to make it quickly to get that level closed off. There’s – there’s a number of reasons why that it was urgent.”[38]
[38] T3-70, ln37-46 to T3-71, ln 1-6.
[76] It was Mr Hansen’s evidence that this was the case irrespective of the number of panes to be processed through the double glaze line for any particular shift. He explained this in his evidence in chief in the following way:
“No, we made sure we made them as quickly as possible. That way, if we came across any issues with rejected glass, we could get them sorted out so that we could have it all re-ordered. Or if – we had to get those done quickly so then we could inspect the single pane glass for coating. Generally speaking, if that was all done, then we could go and pack. There were many other jobs in the shed that we could be doing if we weren’t double glazing.”[39]
[39] T3-74, ln 1-8.
[77] The plaintiff alleges that he was positioned close to the yellow post and was pushing, pulling and rotating the lifter to move it towards the double glaze line when he suffered an injury to his lumbar spine.[40]
[40] Further amended statement of claim, para 8(e).
[78] At trial the plaintiff explained that the two panes that he first needed to place on the double glaze line were identical in size and were positioned on either side of the trolley marked 2 in exhibit 29B. He used the lifter to retrieve the first pane from the side of the trolley facing him as he walked towards it with the lifter. He attached the pane to the lifter and then walked while pushing it to the rollers on the left side of the loading area in front of the left and centre grey panels. Its approximate position and size is depicted in exhibit 29A.
[79] The plaintiff had not activated the pedal to move the first pane left towards the washer. This is because it was the first order of the day for the double glaze line and he was waiting to receive the signal from his co-worker further down the line that all stations were ready for production to commence. The plaintiff was cross-examined to the effect that there was no need to wait for such a signal. He denied this.[41]
[41] T3-9, ln 15-28; T5-62, ln 14-17.
[80] The evidence of the plaintiff in this regard was corroborated by Mr Hansen. He explained that at the commencement of each shift on the double glaze line, the signal was given to let the operator of the lifter know that the machines and the other equipment downstream from the washer had been turned on and were operating. He explained that if the operator of the lifter did not wait for this signal and the next station in the double glaze line was not ready, any panes that had been sent to the washer would need to be reversed out of the washer. Production would then be delayed.[42]
[42] T3-79, ln 1-12; T3-96, ln 17-25.
[81] Having placed the first pane on the rollers, the plaintiff returned to the trolley marked 2 and attached the lifter to the coated pane. This was of identical dimensions to the first pane. His evidence was that it was somewhat difficult to manoeuvre the lifter with the attached pane from the trolley to the double glaze line. This was because of the size of the pane combined with the presence of the trolleys, particularly those which are marked 2, 3 and 4 in exhibit 29B. This had the consequence that he was unable to move the lifter in a direct line of travel to where he wanted to unload the pane, which was to the right of the pane that was already there.
[82] The plaintiff decided to walk with the loaded lifter forward to the position marked with ‘X’ in exhibit 29B. As can be seen from this photograph this was in close proximity to the yellow post and the rollers. However, it was not possible to unload the pane at that point because of the position of the first pane that was still on the rollers. Faced with this dilemma, the plaintiff had both hands outstretched holding the handles of the lifter at a height between his shoulders and head. He attempted to move the lifter laterally across his body to the right. He described having to push the lifter “very hard”.[43]He was working quickly as he knew there were other workers waiting at stations down the line. It was while performing this manoeuvre that the plaintiff initially felt some resistance and a sudden pain in his lower back on the right side. He stopped work immediately.
[43] T1-67, ln 1.
[83] Mr Hansen had described to him during evidence in chief the way in which the plaintiff was attempting to position the second pane on the right side of the rollers at the time he was injured. He said that he too had attempted this and had injured his back.[44] Mr Hansen’s evidence was that it was often necessary to place multiple panes on the rollers at the one time “to make the process as speedy as possible”.[45]Mr Hansen further explained that the purpose of doing this was so that workers down the line were not left waiting. It would also enable the operator to attend to other tasks such as trimming laminate, clearing stickers or wiping panes over while waiting for the panes on the rollers to move through the double glaze line.[46] As to the force required to push the lifter laterally, Mr Hansen said:
[44] T3-39, ln 1-24; T3-69, ln 1-20.
[45] T3-65, ln 24-28.
[46] T3-89, ln 27-36.
“If the lifter is right up close to the wall, and you’re trying to move from left or right in a lateral movement, it is very, very difficult to move it. Especially if you have a piece of glass on the – the sucker at the time. Because you can’t twist the handles to get a better – to get better movement with it because otherwise the glass would hit the double glazing line on either – either side. So you had to hold it solid and try and move it sideways.
So, Mr Hansen, are you describing an operation you yourself have performed in the past?‑‑‑
Yes, many times.
…
And when you had to perform such a task – to move the lifter sideways, parallel to the roller while you’re closer to the support post – how would you be able to accomplish that task?‑‑‑
With a lot of force. That’s the only way you can do it, is put a lot of force and effort into moving it sideways. If that was the only way you could do it, then, yes, you’d need a lot of force to do it.”[47]
[47] T3-63, ln 17-26 & ln 41-45.
[84] The defendant does not dispute that the lifter could be operated in this way. Rather, it contends that the lifter did not need to be operated in this way. According to the defendant, the lifter could be effectively operated by forwards and backwards movements. This meant that rather than attempting to move the lifter laterally across his body to the right, the plaintiff could have walked backwards away from the rollers while pulling the lifter backwards. He could have repositioned himself so that he could then have walked towards the rollers again, while pushing the lifter directly forwards to where he needed to unload the pane onto the rollers.
[85] I am satisfied on the balance of probabilities that the incident occurred in the way described by the plaintiff. In my view, contrary to the defendant’s submission, the plaintiff’s evidence falls well short of a reconstruction. There is nothing inherently improbable about his account. It was not contradicted by any witness. None of the witnesses said that the lifter could not be operated in this way. Mr Hansen corroborated the plaintiff’s version, in that he had repeatedly operated the lifter himself in the way described by the plaintiff. He had also observed other workers operate the lifter in this way. As might be expected, there were some things which the plaintiff could remember and others that he could not. His explanations as to why that was so were plausible. The changes and differences in his version of what occurred are typical when a person is questioned on successive occasions by different people. This was compounded in the case on account of the plaintiff’s language barrier.
Engineering evidence
[86] Brendan McDougall, mechanical engineer inspected the double glaze line at the request of the plaintiff’s solicitors, on 2 May 2017. He has provided two reports dated 26 June 2017 and 17 April 2019.[48] The plaintiff and his wife were present at the inspection and she interpreted for him. During the inspection no production was being undertaken on the double glaze line.
[48] Exhibits 1 and 2.
[87] At the request of Mr McDougall, an employee of the defendant demonstrated the use of the lifter to transport a pane from a trolley to the double glaze line. This was captured on video footage.[49] The rollers were not operating and nor was the edge deletion machine. The footage depicts the lifter being manoeuvred slowly and smoothly and the operator applying pushing and pulling tasks in the sagittal plane characterised by exertion of hand force away from the body for pushing and toward the body for pulling.
[49] Exhibit 3.
[88] WorkCover arranged for Frank Grigg, mechanical engineer to inspect the workplace. This occurred on 15 May 2018. The plaintiff was not present at this inspection. The double glaze line was operational in that the rollers were running in the direction of the washer to the left of the loading area. Dr Grigg has provided two reports dated 1 June 2018 and 1 May 2019 respectively.[50] The video footage taken during Dr Grigg’s inspection includes close views of the operator lifting and placing a pane; much broader views showing the movements of the crane and the operator performing two lifts; and overall views of the operations including an operator placing a large pane on the rollers. This video footage depicts the lifter being operated in a way very similar to that depicted in the footage taken at the time of Mr McDougall’s inspection.
[50] Exhibits 5 and 6.
[89] The opinions expressed in Dr Grigg’s reports were premised on the assumption that the plaintiff was operating the lifter as shown in the video footage taken at the time of his inspection. Based on this assumption, Dr Grigg considered that there was no need for the plaintiff to have been working quickly. He also thought the task being performed involved pulling or pushing the lifter towards or away from the body in the sagittal plane only. This meant that no significant forces were being applied laterally across the body. Mr McDougall agreed in his evidence that if the plaintiff had been operating the lifter in the manner shown in the video footage, the forces measured were within recognised safety criteria.
[90] However, as I have explained above, I am not persuaded that the plaintiff was operating the lifter in the way shown in the video footage. In making this finding, I am satisfied that there are four significant differences between the way the plaintiff was operating the lifter and the demonstration in the video footage. First, the plaintiff was unloading a second pane on the double glaze line to the right of the yellow post and the other pane had already been positioned on the left hand side. Second, there were trolleys in the loading area as depicted in exhibit 29B, which meant that the plaintiff was unable to walk forward in a straight line to where he was going to unload the subject pane. Third, the plaintiff was in close proximity to the yellow post and the rollers when he attempted to move the lifter laterally to the right to position it for unloading. Fourth, the plaintiff was working at a quicker pace than that shown in the video footage.
[91] Both engineering experts accepted in oral evidence that there were a combination of forces involved in the plaintiff having operated the lifter in accordance with my findings above. These included the lifter moving radially in or out along the crane jib arm assuming the plaintiff was not positioned perfectly perpendicular to the boom. This is because not only would the plaintiff have been attempting to move the lifter laterally, but he would also have been attempting to push it forward, causing some binding of the rollers on the sides of their tracks in the presence of lateral forces.[51] There was also the force required for the jib arm to rotate about its articulation point at the yellow post. Further, there was the force required to accelerate the combined mass of the pane, lifer and crane jib sideways from the stationary position. This force would have increased with the pace at which the combined mass was moved. Further, as is admitted by the defendant in its pleading, the closer the lifter was positioned to the articulation point while performing this manoeuvre, the greater the lateral force would have been.[52] In addition, the strength capability for the application of force across the body would have been compromised given that the plaintiff’s arms were outstretched.[53]
[51] T4-61; Further amended defence, para 4(d).
[52] Further amended defence, para 4(d)(i).
[53] Exhibit 1, pg 14.
[92] Dr Grigg gave the following evidence in cross-examination as to the forces involved in the manoeuvre being performed by the plaintiff:
“Yes. But do you accept that that would be a necessary component of training to inform operators that they ought to avoid twisting their torso when attempting to rotate this lifter or moving it laterally?‑‑‑
Well, that would be good advice.
Yes. And it would be good advice because that type of manoeuvre has a higher risk of injury to probably ‑ ‑ ‑?‑‑‑
Yes.
‑ ‑ ‑ a number of parts of the body, but also the back?---
Yes. It’d be a higher risk, but at the same time I – I think the risk is not – not really very high. It’s mainly the lateral force across this way ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑
that would be a problem.
Yes. Well, let’s move on to that lateral force across this way. And can I indicate for the record, Doctor, are you moving your hands laterally in front of your body?‑‑‑
Yes.
Essentially demonstrating holding the handles of the lifter and shifting it sideways?‑‑‑
Yes.
And did you say that that would be the most problematic movement that an operator could do with this machine?‑‑‑
Yes, I believe so.”[54]
[54] T4-52, ln 23-43.
[93] A short time later, Dr Grigg explained this further in the following way:
This figure does not incorporate contingencies. The onset of medical problems including serious injury or illness is relevant and the issues concerning the plaintiff’s pre-existing conditions are important. I am not satisfied that by reason of these pre-existing conditions the plaintiff’s chances of an uninterrupted exercise of earning capacity are less than average, particularly over the relatively short period I have allowed. In my view the degree of discounting on account of adverse contingencies is not as great as it would be if future economic loss was allowed over a longer period of time. Further, there are a number of positive contingencies to be considered. These include the plaintiff’s stoic nature, his long-term employment history with the defendant, the financial incentive for him to have continued working and the fact that the defendant does not have a compulsory retirement age for its employees.
A discount of 15 per cent for contingencies is often but not uniformly adopted by the courts. The reason why there is no such pre-determined approach is because it is inevitable that the factual significance of positive and adverse vicissitudes will vary from case to case. Given the relatively short period of the future economic loss assessment, the degree of discounting warranted on account of the adverse contingencies is not as great as if the period of the loss was longer.
Given all these circumstances, in my view the abovementioned contingencies justify a reduction from the starting point of $235,000 to a figure of $205,000, which is a discount of approximately 10%.
Future loss of superannuation
The parties are agreed that the appropriate rate is 10.5%. Allowing this rate on future economic loss gives a figure of approximately $21,500.
Special damages
WorkCover expenses amount to $33,727.77 and the refund to Medicare Australia is $462.25. The total of these refunds is $34,190.02. The plaintiff claims and additional $2,872.33 for pharmaceutical and travel expenses. This is agreed to by the defendant. The total is $37,062.35.
Interest on out of pocket expenses
It is not in dispute that the plaintiff is entitled to interest on $2,872.33. The parties agreed that the calculation results in a figure of $275.57.
Future out of pocket expenses
The plaintiff claims a total of approximately $14,200 for future expenses. This is comprised of claims for ongoing expenditure on pharmaceuticals, travel and physiotherapy treatment.
The claim for pharmaceuticals is made at $4.25 per week. This is based on the average cost of the plaintiff’s medications since the cessation of his WorkCover payments. The medications he has taken in the past are Lyrica, Palexia (an opioid analgesic) and Comfarol Forte (pain relief with Panadeine and Codeine).
The plaintiff told Dr Scott Campbell in January 2016 that he was taking Panadeine Forte and Lyrica for lower back pain on an as required basis. He told Dr Labrom in June 2016 that he was taking Panadeine Forte as required and Lyrica twice a day. The RBWH clinic records show that the plaintiff reported on each occasion that he attended for his six monthly review from November 2015 that he was taking Panadeine Forte as required. There is no mention of Lyrica prior to the review in June 2018. The plaintiff gave evidence that he continues to take Lyrica and Pandeine Forte. This is what he had told Dr Campbell when he most recently saw him on 22 March 2019. It was also the evidence of the plaintiff’s wife that he continued to take medication. The medical experts agree that the plaintiff will require ongoing medication.
The plaintiff also claims $5 per week on the basis that the average cost of travel in the past has been $7.92 per week. The plaintiff travels a significant distance from Bald Hills to Greenslopes to attend upon Dr Osborne. However, the defendant accepts it is reasonable for this to continue given the therapeutic relationship that exists. The GP clinic records show that the plaintiff has been seeking medical treatment for his lumbar spine related symptoms on a less frequent basis over time and that he often attends these appointments for at least two medical issues, where one is unrelated to the incident.
The claim for physiotherapy treatment is made at a weekly cost of $10.00 for 24 years (5% factor 738), totalling $7,380.00. In his most recent report, Dr Campbell considered the plaintiff may benefit from six to eight sessions of allied health treatment at a cost of $90-$120 per session for acute exacerbations.
Dr Labrom considered that a self-directed program with six-monthly reassessments over the course of a two year program may be appropriate. However, he thought it would probably make negligible difference to the plaintiff’s condition. There is no evidence of the plaintiff having received such treatment since the cessation of his WorkCover claim in August 2015.
In my view it is appropriate to make a global assessment of $7,500 for future out of pocket expenses.
Summary of damages award
Head of damage Award General damages $ 18,130 Past economic loss $215,000 Interest on past economic loss $ 13,290 Fox v Wood $ 6,011 Past loss of superannuation $ 19,890 Future economic loss $205,000 Future loss of superannuation $ 21,500 Special damages $ 37,062 Interest on out of pocket expenses $ 275 Future out of pocket expenses. $ 7,500 Subtotal $543,658 Less WorkCover Refund $ 73,726.55 Total $469.931.45
Orders
There will be judgment for the plaintiff against the defendant for $469,931.45.
I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within twenty-one days.