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[2025] QSC 329
General information, not legal advice.
Supreme Court of Queensland
2025-10-01
North J
Original judgment source is linked above.
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - METHOD OF ASSESSMENT GENERALLY - Where the Plaintiff suffered personal injuries as a result of a workplace tractor accident - Where the Plaintiff and his family maintained the arrangements for the operation of a sugarcane farm with the related operation of tractors and machinery - Where the Plaintiff maintains that he was employed by the Defendant as a sugar cane harvester - Where the cane farm was owned by a family trust involving the Plaintiff, his wife and family and the Plaintiff worked on the farm for the purposes of the trust - Where the Plaintiff was a member of a partnership which owned farming equipment which was often hired to the Defendant - Where the Defendant and Third Party admit that the Defendant is vicariously liable for the negligence of Mr Sheedy - Where the Defendant and Third Party admit that Mr Sheedy's negligent conduct caused or materially contributed to the Plaintiff's injuries - Whether the Plaintiff was a worder of the Defendant pursuant to s 11 of the WCRA - Whether the Third Party is required to indemnify the Defendant in respect of the Plaintiff's claim.
Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321
Equuscorp Pty Ltd v HGT Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471
Beaven v Wagner Industry Services Pty Ltd [2017] QCA 246; [2018] 2 Qd R 542
Stewart v Metro North Hospital and Health Service [2025] HCA 34
Allwood v Wilson [2011] QSC 180
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Ms C.C. Heyworth-Smith KC with Ms C. Campbell of counsel for the Plaintiff
Mr P.T. Cullinane KC with Mr L.M. Kennedy for the Defendant
Mr S.J. Deaves KC with Ms M.R. Rothery for the Third Party
[1] The Plaintiff, 51 years of age at the time of the trial (DOB 13 January 1973), sustained severe injuries in a "workplace" accident on 15 August 2018. He was working on a tractor when, in order to effect the repairs he moved underneath the tractor to gain better access. Whilst the Plaintiff was underneath the tractor Mr Sheedy, an employee of the Defendant company climbed into the cabin of the tractor and due to his movement the tractor fell off a jack and a safety stand causing crush injuries to Mr Germanotta.
[2] The Plaintiff sues the Defendant claiming damages for the personal injuries sustained in the accident of 15 August 2018. He alleges that the Defendant was his employer and is vicariously liable for the negligence of Mr Sheedy. For its part the Third Party declines to indemnify the Defendant for any damages recovered from the Defendant by the Plaintiff.
[3] This case involves a sugar cane farm maintained by the Plaintiff and his family and the arrangements for the operation of the farm and with the related operation of tractors and machinery. On the Plaintiff's case at the time of the accident he maintains that he was employed by the Defendant as a sugar cane harvester earning a weekly wage as a PAYG employee of the Defendant. Further, on his case, the cane farm was owned by a family trust involving the Plaintiff, his wife and family and the Plaintiff worked on the farm for the purposes of the trust. Further, the Plaintiff was a member of a partnership which owned farming equipment which was often hired to the Defendant.
[4] The business model just sketched is not uncommon in the intergenerational cane farming enterprises of North Queensland. Circumstances of course vary from farm to farm and family to family but the concurrent operations of a cane farm (or farms) owned by some family members combined with a harvesting contracting business operated by some of or other members of the family is frequently encountered.
[5] From his youth the Plaintiff in one way or another has been involved in the sugar cane industry. That history was canvassed in his written Quantum Statement (Exhibit 1). Relevantly for present purposes he said:
"• I left school when I was 15. I was educated until Grade 10 at Christian Brothers College, Mackay.
[6] Some care must be exercised with the Quantum Statement. The "author" of that document reveals superior literary skills than that possessed by the Plaintiff. My reasons and justification for that caution are set out below. Notwithstanding the "history" and account given is essentially accurate.
[7] The claim was commenced on 4 February 2022 against the Defendant. After the close of pleadings WorkCover Queensland advised it declined to indemnify the Defendant. On 4 July 2023 the Defendant commenced Third Party proceedings claiming that it was entitled to become indemnified by the Third Party.
[8] By order made on 20 November 2023 the Third Party was given leave to defend the Plaintiff's claim against the Defendant and orders were made for the evidence to be admissible in both the claim and the Third Party proceedings.
a) Both the Defendant and the Third Party admit that the Defendant is vicariously liable for the negligence of Mr Sheedy;
b) Both the Defendant and WorkCover admit Mr Sheedy's negligent conduct caused or materially contributed to the Plaintiff's injuries; and
c) The Defendant and the Third Party do not press the defence of contributory negligence.
[10] While the Defendant admits that the Plaintiff was a worker pursuant to s 11 of the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA), that proposition is disputed by the Third Party.
a) The Third Party denies the Plaintiff was a worker of the Defendant pursuant to s 11 of the WCRA and as a consequence the Third Party claims that it is not required to indemnify the Defendant in respect of the Plaintiff's claim;
b) Damages are in issue.
[12] Putting aside issues arising in respect of the assessment of damages the following remain outstanding:
a) Whether the Plaintiff was a worker of the Defendant pursuant to the WCRA on 15 August 2018;
b) Whether the Plaintiff was a shadow director (or de facto director) of CRG on 15 August 2018;
c) Whether the Plaintiff was working for the partnership on 15 August 2018.
Did the witnesses understand the business arrangement?
[13] The resolution of these issues requires findings concerning the reliability of the evidence of the Plaintiff, his wife (Lisa) and his brother (Renato). In addition to an assessment of their reliability an assessment must be made of the capacity of the Plaintiff intellectually and his understanding of the business arrangements including a company, a trust and a partnership.
[14] When giving evidence in chief and also when cross examined the Plaintiff impressed me as a "simple" man. Plainly he was intellectually challenged and his limitations manifested themselves in different ways. In the written submissions by the Defendant the following points were advanced:
b) Despite having asserted he was "good with numbers",[3] was unable to perform the multiplication of $1000 per week by 4 or five weeks. For such a sum Plaintiff would require a calculator; [sic]
c) The Plaintiff was unaware of the difference, and could not differentiate, between a psychiatrist and a psychologist;
d) Your Honour would recall the difficulty the Plaintiff had following the written schedule of contested special damages during his examination in chief;
e) The Plaintiff had thought the medication desvenlafaxine was the name of a doctor he had been seeing;
f) He admitted having no understanding of the difference between the CRG partnership and the Defendant company;[4] and
g) Not knowing the name of the accountant, and then thinking, once the correct name was proffered, that there were two people involved."
[15] While I accept the Plaintiff had the skills necessary for machinery operation (for example when harvesting) and servicing machinery I conclude that he lacked the capacity to organise and direct a cane harvesting operation from day-to-day. These decisions were made by his brother Renato who directed the Plaintiff what work he was to do from day-to-day, where and when he was to work. My conclusion is that the Plaintiff not only lacked the capacity to direct the operations of the Defendant he had no understanding of what a company director did.
[16] It is not clear that either Lisa nor Renato fully understood the business structure or arrangement. That is not at all surprising. Many lawyers might not understand such arrangements. It is likely in my opinion that, not understanding what questions to ask, they uncritically accepted accountancy advice without understanding its implications.
[17] Renato gave evidence of the operations of the Defendant's harvester contracting business which contracted to harvest cane not only on the farms owned and operated by the respective families but also on other cane farms. When he gave evidence Renato outlined the difference between the work he did for the Defendant and the work done by the Plaintiff for the Defendant. He also demonstrated superior communication skills and a sound appreciation of the cane harvesting industry from the point of view of a harvesting contractor. In his evidence he made it clear that he directed the operations of the business day-to-day leaving the paperwork to others. His evidence was:[5]
"Now, before Carlo was injured, when CRG Harvesting Pty Ltd was operating a cane harvesting business as a contractor, what was the process of arranging harvesting within Mackay Sugar for the farmers?---Process was - well, we get assigned a - allotment for the day for the mill, then we just go and do 10 per cent rounds for each farm.
Now, what's a 10 per cent round; what does that mean?---Say a farm cuts 6000 tonne - say you do your first ri - on average, five or 6000 tonnes you do, you take off 600 tonne for the first round. Then you go to the next farm, just to make it all fair for all the other farmers.
And did - - -?---And every farm's got a different size. Yeah.
And did CRG Harvesting Pty Ltd also cut the cane on your farm and on Carlo's farm?---Yes, that's right.
And were they also cut in rotation as part of that group?---Yes, correct. Yeah.
Okay. And in terms of the percentage, is that equivalent to the number of tonnes, or is it an area percentage?---It's - it's equivalent to the number of tonnes each farm grows. Because every year's different.
And so after you cut it, what happens to it?---It'll be traced - well, it goes to the - goes to the sorting to the mill, goes in the bins and the like, I just take it to the mill from there.
---sidings have to be booked?---Sidings have to be booked, yes.
Sorry. I'll - I'll say, when you were working with CRG Harvesting Pty Ltd?---Yeah.
And was that a phone call or an email? How did that happen?---Phone call to the mill.
Did Carlo ever do that or was that your job? - No, he never done that at all. My job.
And in terms of who decides within the group of farmers, that CRG's cutting, who decides who's in the group? How does that process work?---It's just we just get together and then the farmers come and see us. Do we want to cut their cane? And we go and have a look and then - yeah, we'll take it on. So - - -
And who do they come and see?---Well, me and Carlo. Yeah.
And is it the same farmers year in year out, or does it change?---Most of the time, yes. Yep. But sometimes, you get a - af - a con - farmer will get it cut - cut cheaper, so he'll move on to a - to a next contractor, get it a bit cheaper. So that's the yearly thing.
Okay. Now, in terms of day-to-day operation, who determines how many hours you are cutting cane each day?---That's determined by the - by how many bins you get each day from the mill. So every day is different.
Does the - do the farmers have any say in the hours that their farms are cut each day?---No. No, they got no say. They just want their cane taken off by the end of the day.
And do you have any say?---No. No. Just that the mill gives you a quota and we got to fill that for the day and that's it for the day.
Okay. And what's - time would you start work on a normal day?---Four am, we'd - we'd be early morning harvesting.
And if you assume that the mill hasn't broken down and you're doing a full day of harvesting, how long are you working each day?---Between - it all depends, between 12 hours to 10 hours. It - it all depends on what cane's in front of the machine for the day, because every block is different.
But you normally do start at 4 am?---Always start at 4 am, because you had to have so much cane loaded for the mill. So very early morning, so the mill doesn't run out of cane.
And would all of the people who are working for CRG be at - on the harvester like you or all operator, would they all start at 4 am?---Yeah. We'd all be there at 4 am, yep.
And does - did that include Carlo as well?---Yeah.
And if the mill required you, for some reason, to pull up early say it's had a breakdown, something like that, what happened for the rest of the day?---We'd do maintenance or some of the - some of the worker zone. We'll do mai - or we'll do - or we'd go and do some farm work - - -
And in the field, who's in charge?---I'm in charge - the harvester driver, normally, but that was me.
Now, did you have a bank card that would let you pay for things or withdraw money on the CRG Harvesting Pty Ltd bank account?---Yes, I did, yeah.
And what would you use that for?---Just to get - buy parts in town. If there wasn't - any parts in town, we'd - if there wasn't an account there or something, we would just pay for it - - -
---if some piece of equipment needed a new part, who ordered the parts?---Me. Me or Carlo, just - yeah, because we knew - we knew the - we knew what was wrong with the tractors. The girls didn't know.
Okay. And did you ever have a need to withdraw money out of the business using the bank card?---No.
Who signed contracts between, say, the mill and CRG Harvesting?---It's just really the farmers sign a contract to the mill. There will be - you've got a group [indistinct] form - - -
Okay?--- - - - so we all signed it and then we - and then you would [indistinct] - you would be - how do you say it? You would be - yeah, you would just be that group for that year and then - - -
So did you say "in the group for that year"?---For the year, yeah.
Yeah?---Because it could change every year. That farmer could pull out next year, so you don't have him, so you've got to re-sign. But if - if nothing changes, you don't have to re-sign, but if someone wants to come in, well, you've got to sign him in, but you're got to get the rest of the growers to sign as well, if they want him in our group.
Okay. Back before Carlo was injured, did you know the difference between a director and a shareholder in a company?---No, I had no idea.
Okay. And in terms of official documents, say, with the ATO, something that the accountant that would provide, who would normally sign those documents?---I think we would all go and sign them - - -
Okay. And your accountant was Melinda Doidge - or known - at the time, she was Melinda Kidd - - -?---Yeah.
And how did you come to have Melinda as your accountant?---Me and Stacey, My ex-wife, we used her for our accountant and Stacey liked her and said we - we - she just took, yeah, CRG over to her.
Okay. And how often would you see Melinda Doidge?---About once a year.
And about when in the course of the year was that? Was it around tax time or - - -?---Just before tax time - in June.
Okay. Who arranged the meetings?---She - Melinda just sent an email out and - yeah, for a meeting and then, yeah, the girls would say, "We're going to an accountant" on a certain day and then, "We're going to town. See you."
Okay. And in terms of the emails, did you have your own email account?---CRG had an email account, yes.
Yeah. Did you have access to the crgharvesting@gmail.com account?---Yes, yeah.
And did you have your own, personal email account as well?---Yes.
And you obviously had access - - - ?---Had - yeah ---
--- to that one?--- - - - two - two emails, yeah, one for each - - -
And when you went to a meeting with the accountant, if it was for your own farm, who was there at that meeting?---Just me and Stacey for our stuff.
And if you were there for a meeting about CRG Harvesting Pty Ltd - - -?---It was - - -
---who was that?--- - - - me and Stacey and Carlo and Lisa.
And would you be present for meetings at the accountant if it was in relation to Carlo and Lisa's farm?---No, no.
So if your meeting was first, would you then leave and their meeting - they would stay?---Yeah, we used to - we used to all go over together, the four of us, and then talk about CRG and then Carlo and Lisa would leave and then me and Stacey would talk about our farm - - -
And did you understand the accounting advice that you were given from time to time - - -?---No.
--- by Melinda Doidge?---No, I didn't - I didn't understand at all, no. It was Stacey done all that stuff, so I just - yeah.
And if Melinda would suggest something, say, with respect to your own farm, would you question it or would you just do it? What happened?---No, Stacey would question it, I think, but I would just do it. But, yeah, mainly Stacey, yeah, but I would - - -
And what about - - -?---Yeah. Like, I - I don't know - I don't know how it all works.
What about with respect to CRG Harvesting Pty ltd? If - - -?---Yeah, same thing.
Okay?---that's what we paid an accountant for, to do it and - - -
And at the meetings with the accountant, who would do most of the talking?---Melinda and Stacey and Lisa, I think, most of the time.
Did Carlo say much?---No, he didn't say nothing. Not much at all.
Okay. After Carlo had his injury, who cut the cane on his farm?---I did - CRG Harvesting."
[18] Melissa Doidge gave evidence (which I accept) that she had acted as the accountant and tax agent for the Defendant since its inception in 2013. At its inception the Plaintiff was not appointed a director of the Defendant. To her knowledge he was never added as a director. Her evidence was that the documents Exhibits 7, 8, 9 and 10 which suggested the Defendant was a director were not intended to be sent onto either the ATO nor ASIC. The documents were prepared by her office and sent for signature but the description of the Plaintiff as a director was the product of administrative error. Concerning the Plaintiff's involvement at meetings where financial and tax matters were discussed she said:[6]
"Do you recall who attended the partnership meetings with you?---In the early days all the meetings were generally held with Stacey Germanotta. She was very - the - the face of CRG. My recollection is most of the meetings were held by the four partners.
Okay. Thank you. Now, during those meetings, what sort of matters were discussed? I think you mentioned earlier tax planning?---Yeah. Tax planning. They - the partnership on - in the early days only operated a harvesting business. Later on, around the time that the company was set up, the boys were buying their own farms and then were going to have income from the - from the cane farms as well.
What involvement in the meetings did you observe Carlo to have?---Very little. He was a man of few words. He often sat away from my desk, so in a meeting Renato and Lisa would often sit up at the table, and Carlo would generally keep his chair backed - backed away into the corner and wasn't actively engaged.
All right. Did you observe any interactions between Lisa, Stacey, and/or Renato with Carlo during those meetings?---They would often refer to Carlo and say, "Are you okay with that?", and ---
And did you observe anything in response to that?---He'd generally nod his head or shrug his shoulders and - but generally wouldn't speak.
All right. And once the company was incorporated, did you continue to have those meetings in May/June each year?---I did.
And who attended those meetings?---Generally the four - four individuals would attend those meetings.
All right. And at those company meetings what was Carlo's involvement?---Very little.
In comparison to what you've just described in the partnership meetings, was it the same? Was it different?---The same. He was never engaged.
All right. And, in relation to those company meetings, again, did you observe interactions between Lisa, Stacey, and/or Renato Germanotta with Carlo?---It's hard to remember which ones were partnership meetings and which ones were company meetings that's - that long ago, but my recollection of Carlo's interaction at each of the meetings was not as an active participant, but he would be addressed by the other partners."
[19] The evidence of the bookkeeper Stacey Guimelli concerning the role played by the Plaintiff in the business of the Defendant and the remuneration of the Plaintiff was consistent with the evidence of Lisa and Ms Doidge:[7]
"Through your role as the - as its bookkeeper, were you aware of the structure of that entity?---When I took over, I believe that Lisa and Stacey were the directors and when Renato and Lisa divorced or separated, Stacey resigned as the director, only leaving Lisa.
Did anyone, to your knowledge, replace Stacey - - -?---Not to my knowledge, no.
--- as a director? You're familiar with a person by the name of Carlo Germanotta?---I am.
And how do you know him?---Through the - well, like, Lisa's husband through, you know, the [indistinct] of their - when they were clients of Inspire, and I just know of him around our area, because we lived sort of in the same area.
And do you recall when it was that you first met him?---For a bookkeeping side of things, it was after his accident in 2019.
And perhaps, one step at a time. You're aware that he sustained serious injuries in a farm-based - - -?---Yes.
And you're roughly aware of when that occurred?---Yes. It was - was it August or September 2018? Something like - - -
And is it your evidence that, as of that point, you had not - had not me him?---No. Not - no. For my bookkeeping role, no.
Did you meet him in some other capacity?---Only - I wouldn't even say - I just knew of him.
And what did you understand to be his role with CRG Harvesting Pty Ltd?---Just a worker on - through the harvesting driving the - you know, operating the haul-outs.
And why was it your understanding that he was a worker?---Because I set his pays and did his wages.
Did it vary occasionally from week to week?---No. No. It was a set salary amount every fort - every week.
Was it subject to the profitability or tax liabilities of CRG Harvesting Pty Ltd - - -?---Not that I'm sure of.
--- to the best of your knowledge? And, as at the point or around the time that Carlo sustained the injuries, were you the person responsible for any payment of wages to Carlo?---Yes.
Was he receiving his wage - - -?---He was rec - - -
Do you recall how long after that period he continued to receive his wage from CRG Harvesting Pty Ltd?---I'm sure WorkCover took over paying him directly in the new - it was after the crushing finished, I'm pretty sure.
And prior to Carlo being injured, did you have any dealings with him that didn't involve any face-to-face contact?---No.
And what I'm getting at, obviously, is telephone calls or emails or anything like that?---No.
Who did you deal with with respect to the affairs of CRG Harvesting Pty Ltd?---Lisa Germanotta."
[20] Mr Scott Sheedy gave evidence that he was employed by the Defendant in 2018. He was employed as a haul load operator. When first employed all the discussions concerning the paperwork, the wages and the like were done by Lisa Germanotta. Concerning the work all directions were given by Renato. If he (Mr Sheedy) had questions he would ask Renato. Essentially his evidence corroborates the evidence of both Lisa and Renato.
[21] I was impressed by the witnesses called by the Plaintiff or the Defendant, including Ms Doidge, Ms Guimelli and Mr Sheedy, as reliable witnesses. I also accept the evidence of Renato and Lisa. They impressed as reliable witnesses. Concerning the Plaintiff I conclude that, not withstanding his intellectual limitations, he was doing his best to give accurate answers but frequently I had occasion to suspect that he did not fully understand what was being asked of him and that occasionally he was prone to confusion and even inaccuracy.
[22] A central issue between the Plaintiff and the Third Party and the Defendant and the Third Party upon the indemnification issue is whether the Plaintiff was a worker within the meaning of that term used in the WCRA. Four issues were raised for contention:
(i) Whether the Plaintiff worked under a contract between himself and the Defendant within section 11(1)(a) of the WCRA;
(ii) Whether the Plaintiff was an employee for the purposes of assessment for PAYG withholding within section 11(1)(b) of the WCRA;
(iii) Whether the Plaintiff performed work under a contract of service with the Defendant while being a director of that company as contemplated by section 11(3) and Schedule 2 Part 2 1(a) of the WCRA.
(iv) Whether the Plaintiff worked for a partnership.
Section 11(1)(a) and 11(1)(b)
[23] In its outline of submissions the Third Party submitted that the Plaintiff had not proven the existence of a contract between the Plaintiff and the Defendant within section 11(1)(a) nor that he was an employee for PAYG withholding within section 11(1)(b).
[24] When considering whether the Plaintiff's employment brought him within both section 11(1)(a) and section 11(1)(b) the documentary evidence and the evidence of the witnesses that I accept readily permits an inference that the Plaintiff was a worker within those provisions. In the circumstance it is helpful to refer to the Plaintiff's submissions which identifies the evidence and the documents:
" 43. The evidence of Mr Germanotta as to his employment arrangement with CRG was that he was paid a salary all year around, being a regular amount by CRG Harvesting, "for working for them". Superannuation contributions were made on behalf of Mr Germanotta, and tax was withheld. This commenced upon CRG's creation in 2013 and was continuing unabated as at the date of Mr Germanotta's accident on 15 August 2018.
[25] The Plaintiff worked as directed by his brother (a co-worker) using machinery provided by his employer. He was renumerated by a weekly payment of wages with the tax being withheld and his superannuation contributions were paid as required by law. The evidence is compelling. The existence of a contract between the Plaintiff as an employee and the Defendant as an employer has been established on the evidence (See Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321 at [88]).The documentary evidence is consistent with the inference that can be drawn from the evidence of the witnesses that at relevant times the Plaintiff worked under a contract with the Defendant and came within the PAYG requirement of section 11(1)(b).
[26] The Third Party points to the "reversal" of wages suggested by Ms Doidge in June 2019. This stratagem was designed to release the withheld tax so to improve the Defendant's liquidity at a time when it was likely to make a loss. It is important, I consider, to keep in mind that the "reversal" did not occur until some months after the Plaintiff's accident. The "reversal" was not contemplated at the time of the Plaintiff's injuries.
[27] In this context the Third Party submits that the business arrangements were a sham. The Third Party does not specify what transaction or arrangement was a sham (presumably it is the employment of the Plaintiff by the Defendant) and with what consequence. In Equuscorp Pty Ltd v HGT Investments Pty Ltd[8] the High Court said:
"[46] Each of these transactions was legally effective. None of the transactions that took place on 30 June 1989 could be said to be a sham. The primary judge was wrong to characterise them, as he did by his references to "artifice", "facade" and "charade", as shams**. "Sham" is an expression which as a well-understood legal meaning. It refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences."**
My assessment of the Plaintiff, his wife Lisa and his brother Renato is that they intended that the business recommendations of their accountant would take effect and be legally effective. I do not accept the contention that the arrangements were a sham.
[28] The Third Party contends that the Plaintiff was at material times a director of the Defendant with the consequence that he was not a worker within the WCRA. It does not contend that the Plaintiff was validly appointed as a director of the Defendant but the Third Party points to the definition of director found in the Schedule 6, dictionary of that Act and the definition found in section 9 of the Corporations Act 2001. It contends that the Plaintiff acted in the position of a director and held himself out as a director. It also submits that others acted in accordance with his instructions and wishes. In its written submissions the Third Party identified the following facts of circumstances in support of its contention:
(b) He allowed himself to be represented to the ATO as director - by signing an electronic lodgement form for the Defendant's taxation return as a public officer of the company;
(c) He represented himself to the accounting firm, Inspire Accounting as a director, by allowing to be returned to them, in respect of three separate financial years, documents signed by him on behalf of the Defendant, as one of its directors/public officers;
(d) He attended meetings of the directors;
(e) He was considered, by the company's accountant, to have the authority to sign as a public officer of the company, in that Melinda Doidge countersigned the electronic lodgement form for the company's taxation return following its signature by the Plaintiff;
(f) CRG Harvesting, as the name of the Defendant company, is an acronym of the Plaintiff and his brother, Ranato's initials;
(g) The Plaintiff, together with his brother Renato, would meet with and make the decision as to what customers the business would take on (whose cane they would cut);
(h) The Plaintiff, together with his brother Renato, would work out the harvesting roster in that Carlo as a Haul-out supervisor helped organise the haul-out operators;
(i) The Plaintiff, together with his brother Renato, exercised the supervision and control over the Defendant's harvesting operation, with the Plaintiff being the supervisor of the haul out side of the operation and noting harvesting is the sole income producing activity of the company;
(j) The Plaintiff was not supervised or controlled by the named directors of the Defendant (or any person) in the performance of his work duties in the field for the Defendant and supervised the haul out operation of the Defendant (being three vehicles to one harvester);
(k) He had full and unrestricted access to the company's bank accounts since their inception (which access was greater, for example, than that authorised to the Defendant's accountant or book keeper);
(l) He is listed and signed as an "account owner" in the Defendant's Rabo Bank Account documents.
(m) The Plaintiff was consulted by Lisa Germanotta in respect of decisions required to be made in respect of the affairs of the Defendant during meetings with the company accountant;
[29] I do not accept the Third Party submission. In some respects it runs contrary to the evidence and in others fails to give adequate effect to the evidence:
[30] The evidence of Lisa and Renato, supported by the evidence from Ms Doidge and Mr Sheedy, concerning the nature of the work done by the Plaintiff in furtherance of his activities for or on behalf of the Defendant support my view of the Plaintiff that he lacked the capacity to perform the duties of a director. The evidence as a whole comfortably satisfies me that the Plaintiff did not at material times act as a director of the Defendant.
[31] The tractor that the Plaintiff was working upon when the accident and injuries occurred was owned by a partnership comprising the Plaintiff, his brother Renato and his wife Lisa. Schedule 2, Part 2 of the WCRA provides that a person is not a worker if the person performs work under a contract of service with a partnership of which he is a member. Thus the Third Party contends that on the day of the accident the Plaintiff was performing maintenance on the tractor as a partner in the partnership not as an employee of the Defendant.
[32] The Plaintiff gave evidence, as did Mr Sheedy that work was being performed on the tractor because Mr Sheedy had raised issues about the steering. It should be borne in mind that Mr Sheedy was an employee of the Defendant and the repairs were necessary to enable him to continue his work for the Defendant.
[33] Under cross-examination, the Plaintiff agreed to propositions put to him that when he performed maintenance work on the tractor it was for the partnership.[11] That evidence should be treated with scepticism in light of the evidence of Lisa and Renato.
[34] Mrs Germanotta gave evidence that on the day he was injured, Mr Germanotta was working on the tractor for CRG, not the partnership.[12]
[35] Her evidence was that CRG was responsible for the cost of maintenance or repair of the tractor, including the maintenance and repair itself.[13]
[36] Given Mrs Germanotta was intimately familiar with the affairs of CRG as a director, her evidence should be preferred regarding these matters.
[37] Mr Renato Germanotta also gave evidence CRG was responsible for the maintenance or repair of the tractor and that at the time of the index event, CRG was the entity cutting the cane.[14]
[38] As to the question of whether or not there was an actual transfer of funds from CRG to the partnership for the hire of the equipment, the following evidence pertains:
(a) The partnership only earned money from hiring equipment to CRG;
(b) CRG was responsible for maintenance and repairs on the tractor;
(c) The partnership was still required to pay the interest on the equipment finance and had no other income to do so other than the hire income from CRG;
(d) Ms Doidge agreed that in order to pay the interest on the equipment finance that money had to come from CRG;
(e) So, whether it was paid to the partnership or paid to the equipment financier, money was effectively paid to the partnership or on its behalf by CRG.[15]
[39] In light of the evidence from Lisa and Renato that the Defendant was responsible for the maintenance and repair of machinery owned by the partnership the Plaintiff's evidence that he was working for the partnership is likely the product of his limitations and far from accurate. In this vein note his answer given a little later to a question "if you say so, yes."[16] I do not accept the Third Party's contention which is not supported by either the documents or the witness evidence.
[40] The Third Party points to the report of Dr Shaw (Exhibit 26) and the report of the occupational therapist Mr Roehrs (Exhibit 5) and the description apparently given by the Plaintiff that he was a "self-employed" sugar cane farmer. It submits that it is evidence of an admission that the Plaintiff was not a "worker" on 15 August 2018. Assuming the words were said by the Plaintiff believing that they be a description of his status I am not prepared to accept this evidence as an informed statement in contradistinction to his status as a "worker". It is not clear in what context these words were said though he said as much under cross examination.[17] Further of significance is the Plaintiff's manifest intellectual handicap and his profound limitations in understanding concepts such as "company" or "partnership" or "director" and basic business concepts. I am not persuaded that in uttering these words as recorded he had any concept of what these words meant nor their potential implications.
[41] The Defendant complains that the Third Party agitates that an inference should be drawn against the Defendant for its failure to call the estranged former wife of Renato, Stacey Germanotta. In answer to the submission the Defendant points to the observations of McMeekin J in Beaven v Wagner Industry Services Pty Ltd [2017] QCA 246; [2018] 2 Qd R 542 at [38]. This is not a circumstance where an inference is warranted or can be drawn for the reasons agitated by the Third Party. The circumstance that Stacey is estranged from her former husband offers a simple and practical answer to the Third Party's complaint. So does the circumstance that the evidence of the Plaintiff, Lisa and Renato corroborated by the independent evidence forthcoming from Mr Sheedy, Ms Doidge and Ms Guimelli demonstrates that an inference cannot be justified in this case.
[42] I'm persuaded that in respect of the accident and resultant injuries suffered by the Plaintiff at material times the Plaintiff was a "worker" within the meaning of that term used in the WCRA.[18] His "employer" was the Defendant.[19] In respect of the Plaintiff's claim for damages for personal injuries sustained as a result of the accident on 15 August 2018 the Defendant is entitled to be indemnified by the Third Party to the extent of "accident insurance" within the meaning of that term used in the WCRA.[20] It remains necessary to assess damages.
[43] A comprehensive list of the multiple injuries sustained by the Plaintiff appears in his Quantum Statement (Exhibit 1). The following injuries are admitted:
" I was injured on 15 August 2018 when I was crushed by a tractor which fell on me while I was working carrying out repairs to replace a tyre rod. I sustained multiple serious injuries causing significant symptoms including:
(a) Burst fracture of L1 with a 6mm retropulsed fragment into the spinal canal;
(b) Spinal cord contusion from T12 to L1;
(c) Medial fracture of left clavicle;
(d) Vertebral body fracture of T3;
(e) Vertebral body fracture of T12;
(f) Fracture of the manubrium sterni;
(g) Multiple rib fractures on the right including the 3rd, 4th, 7th, 8th and 9th rib;
(h) Multiple rib fractures on the left including the 1st to 4th rib posteriorly with a flail 2nd rib;
(i) A collapsed lung on the right side;
(j) Musculoligamentous cervical spine injury;
(k) Significant dysmotility of the large bowel;
(l) Urinary incontinence;
(m) Erectile dysfunction.
At the time of the incident I was in excruciating pain. I thought that I was going to die.
I was trapped under the tractor for 15 to 20 minutes.
After the tractor was lifted off me, I was taken by ambulance to the Mackay Base Hospital. I was admitted to the Mackay Base Hospital and stabilised.
On 17 August 2018, I was transferred by air to the Royal Brisbane Hospital. I underwent surgery with Dr Yang at the Royal Brisbane Women's Hospital including a spinal fusion."
[44] A number of doctors and an occupational therapist provided reports which were put into evidence, some gave evidence in person. The reports from Dr Mackrill, Dr Forbes and Dr Rana (Exhibits 42-45) were admitted over initial objections. Some of those reports were in a redacted form with the result that those reports did not contain an opinion about permanent impairment. But the reports were relevant to consideration to the uplift to the ISV, the cost or expenses associated with treatment and medication and also consideration of the loss of earning capacity.
[45] Dr Mark Shaw provided a report dated 06 April 2021 (Exhibit 26) contemporaneously diary notes of conferences with Dr Shaw were put into evidence (Exhibit 27 and Exhibit 28). Dr Shaw is a general orthopaedic surgeon. He listed the injuries sustained by the Plaintiff under the heading - DIAGNOSIS (see Exhibit 26 page 6) as follows:
"(a) Musculoligamentous cervical spine injury (settled);
(b) Chest injury with fractured manubrium and multiple bilateral rib fractures;
(c) Medial left clavicle fracture;
(d) Thoracic spine fractures including:
(i) T3 posterior inferior fractures of the vertebral body with minor retropulsion and bilateral pars interarticularis fractures;
(ii) T12 superior endplate fracture extending into anterior aspect of vertebral body and bilateral pars interarticularis fractures;
(e) Lumbar spine injury including comminuted burst fracture of L1 vertebral body and retropulsed fragments, fracture right lamina and bilateral transverse process fractures; and
(f) Cord contusion at conus."
[46] His assessment of the degree of permanent impairment is detailed at length in his report (see Exhibit 26 page 6-7) and he summarised that in his opinion the Plaintiff had sustained permanent impairment for orthopaedic injuries sustained in the incident of 15 August 2018 at 36% whole person impairment.
[47] That assessment included an assessment for an injury to the left shoulder sustained in the incident.
[48] Dr Shaw was questioned about the diagnosis of arthritis in the right shoulder of the Plaintiff. His opinion was that the progressive disability in the right shoulder would impact on the Plaintiff's capacity to do heavy manual labour within five to ten years of December 2023 judging by the x-ray of the right shoulder taken in December 2023.[21]
[49] Further Dr Shaw expressed the opinion that as a consequence of the injuries sustained:
"• There will long-term costs for Lyrica, Panadol and GP visits for scripts.
[50] Mr Sven Roehrs, an occupational therapist, was called to give evidence by the Plaintiff (see T1-68ff). He gave a report to the solicitors for the Plaintiff following an examination that occurred on 4 June 2021 (see report 18 June 2021, Exhibit 5). Mr Roehrs gave evidence that he was aware of persons undergoing shoulder replacement surgery who were able to return to work in a manual work environment. He acknowledged in his report (Exhibit 5 at page 15) that the Plaintiff may have described himself as a self-employed sugar cane farmer. Mr Roehrs when it was put to him that the Plaintiff had been conducting certain activities agreed that there may be some functional improvement since his examination on 4 June 2021 (see T1-76:L32-45). He recommended the installation of the pool to assist with hydrotherapy and strengthening (see exhibit 5 page 20 in para 4).
[51] Dr Trevor Gervais is an orthopaedic surgeon. His report (dated 10 April 2024) is Exhibit 35. He gave evidence that the Plaintiff had arthritic degeneration in his right shoulder and that he might come to surgery at some time. He said that the surgery might occur at some five to ten years judging by the x-ray of December 2023 (see T4-50:L40). If the Plaintiff does undergo surgery for replacement of his right shoulder he could expect a recovery period of six weeks with the shoulder and arm in a sling and at 12 weeks he might start strengthening exercises which could continue for between six and 12 months. (See T4-50:L20-25).
[52] Dr David Mackrill provided a report to WorkCover Queensland on 5 March 2021. Dr Mackrill's report (Exhibit 42) touched upon aspects of the disruption to the Plaintiff's bowel function arising out of the injuries he sustained in the incident of August 2018. Dr Mackrill's report included:
"Carlo saw me with regards to his significant bowel impairment which at its worse including a colonic pseudo obstruction and decompression during his time in hospital. To investigate his bowel dysfunction, he had upper and lower GI endoscopies by myself and a colonic transit study by Queensland X-ray. The endoscopic procedures demonstrated that Carlo was lactose intolerant which would be unrelated to his injury and also he had a degree of diverticular disease and a small colonic adenoma that was removed during the procedure which also would not have been related to his injuries."
"From the colonic transit study point of view, this demonstrated that his small bowel motility was normal but there was significant dysmotility of the large bowel in keeping with slow transit constipation. This is likely related to his spinal injuries sustained in this trauma in August 2018. With the likely candidate being the burst fracture at L1 with the associated retropulsion fragment and the spinal cord contusion at this point.
Although bowel dysfunction can be present in many patients and constipation is not uncommon in our society, the colonic transit study demonstrates the pathological condition of slow transit colon which is likely new and associated with his injuries.
The current treatment for this will be guided by myself with regards to diet modification and medications in an attempt to insure that his bowel motions are regular, easy to pass, and well controlled."
[54] Dr Mackrill offered an opinion as to the effect upon capacity for work:
"Though slow transit constipation itself does not prese [sic] effect the capacity for work, the ongoing issues associated with it may do. Concerns with regards to faecal incontinence related to the treatment for constipation and possible impairment of his pelvic floor function post injury along with the abdominal discomfort and symptoms association with this disease process may impact on both Carlo's mental health and his ability to work."
[55] Dr Mackrill did not offer any opinion relating to an assessment of permanent impairment.
[56] Dr Angus Forbes provided a report dated 5 May 2021 to WorkCover Queensland (see Exhibit 43). Dr Forbes' report essentially agrees with the report of David Mackrill (Exhibit 42). He expressed the opinion that as a result of the work-related injury the Plaintiff had suffered a significant dysmotility of the large bowel. His opinion was that the work-related injury was now stable and stationary and at its maximum medical improvement.
[57] Dr Ashish Rana a consultant psychiatrist gave two reports which were put into evidence. The first dated December 2019 (Exhibit 44) and the second of 22 January 2020 (Exhibit 45). In the first report Dr Rana diagnosed the work-related condition suffered by the Plaintiff:
[58] Dr Rana's opinion was that the work related injuries were stable and stationary. In Exhibit 45 Dr Rana expressed, essentially, the same opinion:
"Please confirm the patient's psychiatric diagnosis. Please outline what diagnosis is, with reference to the DSM IV or V diagnostic criteria. If you are opining a somatic syndrome disorder, please detail on what basis this diagnosis is based, above and beyond the presence of possibly medically unexplained symptoms.
Adjustment Disorder with depression and anxiety: symptoms arising after his injury related to depression and anxiety. He was feeling sad, tearful and hopeless and experiencing a lack of pleasure in the things you used to enjoy. His symptoms included nervousness, worry, difficulty concentrating or remembering things, and feeling overwhelmed.
Relapse of PTSD: Carlo reported having PTSD after an incident of travelling in an open bus in a trip to New Zealand two years ago. This has resolved over last one year before his injury. However, this injury caused him to have PTSD symptoms flare up again. These are experiencing direct trauma in the accident leading to unwanted upsetting memories, avoiding things related to the accident, emotional distress and physical reactivity."
[59] The evidence from Dr Rana persuades me that the Plaintiff has suffered an aggravation of pre-existing psychiatric conditions as stated in paragraph 14(n) and 78 of the Quantum Statement (Exhibit 1).
[60] Making some allowance for the impression that the Plaintiff is not the sole author of his "Quantum" Statement (Exhibit 1) I am persuaded that it is a reliable guide concerning the nature and extent of his injuries, the treatment he has undergone and the effects of the injuries upon his capacity to work and his enjoyment of life. My reasons for that include that the medical evidence from the doctors supports the Plaintiff's evidence and there is considerable support for the Plaintiff from the evidence of his wife Lisa, his brother Renato and his son Michael. Finally there is the likelihood that the account given by the Plaintiff is reliable it being inherently probable having regard to the severity of the injuries and the multiple injuries sustained.
[61] In considering the assessment of damages recoverable by the Plaintiff I have not overlooked applicable legislative provisions (See Workers' Compensation and Rehabilitation Act 2003, Chapter 5). Subject to the legislative provisions I have not overlooked the "compensatory principle" discussed by the High Court in Stewart v Metro North Hospital and Health Service.[22]
[62] The assessment of general damages in the context of multiple injuries is governed by section 4 of Schedule 8 of the Workers' Compensation and Rehabilitation Regulation 2014 which provides:
"4 Multiple injuries and maximum dominant ISV inadequate
(a) Must not be more than 100; and
(b) Should rarely be more than 25% higher than the maximum dominant ISV.
Maximum dominant ISV, in relation to multiple injuries, means the maximum ISV in the range for the dominant injury of the multiple injuries."
[63] In order to give effect to the section in the context of the assessment of damages guidance is given by the judgment of McMeekin J, in a different by comparable legislative scheme, in Allwood v Wilson:[23]
"... it is necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range ("the maximum dominant ISV") adequately reflects the adverse impact of all the injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected. In arriving at an appropriate ISV the court needs to bear in mind that the effects of multiple injuries commonly overlap." (citations omitted)
[64] There is no doubt that the Plaintiff has been grievously injured and suffered multiple injuries with debilitating consequences affecting him in a variety of ways. His capacity to work as a cane farmer or as a machinery operator has been destroyed. His enjoyment of life has to a large extent been lost to him.
[65] Both the Plaintiff and the Third Party accept that the dominant injury in the circumstances is the lumbar spinal injury assessed by Dr Shaw. Taking into account the comment contained in item 89, Extreme Thoracic or Lumbar Spinal Injury, I hold that the Plaintiff has suffered from an extreme lumbar spinal injury. I would assess that at an ISV of 40. While it may be that there is some overlap between the lumbar injury and the serious thoracic injuries the combination of all the injuries suggest that there is scope for an uplift to properly reflect the multiple serious injuries. To properly reflect the seriousness of the loss and damage sustained physically as well as the other injuries an uplift of 20% is appropriate resulting in an ISV of 48 and an award for general damages of $129,920.
[66] WorkCover paid for special damages agreed at $249,342.33. The total agreed special damages (including WorkCover) is $252,188.04. A little over seven years has passed since the accident. An allowance should be made for sundry medical practitioner attendances, medication and travel. The claim for expenses associated with GP attendances, medication and travel since the accident which were not met by WorkCover is $25,000.00. The reflects a loss at a little less than $70.00 per week over the approximately seven years and one month since the accident. The claim cannot be precisely calculated but when regard is had to Exhibit 40 (the PBS history) and Exhibit 41 (the WorkCover summary) I consider that an allowance of $15,000.00 reflects the Plaintiff's cost in this respect associated with the injuries sustained. Two items were controversial. A Honda Buggy for $13,990.00 so that the Plaintiff could drive about the farm. This cost is recoverable making up for his impaired mobility around the farm. The cost of a pool at $64,020.80 was claimed. The Plaintiff was encouraged to undergo hydro-therapy treatment. Round trips to a physio supervised session were lengthy and consumed a lot of time. Installation of the pool with a heater has allowed the Plaintiff to exercise in the pool the year round. In the particular circumstances that apply here I am prepared to allow this claim. The total of the recoverable specials are:
[67] After deduction of the special damages refundable to WorkCover of $249,342.33 the Plaintiff is entitled to recover interest on the balance, $95,856.51 calculated in accordance with s 306N of the WCRA over seven years and one month.
[68] In submissions on behalf of the Plaintiff counsel emphasised that the assessment of damages for past or future economic loss should focus upon the loss of earning capacity following Medlin v State Government Insurance Commission.[24] The general thrust of the submissions by both counsel for the Plaintiff and for the Third Party assumed the proposition reinforced by Medlin subject to relevant statutory provisions (see for example Part 9 of Chapter 5 of the WCRA).
[69] The Plaintiff was employed in the contract harvesting business carried on by the Defendant. He was paid as an employee throughout the year and he is entitled to be compensated for the loss of his capacity to earn income doing work that he did for the Defendant or could have obtained working for others. The Plaintiff's lost earning capacity is not limited to the 22-26 weeks of the crushing season. It will be recalled that the Plaintiff, when 19 years, worked all year round for Mr Muscatt for five years or so (see [5] above). The Plaintiff also received income from the family trust of which the Defendant was the trustee. The harvesting season would be performed for between 22 and 26 weeks per year and during the slack period the Plaintiff would work on the farm owned by the trust performing a range of duties required of a cane farmer including the maintenance of a farm, its infrastructure, plant and the new cane crop.
[70] On behalf of the Plaintiff it was submitted that an assessment of his earning capacity involved consideration of his lost wages as an employee and the loss of profits from the family trust that it owned and operated the cane farm. As to the former the Plaintiff pointed to the consistent wage earned per annum of $54,931.00 net and submitted that it was the measure of his loss from employment with a harvesting contractor. This equates to $1,056.00 net per week. The Third Party contended that because a harvesting season was approximately only half a year (22 - 26 weeks a year) the assessment should be based on a notional 24 weeks. A loss of capacity should not proceed on the basis agitated by the Third Party. The calculation does not reflect the earning capacity in an enterprise operated such as that by the Defendant. The wages paid in the three years before the accident were stable and paid for 52 weeks of the year. A calculation based on their loss of $1,000 net per week for 52 weeks per year is, in my opinion, a reflection of the loss of capacity based on past earnings.
[71] It is approximately seven years since the accident the loss of $1,000.00 net a week for seven years is $364,000.00.
[72] In the three years before the accident the Plaintiff was paid income from the trust; in 2016 at an average of $30.00 net per week; in 2017 at an average of $186.00 net per week and in 2018 an average of $176.00 net per week. The average of those three years is $130.00 net per week. Apart from the 2019 financial year ($520.00 net per week) the payments of profits by the trust to the Plaintiff have been negligible. The Plaintiff contends that the payment of income to Lisa should be taken into account in assessment of the loss of income awarded to him consistent with Husher v Husher [1999] HCA 47; (1999) 197 CLR 138. The farm income reflected in the payments to the Plaintiff demonstrate that in the year subsequent to the accident the farm business has undergone a catastrophic decline in income. This indicates that the input or the contribution a fit and healthy Plaintiff made was necessary to the viability of the business. But the evidence in this case differs from Husher and cases where it has been applied. My assessment of Lisa is that her administrative input would also be necessary to a prosperous farming enterprise. In this vein my assessment is that the Plaintiff's manual labour is necessary to the farm business and, left to his own devices, the Plaintiff would not have been able to operate the farming business insofar as it involved activities such as budgeting and paying bills. To the extent that the farm was, before the accident, a success my assessment is that both the Plaintiff and Lisa contributed to the farm's success.
[73] The average for the 2019 year of $520.00 net per week is not a true reflection of the earnings of the Plaintiff. It finds no support in the profits in the years before or subsequent. Taking into account the contribution to the farm income by Lisa in my view the evidence supports an assessment of past loss of farm income attributed to the Plaintiff of $109,000.00 which is based on a loss of $300.00 net for seven years.
[74] The calculations for lost wages and lost income are:
[75] Making an allowance for the six weeks on light duties following the bicep injury the amount of past loss of earning capacity is assessed at $467,000.00.
[76] Interest calculated at the rate provided by s 306N of the WCRA on past loss net of WorkCover benefits (see Exhibit 41). The WorkCover "offsets" are:
This total is "deducted" from the assessed damages for past loss:
The interest should be calculated on $162,338.43 at the rate and method required by s 306N over a period of seven years and one month.
[77] My assessment of past loss of wages is based on an average net weekly loss of $1,000.00. I have calculated a loss of $37,510.00 based on that weekly loss resorting to the calculation at [180]-[181] of the Plaintiff's closing submissions (MFI 8). The calculation makes allowance for the loss of six weeks recovering from the bicep injury and includes 13 weeks loss in 2025 at 12%.
[78] The Plaintiff submitted that the assessment of damages for future loss of earning capacity should be based on a notional retirement age of 67 years and that the awarded damages should be discounted by 15% to allow for adverse contingencies. That discount (which is high) was indicated because of the risk that the Plaintiff's right shoulder condition would continue to deteriorate requiring replacement surgery and a protracted recovery. The evidence of Dr Shaw and Dr Gervais suggest that the risk of the need for surgery was not a probability but in the circumstances the medical evidence persuades me that the risk justifies the discount as suggested.
[79] Renato's evidence was that he was, by the time of trial, earning a wage for work as a harvesting contractor at $1,450.00 net per week. On behalf of the Plaintiff it was submitted that the Plaintiff's earning capacity should be assessed based on the net weekly loss commensurate with Renato's wage. I don't accept that proposition. The Plaintiff does not have the earning capacity possessed by Renato, who is possessed of organising in intellectual capacities not possessed by the Plaintiff.
[80] In my assessment the Plaintiff's loss of earning capacity so far it is comprised by the lost wages should be evaluated based on a loss of $1,100.00 net per week. The allowance for loss of income from the farm trust should be evaluated at $300.00 net per week for reasons discussed above in past loss. A notional retirement age at 67 years suggests a calculation based on a 15 year loss. The evidence persuades me that the Plaintiff's earning capacity is destroyed by the injuries he sustained. The present value of a loss of $1,400.00 net per week is $777,000.00. Discounted by 15% as submitted the award is $660,450.00.
[81] The loss of future superannuation should be calculated based on 12% of the lost component for wages. 12% of a loss of $1,100.00 net per week for 15 years leading to retirement at age 67 is $73,260.00. Discounted for contingencies the recoverable component for future loss of superannuation is $62,271.00.
[82] The multiple injuries sustained by the Plaintiff has created a need for a range of treatments and aids. In the trial submissions (MFI 8 at [209] to [215]) counsel set out a schedule of costs and expenses that in my view is reasonable, the need for which was created by the injuries sustained. The schedulised claim has been discounted by 15% for contingencies and I allow the claim at $84,552.30.
[83] This claim is allowed at $25,743.00 (see Exhibit 41).
[84] The refund to the Third Party is $554,003.90 (see Exhibit 41). The following table summarises the damages recoverable:
[85] The foregoing reasons were published on 1 October 2025. The parties were encouraged, following consideration, to perform the remaining calculations of interest referred to in [67] and [76]. That was done. The parties agreed that the appropriate interest rate was 4.297%. The consequence was that in respect of interest on special damages the relevant calculation for the purposes of [67] is $14,597.46 and the relevant calculation for interest on past economic loss ([76]) is $24,721.63. When considering the reasons and my calculations an error was detected in [77] and my calculation of past superannuation. Ms Hayworth-Smith KC brought this to my attention but it was common ground that [77] contained an error with the consequence that $38,663.00 should be substituted for $37,510.00.
[86] The arithmetic required by inserting the two interest calculations identified above and making the adjustment because of the error in the calculation of past superannuation loss gives a judgment sum of $1,299,113.33 in a revised table:
[87] Turning to the order I made in terms of the draft submitted to me by the parties which appears below; the judgment given for the Plaintiff against the Defendant is explained above. The Plaintiff's costs reflect, in the case of paragraph 2a, the Regulation provisions that affect the entitlement of the Plaintiff to costs of pre court proceedings, whereas paragraph 2b otherwise provides for the Plaintiff's costs to be paid by the Defendant in terms of the draft submitted by the Plaintiff and the Defendant to me. In turn, reflecting the success of the Defendant in the Third Party proceedings against the Third Party, the orders numbered 3 and 4 below provide for the Third Party to indemnify the Defendant for both the judgment sum and the Plaintiff's costs.
[88] Order number 5 was the subject of competing submissions. The Third Party did not dispute that the Defendant's costs of the claim and the Third Party proceedings should be paid by it but submitted that the costs should be assessed on the standard basis. Senior Counsel for the Third Party acknowledged that it would be within the exercise of my discretionary power for the costs to be assessed on an indemnity basis but he submitted that because of the objective documentary evidence available to the Third Party when it declined indemnity to the Defendant justified the stand taken by the Third Party and that the costs should be limited to an assessment on the standard basis. I did not accept the submission made by the Third Party. In the hearing I explained that to deny the Defendant indemnity costs it would undermine the indemnity the Defendant was entitled to on the basis of my findings and reasons above. Hence I ordered that the costs payable to the Defendant by the Third Party of both the claim and the Third Party proceedings be assessed on an indemnity basis. The orders I made on 1 October 2025 were:
a) The Defendant's liability for costs and outlays before court proceedings were commenced is subject to s 134, 135 and 137 of the Workers' Compensation and Rehabilitation Regulation 2014; > > b) Subject to Order 2 a, the liability of the Defendant for costs is otherwise to be assessed: > > 1. on the standard basis to 14 August 2023; including the costs of senior and junior counsel. > 2. on the indemnity basis from 15 August 2023, including the costs of senior and junior counsel.
[18] See Section 11 WCRA.
[19] See Section 30 WCRA.
[20] See Section 8 and section 48 WCRA.
[22] [2025] HCA 34 (3 September 2025).
[23] [2011] QSC 180 at [20].
Germanotta
CRG Harvesting Pty Ltd [2025] QSC 329
(2004) 218 CLR 471
(1995) 182 CLR 1
(1999) 197 CLR 138
(n) The Plaintiff was consulted by Lisa and involved in decisions made on behalf of the Defendant regarding the purchase/selection of major equipment for the company;
(o) The Plaintiff and Renato made the decisions regarding the purchase of new parts for equipment of the Defendant;
(p) The Defendant company was, as Lisa Germanotta admitted to having previously described it, "a company formed between two marriages: my marriage to Carlo and the marriage between Renato and Stacey Germanotta; and
(q) Following the Plaintiff sustaining his injuries, the Defendant did not seek to employ a worker in the Plaintiff's stead and instead determined to cease carrying on the harvesting business following the end of that season, consistent with the Plaintiff having been integral to the control and operation of the business (as opposed to using the "wage" paid to him to simply employ another "worker")."