_Hart v Consolidated Meat Group_ _Pty Ltd_

[20]

Dr Shaw concludes that the present symptoms are not injury related although I find difficulty in reconciling this with the paragraph of his report I have set out immediately above. Ms Hart only seems to experience symptoms when participating in heavier types of work. When she is not involved in work such as meat packing, car detailing or driving in the mines, all of which put strain on her neck, her symptoms appear to settle.

[21]

Dr Boys reported in August 2004 that the symptoms complained of were consistent with muscle strain. He did not regard her as suffering a quantifiable impairment of bodily function. He thought her symptoms would improve with strengthening exercises. He did not consider she was incapacitated.

[22]

Dr White reported in October 2003. While in substance his opinion does not differ from Dr Shaw or Dr White, he assessed Ms Hart as suffering a 5% impairment and recommended she cease heavy work. He considered her present occupation of truck driving was unsuitable.

[23]

The evidence of the lay witnesses called in the plaintiff's case confirm that on occasions Ms Hart's pain is severe. On at least one occasion it was severe enough to induce vomiting.

[24]

Having reviewed the evidence, I am satisfied that Ms Hart suffered a whiplash style injury. The symptoms of headaches and neck pain are consistent with that finding. I am satisfied that the symptoms have largely settled and remain so while Ms Hart undertakes light duties. I accept that whenever Ms Hart has undertaken heavier, or in the case of truck driving, rougher work her symptoms have increased. Ms Hart's evidence in this respect is supported by the evidence of Mr Brodie, Mr McCormack and Mr Holmes. The end result is that I accept Dr White's opinion that she has been left with a residual weakness which affects her capacity to work in certain types of occupation.

[25]

The heavy nature of Ms Hart's current work as a truck driver was supported by her partner Mr Brodie. Mr Brodie is nineteen. He also drives a truck. Despite having an apparently normal neck, he suffers some neck pain from the work, mainly towards the end of a series of twelve hour shifts. Despite his youth, his evidence was that he was trying to get work on other machines apart from dump trucks because he wishes to avoid the rough nature of the truck driving work and the dangers of accident associated with it.

[26]

Ms Hart impressed me as a determined young woman. She is working in an occupation for which her disability makes her unsuitable. She does so because of the high financial rewards. At present she earns about $1,268.00 per week net after tax.

[27]

Ms Hart's credibility was attacked on the basis that she had inconsistently claimed to be fully fit when she commenced work in the mines. She concealed her problems from her employers. She also concealed it from the Dr Fenner who examined her for her statutory medical examination. Had she disclosed her disability it is unlikely she would have passed the industry medical examination. Failure to pass the examination excludes her from the mining industry. The evidence also disclosed that Ms Hart had failed to declare some part time income in her tax returns. None of these matters causes me to doubt her evidence on the matters relevant to this case.

[28]

Ms Hart has had some limited time off work because of her complaints of neck pain and headaches. In general, however, she has persevered. Her evidence is that she believes she can continue to do so for about two years following which she will need to seek lighter and less remunerative work. Ms Hart's history suggests a further two years in her present occupation is realistic. If Ms Hart did not have the residual weakness, I accept that she would have continued in her present occupation for a reasonable length of time - probably of the order of ten years. While the evidence suggests that truck drivers come and go and many stay in the mining industry for a relatively short period, other drivers stay for many years. There are reasons peculiar to Ms Hart that suggest that but for her disability she would be likely to stay for a longer rather than a shorter period. Ms Hart's step-father to whom she appeared close lives in Moranbah and works as a lab technician at Goonyella Mine. Ms Hart's mother was also living in Moranbah when Ms Hart moved there. Ms Hart grew up in the Mackay region. She is therefore a person for whom the Bowen Basin region is familiar. She is thus not as likely as many others to want to return to major population centres in the South East of the State. She appears to be strongly motivated by money in the sense that she is prepared to put up with a great deal of discomfort to earn the much higher wages than she could earn anywhere else. Ms Hart has no present intention to have children. Ten years is thus a reasonable base figure to adopt in determining the period she would be likely to persist in this type of occupation if she was fully fit. At the end of that period I find that she would have sought lighter work at a lower level of remuneration in any event. Her capacity for other types of work is limited, but only in a very minor way. While some aspects of the meat industry may be too heavy, she has demonstrated a capacity to work in other fields. I find that after about ten years, with her high work ethic and determination, she should have little difficulty finding work. Her residual disability after that time is properly reflected in a modest global award to recognise some limitation on opportunity.

[29]

While Ms Hart suffers significant pain and discomfort as a result of her injury this is largely because she persists in working in an occupation which the medical advice cautions against. On the other hand, by working in this field the defendant benefits because she suffers no economic loss. I thus do not propose to discount the award for pain and suffering on this basis. I consider a figure of $30,000.00 reasonable under this head.

[30]

The figures submitted by each side for past economic loss are not materially different. The plaintiff seeks $16,846.00 representing the whole period prior to commencing in the mining industry less a discount of 15%. The defendant submits a figure of $13,441.14 up to Ms Hart's examination by Dr Fenner for entry into the mining industry in June 2003. The defendant's starting point is an arbitrary $100 per week based on known factors such as the closure of Lakes Creek and Ms Hart's preparedness to work with the disabilities she has. I accept that the plaintiff's figures probably underestimate to some extent the impact of the closure of the Lake's Creek meatworks. There would inevitably have been some disruption to Ms Hart's work pattern even had she gone to Bakers Creek. She also had some domestic disruption which may have impacted on her earnings. The evidence I have accepted is that Ms Hart is prepared to work despite her disability. Apart from leaving Casino meatworks prematurely because of her injury, it is difficult to see why the defendant's submission should be rejected. Whether this is looked at as a slightly higher discount to allow for the factors underestimated by the plaintiff or an arbitrary fixed loss seems not to make a great deal of difference.

[31]

Medical expenses differ between the parties on the basis that Ms Hart had undergone some chiropractic treatments and physiotherapy before she was injured. The defendant has thus apportioned the post accident expenses. On the evidence there is no sound basis for that apportionment if I accept, as I do, the plaintiff's evidence as to the treatment she has undergone and the reasons for it. Again the difference is minimal amounting in total to less than $1,000.

[32]

The plaintiff has claimed future physiotherapy at a rate of one treatment per month at the current cost of $43.00 for 30 years. On my findings it is reasonable to allow that claim for the two years the plaintiff intends to continue in her present occupation and perhaps a further year while she recovers from the aggravation that occupation has caused. I adopt the same approach in relation to the pharmaceutical expenses which relate to Nurofen and which are claimed at the rate of $4.14 per week.

[33]

There is a claim for past and future care. Since Ms Hart has not paid for the care claimed in the past I do not propose to allow it. For the future the claim is on the basis that Ms Hart will need someone to provide massage and mow the lawn. Ms Hart lives in a flat. She has no lawn. I do not know when or if she will live in a house with a yard. In any event, when she ceases the driving work I am not satisfied she will be incapable of doing her own mowing. I have allowed for massage in the claim for future physio/chiropractic care. I do not propose to allow anything under this head. Section 315 of the WorkCover Queensland Act 1996 seems to preclude the claim in the circumstances of this case.

[34]

In the result I assess damages as follows:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Hart v. Consolidated Meat Group Pty Ltd [2005] QSC 89 (26 April 2005)

Parties