_Parry v Woolworths Limited_

District Court of Queensland|2008-06-17

**[1] The plaintiff was, and is, a butcher working for the defendant and claims damages for an injury which he says occurred on 19 or 20 November 2003. (Hereinafter referred to as 19 November 2003). The injury was a prolapsed disc in the plaintiff's lumbo-sacral spine. In short, a lower back injury. The plaintiff alleges negligence, breach of statutory duty under the Workplace Health and Safety Act 1995 [Act] and breach of contract against the defendant.

[2] The plaintiff normally worked in the defendant's boning room but on this occasion was working overtime in the value added room. According to his supervisor Mr Auld who gave evidence, that room was in the nature of an abattoir.

[3] The plaintiff said he was asked by Mr Auld to give him a hand to lift up a tub of meat. He said the tub in question was a white oval tub with a handle on each side about two to two and a half feet in depth and at the time three quarters filled with meat. In metric measure adopting a conversion of 25.4 mm per inch that would make the tub's height/depth, on the plaintiff's evidence, between 609.6 mm (24 inches x 25.4) and 762 mm (30 inches x by 25.4). If the tub was three quarters full as the plaintiff said, then the meat product would have been between 457.2 mm (6 inches) and 571.5 mm (7.5 inches) from the top. The plaintiff identified the tub in a supplier's brochure.

[4] The plaintiff said that, when lifting the tub he was pretty sure he used his left hand, bent his knees to go down and lifted the tub up with Mr Auld. He said he felt a pain in his back and let Mr Auld take most of the weight. He said he was not sure whether he put his right hand under the tub to tip it but he could have. He said the pain he experienced occurred pretty close to lifting the tub off the ground and it was a sharp pain or a burning sensation in his back area.[5]

[5] Despite the sharp and burning pain sensation the plaintiff continued to work because, he said, he was embarrassed because he had been copping a bit of flack from his workmates over his other injuries. He later reported the incident to the defendant's workers' compensation manager, Ms Dawson on 2 December 2003 and signed a statement on 4 December 2003.[6] In that statement he said:**

"At work on 19 or 20 November 2003 a fellow workmate, Gary Auld, asked me to help him lift a tub of red meat to empty into the bin. We lifted the tub together using one hand. The bin was just at about my hip level and as we lifted the tub I experienced an increase in my back pain. I know this was a stupid thing to do and I should have declined to assist, but I thought it would be OK. I know it was a stupid thing to do."

[6] Mr Auld was the supervisor on the day in question. He gave evidence that the tub in question was either sitting on a shelf underneath the bench or on legs 6 to 8 inches from the ground at about knee height. He said he was about the same height as the plaintiff so, by inference, the tub was at the same height for the plaintiff namely about knee level.[7]

[7] He said the tub probably had about 40 kilograms of meat in it, a weight he said he regularly lifted with another person by grabbing a handle each, picking it up and throwing the meat into a silver tub which was also about knee high.[8] So his recollection was that the lift was from about knee high to a short distance above knee high. As to the method of lifting and tipping there was this exchange in Mr Auld's cross-examination:**

"(Question) For a short while during the lift you were holding it in one hand. When you got it about the level of the silver bin, then the other hand comes into play and you tip it?

When asked if he recalled whether the plaintiff used his other hand to help tip the tub up he said "yeah, I think - yeah, we both would have."[9]

**[8] At the time of the lift he recalled the plaintiff saying something to the effect of "gee, that got me in the back."[10] He agreed that after the incident the plaintiff continued working to the end of the shift and that he, Mr Auld, did not notice that the plaintiff was in any particular pain or discomfort during the balance of that overtime period.[11]

[9] Mr Auld was asked how close the meat content was to the top of the bin when he and the plaintiff lifted it. He said that it was honestly hard to remember but indicated that it was probably 6 to 8 inches or so from the top.[12] He said it was off cut meats without bones so it was "gonna be heavier, yep."[13]

[10] In re-examination Mr Auld said he had used two hands to tip the bin. As to the plaintiff, he said he couldn't be certain but he believed that he probably would have. When asked if it was feasible to lift the tub with one hand rotating the wrist to tip it he said he didn't think so as it would place a lot of strain on the wrist. When specifically asked whether he could recall how it was done on the day of the incident, he said he just knew that he himself always grabs two hands always and that he had lifted many tubs up. He said that everyone uses two hands its just a natural thing and the way they had been shown.[14] I am satisfied that, had the bin been lifted and tipped by the plaintiff using one hand only, contrary to Mr Auld's usual method, he would have recalled such a different method.

[11] Mr Auld was shown exhibit 21, the supplier's brochure containing seven types of tubs and buckets. He identified the tub involved on the day of the incident as being of the type shown in the top left hand corner of the brochure which depicts a white two handled tub containing meat products with a meat worker standing next to it working on a hanging carcass. That bucket is then shown at the bottom of the page with a group of six others and again on the back page of the brochure. On the back page its capacity is shown as 54 litres. That is the same volume of the tub the plaintiff's expert witness Mr Justin O'Sullivan referred to in his report.[15]

[12] The depth of the tub in the brochure identified by Mr Auld is shown as 340 mm or 13.38 inches (340 ÷ 25.4 mm). That is quite different in size to the 2 foot (24 inches) to two foot six (30 inches) being the evidence of size given by the plaintiff. Although the plaintiff spoke of lifting the bin off the ground,[16] the only sense I can make of the disparity in his and Mr Auld's evidence as to depth, is that the 13.38 inch tub described by Mr Auld as being 6 to 8 inches from the ground[17] on a bench or legs, would then put the tub off the ground and in a pre-lifting position not as high as, but close to the bottom end of, the plaintiff's two feet range. I proceed on the basis that the tub was at the knee level of both the plaintiff and Mr Auld and was lifted a short distance above the knee height and emptied into the silver bin.[18] As to how the tub was lifted, I am not satisfied from the evidence that the plaintiff used only one hand. Quite apart from the fact that Mr Auld said that two hands was a natural thing and "the way we have been shown,"[19] the plaintiff himself presented as having no clear recollection. In any event, had he used one hand only I would regard that as a serious disregard for his own safety given the obvious risk of wrist strain identified by Mr Auld. I find that the plaintiff used his left hand to initially lift the tub and then two hands in the tipping exercise.

[13] As to the weight of the tub at point of lifting, the plaintiff said it weighed between 40 and 60 kgs[20] but under cross-examination volunteered that he was not a good judge of weights.[21] I prefer the evidence of Mr Auld who placed the weight at around 40 kgs.[22] His estimate of 40 kgs against the back ground that he had lifted many tubs satisfies me that his evidence is the best evidence of the true weight. The tub itself empty weighed 3855 grams which is 3.85 kgs so that the total weight of tub and meat products would have been of the order of 44 kgs.

[14] My finding then on the nature of the incident on 19 November 2003 is that the plaintiff and Mr Auld together lifted a tub of meat weighing approximately 44 kgs from a position where the top of the tub was at knee level. It was lifted a short distance above the knee and its contents tipped into a silver bin with both the plaintiff and Mr Auld using two hands to achieve the tip. At the beginning of the lift, the plaintiff felt a sharp burning pain in his back and said words to the effect of "gee, that got me in the back".

[15] Assuming, for the moment, that the disc prolapse injury occurred on the day of this incident, which issue is yet to be determined, the next question is whether the plaintiff's injury resulted from any relevant want of care on the part of the defendant. The defendant did not give evidence of any training in the lifting of tubs and the only evidence in that regard was the statement by Mr Auld that using two hands was "the way we have been shown".[23] The only evidence of the plaintiff seeking to establish a breach of duty in the defendant was the evidence of Mr Justin O'Sullivan an ergonomist and safety consultant.[24] He was not called to give evidence as the defendant had indicated it did not wish to cross-examine him.

[16] Mr O'Sullivan interviewed the plaintiff by telephone on 2 May 2007 by reference to the statement of claim, the defence and various unidentified medical reports. He also had a fax sheet showing the type of tub in question. Initially I could find no connection between that faxed sheet and the brochure exhibit 21 upon which the plaintiffs and Mr Auld's evidence was based. However, as earlier noted, both tubs had the same volume of 54 litres and I proceed on the basis that the faxed sheet referred to by Mr O'Sullivan contained the brochure being exhibit 21.

[17] Mr O'Sullivan made certain assumptions. They were:**

(a) The subject tub was full of red meat off-cuts.[25]

(b) The plaintiff, in response to a request from the supervisor, grasped the handle of the tub at one end with his left hand, the supervisor grasping the other end;[26]

(c) The plaintiff experienced back pain part way up and slowed down, whereupon his supervisor got ahead of him and the tub tipped towards the plaintiff;[27]

(d) The supervisor took charge of tipping the tub into the steel tub by apparently grasping the base and tipping the off-cut tub after resting it on the edge of the steel tub;[28]

(e) The plaintiff is unsure whether he twisted but believes may have, given the tipping of the off-cut tub towards the steel tub;[29]

(f) The plaintiff stood with his toes roughly level with his left hand, his knees moderately bent and his back straight;[30]

(g) The plaintiff lifted such that his hand rose roughly to waist level before the tipping;[31]

(h) The plaintiff weighted two tubs full of red meat off-cuts at work, with the assistance of others. He states that one tub, with meat level with the brim, weighed 67.7 kgs; the other meat humped a bit in the middle, above the brim, weighed 72 kgs;[32]

(i) The tub involved in the incident was full to the brim at the edges and above the brim in the centre and, by inference from sub paragraph (h), weighed 72 kgs;[33]

(j) The tub was resting on a trolley such that the handles were about 500 mm (19.7 inches) from the floor;[34]

(a) Dynamic stress was involved in the lifting;[35]

(b) Asymmetric stress forces were at work to counteract the weight lifted in the left hand.[36]

(c) A weight of 22.5 kgs (as given in the Defence) would still pose a risk of injury due to dynamic stress and lifting with one hand[37]

(d) Twisting by the plaintiff was reasonably likely, once upright, in order to tip the contents into the larger steel tub. Even if the tipping force was applied primarily by the other lifter, the plaintiff will have had to actively assist by maintaining his hold of his end of the tub through the tipping process, requiring him to hold the base of the tub with his right hand and, unless his right shoulder was particularly strong, bend his trunk to the left.[38]

The plaintiff did not say that the tub was full but rather it was three quarters full or a bit more.[39] Mr Auld said the meat content was probably 6 to 8 inches or so from the top.[40] Given that the depth of the tub was 340 mm[41] (13.38 inches) for the meat content to be 6 to 8 inches from the top would mean that the top of the meat product would be a point between 45% and 60% from the top of the tub. Clearly, because of the sloping edges of the tub, those percentages would not translate to volume but it is enough to demonstrate that, on Mr Auld's evidence, the tub was not full. No other evidence was called to support the conclusion that the tub was full of meat. This assumption is without evidentiary foundation.**

(b) The plaintiff, in response to a request from the supervisor, grasped the handle of the tub at one end with his left hand, the supervisor grasping the other end

This has the plaintiff grasping the tub handle with his left hand and Mr Auld grasping the other handle. That accords with my finding as to the commencement of the lifting process.

(c) The plaintiff experienced back pain part way up and slowed down, whereupon his supervisor got ahead of him and the tub tipped towards Mr Parry

This assumption that the back pain occurred part way up the lifting process is at odds with the plaintiff's evidence[42] that the onset of the pain occurred pretty close to getting the tub off the ground. Accepting that the plaintiff said the tub was sitting on rollers,[43] I accept that the top of the roller structure would be the ground he referred to.

On the facts relied upon by Mr O'Sullivan, Mr Auld then got ahead of the plaintiff and the tub tipped towards the plaintiff which I would have thought would have resulted in the plaintiff bearing an increased share of the weight of the load. That conflicts with the evidence given by the plaintiff[44] where he said he felt pain in his back and let Mr Auld take most of the weight. Mr Auld made no mention of any weight shift but was not specifically asked. In any event, as I have found, I prefer the evidence of Mr Auld to the effect that the lift and tip of the tub was executed by both the plaintiff and him.[45] I do not accept that during the lifting and tipping process there was any shift of weight to the plaintiff in either the lifting or tipping stages. This assumption has no evidentiary foundation.

(d) The supervisor took charge of tipping the tub into the steel tub by apparently grasping the base and tipping the off-cut tub after resting it on the edge of the steel tub

That is inconsistent with my finding that both the plaintiff and Mr Auld together tipped the contents of the tub into the steel tub. This assumption proceeds on the basis that Mr Auld alone was involved in the tipping process. This assumption is unsupported by the evidence.

(e) The plaintiff is unsure whether he twisted but believes may have, given the tipping of the off-cut tub towards the steel tub

There was no evidence from the plaintiff or anyone else that he twisted during the lifting and tipping process. This assumption is unsupported by the evidence.

(f) The plaintiff stood with his toes roughly level with his left hand, his knees moderately bent and his back straight

There was no evidence from the plaintiff of this posture having his toes level with his left hand or back straight. He was pretty sure he bent his knees to go down to lift the tub[46] but that is the extent of any evidence relevant to this assumption. It is unsupported by the evidence.

(g) The plaintiff lifted such that his hand rose roughly to waist level before the tipping

There was no evidence to support this assumption and it is in direct conflict with the plaintiff's own evidence that he felt the pain fairly close to lifting the tub off its base which was on rollers.[47] It is also at odds with the evidence of Mr Auld, which I have accepted, who said that the handle of the tub was at about knee height[48] and that the silver tub into which the meat was dropped was just over knee height.[49] This assumption is unsupported by the evidence.

(h) The plaintiff weighed two tubs full of red meat off-cuts at work, with the assistance of others. He states that one tub, with meat level with the brim, weighed 67.7 kgs; the other meat humped a bit in the middle, above the brim, weighed 72 kgs

The plaintiff said that, subsequent to the incident, he, together with his mates, sought to ascertain the correct weight of the tub and they weighed two tubs containing meat. They were both filled to the brim and had more meat in them than the tub on the day of the incident.[50] The results of those weightings were 63 point something kgs and 68 kgs.[51] There was no evidence of any tub weighing 72 kgs. There is no evidence to support this assumption.

(i) The tub involved in the incident was full to the brim at the edges and above the brim in the centre.

The inference to be drawn from this paragraph and paragraph (h) is that the tub involved in the incident weighed 72 kgs being of the heavier category referred to in sub paragraph (h) filled to the brim at the edges and above the brim in the centre. No evidence of that nature was given in relation to the subject tub. The plaintiff gave evidence that it was three quarters filled[52] and weighed 40 to 60 kgs.[53] Mr Auld said 40 kgs, coupled with the weight of the tub, taking the total load to 44 kgs which I have accepted was the weight of the load on the day. This assumption is without any evidentiary foundation.

(j**)** The tub was resting on a trolley such that the handles were about 500 mm (19.7 inches) from the floor

The plaintiff gave evidence that the tub was on rollers.[54] but gave no evidence as to the height of the rollers or the handles of the tub from the floor. Having identified the tub in exhibit 21[55] and accepting the height of the tub as disclosed in exhibit 21 as 340 mm, the evidence of Mr Auld[56] that the tub was 6 to 8 inches (152.4 mm to 200 mm) from the ground, that would position the handles between 492.4 mm (340 mm plus 152.4 mm) and 543.2 mm (340 mm plus 203.2 mm) from the ground. Mr O'Sullivan's assumption of 500 mm is within that range.

Mr O'Sullivan in his report speaks of adding dynamic stress to an already assumed excessive spinal stress to which the plaintiff would have been subjected. That assumption of excessive spinal stress assumes three further facts namely:

(i) That the plaintiff's share of the subject weight was 34 kgs;

(ii) That the distance of the plaintiff's lifting hand in front of his ankles was 200 mm; and

(iii) That the weight of 34 kgs was lifted at 35 cm[57]

From there he assumes that the plaintiff is a member of a body of 35% of males at risk of over exertion or excessive spinal stress in the situation reached on the above assumption. From there he assumes the excessive spinal stress and adds a dynamic stress factor to it.

The conclusion is founded upon assumption upon assumption upon assumption and has no evidentiary foundation.

(l) Asymmetric stress forces were at work to counteract the weight lifted in the left hand

From the above combination of excessive spinal stress plus dynamic stress Mr O'Sullivan adds asymmetric stress which he said is the result of the back muscles being recruited to counteract the weight of the lift in the plaintiff's left hand. Again all the assumptions referred to in paragraph (k) comes into play to get to that point. This assumption suffers the same fate as the abovementioned assumptions without evidentiary support.

(m) A weight of 22.5 kgs (as given in the Defence) would still pose a risk of injury due to dynamic stress and lifting with one hand

Mr O'Sullivan has made the further assumption/conclusion that even with the weight of 22.5 kgs, which is close to half the weight (44 kgs) I have found to be the weight of the tub at the time of the incident, would still pose a risk of injury to the plaintiff. That conclusion is based on the assumption that there existed dynamic stress which itself is founded on assumptions as I have outlined above. This assumption of the risk of injury due to dynamic stress is without evidentiary support.

(n) Twisting by the plaintiff was reasonably likely, once upright, in order to tip the contents into the larger steel tub. Even if the tipping force was applied primarily by the other lifter, the plaintiff will have had to actively assist by maintaining his hold of his end of the tub through the tipping process, requiring him to hold the base of the tub with his right hand and, unless his right shoulder was particularly strong, bend his trunk to the left

This again assumes twisting which I have already dealt with and assumes a particular shoulder strength and the bending of the plaintiff's trunk to the left neither of which are supported by the evidence. This assumption is without evidentiary support.

[19] I have dealt with the O'Sullivan report in some detail because it was the only evidence led by the plaintiff in support of his allegations of breach of duty by the defendant. It will be apparent from the above analysis that the O'Sullivan report is founded on assumptions not made out on the evidence. For that reason I am unable to accept any of its conclusions. The failure of the plaintiff to adduce evidence to support the assumptions made by Mr O'Sullivan renders his report almost meaningless on the issue of whether or not the lifting of the tub involved a breach of any relevant duty by the defendant.

**[20] I am not persuaded that there is any evidence sufficient to establish, on the balance of probabilities, that the defendant has been negligent or breached any statutory duty under s.28 of the Act or contractual duty owed to the plaintiff.

[21] My conclusion is similar to that reached in a unanimous decision of the High Court in Brkovic v Clough (JO) and Son Pty Ltd.[58] An extract from the judgment of Mason CJ is lengthy but encapsulates the point I have reached in this case on liability. His Honour said:[59]**

"The appellant had suffered injuries to his back in the course of his work on two prior occasions in February 1972 and April 1972 and it appears that the condition resulting from these earlier injuries rendered him susceptible to a back injury. The learned trial judge said that there was no evidence of any other work which could have prevented the appellant's injury."

The learned Chief Justice, who delivered the judgment of the Full Court said:

"In this case I think it should be held that the appellant failed to establish his case because he failed to show that the system of work by which he complained did create any risk of injury to an ordinary worker, by which I mean a worker of ordinary or average strength and physical soundness. It was not the appellant's case that the respondent owed him any particular or higher duty because he knew or ought to have known that he had a damaged back. He was not, and it was not alleged that he was, in the category of the one-eyed employee. If the system was defective as alleged, it placed the appellant in the position in which he was required to pull a piece of pipe from a heap of other material. There was no difficulty in doing that unless the pipe should have jammed. And if it did jam and if that could be foreseen, I do not think that event would expose a worker of average physical soundness to any risk of injury. In short, and relevantly to what happened, there was no risk of injury such as was sustained being sustained by a fit worker by reason of the pipe jamming as it did. The appellant, in my judgment, was injured as he was because of a pre-existing condition which placed him at risk in the carrying out of any physical activity which placed any strain on his back. There was no suggestion, and it was not part of the appellant's case, that when injured he was asserting any great force upon the pipe.

Before us, Mr Temby, in his argument on behalf of the appellant, submitted that even though the respondent could not have known the precise nature of the condition of the appellant's back, the respondent should have known that the back was susceptible to injury. Therefore, it was said, the respondent owed the appellant a duty to provide a system of work that would be safe for him. In those circumstances, it was said, the respondent should have ensured that the pipes, when placed on the deck of the dolphin, were bound or strapped together so that they would lie parallel and would not be likely to jam when it was sought to remove them.

With all respect to this argument, no ground has been shown for disagreeing with the conclusion reached in the Supreme Court. There is no evidence that a worker, within the normal range of health and strength, would have been put at risk by the system adopted by the respondent. All that the appellant had to do was to bend down and tug on a pipe. The fact that the pipe might jam would not have been likely to endanger a normal employee. The appellant was placed at risk because of the pre-existing condition of his back. However, it was not pleaded by the appellant in his statement of claim that the respondent knew of his injury or owed him any special duty. On behalf of the appellant before us it was said that, since the earlier injuries were sustained in the course of the appellant's employment by the respondent, and since they caused the appellant to be off work for some days, the respondent should have known of them. Reliance was also placed on the fact that in the defence it was pleaded that the appellant's disabilities were sustained in February 1972. The fact remains that the question of whether the respondent knew or should have known that the appellant had a special disability which was relevant to the extent of the duty of the care owed to him was not litigated at the trial. Indeed, we are told that no argument to that effect was addressed either to the learned Trial Judge or to the Full Court. It was not established that the respondent had, or should have had, such knowledge as might have placed him under a special duty of care."

**[22] Even if I had found a breach of duty on the part of the defendant I consider that the circumstances of the plaintiff engaging in the activity of lifting the tub of meat, knowing the history of his back problems, evidenced a disregard for his own safety such that I would have apportioned liability 50:50 as between the plaintiff and the defendant. He had suffered back pain for some time and the September 2003 incident was caused by pulling meat across a table in the course of work. He should have known of the risk of further back injury if he engaged in any lifting.

[23] I dismiss the claim and order the plaintiff to pay the defendant's costs to be assessed.

[24] Lest I be found to be wrong in my conclusion on the issue of liability, I shall consider the issue of quantum. This involves firstly a determination of what precise injury was incurred on 19 November 2003, if one did occur, and secondly the damages flowing from that injury.

Did the Plaintiff sustain injury following the incident of 19 November 2003 and if so what was the nature of that injury?

History of Plaintiff's back pain prior to 19 November 2003

[25] The plaintiff has suffered a lower back condition for more than 8 years on and off.[60] On 17 January 2000 the plaintiff was working on the rib table when a rib fillet, weighing between 2 and 4 kgs, fell to the floor.[61] He bent down to pick it up and felt a sharp pain in his back. He agreed the pain was so severe that, by the end of that day, he could hardly put on his shoes and socks. The next morning he could not even put on his trousers.[62]

[26] His general practitioner, Dr Tutt provided a medical certificate[63] certifying that the plaintiff was suffering from a low back muscular injury caused by lifting heavy meat at work. He certified that the plaintiff was totally incapacitated for work from 18 to 24 January 2000. A further certificate[64] was issued by Dr Tutt on 24 January when he again certified that the plaintiff was totally incapacitated for work for a further week from 24 to 31 January 2000 and that upon his return to work he should carry out light duties with no bending or lifting. He returned to work on light duties on 25 January 2000.[65] Dr Tutt issued a final certificate[66] on 31 January 2000 certifying that the plaintiff was fit to return to work on 1 February 2000 but required treatment from then until 5 February.

[27] On 24 May 2000 the plaintiff consulted Ms Elizabeth Brownlee, a chiropractor with the Toowong Chiropractic Centre. Her note for that appointment was that the plaintiff was experiencing occasional sciatic pain in the left leg to the knee which "comes and goes" but which he had not experienced for about 6 months.[67]

[28] In a subsequent consultation on 4 February 2003 the plaintiff complained that his right sacroiliac area was very sore. Ms Brownlee explained that the sacroiliac area was the right buttock and that the plaintiff's pain was to one side of the spine over the pelvis.[68]

[29] A little under 4 months later on 31 May 2003 he again consulted Ms Brownlee complaining of left lower back twinges.[69]

[30] Approximately a month later in a further consultation on 28 June 2003 he complained that his left lower back was very sore.[70]

[31] On 27 August 2003 the plaintiff injured his lower back at work when he fell over in the locker room after losing balance when putting on his work pants.[71] In a statement he gave to the defendant's workers' compensation manager, Ms Dawson on 30 September 2003,[72] the plaintiff said:**

"On 27 August 2003 I was in the locker room changing for the start of my shift. I was putting on the pants and I had one leg in them when I lost my balance and toppled over. I was next to the shower cubicle and when I lost balance I hit the panel of the shower cubicle. When I say I hit the panel, I did not actually strike the panel it just stopped me from falling. As I lost my balance I felt like a tightness in my lower back. I really cannot say it was a pain as such, but I knew I had done something to my lower back. It just didn't feel right. The tightness was in my lower back around my buttock area. It was OK, but I knew there was something not quite right but I didn't think it was bad enough to worry about and that was why I didn't report it to anyone. When I awoke on the morning following this event my back was a little bit sore, but still not bad enough to worry about. It certainly wasn't bad enough to stop me from working. I kept working and was able to perform my duty. I was due to go on holiday from 1 September 2003 for one week and I was sure my back would come good.

On 29 August 2003 I had an appointment to see my chiropractor, whom I see for another problem, which is not to do with my back. At my visit on that day I told the chiropractor about the sensation in my back. She worked on my back and told me that I had torn the ligament."

**[32] The plaintiff consulted the chiropractor again on 5 September 2003 complaining of a sore back which the chiropractor recorded as the lumbo-sacral region being achy.[73]

[33] The plaintiff again injured his lower back on 17 September 2003 after a heavy day at work involving pulling meat towards him across his work table.[74] He completed an application for compensation on 29 September 2003[75] describing the injury as a soft tissue injury to the lower back. In the abovementioned written statement[76] given by the plaintiff in relation to his fall on 27 August 2003 on 30 September 2003, he also dealt with this 17 September 2003 incident. He said:[77]**

"On 17 September 2003 I had to work with heavy beef stock. Sometimes when the butchers drop the meat it doesn't go in the middle of the table. If it does this makes it easy to grab and work with. Most of the time the meat is at the side of the table and you have to reach over and, grab the meat and pull it towards you for cutting. This is what was happening on 17 September 2003. It is not the butchers' fault as the meat can be quite heavy. Towards the end of the day on 17 September 2003 I had definite pain in my back. I put this down to the fact that the meat was heavy on that day and I had to reach to grab it from the side of the table. I think this really aggravated my back problem. The next morning 18 September 2003, when I got up I found that my back was really painful. I had pain now across both sides of my back and pain going down my left leg. I couldn't stand without pain and I couldn't bend. I had a hot shower to see if this would help and I went to work thinking the pain would ease off as the day went on. I reported the injury to the foreman and told him about the event of 27 August 2003. I commenced work on 18 September 2003 but found I experienced pain whenever I lifted or went to straighten up. I couldn't keep going and I ended up going home and phoning to get an appointment to see the doctor. I was unable to get an appointment until the next day 19 September 2003."

[34] He signed a further statement[78] on 4 December 2003 in relation to his subsequent 19 November injury but made reference to this September incident in these terms:

"I was recovering well from my injury sustained on 17 September 2003. ... I stopped taking the medication and I cannot really recall if I was still having chiro, but my back was settling. I still had a bit of a niggle depending on my activity. I found that if I was pulling meat towards me I would experience discomfort half way up my buttock about my hip level on the left hand side. I just tried to be careful. I was due to be reviewed by the doctor on 25 November 2003."

[35] On 18 December 2003 he signed a further statement[79] in relation to this incident in which he said:

"Further to previous statements provided in relation to my injury sustained on 17 September 2003, I now wish to advise the following. I have continued to perform my normal duties but have found that my condition is just not getting any better. I still have the shooting pains going down my leg whenever I walk or go up and down stairs, pulling the meat towards me at the table at work causes pain in the back. ... It doesn't seem to be getting any better. I find that it is always worse after I have a chiro treatment. ... I also have trouble bending as this causes discomfort in my back. When I am lying in bed in the morning my back feels OK but as soon as I get up I feel the discomfort. This morning when I woke up my back was still sore when I commenced work as usual. I started work at 6.17 am but by the time I stopped for my break at 9.05 am my back was killing me. I just feel I can't work with it anymore as it just isn't improving.

I cannot highlight any specific event to cause further injury to my back. My activities at home are very restricted because of my back problem and my wife actually has to do the mowing now, as I am unable to do this activity. ..."

Importantly the plaintiff here states that on the 15 December 2003 the day he gave the contents of the statement to Ms Dawson over the telephone,[80] he could not identify any specific event causing the further injury to his back since the 17 September 2003 injury. That statement was given some 17 days after the November incident.

**[36] He saw his general practitioner, Dr Mann of the Ipswich Road Medical Centre the following day, 19 September 2003. She issued a certificate[81] certifying that he would be totally incapacitated for work until 26 September 2003 when he would be reviewed again. In fact he returned to full duties on 29 September 2003.[82]

[37] Dr Mann's notes of that 19 September 2003 consultation were in these terms:**

Prescriptions printed: voltaren 50 EC TABLET 50 mg 1 tid"

[38] Four days later, on 23 September 2003, the plaintiff again consulted his chiropractor and told her he had suffered acute pain in his lower back pulling heavy beef on the previous Thursday and experienced a sharp pain in his left thigh when bending forward. He said it was the same feeling as he had when he over balanced at the end of August putting on his overalls.[84] In the previously mentioned statement he gave a week later on 30 September 2003 he said:

"My back pain is no way near as severe as before. I still have pain going down my leg and in my buttocks on the left side. Although I still feel a type of pressure on both sides of my lower back. I now find I can bend half way."[85]

[39] The plaintiff was again reviewed by Dr Mann on 26 September 2003 when she certified that he would be fit to return to pre-injury duties on 29 September and she would review him again on 29 October 2003.[86] Dr Mann's notes of that day[87] read:

Cont chiropractor and NSAID 1/52 but "physio if fails to fully settle".

**[40] The plaintiff saw the chiropractor again on 3 October and told her he still had sharp pain going into his left upper leg and a sore lower back.[88] Ms Brownlee's notes recorded that as "sore left buttock especially lateral and into left upper leg, sharp pain."[89]

[41] Further consultations on 6 and 8 October 2003 resulted in Ms Brownlee recording on 6 October that the plaintiff's lower back was slowly improving and on 8 October that it was sore again.[90]

[42] On 17 October he saw another chiropractor at the same clinic reporting that he was very sore and tight in the back.[91]

[43] Eleven days later on 28 October 2003 he again consulted Dr Mann, his GP reporting that, although he still had back pain, it was getting better but he still suffered from occasional flares. He told her that he was seeing the chiropractor with good effect. He still had tenderness over his lower back, knee and sacroiliac joint which is on the left hand side on the lower back. His straight leg raising examination was only to 75% on his left side[92]

[44] On 30 October 2003 the defendant's Ms Dawson telephoned the plaintiff.[93] He told her that he was still getting pain in his lower back which ran down his leg. He said he was seeing a chiropractor on average twice a week and that he was doing his normal duties but just watches how he twists and grabs things. He said the pain alternated in severity depending on his activity, that he had not been referred to a specialist but was to be reviewed by his doctor at the end of November. If he was not better by then perhaps his doctor would do something but she wanted to give it another month to see if it settles.

[45] On 5 November he returned to the chiropractor and filled out a pain chart[94] which indicated that he was then suffering from pain in his lower back and left leg. On that day he told the chiropractor he had left lower back pain which was aggravated by bending forward and flexion, and that the pain was aggravated if he turned to the left.[95]

[46] He agreed with the defendant's counsel that, around that time, if he turned or twisted to his left he would feel increased pain and that working in the boning room with the cold temperature also aggravated that pain. He said he was still seeing his chiropractor on a regular basis through October and into early November 2003 for what he agreed was the combined effects of the abovementioned incidents on August and September 2003.[96]

[47] I have already dealt in detail with this incident on the issue of liability. The plaintiff did not report this incident until some 25 or 26 days later on 15 December when he reported to his supervisor, Mr McLaggin.[97] In a written statement[98] dated 4 December 2003 the plaintiff said:**

"I did not report this to anyone and I was able to continue working. The pain was not bad enough to stop me working nor did I feel the need to see the doctor. I knew I had the appointment previously scheduled for 25 November 2003 and I knew I could wait until then to see the doctor."[99]

[48] On 25 November 2003 the plaintiff attended his scheduled appointment with Dr Mann, his GP, for the purpose of reviewing his condition which had been, by then, troubling him for some months. When cross-examined by reference to Dr Mann's notes, he accepted that he had told her that his back pain was settling, that he had had a small flare at work the day before similar to what he told her on 28 October namely that his back was better but with occasional flares.[100] Dr Mann's notes for that consultation read:[101]

**[49] At that consultation Dr Mann issued a medical certificate,[102] noting the plaintiff was suffering from soft tissue injury to the lower back caused by a fall at work on Wednesday, 27 August 2003. She certified that he would be fit to return to work on 28 November 2003. The certificate also recorded that she had first seen the plaintiff for this injury on 19 September 2003. The plaintiff accepts that he told her in the 25 November consultation that the condition was caused by the incident of 27 August 2003.[103] Nowhere in the doctor's notes or the medical certificate is there a reference to the 19 November incident.

[50] The Plaintiff continued working and saw his regular GP Dr Tutt on 15 December 2003. Dr Tutt's notes of that consultation record:[104]**

"Complains of Left upper thigh sciatic pain persisting

Having chiropractic treatment without improvement now since recent exacerbation when lifting the tray a few weeks ago.

Needs certif. today but seeing Dr Mann tomorrow (? for LS x-ray).

VIOXX TABLET 12.5 mg dosage changed from one daily to one B.D.

[51] The following day 16 December 2003 the plaintiff consulted Dr Mann her notes record:[105]

Not settled since lifting at work and chiropractor not helping

Pain plus plus L) side with radiation now to L) knee

PANADEINE FORTE TABLET 500 mg/30 mg 1 or 2 q.4.h.prn for severe pain maximum 8 per day"

[52] There were five doctors called. Dr Curtis, by the plaintiff and Drs Williams, Weidmann, McPhee and Tutt by the defendant. The earlier reports of those doctors other than Dr Tutt the GP, were written without access to the general practitioner's[106] and chiropractor's[107] notes and without a full appreciation of the plaintiff's relevant medical history. As a result of that all doctors changed their opinion as to when the relevant prolapsed disc injury occurred. I shall deal with each of the doctors in order of their initial reports.

Dr Richard Williams - Consultant Orthopaedic Surgeon

[53] Dr Williams was the plaintiff's treating doctor who undertook the surgery on the plaintiff's back on 15 April 2004. He gave nine reports[108] I shall seek to identify in each report and those of the other doctors those findings relevant to the issues for determination namely whether the plaintiff suffered a prolapsed disc on 19 November 2003 or, if not, what injury, if any, did he suffer in the November incident.

[54] The first report of 2 February 2004 records that the plaintiff gave a history of lower back and leg pain since a work related incident on 27 August 2003 and that the leg pain passed from the left lateral thigh and was previously to a level below the knee and into the lateral leg as far as the ankle. Upon examination he found a large sequested L5/S1 posterolateral disc herniation causing left S1 nerve root compression and suggested it could be best managed by a left L5 S1 discectomy. The plaintiff had that surgery on 15 April 2004.[109] Relevantly, at the time of that report, Dr Williams had received a letter dated 2 February 2004 from the defendant.[110] The third paragraph referred to the incident of 19 November 2003. That is important because, as will be seen later, Dr Williams said he was unaware of that incident.

[55] Dr Williams' second report of 2 February 2004 prepared in response to the defendant's request for a report recorded the plaintiff telling him of a work related incident on 27 August 2003 the symptoms of which were worsened by carrying a heavy beef carcass in September 2003. His examination indicated, apart from that earlier reported, particular stiffness in extension with the plaintiff only able to straight leg raise bilaterally to 50% with negative sciatic stretch testing.

[56] The next report is that of 6 February 2004[111] written in response to a further letter from the defendant of 5 February 2004[112] asking specific questions. Relevantly, Dr Williams said that in his opinion the plaintiff did not have an underlying or pre-existing condition that may have been aggravated by his work activities and that he considered the plaintiff's condition as arising from his work practices. In relation to the perineural cyst noted on the CT scan he said it was more likely to be a disc prolapse than any form of cystic structure.

[57] The next report is Dr Williams' report of 15 April 2004[113] reporting on the L5/S1 Discectomy and Left S1 Nerve Root Exploration surgery of that day. That report requires no further comment.

[58] This report follows[114] a consultation with the plaintiff on 26 May 2004 six weeks following surgery. Again this does not require further comment.

[59] This report addressed specific questions asked by the defendant and, relevantly, reported that he believed that the plaintiff had a degree of permanent incapacity most appropriately estimated at 10% in keeping with the P.I. code 4119.

[60] In this report Dr Williams responded to the defendant's request to address each of the incidents of 27 August 2003 and 17 September 2003. As to the August incident he said that, apparently, it was an exacerbation of lower back symptoms involving no lost time from work.

[61] As to the September incident Dr Williams had the advantage of a report of Dr McPhee who suggested that the plaintiff did have a pre-existing condition in the lumbar spine prior to September 2003. Dr Williams agreed with this, and said that the symptoms over the period the subject of previous compensation claims by the plaintiff, suggested an ongoing degenerative process sporadically exacerbated by work based and other activity. However, he said that notwithstanding that, he believed that the plaintiff experienced the onset of the leg pain at some point after the September incident,[115] and that pain represented the first report of neural compressive symptoms in a well documented past history of lower back disturbance.[116] He said, on balance, it was his opinion that the posterolateral disc herniation, with which we are here dealing, arose out of the work practices described by the plaintiff and could be seen as a specific event against the background of the accepted degenerative processes in the plaintiff's back. The specific event he referred to was the 17 September 2003 event.[117] Of the ten percent permanent impairment he had earlier recorded in his 7 December 2004 report he attributed 2% of that figure to the plaintiff's pre-existent condition of lumbar degeneration and the remaining 8% to the symptoms arising as a result of the specific disc prolapse incident of 17 September 2003.[118]

[62] In this report Dr Williams responded to specific questions raised by the defendant. He confirmed his opinion that there was an 8% permanent impairment resulting from the 17 September 2003 incident. He was also asked to comment on the 19 November 2003 incident but said that, despite the reference to that date in Dr McPhee's report of 17 March 2004, he was unaware of any specific incident on that date. However as Dr McPhee's report had referred to the incident of 19 November 2003 he, Dr Williams, said that he remained of the opinion that the plaintiff's significant impairment occurred on or around 17 September 2003/19 November 2003 and not before. He went further and said that, if in fact a significant event had occurred on 19 November 2003 which was contrary to his report, then it would seem most likely to him that the significant event occurred on that date rather than on 17 September 2003 the date he had attributed.[119]

[63] It is appropriate here to deal with the statement by Dr Williams in this report that he was unaware of the 19 November 2003 incident. He acknowledged[120] that he had received a letter from the defendant dated 2 February 2004[121] on the day he examined the plaintiff. That letter made specific reference to the plaintiff advising the defendant that "on 19 or 20 November 2003 he was asked to lift a tub of meat and he experienced an increase in his back pain." I accept that the doctor received that letter before examining the plaintiff on 2 February 2004. Mr Myers for the plaintiff proceeded on the perfectly reasonable basis that, having received that letter, the doctor would have read it, understood it and then proceeded to examine the plaintiff against that background.

[64] However that was not what happened and after extensive cross examination the final situation emerging was that the doctor, whilst receiving the letter could not say that he had read it before seeing the plaintiff and that he had prepared his report based on the plaintiff's version of events given to the doctor during the consultation rather than the version set out in the subject letter.[122] As unusual as that may appear, two other doctors, Dr McPhee[123] and Dr Tutt[124] gave similar evidence that they relied on what the patient tells them.

[65] This report resulted from Dr Williams being given access to the earlier GP and chiropractic notes. This report was in the form of a signed diary note of a telephone conversation between Dr Williams and the defendant's junior counsel, Mr Whiteford on 26 March 2007. Against the background of those notes Dr Williams expressed the opinion that the plaintiff's left buttock injury following the incident of 27 August 2003 was consistent with aggravation of the degeneration of L5/S1 without protrusion. He said that if the protrusion disc was not caused by the August incident then he considered the 17 September 2003 incident was the initiating event giving rise to the L5/S1 protrusion because of the severe leg pain felt by the plaintiff at the time requiring him to take time off work. He said that if the August incident initiated the protrusion the symptoms following the September incident strongly suggested it significantly worsened that protrusion. He concluded that it was unlikely that the event of 19 November 2003 had any material influence on the return of the symptoms recorded by Dr Tutt on 15 December 2003[125] because:-**

(a) The plaintiff took no time off work following it;

(b) There was no medical note of severe low back pain or of leg pain at that time;

(c) After 17 September 2003 the pain seemed to be slowly resolving which is what happens in about 80% of patients with a disc protrusion. In some 20% of patients, the pain spontaneously recurred at a later date without a significant precipitating event. This is what happened in this case. It is unlikely the events of 19/11/2003 were a precipitating event because of the absence of significant pain or inability to work at that time.[126]

[66] The plaintiff's witness Dr Curtis provided five reports.[127]

[67] Dr Curtis saw the plaintiff after his surgery on 15 April 2004 and addressed all three incidents of August, September and November 2003. He acknowledged the plaintiff had a past history of intermittent episodes of low back pain and some degenerative change in the lumbo-sacral and E4/5 discs with a disc protrusion at the lumbo-sacral level. He concluded that the plaintiff had a 25 percent impairment of the whole person by reference to the Guide to the Evaluation of Permanent Impairment of the American Medical Association 5th edition, table 15-3, Category 5. He attributed 10 percent to the plaintiff's pre-existing condition and the balance he attributed to the incident of 19 November 2003 on which date he said the plaintiff lifted a significantly heavy weight and experienced an immediate recurrence of low back pain and the onset of left sciatica.

[68] Dr Curtis provided this report against the background of a report from Dr McPhee of 7 October 2005 who expressed the opinion that the disc protrusion was present on 19 September 2003 because of complaints of "sciatica" to his GP.[128] However Dr Curtis referred to Dr Mann's notes of her 19 September 2003 consultation with the plaintiff and considered that the absence of leg pain below the knee and its rapid improvement made a diagnosis of acute disc protrusion unlikely at that stage. He said he remained of the same opinion that the plaintiff suffered the significant injury on 19 November 2003.

[69] This report was in the form of a signed diary note of a conference between Dr Curtis and the defendant's counsel Mr Whiteford[129] against a fuller picture of the previous back and leg pain of the plaintiff not previously given to him he said:**

(a) If the plaintiff had leg pain several times before November 2003, the disc was far more vulnerable as at 19 November 2003 than he had previously thought;

(b) If any significant injury had been done to the disc on 19 November 2003 he would not have expected the type of clinical presentation recorded in the notes of Dr Mann on 25 November 2003 but rather would have expected complaint of continuing if not increasing back pain and leg pain, not settling pain;

(c) If a significant injury had been done to the disc on 19 November 2003 then, in light of the frequency of the plaintiff's attendances on his GP following the September 2003 injury, it would surprise him that no treatment was sought between 19 November 2003 and 26 November 2003;

(d) If the plaintiff did not mention any injury on 19 November 2003 to his GP on 25 November 2003 and if, as recorded in the GP's note of 25 November 2003, such symptoms as he then had were settling, it is more probable than not that the injury of 19 November were part only of a progression of degenerative disease rather than the event finally causing the disc prolapse;

(e) It is likely that the protrusion occurred at some stage within a few months prior to the laminectomy on 15 April 2004. If what the plaintiff is recorded as telling his GP on 25 November 2003 was correct, then the event of 19 November 2003, while it might have put a nail in the coffin, was not the event that caused the disc protrusion;

(f) If it is the case that there was a flare of pain when the plaintiff lifted the tub on 19 November, this did contribute to the progression of the disc disease, but it was impossible to say how significant it was. It is certainly true that, as time goes by, progressively less trauma is required to cause a protrusion in a degenerating disc. Ultimately, even a trivial force can do it.

[70] Dr Curtis concluded that since seeing the plaintiff on 21 September 2004 his condition remained largely unchanged. He said that, after a careful review of the plaintiff's history and contemporaneous notes from the plaintiff's GP's practice, the Ipswich Road Medical Centre, he was of the opinion that:-**

(a) The plaintiff had a long-standing, intermittent episodes of low back pain of several years duration which had been successfully managed conservatively;

(b) The incident of 27 August 2003 caused further aggravation of this previous low back disorder and may have contributed to further progression of degenerative disc disease;

(d) The lifting incident at work on either 19 or 24 November 2003 did cause significant progression of degenerative disc disease, which later led to subsequent disc protrusion and sequestration.

He said that having regard to Dr Mann's clinical record of 16 December 2003[130] and in the absence of any other injury or incident, he would now say that "the event that caused the disc protrusion probably was the small flare of pain referred to by Dr Mann in her 25 November 2003 notes as "small flare at work yesterday" having occurred at work yesterday".

[71] This report is in the form of another signed diary note of a conference between Dr Curtis and the defendant's counsel Mr Whiteford. He revisited his opinion of 9 May 2008 and said that, having considered the pain experienced by the plaintiff after the 17 September 2003 incident, and the fact that the plaintiff was thereafter off work from 18 September until 26 September, this was consistent with discongenic pain caused by disc bulging. He went on to say that the plaintiff's pain after the November 2003 incident contained in his written statement of 4 December 2003, was not consistent with an acute disc protrusion occurring at that time. He said the symptoms recorded by Dr Mann on 25 November 2003[131] were not consistent with an acute disc protrusion occurring on either 19 or 24 November 2003.**

However having expressed that opinion he went on then to say that, as against the above factors, the history recorded in the GP's notes of 15 and 16 December 2003[132] were consistent with an acute disc protrusion occurring on 24 November 2003.

[72] Dr McPhee provided three reports.[133]

[73] For this report Dr McPhee examined the plaintiff on 16 March 2004 principally to provide the defendant with a second opinion in relation to Dr William's advice of 2 February 2004[134] that the plaintiff should undergo the surgery he eventually did on 15 April 2004. Of the three incidents of 27 August, 17 September and 19 November 2003, Dr McPhee regarded the last as the most significant.[135] He regarded the first and second incidents as representing aggravation of the plaintiff's pre-existing degenerative condition but with the November incident to his mind being clearly more significant. He thought the extrusion of the disc material (prolapse) occurred on this occasion.[136] He concluded that the prolapse of the lumbo-sacral disc with radicular compression was the result of the injury of 19 November 2003 rather than 17 September 2003.[137]

[74] By the time of this report Dr McPhee had seen the reports of Doctors Curtis[138] and Williams[139] which he said did not refer to the incident of 19 November 2003. That is correct in relation to Dr Williams' report, but Dr Curtis' report of 21 September 2004[140] clearly refers to that incident. He concluded that it was reasonable for Doctors Curtis and Williams to conclude that the injury of 27 August 2003 was the significant injury in the causation of the plaintiff's impairment. Unless there is another report of Dr Curtis not in evidence, it is not correct that Dr Curtis, in the only one of his reports (21 September 2004) available at the date of this report, ever concluded that the 27 August 2003 injury was a significant cause of the plaintiff's impairment. On the contrary he concluded that of the 10% permanent impairment attributed to work activities related to the 19 November 2003 incident.[141]

[75] Dr McPhee noted the contemporary notes of Dr Mann of 25 November 2003,[142] when the plaintiff presented with ongoing back pain, made no mention of any injury of 19 November 2003 and indicated that the plaintiff first presented on 19 September 2003 with back ache and pain extending down his left leg. He went on to say that, as the plaintiff had been subsequently diagnosed as having a disc protrusion for which he underwent surgery, it was reasonable to conclude that the left leg pain reported on 19 September 2003 was consistent with sciatica. As sciatica is the usual presentation of a disc protrusion, he said it was reasonable to conclude that the disc protrusion was present on 19 September 2003.**

**[76] He concluded that, on the basis of the contemporaneous GP medical records, he would have to conclude that, on the balance of probabilities, when the plaintiff presented to Dr Mann on 19 September 2003 with low back pain and left sciatica, he probably had the disc protrusion for which he subsequently underwent surgery. On that basis he said the initial injury of 22 August 2003 assumed primacy and he would have to conclude that the contemporary evidence that the plaintiff suffered a significant injury on 19 November 2003 was lacking.

Dr McPhee's Report (Diary Note of Conference) - 21 May 2008

[77] This again is a report in the form of a diary note signed by Dr McPhee. Against the history of the plaintiff's back condition and treatment set out in this report, he concluded that the history was not characteristic of an acute disc protrusion occurring on 19 November 2003, and it was improbable that it occurred on that date.[143] His reasons for that opinion were:-**

(a) the evidence suggested the protrusion occurred before then given the plaintiff's complaint of left leg pain extending to the knee dating back to 24 May 2002 noting that on 19 September 2003 and 28 October 2003, the straight leg raise, a classic sign of Nerve Root Irritation, was 75 percent. The absence of any traumatic incident on or shortly prior to 24 May 2002 did not exclude a disc protrusion occurring at about that time because only about 50 percent of patients associated the onset of symptoms from a disc protrusion with an episode of trauma;

(b) Normally a traumatic disc protrusion is accompanied almost immediately by very severe back pain, and then by leg pain felt anywhere between immediately and one day after the protrusion occurring. This pain was normally sufficient to require immediate medical attention and time off work. The plaintiff did not seek medical attention for six days and continued to work for about a month after the 19 November 2003 incident.

**[78] Dr McPhee addressed the reports of Dr Curtis of 25 January 2006 and 9 May 2008 but he said nothing in those reports changed his mind as to the improbability of the acute protrusion occurring on 19 November 2003. He concluded that even without an incident on either 19 or 24 November 2003, the plaintiff was on the cusp of experiencing similar symptoms and if he had seen the plaintiff in November 2003 he would have recommended that he seek a lighter job than his job as a butcher because the stresses and strains of that job were likely to cause the plaintiff significant back trouble in any event.

[79] Dr Weidmann prepared three reports.[144]

Dr Weidmann's Report 25 October 2004[145]

[80] Dr Weidmann referred to the three incidents of August, September and November 2003 in his report and said that the plaintiff continued to complain of a constant pain across his lower back with some radiation down the left leg. He recorded the history of the plaintiff experiencing an episode of low back pain in 2000 when picking something off the floor, when he was off work for one week and made a good recovery. He recorded also the 2001 episode of low back pain with no sciatica. Dr Weidmann confirmed that the plaintiff had suffered minor back injuries in the past and was symptom free until the first incident in August 2003. He said that the reduced signal of the 5/S1 disc on MRI revealed a pre-existing degenerative condition and said that it was likely that the events of the plaintiff's work, particularly that of 19 November 2003, were significant factors resulting in the herniation of his lumber disc. He said that plaintiff had a 10 percent impairment as a result of his work related injury with the remainder due to pre-existing and ongoing degenerative changes.

[81] This is a signed diary note of a telephone conversation between Dr Weidmann and Mr Whiteford. Against a more detailed background of the plaintiff's medical and chiropractic history he said the cause of the plaintiff's low back and leg pain pre-dating 19 November 2003 was a bulging/protruding lumber disc and he dated the onset of the disc bulge/protrusion to the first reporting of left leg pain about 19 September 2003.[146] He altered his opinion of 25 October 2004 where he said that "the events at work particularly that of 19/11/2003 were a significant factor resulting in the herniation of his lumber disc". He said he remained on the view that each of the events of 27 August 2003, 17 September 2003 and 19 November 2003 contributed to the condition of the lumbar disc and he apportioned the responsibility of each of those events as to 30 percent for the August event, 60 percent for the September event, and 10 percent for the November event.[147]

[82] This is a further diary note of a conference in which Dr Weidmann considered the report of Dr Curtis of 9 May 2008.[148] In that report Dr Curtis had relied upon the clinical notes of Dr Mann of 25 November 2003 and 16 December 2003[149] to conclude that the event causing the disc protrusion was probably the small flare of pain referred to in the 25 November 2003 note. Despite that opinion of Dr Curtis, Dr Weidmann did not change his opinion that the disc protrusion was present prior to November 2003 and that he would not apportion to the November incident any more than 10% responsibility for the production of the protrusion found by Dr Williams at surgery. He said that even if the November 2003 incident had not occurred, as at that date the plaintiff was within a few months of experiencing the same or similar symptoms either from work or some other activity in daily life which could be as trivial as sneezing.

[83] This report again was a signed conference note between Dr Tutt and Mr Whiteford. Dr Tutt referred to his practice notes[150] and said that the symptoms noted by Dr Mann on 26 September and 28 October 2003 were consistent with resolving symptoms of a disc prolapse. He said that if the plaintiff had suffered a significant injury to the L5/S1 disc on 19 November 2003, he would have expected the plaintiff to complain of leg pain on 25 November 2003. He acknowledged that he had seen instances of leg pain developing over subsequent days or weeks after a disc injury but in his view the absence of a complaint of significant leg pain on 25 November 2003 meant to him that it was more probable than not that no significant disc injury occurred on 19 November 2003 although he could not exclude that.

[84] Dr Tutt thought that the plaintiff's symptoms which developed in December 2003 and beyond originated from evolving disc injury sustained in the three incidents of August, September and November 2003 as a result of a sequence of strain injuries rather than a single event. Dr Tutt referred to his note of 15 December 2003[151] "left upper thigh sciatic pain" and said that the fact that the pain was not noted below the knee did not exclude the presence of a disc prolapse compressing the sciatic nerve root.

[85] Having regard to all the medical evidence including the chiropractic reports I am satisfied that it points overwhelmingly to the prolapsed disc injury having occurred on 17 September 2003 or some earlier date but not on 19 November 2003. It is true that there are some entries and some earlier statements by the doctors which lend support to the relevant date being 19 November 2003 but the final view of the doctors are the views I accept.

[86] Even Dr Curtis for the plaintiff concluded[152] that the plaintiff being able to work from 19 or 24 November until 15 December 2003 was not consistent with the acute disc protrusion occurring on 19 or 24 November 2003. In the same report he pointed to the GP's notes[153] and to the entries of 15 December and 16 December 2003 and said they were consistent with the acute disc protrusion occurring on 24 November 2003. However when one reads that report that reservation in his opinion does not to my mind upset the balance of the remaining medical evidence which tells against the injury occurring on 19 November 2003 or 24 November 2003. It is a lone beacon in a sea of otherwise confident medical opinions to the contrary.

[87] Mrs Parry gave evidence as to the change in the disposition of the plaintiff after he told her that something had happened at work. She said he told her that was in November 2003.[154] She said thereafter he was depressed and in pain to the extent that if they went on a long drive they would have to stop regularly to allow him to stretch his legs. She said that none of that type of thing happened prior to November 2003. In cross-examination she agreed that she had given a statement to the plaintiff's solicitors in February 2006 which was the first time she had been asked to recall the difference in the plaintiff's condition.[155] She dated that change in his manner to November because she said she had been to the doctor with him in September 2003 and that was the only time she had ever accompanied him to the doctor.[156] Mrs Parry presented as a witness of truth and I am sure she was endeavouring to do the best she could to recall. The fact that she identified the change in her husband in November 2003 following upon an incident at work is not at odds with my findings on the medical evidence that certainly an incident occurred on or about 19 November 2003. The question is whether it was the acute prolapsed disc. The evidence of Mrs Parry does not alter my findings that the incident resulting in the prolapsed disc did not occur on 19 November 2003.

[88] It is appropriate here to deal with the estoppel argument. The plaintiff in his reply of 22 May 2007 alleged an estoppel against the defendant. The pleading refers to the three notices of assessment of 17 March 2005[157] dealing respectively with the injuries suffered on 27 August 2003, 17 September 2003 and 19 November 2003. The pleading then goes on to assert that, had the plaintiff been informed by the defendant that it would assert that the injury giving rise to this claim was occasioned on either 27 August 2003 or 17 September 2003, he would never have accepted the defendant's offers in respect of those incidents. The two offers of $1,170 each for the August and September injuries were accepted by the plaintiff by his Responses to Notice of Assessment dated 19 April 2005.[158] The third offer in relation to the 19 November 2003 incident was rejected.

[89] Of course once the plaintiff accepted the offers in relation to the August and September 2003 incidents he was thereafter precluded from seeking or suing for damages in respect of any injuries to his back arising out of the events of those days.[159]

[90] The effect of that is that the plaintiff, to be successful in this claim, must establish that any injury for which he is to be compensated occurred on 19 November 2003. Section 239 of the Workers' Compensation and Rehabilitation Act (WCRA) aside, the plaintiff would now be statute barred from suing in relation to the August and September 2003 incidents.

[91] The estoppel pleading does not allege what is customary in such a pleading, namely a representation, reliance and change of position to the detriment in reliance upon the representation. Neither did the plaintiff's counsel in his address or written submissions seek to flesh out the plea. As I read the plea, it somehow seeks to rely upon a representation constituted by the relevant Notices of Assessment that the defendant accepted that the relevant injury occurred on 19 November 2003 and would not in any later common law action for damages assert to the contrary that the relevant injury occurred on 27 August or 17 September 2003. It is in the nature of a promissory estoppel.

[92] In Waltons Stores (Interstate) Ltd v Maher[160] Atkinson CJ and Wilson J discussed equitable estoppel and particularly the doctrine of promissory estoppel and said:**

"(20) This brings us to the doctrine of promissory estoppel ... promissory estoppel certainly extends to representations (or promises) as to future conduct: Legione at P.432. So far the doctrine has been mainly confined to precluding departure from a representation by a person in a pre-existing contractual relationship that he will not enforce his contractual rights, whether they be pre-existing or rights to be acquired as a result of the representation. ... In principle there is certainly no reason why the doctrine should not apply so as to preclude departure by a person from a representation that he will not enforce a non-contractual right.

(32) Because equitable estoppel has its basis in unconscionable conduct, rather than the making good of representations, the objection, grounded in Maddison v Alderson, that promissory estoppel outflanks the doctrine of part performance loses much of its sting. Equitable estoppel is not a doctrine associated with part performance whose principal purpose is to overcome non-compliance with the formal requirements for the making of contracts. Equitable estoppel, though it may lead to the plaintiff acquiring an estate or interest in land, depends on considerations of a different kind from those on which part performance depends. Holding the representor to his representation is merely one way of doing justice between the parties.

(34) The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play. Something more would be required. Humphries Estate suggests that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party."

**[93] I am not satisfied that, without something more, the Notices of Assessment issued by the defendant in relation to the August and September 2003 incidents amounted in any way to some representation or promise on the part of the defendant that at some time in the future if a common law action was commenced, it would assert only that the injury the subject of that action occurred on 19 November 2003 and not 27 August 2003 or 17 September 2003. For instance if, subsequent to the receipt of the Notices of Assessment but before acceptance, the defendant had through unequivocal conduct on that issue, led the plaintiff to believe that it would so act and then that, coupled with the Notices and their acceptances may have made it unconscionable for the defendant to be allowed to act inconsistently with that foreshadowed conduct. There is no evidence of anything of that type. The Notices of Assessment were issued as a part of the compensation process under the WRAC, a regime entirely independent of a common law action for damages. They are disparate regimes and there is nothing in the evidence to connect them so as to support a representational promise of the type urged by the plaintiff.

[94] Even if the plaintiff could establish the representation/promise pleaded, I am not satisfied that the plaintiff could establish reliance. At the time of acceptance of the August and September 2003 related offers the plaintiff had obtained detailed legal advice in relation to the three notices of assessment of 17 March 2005, in the form of a letter dated 12 April 2005 from his solicitors.[161] Those solicitors analysed the three assessments and recommended that he accept two (August and September 2003) but to pursue a claim in relation to the 19 November 2003 incident.

[95] Further it is clear from the plaintiff's cross-examination[162] that his reliance upon the November date can be traced back to a decision of the Orthopaedic Assessment Tribunal of a OPT (over a period of time) of the plaintiff.[163] That decision was notified to him by letter from Q Comp on a date unknown but before he accepted the defendant's offers in relation to the August and September 2003 injuries. That letter verified for the plaintiff that the incident occurred in November. His acceptance of the offer regarding the November incident is consistent with this and not with any reliance by him upon any representation or promise by the defendant.

[96] The plaintiff discussed his solicitor's advice with them by telephone on 26 April 2005[164] and it is clear from that footnote that he was approaching the decision of acceptance or rejection of the Notices of Assessment very carefully and told his solicitors he wanted time to think about their advice before making his decision. There is no evidence that the solicitors were aware of the abovementioned Tribunal decision when it wrote to the plaintiff on 12 April 2005[165] but the important thing is that plaintiff himself had received that decision and relied upon it in accepting the defendant's offers in relation to the August and September incidents.[166] Nowhere in the evidence is there a basis for suggesting that the plaintiff relied upon the representation asserted.

[97] Had the other elements of estoppel been established, the plaintiff would still have had the difficulty of establishing the necessary detriment given my findings on liability. For the above reasons I find that no estoppel has been established.

Validity of Notices of Assessments 17/9/2003 and 19/11/2003 incidents

[98] The defendant also argued that, as a matter of law, upon an interpretation of WRAC no estoppel could arise against the defendant. Because of my above findings there is no need for me to decide that issue. Whilst not determining the issue I should say that I am not persuaded that the two cases relied upon by the defendant support that proposition. They were Clarke v Australian Asphalt (Qld) Pty Ltd[167] and Castillon v P&O Ports Ltd.[168] Both cases involved the courts seeking, in the relevant legislation, duty to support the plaintiff's argument. In Clarke the relevant legislation was WorkCover Queensland Act 1996 and Mullins J concluded that there was nothing in the Act to impose an obligation on WorkCover to identify the correct date of an earlier injury of the plaintiff. Having found that she concluded that it was inappropriate to determine the issue of estoppel by conduct because there had not been a pleading of the precise facts relied upon by the plaintiff to found the claim for estoppel. On that point, that is similar to the present case.

[99] In Castillon the date of the injury was also the issue and the plaintiff sought to rely upon s 342 of the then WorkCover Queensland Act 1996[169] which section was described by Keane JA as a statutory equivalent of the indoor management rule in Royal British Bank v Turquind[170] allowing any person dealing with an employee of WorkCover to assume that the employees were performing their duties. The question then became whether or not the employees of WorkCover owed the particular duty to WorkCover to determine whether an injury to a worker occurred on a particular date. The court could find no such duty.

[100] In my view the above cases can be distinguished from a situation where the relevant duty was identified as existing. In other words, there is no reason, in concept, why the principles of estoppel would not extend to WorkCover or a self insurer under the current Workers' Compensation and Rehabilitation Act 2003.

[101] That leads me to another issue I raised with the parties[171] shortly after Ms Dawson gave evidence that she relied upon the report of Dr Williams of 3 March 2005[172] in preparation of the three Notices of Assessment.[173] As I have said, the third notice dealing with the 19 November 2003 incident described the relevant injury as the prolapsed disc but my reading of Dr Williamson's 3 March 2005 report is that he was saying the prolapsed disc injury occurred on 17 September 2003. If that is correct, then it seems to me that it may have been arguable by the plaintiff that no relevant Notice of Assessment was ever issued in relation to the 19 November 2003 incident because the injury was wrongly described. That consequence would flow on to the notice in relation to the 17 September 2003 incident to invalidate it for the same reason, the incorrect description of the injury.

[102] Accepting that it is not for the defendant to assess the degree of permanent impairment but rather for a doctor,[174] nevertheless the defendant has a statutory obligation[175] to provide to the worker a notice of assessment in the approved form. That approved form has, inter alia, three columns headed "injury description", "degree of permanent impairment attributable to the injury" and "lump sum compensation".[176] The object of the duty upon the insurer under the Act to notify the worker of the injury and the lump sum compensation offered so as to allow the worker to determine, on a fully informed basis, whether or not to accept the offer. Consideration of that issue necessarily involves the consideration of the injury to which the compensation relates. This is particularly important given that, according to Ms. Dawson, it is not customary to give the worker or his/her legal representatives a copy of the source documents relied upon in compiling the Notice of Assessment. Consistent with that, she said in this case the 3 March 2005 report of Dr. Williams, relied upon to draft the Notices of 15 March 2003, was not given to the plaintiff or his solicitors.[177] Although this is not a final view on the issue because it is unnecessary to decide, it does seem to me arguable that, if the relevant Notice of Assessment contains a wrong description of the injury so as to mislead the worker relying upon it, it could scarcely be said that a valid notice has issued.

[103] The defendants response to the issue I raised was to say that it was not raised on the pleadings and that is correct. Understandably no application to amend the pleadings was made by the plaintiff because, given the late stage of the proceedings, it would have been quite unfair to the defendant to allow any such amendment given that it prepared on the basis of the pleading.

At a glance

Court

Decision date

Source

Judgment (289 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)