Test v Forgacs Engineering Pty Limited [2012] QDC 318 (24 October 2012)

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CITATION:	Test v Forgacs Engineering Pty Limited [2012] QDC 318
PARTIES:	JERRY ALAN TEST (plaintiff) v FORGACS ENGINEERING PTY LIMITED (ACN 000 019 616) (defendant)
FILE NO:	816/11
DIVISION:	Civil
PROCEEDING:	Personal Injuries Claim
ORIGINATING COURT:	Brisbane
DELIVERED ON:	24 October 2012
DELIVERED AT:	Brisbane
HEARING DATES:	10-12 September 2012
JUDGE:	Robin QC, DCJ
ORDER:	Claim dismissed
CATCHWORDS:	Damages claim by employee against employer - whether safe system of work for removing zinc anodes from ship’s hull by chiselling them off in pieces from an elevated work platform - painful symptoms noticed when bending next day - plaintiff’s credibility suffers from highly inflated lost earnings claim and misleading of medical experts - employment by defendant (casual) unlikely to have continued in any event.
COUNSEL:	Mr J. R. Sewell for the plaintiff Mr R. C. Morton for the defendant
SOLICITORS:	TrilbyMisso Lawyers for the plaintiff MVM Legal for the defendant

[1] This is a claim for damages for personal injury which the plaintiff employee asserts occurred in consequence of breach of duty by the employer defendant company. Mr Test is now 50. His employment as a trades assistant was casual. He first worked for the defendant in early June 2009. The place of work was the Cairncross Dry Dock. Typically, work was offered when a ship was in the dock for repairs. Payment dates, appearing to reflect days of work in the week (or perhaps a shorter period) leading up to them were 9, 16 and 23 June 2009, 1, 7, 14 and 28 July 2009, 4 August 2009, 10, 17 and 24 November 2009, 1 December 2009 and 27 April 2010. This suggests 8 weeks of work at the outset, 4 weeks in November 2009 and a final 2 days (which the evidence shows was the end of that particular call), which are greatly outweighed by the interruptions of 13 and 22 weeks.

[2] The last date reflects the plaintiff’s final two days of employment on 21 and 22 April 2010 in respect of the vessel “Sun Princess”. The plaintiff on those days did not perform his accustomed tasks at the dock, which were in the painting section, nor the “sentry” role (effectively a time keeper one to ensure that workers in confined locations were not there for too long), that he said that he had been called in for, but was used rather in the electricians’ field. The work was not really electrical, being labouring work in removing zinc “anodes” bonded to the hull of the vessel.

[3] It was difficult to get from the witnesses a clear explanation of the situation. The anodes were said to be ovals some 900 mm wide and about 75 mm thick, about 5 on each side of the hull, all nestling in oval shaped recesses or “cradles” in the hull, and secured by a single bolt (said to corrode away) on installation and by some (what Mr Mansfield thought a resin) bond at the back and around the sides. The electricians became involved because the anodes were there to carry an electrical charge which would work in such a way as to limit unwelcome damage to the hull generally. My understanding is that corrosion attributable to operation of the vessel in seawater is concentrated on anodes made of some relatively cheap metal, sparing exposed areas on the exterior comprising more valuable metals. Proper maintenance of a vessel requires replacement of such anodes every few years, and this was among the work being done at the dry dock.

[4] Removal of anodes, although on the evidence it was a tedious exercise, not expected to be protracted, can be difficult and proved to be a matter of hours in one instance, as Mr Test’s experience shows. Mr Taylor, the Electrical Supervisor sent his superior the following email at 5.21 pm on Tuesday 20 April 2010:

We have been struggling with one Anode, aft port side, all afternoon due to the hardness of the material and continuing at this pace we will miss the boat.

We have to throw more Labours at it, Andrew has tried to source a Mechanical device that would do the job but they are too big. We need some burly men who can use a large Jack Hammer above ones head. My blokes have been using Cold Chisels, Air Chisels, crow bars etc with little success and I have done the calculations and we will not finish in time.

The other trouble I am having is that as all of my staff are involved in this labourous task they are neglecting the support other trades expect, just ask Gary!

[5] The plaintiff was hardly “burly”, but on a fair view of the statement of claim, no case is being made that Mr Test had any relevant characteristics to single him out among the general run of those who might have been asked to do the work. There was really no question of use of a large jack hammer, because the basket/elevated work platform (“cherry picker”) employed to support workers at the necessary height was too small to allow such use. Mr Test was the possessor of an elevated work platform ticket. There is some controversy as to whether or not a smaller jack hammer was available to be shared between the two-man crews working at the anodes, one crew starboard, one crew port. There was a cherry picker on each side. In addition to the tools listed in the email, each crew had an angle grinder which was used to cut criss-crossing grooves into the anode being removed, to produce a pattern of small sections that could be chipped off by chisel. The plaintiff was not challenged when he estimated the weight of the (sledge) hammer made available as 2.5 kilograms.

[6] It is not possible to feel confident about the detail of the depth of cutting achieved by the angle grinder before the chipping exercise occurred. It would seem efficient if the whole depth of the anode could be cut, to permit removal of the whole 75 mm or so in one chiselling exercise. No-one suggested the ideal was achieved, but the plaintiff’s apparent contention that the chips removed were fairly thin slivers, given the limitations of the angle grinder, seemed not to be supported by the other member of his team, Mr Mansfield, who had been working for 10 years or so at the dockyard and was in the final year of his electrical apprenticeship. He volunteered that he was known on the site as the anode specialist. I would infer, although he seemed too modest to acknowledge it, that he may have had a knack which others lacked of achieving this repetitive, possibly heavy task which inevitably involved overhead work and for much of it while leaning back as well, given the sides of the hull were not vertical.

[7] Mr Mansfield had had a lot of experience, more than Mr Taylor, estimating that he had done the task on half a dozen ships before April 2010, and more in the year following, until he went to other employment. It is unsurprising that he appeared to have little clear recollection of events of 21 and 22 April 2010; he thought his recall would have been good at the time of his statement prepared for a loss investigator in April 2011 when he was still working for the defendant. He had no recollection of the problem anode referred to in Mr Taylor’s email, or any anode that took the bruited 14½ hours to remove (T1-47). Mr Taylor’s email confirms to my satisfaction that there was at least one problem anode, which on the balance of probabilities was the one Mr Test complained of, which was left still partly intact when he knocked off just before 6.00 pm on his first day at the end of the 12 hour shift.

[8] It should not be thought that the plaintiff was working so long at the tasks described. I accept the evidence that about half of the time was spent using the angle grinder and that that particular task was performed by Mr Mansfield alone (although Mr Test may have had a brief try at it). The chipping task was shared by the two men and there is no basis on which the court could find that one spent more time at it than the other.

[9] It is convenient to set out here the way in which Mr Test tells his story in evidence-in-chief:

...- it's a physical job. That's what is it is. Physical job. Hand-held sledge hammering, bash, you switch hands, you go at it for two, two and a half minutes, you are physically tired, you switch places with the other guy in the picker, and you try to get a break, and he goes-----

it is all day long. You get tired. You are winded, you know. It is sort of like saying someone go run a kilometre, go run a kilometre, go - you know,... You can't keep up.

... you try to get rhythm, like anything else. Within one to two seconds a strike, you know. You actually - you try to have a rhythm, and then, huh, huh, you take a break, and you breathe, and you lift it up, and you bash, and you take a break, and you breathe, and you lift it up, and you bash, then you hand the tools over and try to get your endurance back up again. So, yeah, rhythm, one to two seconds a strike. [T1-49]

Okay. And while you're doing the hammering, what was your coworker doing?-- Taking a breather.

Now, how would you determine when it was time to switch?-- Sometimes the - one person would say, "Hey, look, it's my turn", you know, and the other person would just go, "Look,

I'm exhausted here", and, look, you'd laugh, you'd take a break, you know, it's - I mean, there was, sort of, more of a friendly grumble going on, you know. It's - you're - it's a drydock. It's physical labour. It's work, you know. So we would do things or make jokes and say, "Okay, here, it's your turn", you know, exchange some form of - you know, call the things a few names and yell and scream at it, and, you know. Sometimes you'd say, "Hey, look, it's my turn, give it to me", you know, it's just pretty much understood.

... I don't know if it's the first day or second day, but I do know that the bucket came down and there was a break because the Italian anode specialist had to go up there with the head of the electricians and they actually had a crack at this anode a couple of times themselves.

... And at lunchtime, about 12.30? ... I think it's 12.30, I think we get a half hour on that one.

Okay. And at the conclusion of each break, you're back on the elevated work platform and back to work?-- Yeah.

And do you know what time you got into the cage in the morning for the first time?-- It would have been approximately 6.30 or so. ...

... when you left Forgacs at the end of that first day, did you have any symptoms in your lower back?-- Look, no, I mean, you - you're physically tired, all right, to - I mean, symptom for me is something that will actually stop me. I mean, you are - you're tired, you're physically - you're physically drained and tired, and mentally tired too. Did I feel anything that was - that I thought was dangerous or had done anything wrong? No, I did not.

Now, that - on the first day, you said you removed one anode which was relatively easy?-- ...

Before you started on the second anode, did anyone say to you, "This one's trouble. It's going to be"-----?-- No, no, no, no.

... are you saying that that electric tool was given to the other team because the first anode came off easily?-- Yeah, ...

When it became evident that you were having difficulties with the second one, did the electric tool come back to you?-- No, it didn't.

Okay. Did your coworker make inquiries about seeing if you could get it back?-- No, but I made inquiries to him saying, "Where is the damn hammer"----- [T1-51]

To him?-- -----you know. And it was more or less like, look, they're moving along at a great pace, we have so many that has to be done, you know, they're moving at a great pace, let's keep it - let's keep it going and we're like, "Yep, we'll take one for the team."

Okay?-- All right. So, yeah, there were some grumbling about it, you know, but you're grown men, this is what you're hired to do. [T1-52]

On that second day, were you provided tools?-- Same tools that we had the first day.

... Now, the task on the second day, you said that at the end of the first day you still hadn't got that difficult anode off?-- That's correct.

... late into the second day, ... after lunch, I started employing a small little bounce in the cage to actually give me a little bit of extra force with the hammer every time I would strike the chisel, all right. So it would get the cage bouncing just a little bit, so-----

... Any time you move it's going to move anyway so you would, sort of...bang, you know. We're trying to actually - we're having - we're having dramas with trying to get a piece out, all right. So, yeah, I actually did employ a bounce and start striking it harder trying to remove this thing.

MR SEWELL: Did your co-worker say anything to you about that, about that, about that action?-- Yeah, "Get into it. That's making some difference." [T1-54]

And on the second day, did you have a bash and then your co-worker had a bash the way-----?-- Yeah, again, yes.

All right. Now, the breaks you took on the second day, they were the same as the first day?-- Same as the first.

All right. And what time did you finish up on the second day?-- I would say we start - we finished off - we were back at the electrician shed at about 5.30-----

Now, when you finished that particularly difficult anode on the second day, did you move on to another one?-- Look, we were then following the other crew where they had popped some out and we were actually cleaning up the cradles where they sat into, all right. So we were buffing zinc away from bare metal at the time.

All right. How did you do that?-- The - the grinder we had, we put a buffing wheel onto it and just went around and that was - that was actually a one-person job, but there was two people in the cage while we did that.

What time did you finish on the second - on the difficult anode, do you know what time you got that off?-- We would have got that one off after second - after second break, so I'm guessing maybe 3 o'clock, 3.15. [T1-55]

... when you left Forgacs on the conclusion of the second day, did you have any symptoms in your lumbar spine then?-- Look, you - you've just finished a couple of days moving around, all right. So, look, I felt like - I was sore, I was tired, but that - that's all right. I - you know, yeah, look, you're sore, you've been swinging hammers and stuff like that, you're sore. Did I - did I think I was, you know, hurt? No, I did not. Okay. So, yes, look, you're sore, you're twisting, you're throwing your weight at things, you know you're going to feel sore.

Where was that soreness?-- Oh, God. Clearly in the way lower back, you know, and to - look, let me - give me a second to think about what - this is three and a-half years ago. Three years ago. There have been so many times I walked home from that - driven home from that place sore from doing so many different things to try to remember one specific incident is a little bit difficult. But, yes, you know, you don't walk through their gates feeling like you've just come out of a, you know, a massage parlor.

All right. Now, what did you do that evening?-- I drank a six pack of beer and went to bed.

Okay. And what time did you get up?-- I was up at 7 o'clock, 7.20 or so. [T1-56]

So I got up the next day. I didn't really, you know, think anything about this, but as I'm getting dressed, I sit down, I go to tie my tennis shoes and as I bend over sitting on my bed, I felt a snap in my back and - a sharp, sharp bit of pain, enough to make you suck wind. I thought, "All right. Woah. Okay." Relax a little bit, said, "Okay", take a few deep breaths, have a cup of coffee, smoke some cigarettes. Continued on with my morning, got in my car. As I got in my car, the same thing happened again, bang, you know, a snap, just a sharp, shooting pain, like - like a very, very, very bad toothache, just that intense. ... I called my girlfriend and said, "Look I'm going to be going to the hospital. ... [T1-57]

[10] The Statement of Claim asserts tortious and contractual breaches of duty by the defendant, commencing with the justified assertion that it:

“v) Owed the plaintiff a non-delegable duty to take all reasonable precautions to prevent the plaintiff sustaining personal injuries in the course of the plaintiff’s employment by the defendant.

5. As a result of the Work performed on 21 April 2010 and 22 April 2010 the plaintiff sustained an injury to the lumbar spine (“the Injury”)

[11] I accept that 4(i) is a gross exaggeration for reasons indicated above; what is pleaded to that point may be accepted. It is credible that the plaintiff would be tired and sore after his work, but whether an injury was a result of it is another matter. The psychiatric injury claimed was not pursued. On the assumption that the plaintiff did suffer some injury as alleged, the defendant says that the dimensions and effect of that injury have been grossly overstated.

[12] At the end of the day, the plaintiff does not establish liability against the defendant. The means adopted for removing anodes was the well established one. It was not suggested that there was any way of performing it that would have been safer or in any way preferable, nor that the task was one that ought not to have been required of employees at all. As the evidence quoted shows, there was additional equipment available which one can be confident could have been borrowed back from the other crew. On the evidence there were rest breaks (for Mr Test, in addition to the lunch and tea breaks, the times when Mr Mansfield was at work) and, thereby there, was rotation of duties. The system of work was not shown to be unsafe; it was not shown that Mr Test was employing some inappropriate technique which additional supervision might have detected and caused to be varied. There was nothing to show what “training and instruction in the avoidance of lumbar spine injuries” might have been given, or that a risk assessment might have identified any alternative way of doing the work.

[13] At the worst for the defendant, it knew that the plaintiff was being put to work, with an experienced co-worker, on an anode whose removal had proved very difficult to an unprecedented degree. Eventually, it was got off by use of the standard techniques. Having considered this aspect carefully, I am not persuaded that the circumstances alerted the defendant to the desirability of devising some different manner of working.

[14] The appropriateness of devoting careful attention to the implications of the particular work task which the plaintiff attributes the back problems he complains of to arose from my consideration of Griffiths v State of Queensland QLR 15/7/12; [2011] QCA 57, which came about in circumstances about to be recounted.

[15] The trial of this proceeding got underway with an argument about the admissibility of certain codes described as the National Code of Practice for Manual Handling and the Work Safe Australia National Code for the Prevention of Occupational Overuse Syndrome, also a Queensland Government publication, Manual Tasks Code of Practice 2000, to use the description at page 4 of the Transcript. The defendant objected that nothing about those publications had been pleaded, that it was oppressive to have the aggregate 300 pages or so produced in this way at trial, without notice of any kind. In Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2000] QCA 18; [2001] 1 Qd R 518 a predecessor of the Queensland publication received consideration, the Court of Appeal noting at [56] that:

“The appellant did not plead as particulars of the breach of statutory duty a breach of the advisory standard, the Code, although the case was conducted on that basis at trial. The appellant relied on workplace health and safety expert Mr O’Sullivan ...”;

at [41] it was observed that the Code “applies to every manual activity at a workplace ... It would therefore include picking up a pen on the floor or replacing a book on a shelf.” Mr Sewell was prevailed upon to nominate the parts of the documents intended to be relied on. Although he did that, in the event, he did not press any reference to them.

[16] The Manual Tasks Code of Practice 2000 received extensive consideration in Griffiths. One would infer that relevant parts of the Code were pleaded, given it was “common ground at the trial and on appeal ... that it applied”: [2011] QCA 57 at [iii]. I found the case helpful in identifying considerations I think are important. The plaintiff had failed at trial but (by majority decision) succeeded on appeal. She established that the defendant employer breached its statutory duty; in the result it failed to establish a defence under s 26(3) or s 37(1) of the Work Place Health and Safety Act 1995. Ms Griffiths twisted her back while lifting a “soda lime canister” out of a tub on the top shelf of a steel trolley. The item was awkward, indeed in the work place notoriously difficult to handle because of its shape, which meant “its weight was not balanced”: [10]. The plaintiff had handled the canister only on a couple of occasions previously; on this occasion she lost her grip of the base, as the canister cleared the side of the tub, and injured her back when instinctively reaching down to grab hold of the base as the item dropped to the floor. It was apparently accepted that the injury was suffered in that situation: ibid [8]; [124]; [2010] QSC 290 at [4] – distinguishing the circumstances from those of Mr Test who reports nothing but physical tiredness and soreness of the kind he expected after two days of apparently unaccustomed exertion (T1-56). Only next day did he feel a “snap” when tying a shoelace, and another when getting his car (ibid 57); Dr Ting’s referral to the physiotherapist identifies the complaint as “low back pain sustained on 23 April when getting into his car”.

[17] The awkward soda lime canister can be seen as the counterpart of the problem anode on the Sun Princess, as Mr Taylor assessed it to be, from a standpoint of keeping the job on schedule. The defendant ultimately failed in Griffiths, where it seemed there had been no risk assessment exercise whatever: [36], despite the history of complaints about the unique awkwardness of the canister lifting task (compared with other tasks the staff had); no special instruction was given as to how best to handle the canister, nor any more general instruction “to avoid sudden, extreme or very rapid movements to save a falling item” – a manoeuvre “widely recognised as a risk factor for low back injury”: [42]. As Muir JA put it, at [35], the supervisor’s attitude was that “the sterilising department had responsibility for [the task] and that was it”. Consideration could have been (it was not) given to having the canister at a lower height, using a different tub or not requiring persons shorter than average height (like Ms Griffiths) to carry out that particular lift.

[18] While the problem anode in this case was identified as such, and a unique instance at that, it seems, there is nothing to suggest that there was any special safety issue in the established cutting and chiselling method – the issue was simply one of how much time would be taken. The evidence does not reveal or even hint at any alternative method that might have been adopted which better served employee safety, whether by use of a “Kanga” or pneumatic hammer or otherwise. There was no reason for thinking that the Starboard team would not, if requested, have made available the item ceded to them.

[19] (An unsatisfactory aspect of the plaintiff’s case is that, as presented, it differs from the pleading which, is in terms of a job of removing “anodes” (plural). As the trial proceeded, it really emerged that it was all about one particular anode, and how the task of removing it ought to be approached.)

[20] The defendant mounted a very strong attack on the plaintiff’s credit. In some instances he has an answer, at least an answer of sorts – for example in denials of issues (problems, pain or injury) to do with his lower back/lumbar spine prior to 21 April 2010. Here the answer is that the doctors had told him that there was no “injury” et cetera, therefore it was correct to present denials to doctors who saw him after the relevant dates to investigate lower back complaints. What impressed me is the history of recorded complaints relating to his lower back since an accident in 1999 when Mr Test was struck by a bus to which he was fixing an advertising sign when the driver put the bus in motion. Documents in evidence show such complaints until September 2011. It flies in the face of common experience to accept that whatever might have been wrong miraculously resolved between then and April 2010.

[21] The explanation for deliberately untrue statements in writing to the defendant in Mr Test’s job application (Tab 13 in the book of agreed documents) as to never suffering:

was that absent such assurances, employment would not have been offered: the explanation is entirely credible. The defendant was justified in accepting those denials as reflecting their employee’s circumstances.

[22] There is also ventured by way of justification of false or misleading statements in documents prepared by solicitors that someone else drafted those documents, parts of which now appear embarrassing, and reliance was placed on them. There is a statement of loss and damage (Exhibit A) signed by Mr Test on 29 July 2011 on page 9; on page 5 one reads:

The accident, the subject of this claim, occurred on 21 April 2010 or 1 year and 13 weeks ago (65 weeks).

The plaintiff lays claim to this loss at the rate of $1,600.00 net per week for 65 weeks which is $104,000.00 net less his actual earnings of $520.00 (earnings for 2010 financial year).

Accordingly, the plaintiff lays claim to past economic loss in the amount of $103,480.00.”

In similar vein, there is a notice of claim for damages under the Workers’ Compensation and Rehabilitation Act 2003 s 275 solemnly declared on 30 August 2010 to be true, correct and complete in every respect as to all statements within his personal knowledge; one finds the following claims:

Head of damage	Method of calculation	Amount ($)
Past Economic Loss	Calculated at $1,600.00 net per week for a total period of approximately 16 weeks (for the period 23.04.2010 to present (11.08.2010)), being the total number of weeks that the Claimant was unable to work due to the injuries sustained in the accident.	$25,600.00
Loss of Past Superannuation	Calculated at 9% of Past Economic Loss	$2,304.00
Future Economic Loss	The Claimant claims $1,000 net per week until retirement age of 67 (19 years) discounted on the 5% tables and further discounted by 15% for contingencies	$549,100.00
Future Loss of Superannuation	Calculated at 10% of the amount claimed for future economic loss	$54,910.00”

[23] I feel confident that Mr Test was aware of the gross exaggeration of such claims which are based on the assumption of full-time employment at a weekly rate which was only occasionally ever achieved. Not only do I think Mr Test put himself in the position of presenting his claims as just ones, I think that he effectively represented that his remunerative employment with the defendant was available and availed of week in week out, whereas the truth was that he worked not much more than one week in four. Such conduct is in my view discreditable and it can justify a court in rejecting or entertaining grave reservations about the plaintiff’s evidence generally, including evidence on liability issues. I will set out part of the judgment of Ambrose J in Hornberg v Horrobin (Supreme Court of Queensland 8196 and 836 of 1996, 24 October 1997) BC 9705772 at 39-41, which Mr Morton, pursuant to an undertaking given during final addresses, supplied after the trial:

“The plaintiff has been grievously injured. Prior to injury she was a strong healthy girl who had grown up in country areas and developed skills necessary to accommodate her in the grazing industry. Now of course she is tetraplegic and for the rest of her life will suffer the great loss of amenity and need for assistance of various sorts attributable to her injury. It is understandable that she and other members of her family would do their best to support her case – on issues of both liability and quantum. I will deal with the issue of quantum later. However in my view the case on quantum presented on behalf of the plaintiff and supported by members of her family was contrived in the extreme. Undoubtedly the plaintiff suffered serious injury requiring much care and attention.

However the stratagem adopted by the plaintiff apparently based upon her own unaided researches of legal text books at the Surat library prior to and at the time of the adjournment of her case in May 1997 to enter into the “agreement” (Exhibit 23) which she prepared herself to pay her parents $550 per day for their provision of the assistance she needed because of her tetraplegic condition and presumably her insistence that this matter be placed before the Court with a view to inflating the award of damages and the evidence she actually gave concerning the alleged arrangements and “discussions” with her bank manager and accountant about it, in my view are such that the whole exercise was properly categorized by counsel for the first defendants as a “sham”. In my view, the evidence as to the hours of assistance actually given to the plaintiff and the so-called “records” kept, as well as the “agreement” and the “invoices”, all of which were tendered to support the plaintiff’s case, upon careful examination, leave me with less than confidence as to the weight that should be given to the evidence of the plaintiff and her sister as to the events of the day immediately preceding her injury on 17 December 1991.

I am unpersuaded as to the reliability of the only evidence given by the plaintiff and her sister on the issue of liability.”

To similar effect is Collings v Amaroo (Qld) Pty Ltd [1997] QCA 224 at page 7:

“A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered. It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth. In substance, that was the state of affairs that prevailed in the present case. The falsehoods in the plaintiff’s evidence have the consequence of preventing the trial judge, and now this Court, from knowing and assessing the real disability, if any, caused by the experience he underwent on the night of 25 October 1994. The judge was justified in rejecting the plaintiff as a credible witness, and his finding to that effect was not challenged on appeal. Once that conclusion is reached, it infects other evidence (including that of his wife) about his condition after the incident. If he was prepared to go the length of fabricating marks of an assault on himself, there is no reason to suppose he would have been reticent about doing so with respect to other aspects of his condition after the event. The suggestion on appeal that the plaintiff should be awarded compensation for some degree of post-traumatic stress finds no support in any reliable evidence given at the trial.”

That passage was recently approved in Lusk v Sapwell [2011] QCA 59 at [65]. See also Platen v Monadelphous Workforce Pty Ltd [2009] QSC 222 at [55] ff.

[24] Mr Test eventually admitted he had lied to doctors, although he subsequently resiled from the apparently clear admissions, attributing them to weariness in the face of persistent cross-examination on the point.

[25] Dr Campbell’s report shows that on 13 October 2010 he thought there was an 8 per cent whole person impairment consequent upon a soft-tissue muscular-ligamentous injury in a “accident on 22 April 2010”; now that six months had elapsed since the “accident” he did not expect further improvement. He was told that “whilst lifting, bending, twisting and reaching and straining over two 12 hour shifts [Mr Test] complained of increasing lower back pain and left sciatica”. This is at variance with what WorkCover had been told in the previous August:

“The Claimant had been asked by his employer to assist some electricians working on a vessel on a dry dock. The Claimant was required to remove any anodes or zinc from the steel vessel. The work was intense physical work. The Claimant performed these duties for two days from 21 April 2010 to 22 April 2010. The work was performed by hand using a sledge hammer and chisel. The two shifts worked were each 12 hours long.

After leaving work on 22 April 2010 the Claimant went home. The following morning the Claimant experienced severe pain in his back and was unable to bend over. The Claimant then attended Logan Hospital.”

More significant is that Dr Campbell accepted a denial of any prior history of “lower back pain.” Dr Campbell was one of the doctors “intentionally misled”, the other being Dr Steadman (T2-3,4).

[26] Dr Bartels had earlier made for the insurer an estimate of zero percent permanent impairment from what he thought was an acute “simple” lumbar strain as a result of his duties on 22 April 2010, work being a significant contributing factor. In the absence of any clinical findings he considered that the injury – which he thought should have resolved after three or four weeks – was stable and stationary. There was some concern that Dr Bartels may have been influenced by the tone and content of his instructions from the insurer (not in evidence), which may underlie his identified “yellow flags/risk factors”:

[27] While alert to the concern, my conclusion is that Dr Bartels’ view (which is supported by Dr Steadman) is to be preferred.

[28] The denial of any previous back pain which I think underlay Dr Campbell’s opinion was highly misleading. On 14 July 1999, Mr Test affirmed before an attesting witness the truth, correctness and completeness of a Motor Accident Personal Injury Statement of Claim in respect of an incident on 17 June 1999 in which he says he was run down by a bus to which he was affixing some advertising material at Toowong Bus Depot, suffering “impact injuries to my neck, lower back, middle back and left and right shoulder ... I was in pain continually”. He reported rehabilitation by way of physiotherapy on those same areas. X-rays were taken on the day of the Statement of Claim of the thoraco-lumbar spine (“normal sacro-iliac and apophyseal joints”).

[29] On 12 September 2002 he told Dr Landy of his back and neck tightening up while driving home four hours after he was hit by the bus; the painful areas complained of on that date were between the shoulder blades and in the neck and “in the lower thoracic region”. On 7 June 2002 he told Dr Tomlinson of upper limb problems, headache and neck pain, saying “that he has no symptoms in relation to his lumbar spine” – also that he “continues working”, but “now only works five days per month”. The doctor thought there was a 15 per cent whole body permanent partial disability relating to his cervical spine injury – that he could perform lighter duties but “remains susceptible to further injury. His working life has been shortened.”

[30] Dr McPhee whose report of 13 February 2002 was among the “agreed bundle” of documents appears not to have examined Mr Test, but says:

“There is also a claim for low back pain. It is difficult to conceive that the incident as described may have caused an injury to the lower back. Furthermore the first reference to low back pain was in a report by Dr J Gallagher (26 July 2000), twelve months after the incident. This would cast considerable doubt on the relevance of low back pain to the incident on 17 June 1999 due to the long latent period between a cause and effect. The only examiner to report any abnormality in relation to the lower back was Dr D Todman (19 September 2001). I believe that he has loosely termed right leg pain as right sciatica. Although there was some restriction of straight leg raising and lumbar spine movements at the time of his examination, this impairment is not supported by other examiners. While it is possible or even probable that he might have low back pain there is no radicular component and his symptoms are probably due to constitutional changes in the lower back. I find it difficult to accept that the incident has caused a strain to the lower back resulting in back pain.”

[31] Dr Reid, neurologist, did see him on 7 September 2001. She noted complaints of “neck pain and lumbar pain” to Dr Askin (orthopaedic surgeon) on 7 August 2000; she thought it noteworthy that a recent MRI scan 26 months post-accident revealed a C6/7 disc protrusion with root compromise on the right and that “conveniently, Mr Test’s symptoms are also changed ... consistent with the MRI scan findings.” Dr Askin’s report is in evidence and does indeed recount neck, thoracic and lumbar pain continuing as at the date of his examination. He expected the symptoms to settle by about February 2002.

[32] Dr John Gallagher saw Mr Test on 26 July 2000 and was told of “pain in the middle of the back” while driving home following the accident. Complaint of pain in the lower back “still” was made to Dr Gallagher. His opinion was that soft tissue injuries to the cervical, thoracic and the lumbar areas of the spine were sustained in the incident “as claimed”. He thought the continuing inconvenience would “settle more quickly with the settlement of current litigation.”

[33] Dr Mulholland, a psychiatrist, interviewed and examined Mr Test on 24 and 30 January 2001. He thought there were psychiatric complications as a result of the bus depot episode and relevantly for present purposes reported:

“17.3 An hour or two after the incident his neck and low back became stiff and painful and he went to his usual local doctor (Dr Nick Stephens) at Daisy Hill. Dr Stephens told him that he had a whiplash injury to his back and neck.

17.4 The main subsequent issue was that he had chronic pain in the region of his neck, both shoulders, low back and mid back. He tried to work on for about 9 days but he was very slow at work and it was very painful for him and he could not continue.

18.1 He has continued to have symptomatology in the above areas and at the present time he continues to have chronic pain/discomfort in the following regions:-

[34] My assessment of the overall picture is that Mr Test has had a problematic back generally since well before his employment with the defendant. This seems to be coupled with a level of motivation to be in work that fluctuates and is generally less than high. In recent years his work history has been poor. That by 14 April 2010 the factors producing that had been overcome so that Mr Test should be regarded as one who, but for what happened on 21 and 22 April 2010, would have held down full-time employment (in stark contrast to what went before) defies credulity, experience tells that problematic backs are not likely to get better.

[35] The claims for lost earnings past and future are as exaggerated as I have seen. That contrivance in that regard can affect the weight given to a plaintiff’s evidence generally is illustrated by Hornberg v Horrobin (Supreme Court of Queensland 8196 and 836 of 1996, 24 October 1997) BC 9705772 referred to elsewhere.

[36] Some features of the years leading up to Mr Test’s engagement by the defendant might be noted. Dr Stinson’s medical certificate of 8 August 2007 tells of unfitness for work for the next three months on account of “pain and discomfort in neck”. There was a later certificate recording unfitness for 16 days from 10 March 2009 for “musculo-skeletal disorder – temporary”. That disorder was described as permanent in Centrelink records with event dates of 8 August 2007, 1 October 2007 and 11 March 2008: Tab 13 in agreed bundle. There are Job Capacity Assessment Reports prepared for Centrelink which refer to Mr Test’s reduced work capacity “due to ... chronic neck pain” on 14 August 2007. Work capacity was assessed as 15-22 hours/week currently, and in the future (either with or without intervention). A permanent musculo-skeletal disorder created “physical limitations restricting type of work done”. A later such report (assessment 29 February 2008) is similar (“not capable of returning to his previous employment due to physical injuries”), but more hopeful is the future case “with intervention” (23-29 hours/week).

[37] Things appear to improve by the time of the assessment of 14 April 2010 (when Mr Test was working for the defendant). It was noted that he was at risk of becoming homeless for financial reasons. The “Medical” section reads:

Jerry advised having a broken neck in June 2000 explaining current treatment is chiropractic adjustment every two years. Jerry advised he only has to be careful with lifting and that this condition no longer affects his work ability.

[38] Mr Sewell’s submissions regarding liability began with reference to Mason J’s celebrated formulation of the concept of breach of duty in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

[39] I accept that the defendant’s liability is to be judged without the benefit of hindsight, as to which Mr Morton cited Hegarty v Queensland Ambulance Service [2007] QCA 366 at 49 and other authorities such as Vairy v Wyong Shire Council (2005) 223 CLR 442 at [60] ff and [105]. In Lusk v Sapwell (supra) at [17]-[20]. The argument for foreseeability was based on Mr Taylor’s email (“the defendant must have foreseen the work involved and the risk of injury caused by repetitive actions”). That obtaining some large mechanised device to do the work was contemplated (perhaps additionally to burly men) it was said to demonstrate that a risk of injury was foreseen should the work be performed manually. This approach takes too much from the email. In my opinion, the writer’s concern was with the time being taken in removing anodes. The plaintiff’s case is devoid of suggestions as to what would have been a reasonable response by the defendant, had there been some foreseeable risk.

[40] The plaintiff fails on all four of the issues on which he must succeed as they are described in Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury (2nd edn) at page 16. The foregoing explains this in relation to foreseeability, preventability and reasonableness. In respect of causation, the employer’s breach of duty must be shown to be a material cause of the injury (Lusk v Sapwell at [76]). The plaintiff here has real difficulty in showing any breach of duty and indeed in connecting his injury (as claimed) with his work, given that it was only on the day following that he complained of anything untoward, in the two bending or squatting incidents referred to.

[41] I am not prepared to use against the defendant its failure to call its health and safety officer, Mr Sando, who was said to be at court under subpoena. Mr Sewell asked that an adverse inference be drawn against the defendant that his evidence would not have assisted in defence of the plaintiff’s allegations. The transcript for day 3 at page 35 records the exchange in the course of which I was satisfied by reference to the online version of Cross on Evidence that the plaintiff’s case called for nothing by way of an answer.

[42] Although the claim must be dismissed, it is incumbent on the court to assess quantum of damages in case the plaintiff establishes liability on appeal. Unusual as it is, in this case I consider the defendant’s suggested amounts are broadly appropriate, being:

“Head of Damage	Lower Range
Pain and suffering and loss of amenities of life	$7,500.00
Interest thereon	$360.00
Past economic loss	$2,500.00
Superannuation loss	$225.00
WorkCover expenditure	$1,119.17
Fox v Wood	$1,663.00
Special damages	$250.00
Subtotal	$14,417.17
Less WorkCover refund	$10,998.41
TOTAL	$3,418.76”

The first item is premised on the view that if the plaintiff is to be compensated at all it should be on the basis that he had a back problem for a few months. The calculation for past economic loss is based on a net loss of about $93 per week. The last page of Mr Morton’s written outline of submissions contains his calculation of Mr Test’s earnings for the four financial years to 30 June 2010. In the year to 30 June 2007, Mr Test’s net earnings were $6,853, in the following financial year nothing, according to Mr Morton’s schedule, which was not really challenged, although the Statement for Loss and Damage mentions $13,639 net between April and October 2008 with the Brisbane City Council the employer. (There was no evidence to explain this at trial). For the 2009 financial year, income (apart from Newstart Allowance) was $3,742 net (from the defendant) and in the financial year to 30 June 2010 (from the same source) $8,798. The weekly averages for the last two years were $71.96 and $169.19. These, when combined with the earlier averages produce Mr Morton’s $93.24.

[43] By contrast, what Mr Sewell has done is average out the plaintiff’s earnings from the defendant over the total 10 months’exercise, for a net loss of about $300 per week. From the evidence I accept, the plaintiff had no future with the defendant, for reasons having nothing to do with his accident, although I have taken into account the possibility that the unfavourable assessment of Mr Test’s services by Mr Taylor owed something to his having reported an injury in April 2010, in the end, having heard Mr Taylor’s evidence, I think that the performance assessment dated 28 April 2010 indicating the plaintiff was not recommended for future projects was an assessment based on work performance. Those two days were worked after five months “off”. The real curiosity is a downgrading of “Communication Skills” from 5 (excellent) to 1 (poor). This seem may seem puzzling as Mr Test is highly articulate, as had been noted by medical people he saw. It is possible that on reflection Mr Taylor or the countersigning Personnel Administrator (Rebecca) found his manner annoying.

[44] Once the defendant is out of the picture, the plaintiff’s attempt to use the relatively handsome earnings available to him there, provided he was called (and went) in is hopeless. He did not establish as factual what was said in the Statement of Loss and Damage about work for Brisbane City Council. On this basis, Mr Morton’s figure for average net weekly earnings is a suitable one to adopt. The plaintiff’s final claim for past economic loss was $300 net per week on 23 April 2010 to date, for a total in excess of $37,000, for which credit for $520 of actual earnings was offered. That is an unrealistic claim. Although Mr Morton’s proposal is appropriate, on reflection I would increase the past economic loss by 50% making some allowance for earnings from the Council and accepting the $520 credit offered. Interest thereon should not be assessed, as Mr Test’s workers’ compensation payments far outstripped the loss. Prorata superannuation is appropriate. No future economic loss is established, given that the plaintiff is taken by the court to have recovered his pre-injury capacities after six months. It may be noted that the plaintiff’s claim was for 17 years future anticipated income from the defendant until he reaches 67 years of age at $372 per week, calculated to be a loss of $153,765, allowing 15 per cent for vicissitudes. The 5 per cent multiplier was said to be $603. The defendant’s alternative approach, which the court does not get to is the multiplier of $555, allowing 15 years working future (more realistic in the case of this plaintiff) and discounted by 30 per cent on the basis of prior back problems (see F McClintock v Trojan Work Force No 4 Pty Ltd [2011] QSC 216 at [37] and [42] ff). The calculation produces $36,130.50 which it was suggested be rounded down to $35,000. For the reasons indicated, the plaintiff does not show any entitlement to damages for future economic loss from earnings (and associated superannuation) at all. The assessment is as set out in the table above.

[45] The claim should be dismissed, and presumably with costs to be assessed. The parties will have an opportunity to make submissions.

Queensland District Court Decisions

Test v Forgacs Engineering Pty Limited [2012] QDC 318 (24 October 2012)