Court of Appeal (Qld)|2009-02-20|Before: McMurdo P, Fraser JA and White AJA, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Fraser JA and White AJA, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Catchwords
WORKERS’ COMPENSATION – LIABILITY TO PAY COMPENSATION –
LIABILITY OF EMPLOYER – where the appellant sustained
a lower back injury
whilst assisting another employee to lift a tub of meat in the course of his
Source
Original judgment source is linked above.
Catchwords
WORKERS’ COMPENSATION – LIABILITY TO PAY COMPENSATION –LIABILITY OF EMPLOYER – where the appellant sustaineda lower back injurywhilst assisting another employee to lift a tub of meat in the course of hisemployment – where appellanthad sustained back injuries prior to thisparticular incident – where the appellant required surgery for an acuteprolapseddisc injury approximately five months after this particular incident– whether the appellant failed to prove that there wasa risk of injury inlifting the tub of meat – whether the ‘risk of injury’referred to in s 28 of the Workplace Health and Safety Act 1995 includesa risk that is ‘trivial’ – whether the trial judge erred infinding that the respondent had not breachedits statutory duty under s 28 ofthe Workplace Health and Safety Act 1995 – whether the trial judgeerred in fact in finding that the acute prolapsed disc injury was not sustainedwhen the appellant
assisted the other employee to lift the tub of meat
WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION
– whether the trial judge erred in construing a medical
report as meaning
that the appellant’s working life had not been shortened by the incident
in question – whether the
award for general damages was inadequate
WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION
– DETERMINATION OF CLAIMS – COSTS – GENERALLY
– where
the trial was adjourned when the appellant applied for leave to file a reply
pleading estoppel – where the trial
judge concluded that the adjournment
was due to the appellant’s unreasonable delay in pleading estoppel and
ordered the appellant
to pay the respondent’s costs thrown away under s
316(4) of the Workers’ Compensation and Rehabilitation Act 2003
– where the appellant contended that his delay was in fact due to the late
disclosure of a report by the respondent –
whether the respondent should
pay the appellant’s costs thrown away by the adjournment
ESTOPPEL – GENERAL PRINCIPLES – where the appellant pleaded
that the respondent was estopped from claiming that the appellant
had sustained
the acute prolapsed disc injury prior to assisting the other employee to lift
the tub of meat – whether the trial
judge erred in finding that the
appellant had failed to prove the essential elements of the claimed
estoppel
Workers’ Compensation and Rehabilitation Act 2003 (Qld),
s 179(2)(c), s 179(3), s 185(1), s 185(3)(a), s 185(3)(b), s 185(1), s
189, s 237, s 239, s 240, s 315, s 316, s 515
Workplace Health and
Safety Act 1995 (Qld), s 22, s 26, s 27, s 28, s 37
Bourk v Power Serve Pty Ltd & Ors [2008] QSC 29,
cited
Bourk v Power Serve P/L & Anor (2008) 175 IR 310
[2008] QCA
225, cited
Calvert v Mayne Nickless Ltd (No 1) [2006] 1 Qd R 106
[2005] QCA
263, cited
Castillon v P & O Ports Limited [2006] 2 Qd R 220
[2005] QCA
406, cited
Fox v Percy (2003) 214 CLR 118
[2003] HCA 22,
cited
Hardy v St Vincent’s Hospital Toowoomba Ltd [2000] 2 Qd R
19
[1998]
QCA 86, cited
Hegarty v Queensland Ambulance Service (2007) Aust
Torts Reports 81-919
[2007] QCA
366, distinguished
Parry v Woolworths Limited [2008] QDC 231,
cited
Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001]
1 Qd R 518
[2000] QCA
18, distinguished
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
[1988] ANZ ConvR 387, cited
Judgment (272 paragraphs)
[1]
WORKERS' COMPENSATION - LIABILITY TO PAY COMPENSATION - LIABILITY OF EMPLOYER - where the appellant sustained a lower back injury whilst assisting another employee to lift a tub of meat in the course of his employment - where appellant had sustained back injuries prior to this particular incident - where the appellant required surgery for an acute prolapsed disc injury approximately five months after this particular incident - whether the appellant failed to prove that there was a risk of injury in lifting the tub of meat - whether the 'risk of injury' referred to in s 28 of the Workplace Health and Safety Act 1995 includes a risk that is 'trivial' - whether the trial judge erred in finding that the respondent had not breached its statutory duty under s 28 of the Workplace Health and Safety Act 1995 - whether the trial judge erred in fact in finding that the acute prolapsed disc injury was not sustained when the appellant assisted the other employee to lift the tub of meat
[2]
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - whether the trial judge erred in construing a medical report as meaning that the appellant's working life had not been shortened by the incident in question - whether the award for general damages was inadequate
[3]
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - COSTS - GENERALLY - where the trial was adjourned when the appellant applied for leave to file a reply pleading estoppel - where the trial judge concluded that the adjournment was due to the appellant's unreasonable delay in pleading estoppel and ordered the appellant to pay the respondent's costs thrown away under s 316(4) of the Workers' Compensation and Rehabilitation Act2003 - where the appellant contended that his delay was in fact due to the late disclosure of a report by the respondent - whether the respondent should pay the appellant's costs thrown away by the adjournment
[4]
ESTOPPEL - GENERAL PRINCIPLES - where the appellant pleaded that the respondent was estopped from claiming that the appellant had sustained the acute prolapsed disc injury prior to assisting the other employee to lift the tub of meat - whether the trial judge erred in finding that the appellant had failed to prove the essential elements of the claimed estoppel
D O J North SC, with R T Whiteford, for the respondent
[18]
[1] McMURDO P: For the reasons given by Fraser JA, the appeal should be allowed, the orders of the trial judge set aside and instead judgment given for the appellant plaintiff in the sum of $82,327.73.
[19]
[2] I agree with the orders proposed by Fraser JA.
[20]
[3] FRASER JA: The appellant, a butcher employed by the respondent, sustained a lower back injury whilst assisting another employee to lift a tub of meat in the course of his employment on 19 November 2003. After a four day trial in the District Court the trial judge dismissed the appellant's claim for damages. [1]
[21]
[4] In this appeal the appellant contended[2] that the trial judge erred in finding that the appellant had failed to prove that the respondent was negligent, in breach of contract, or in breach of the respondent's obligation under s 28 of the Workplace Health and Safety Act 1995 (Qld) to ensure the appellant's workplace health and safety.
[22]
[5] Against the possibility of appeal the trial judge assessed the quantum of the damages the appellant would have recovered had he succeeded in his claim. The trial judge assessed the appellant's claim at $120,777.93 which, after allowing for a refund, produced a notional award of $82,327.73. His Honour then halved that amount to take into account his finding that the appellant's negligence contributed to his injuries.
[23]
[6] The respondent conceded that the trial judge erred in finding that the appellant was guilty of any contributory negligence and in reducing the notional award on that account.[3]
[24]
[7] The appellant's challenge to the adequacy of the damages award[4] concerned three components of the award. The appellant challenged the notional award for pain, suffering and loss of amenities of life of $30,000, for future economic loss of $45,000, and for lost employer's contributions towards superannuation entitlements of $4,050. The appellant contended that the appropriate figures for those items were $50,000, $166,175 and $14,955.75 respectively.
[25]
[8] The appellant advanced two bases for those challenges. First, the appellant contended that the trial judge erred in finding that although the 19 November incident contributed to the appellant's acute prolapsed disc injury it was not the cause of that injury.[5] In that respect the appellant contended that the judge erred in fact,[6] in failing to permit the appellant to call as witnesses three doctors who had examined the appellant,[7] and in rejecting the appellant's contention that the respondent was estopped from denying that the appellant suffered his prolapsed disc injury in the 19 November 2003 incident.[8]
[26]
[9] Secondly, the appellant contended that the trial judge further erred by misconstruing one of the expert medical reports in rejecting his claim that as a result of the
[27]
19 November 2003 incident he had lost the capacity to earn income for five years.[9]
[28]
[10] The appellant usually worked as a butcher in the respondent's boning room but when he was injured on 19 or 20 November 2003[10] he was working overtime in the "value added" room, a room in the nature of an abattoir.
[29]
[11] There was no dispute in the appeal as to the circumstances in which the appellant was injured.[11] The appellant's supervisor, Mr Auld, asked the appellant to give him a hand to lift up a tub of meat. The tub was an oval shape with a depth of 340mm, an overall width of 600mm and an overall length of 700mm. The photographs of the same kind of tub in a brochure admitted as an exhibit at trial and identified by Mr Auld show that it had two handles, one at each end. The handles were evidently designed for lifting by two people each using one hand. The trial judge accepted Mr Auld's evidence that the tub probably had about 40kg of meat in it so that the weight including the tub was about 44kg, in preference to the appellant's evidence that the weight was between about 40 and 60kg. The tub was either sitting on a shelf underneath a bench or it was on rollers or legs. The handles of the tub were about 500mm above the ground, which was about knee high for the appellant and Mr Auld.[12] The appellant and Mr Auld together lifted the tub from a position where the top of the tub was at about knee level to a short distance above that height and tipped the meat in the tub into a bin. Each of the appellant and Mr Auld used one hand to grasp the handle of the tub (the appellant used his left hand) initially to lift it, and each then used two hands to achieve the tip.[13] (Although the evidence is imprecise, it seems that each placed his free hand under the tub to assist in tipping it.)
[30]
[12] "At the beginning of the lift"[14], "pretty close to getting the tub off the ground" [meaning the top of the structure upon which the tub was sitting][15], the appellant felt a sharp burning pain in his back and he said words to the effect, "gee, that got me in the back".[16]
[31]
[13] As the trial judge found,[17] no evidence was adduced from the appellant as to his posture or the position of his feet relative to the tub. The appellant did give evidence that he was pretty sure that he bent his knees to go down to lift the tub but that was the extent of the evidence on the topic. The only other evidence on the question was that of Mr Auld:
[32]
"Do you recall how each of you stood? Did you stand one on each side of it? ... yeah, one on each side, yeah.
[33]
So that you were lifting close to your body? ... yep.
[34]
Is your recollection that Mr Parry had the handle of the white tub in about in line with his knee, he wasn't reaching forward, he wasn't reaching back, reaching directly ...? I wouldn't think so. Look, honestly I couldn't remember. I didn't take a lot of notice but we all - you know, we all keep it as close to our body - we have had training in that sort of thing so ..."
[35]
[14] As to the manner of lifting, in re-examination Mr Auld said that "we always grabbed two hands and I have always - I have lifted that many of them up. You know, I couldn't count how many I have lifted up through the day and I know that everyone sort of uses two hands. It's just a natural thing. It's just a natural thing the way we have been shown, to, you know."
[36]
[15] An expert report by Mr O'Sullivan, an ergonomist and safety consultant with qualifications in physiotherapy focussing on ergonomics and occupational health, and in occupational health and safety, was tendered at the trial. Mr O'Sullivan was not required for cross-examination.
[37]
[16] The trial judge examined the O'Sullivan report in detail and declined to accept any of the conclusions in it because the assumptions upon which it was founded were not established by the evidence. The trial judge concluded that the appellant's failure to adduce evidence to support those assumptions rendered the report almost meaningless on the question whether the respondent breached any relevant duty owed to the appellant.[18]
[38]
[17] The trial judge found that the appellant's workplace accident on 19 November 2003 contributed to his back injury: whilst it was not the cause of the appellant's most serious injury, his acute prolapsed disc injury, it was the "straw that broke the camel's back leading to the defendant's surgery on 15 April 2004".[19] However, the trial judge rejected the appellant's claim that the respondent was liable to the appellant in damages for want of proof of any negligence or breach of statutory duty.
[39]
[18] For reasons to which I now turn I consider that the trial judge erred in concluding that the appellant failed to prove that the respondent breached its statutory duty to the appellant under s 28 of the Act.
[40]
[19] Subsection 28(1) of the Workplace Health and Safety Act 1995 (Qld) (as at November 2003) provided that an employer had an obligation "to ensure the workplace health and safety of each of the employer's workers in the conduct of the employer's business or undertaking." Subsection 22(1) provided that workplace health and safety was ensured "when persons are free from - ... (b) risk of ... injury ... created by any ... workplace activities ...". Section 26 provided for the manner in which workplace health and safety obligations might be discharged where there was a relevant "advisory standard". The relevant provision was s 26(3):
[41]
"(3) If an advisory standard ... states a way of managing exposure to a risk, a person discharges the person's workplace health and safety obligation only by -
[42]
(a) adopting and following a stated way that manages exposure to the risk; or
[43]
(b) adopting and following another way that gives the same level of protection against the risk."
[44]
[20] Defences for proceedings against a person for contravention of obligations imposed on that person under various provisions of the Act, including the workplace health and safety obligation imposed by s 28, were provided in s 37. So far as is here relevant, it provided:
[45]
"(1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 [which includes s 28] or 3 for the person to prove -
[46]
(b) if an advisory standard ... has been made stating a way or ways to manage exposure to a risk -
[47]
(i) that the person adopted and followed a stated way to prevent the contravention; or
[48]
(ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; ..."
[49]
[21] The respondent contended in the appeal that the appellant had not established a prima facie breach of its obligation in s 28(1) and, alternatively, that the respondent had discharged that obligation under s 26(3)(b) or it had established a defence under s 37(1)(b)(ii). (Those contentions accepted that there was an advisory standard in force at the relevant time: the O'Sullivan report referred to and accurately summarised parts of that subordinate legislation, the "Manual Tasks Advisory Standard 2000".[20] I refer to that later in these reasons.)
[50]
[22] It is necessary then to consider the principles to be applied to a claim that an employer has breached the statutory duty imposed by s 28.
[51]
[23] This Court held in Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2)[21] that s 28 provided a civil cause of action for an employee injured at work. The Court's judgment observed that the intention of the Act was to
[52]
"impose civil liability on employers who have failed to ensure the health and safety of their employees and thereby caused injury to those employees, unless the employer demonstrates that it has discharged its obligations under s 26 or s 27 or that it has established a defence under s 37 of the Act":
[53]
"... this adds to the common law of negligence by placing the onus on employers to establish these matters under the Act, once the employee has proved the employer breached the obligation to ensure the workplace health and safety of the employee, thereby causing injury to the employee."[22]
[54]
[24] The respondent sought support for its position in the statement in Schiliro[23] that "the task was straightforward, ordinary and physically undemanding." The respondent argued that the same was true of the lifting task undertaken by the appellant. The quoted statement was referable only to the facts of that case. An employee at a childcare centre was injured as a result of shovelling sand into a wheelbarrow and moving the wheelbarrow some distance before emptying it. Mr O'Sullivan gave evidence in Schiliro that he estimated that the lifting force whilst shovelling was
[55]
8.5kg and that the force required to lift the wheelbarrow filled with damp sand was 14kg.[24] Those weights were much less than the 44kg shared between two workers in this case.
[56]
[25] The case is distinguishable also because it preceded the introduction of the Manual Tasks Advisory Standard 2000. The relevant document in Schiliro was the Code of Practice for Manual Handling 1991. There was evidence that the weights lifted by the plaintiff in Schiliro were below weight limits recommended in that document.[25] The Manual Tasks Advisory Standard 2000 contained no recommended weight limits.
[57]
[26] In Schiliro the Court concluded that the weights involved in that plaintiff's task did not exceed the recommendations in the standard then applicable, there appeared to be no particular reason to identify a risk, and the risk assessment process in accordance with that standard suggested the absence of any risk for which the standard would have called for any control. [26] The Court nevertheless found that the employer had contravened the obligation in s 28(1) by failing to "ensure the workplace safety" of the employee at work.[27] The employer escaped liability only because it was held that the employer had satisfied the onus on it of establishing a defence under each of s 26(3)(b) and s 37(1)(b)(ii).[28]
[58]
[27] It was in the context of the finding that, although there was a contravention of s 28(1) the employer had established a defence under s 26(3)(b) and s 37(1)(b)(ii), that the Court observed in paragraph [72] that:
[59]
"To find otherwise would be to create an offence for failing to formally identify and manage trivial risks such as when an employee bends down to pick up a pen or reaches to take a book from the shelf and the employee suffers a consequential injury; it is notorious that sometimes serious back injuries are possible in such circumstances."
[60]
[28] The analysis in Schiliro was consistent with this Court's construction of a predecessor provision of s 28, s 9(1) of the Workplace Health and Safety Act 1989 (Qld). It relevantly provided that "an employer who fails to ensure the health and safety at work of all the employer's employees, except where it is not practicable for the employer to do so, commits an offence against this Act." In Hardy v St Vincent's Hospital Toowoomba Ltd[29] it was held that the word "ensure" in that provision meant "make certain" or "make sure" and that the section did not impose any test of reasonable foreseeability.
[61]
[29] In Bourk v Power Serve Pty Ltd, [30] Chesterman J referred to Schiliro and said:
[62]
"[69] The statutory obligation is to ensure the employee's safety at work. If any injury is caused to an employee at work which could by some means have been prevented by the employer, s 28 will have been contravened and the employer will be liable in damages for the injury, unless it can make good one of the defences provided by s 27 or s 37 of the Act. See Hardy v St. Vincent's Hospital Toowoomba Ltd[2000] 2 Qd R 19 at 21-22. The standard is higher than that imposed by the common law."[31]
[63]
[30] An appeal concerning causation, which is not in issue here, was allowed from that decision in Bourk v Power Serve Pty Ltd.[32] In that case Muir JA described the statutory scheme in terms which are consistent with the decisions to which I have so far referred:
[64]
"[32] Under s 28(1) the employer's duty to ensure the employee's safety is absolute. It is not expressed as a duty to supply equipment, advice, training, conditions, or assistance of a particular type or at all. Subject to the operation of s 26, s 27 and s 37, if an employee such as the appellant is injured through the failure of a piece of necessary safety equipment provided to him by his employer there is a breach of the obligation imposed by s 28(1). The employer has failed to ensure the safety of the employee. Causation is established. If the employee's safety had been ensured, the employee would not have been so injured."
[65]
[31] In Calvert v Mayne Nickless Ltd[33] Jerrard JA, with whose reasons McPherson JA and Atkinson J agreed, held that Schiliro was authority for the proposition that any concept of foreseeability of risk of injury was not implied in the obligation under
[66]
[32] The respondent cites Calvert for the further proposition that the appellant could not succeed under s 28 because he failed to prove "that he was exposed to more than a trivial risk of injury so as to demonstrate a prima facie breach of s 28". The respondent's counsel referred to paragraph [87] of Jerrard JA's judgment:
[67]
"[87] I consider that once Ms Calvert proved that she was not free from a trivial risk of injury created by her workplace or work activities, as she did, she established the prima facie conclusion that Mayne Nickless had breached its obligation to ensure her workplace health and safety. The onus then lay on Mayne Nickless to establish either of the matters specified in s 26(3), and that it had accordingly discharged its workplace health and safety obligation, or to establish the defence provided by s 37(1)(b) of that Act. ..."
[68]
[33] That dictum does not support the respondent's argument that the risk the appellant was required to prove to engage s 28 was a non-trivial one. The respondent's submission apparently assumed that Jerrard JA intended to refer to a "non-trivial" risk rather than a "trivial risk".
[69]
[34] In paragraph [83] Jerrard JA said that the conclusion in Schiliro "that s 28 of the 1995 Act did not create an offence, or provide a right of civil action, when an employer failed to formally identify and manage, or assess, trivial risks" could be rephrased by saying that "an employer is not obliged to ensure the employer's workers are not exposed to trivial risks, or by saying that the employer is obliged to ensure that the employer's workers are not exposed to risks that are more than trivial"; and that "The view of s 28 in Schiliro is consistent with the obligation actually imposed by it approximating a non-delegable duty of care in respect of other than trivial risks to health and safety."
[70]
[35] However Jerrard JA was not there concerned with the question raised here by the respondent, which is whether the onus shifts to the employer to establish compliance with s 27 or a defence under s 37 once the employee has proved that a workplace activity exposed the employee to a risk of injury, even if the risk is characterised as a trivial one. Furthermore, Jerrard JA introduced that part of the judgment by observing that it was strictly unnecessary to rule on the argument there under discussion.
[71]
[36] My own view is that the judgment in Schiliro made it clear that though the workplace activities there in question exposed the employee only to a trivial risk of injury, a prima facie contravention was established because of the absolute nature of the obligation in s 28(1). The significance of the triviality of the risk lay in the relative ease with which the employer could rebut the prima facie case of liability established by proof of an apparent contravention of s 28.
[72]
[37] The respondent cited Hegarty v Queensland Ambulance Service[34] for the proposition that the appellant could not succeed under s 28 because he had failed to prove a breach of duty. However Hegarty turned upon its own facts. Those facts bear no resemblance to the facts of this case.
[73]
[38] The respondent argued that breach of the obligation in s 28(1) could not be inferred from the fact that the appellant had been injured at the workplace in the course of the conduct of the respondent's business because the appellant, as a result of earlier injuries, was peculiarly susceptible to a back injury of the kind he sustained. The factual component of the submission is supported by the medical evidence. For example, Dr McPhee concluded, in a report contained in a diary note of 21 May 2008, that before the 19 November 2003 incident "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."
[74]
[39] The respondent's counsel pointed out that the appellant had not pleaded reliance upon the fragile state of his back, but in my view it was the respondent which, by this submission, sought to rely upon the fragility of the appellant's back. The appellant's peculiar vulnerability to injury might have been very material in deciding whether the appellant's injury was reasonably foreseeable, but that is not a relevant test under s 28. That the appellant injured his back because of his participation in the workplace activity of lifting the tub of meat was one of the facts that supported the inference that the workplace activity created a risk of such injury.
[75]
[40] Furthermore, despite the legitimate criticism made by the trial judge that the appellant did not prove the assumptions upon which Mr O'Sullivan's report was based, in my respectful opinion that report nevertheless did lend support to the appellant's proposition that the respondent failed to ensure his workplace health and safety in the lifting operation in which he was injured.
[76]
[41] In the report Mr O'Sullivan first set out a description of the incident which had been reported to him by the appellant. As the trial judge found, many aspects of that description were not proved in evidence. But not every aspect of the description of the incident attributed to the appellant by Mr O'Sullivan formed part of the assumptions upon which his opinion concerning risk was based.
[77]
[42] The critical assumptions were that (1) the weight lifted by each lifter should be nominally set at 34kg, reflecting an assumption that the total weight lifted was about 68kg; (2) the distance between the lifting hand and the front of the lifter's ankles could be estimated at about 20cm; (3) the distance between the front of the ankles and the spine was 15cm, so that the horizontal distance between the centre of gravity of the weight bearing downwards upon the appellant's lifting hand was a horizontal distance of 35cm from the appellant's spine; and (4) there was dynamic stress in the lift (which Mr O'Sullivan said would add 30 - 60 per cent of the static estimate so that a nominal value of 45 per cent could be applied here).
[78]
[43] After referring to those assumptions, Mr O'Sullivan added that "a weight of 22.5 kg, as given in the defence, would still pose a risk of injury, based on Figure 1 in Attachment 2, due to dynamic stress and lifting with one hand." That assumption may be taken to have replaced assumption (1) but, contrary to a submission made for the appellant, I construe the report as meaning that assumptions (2) - (4) remained relevant to Mr O'Sullivan's opinion that a risk of injury based on Figure 1 in Attachment 2 was posed by the lift.
[79]
[44] Contrary to the trial judge's conclusion I consider that assumption (4) was proved. The action of lifting the stationary tub necessarily involved dynamic stress and there was no challenge to Mr O'Sullivan's estimate of that stress.
[80]
[45] There was, however, no evidence verifying assumptions (2) and (3). In short, what was missing was evidence that the horizontal distance between the handle of the tub and the appellant's spine was 35cm.
[81]
[46] It does not follow, however, that the appellant failed to prove that there was a risk of injury involved in the lift. The appellant's failure to prove all of the assumptions upon which the report was based justified the conclusion that the appellant failed to establish that there was a reasonably foreseeable risk of injury arising from the precise manner in which the appellant participated in the lift (because the evidence was so vague in that respect) but that is not the test for a prima facie case of breach of s 28(1).
[82]
[47] Mr O'Sullivan's report made clear his opinion that the one handed lifting operation in which the appellant was engaged involved a risk of injury, at least unless the appellant held the tub's handle considerably closer to his spine than the 35 cm figure assumed in the report. Furthermore, the "counter measures" that Mr O'Sullivan suggested were appropriate reflected his opinion that the lifting by two men of this 44 kg tub of meat necessarily carried with it a risk of injury. He opined that it was appropriate to use much smaller tubs (he nominated a 30 litre capacity tub as being appropriate), or that there should be a requirement to empty the tubs when half full, or a requirement to scoop some excess content into another tub before lifting, coupled with a prohibition on the lifting of a tub if it was full of meat.
[83]
[48] Further, that the lifting task in which the appellant was engaged carried an element of risk of injury to his back is apparent from a different section of the report in which Mr O'Sullivan referred to research relating to occupational low back pain. In that section Mr O'Sullivan referred to the Manual Tasks Advisory Standard 2000 and to the recognition in that standard, and in academic work, of work related risk factors for low back pain. Mr O'Sullivan expressed the opinion that the action of lifting was recognised as giving rise to a risk of injury "though the actual risk of injury then appears to depend on such things as the weight handled, the shape, size and nature of the load, the predictability and smoothness of effort, the frequency and/or duration of activity as well as other factors".
[84]
[49] A table which Mr O'Sullivan extracted from an academic work analysed a large number of back injuries and attributed 49 per cent of low back injuries studied by the author to acts of lifting. And, as Mr O'Sullivan indicated, that the task in which the appellant was engaged involved a risk of injury was suggested also by the Manual Tasks Advisory Standard 2000 itself. Under the heading, "What is this standard about?", it provided that it "states ways to prevent or minimise exposure to risk factors that can contribute to or aggravate work related musculo-skeletal disorders." It specifically defined the topic with which it dealt, "manual tasks", as including activities that required a person to "move (lift, lower, push, pull) ...".
[85]
[50] Section 2.1 of the standard summarised the required methodology for managing exposure to risk as requiring the employer to "identify problem tasks (see chapter 7) ...", "assess the risks associated with the problem tasks (see chapter 8) ...", "control the risk (see chapter 9)..." by "selecting and implementing solutions to prevent or minimise the risk (see chapter 10) ...", and "monitor and review the effectiveness of the controls (see chapter 9)...".
[86]
[51] Consistently with that statement, chapter 7 described the first step in managing risk as the targeting of "potentially risky jobs/tasks for assessment". It provided that "problem tasks" could be identified at various times, including "2. When there are indications for potential injury". As to that, chapter 7 provided that checklists could assist and it referred to the information in chapter 10, to which I refer below.
[87]
[52] The second task in managing the risk, "risk assessment" was dealt with in detail in chapter 8. A part of that task was to "determine all risk factors", and in that respect the "task analysis steps" in clause 8.4 included "determining risk factors". Under that heading, it was said that the check lists in chapter 10 should be used to identify the risk factors associated with each task element.
[88]
[53] The third task in managing risk, dealt with in chapter 9 of the standard, was to "control the risk". Chapter 9 identified different "controls" for the elimination or minimisation of exposure to risk factors. Such control measures were said to fall into two major categories: "design" and "administrative controls". "Administrative controls" (which were referred to in figure 1 in the O'Sullivan report to which I have referred) were said to be achieved "primarily by modifying existing personnel functions e.g. worker training, job rotation and matching worker to job". The table provided also that "administrative controls" could only reduce exposure to risk factors, might be forgotten under stressful conditions, and needed ongoing supervision. One of the steps in the "controlled implementation process" was said, in clause 9.5, to be to consult the "risk control options in chapter 10".
[89]
[54] It can thus be seen that the identification in chapter 10 of "risk factors and control options" formed a significant feature of each of the four tasks involved in risk management, the following of which process might discharge an employer's workplace health and safety obligations under s 26 or provide a defence under
[90]
[55] The O'Sullivan report correctly attributed to this standard the proposition that "working postures are a problem if they are "awkward" and particularly if combined with significant forces or efforts". Clause 10.1 of the standard referred to the fact that forceful muscular exertions placed high loads on the muscles, tendons, joints, and discs and were associated with most musculo-skeletal disorders. It went on to provide that the level of muscular effort was affected by a number of factors, which included: "Working posture. The level of muscular exertion needed for a task increases when a body part is in an awkward posture".
[91]
[56] The O'Sullivan report also accurately précised the effect of clause 10.7 of the standard as identifying issues which related to the nature of a load being lifted. Clause 10.7 provided that important factors which might increase the potential for overexertion through the amount of muscular effort needed to handle them included the size and shape of the load:
[92]
"Loads which are large or bulky and cannot be held close to the body, or are asymmetric and put uneven forces on the spine."
[93]
[57] In this respect the "control options" concerning the "nature of loads" included reference to the modification of loads to facilitate handling, including by repackaging loads into different weights, sizes or shapes, for example, "put in smaller containers".
[94]
[58] The O'Sullivan report also accurately referred to clause 10.8 of the standard as identifying typical load handling problems such as lifting heavy or bulky loads, lifting loads with one hand, and lifting loads from below knuckle height. Clause 10.8 provided that lifting and carrying "are a major cause of lower back disorders". Factors which increased the risk of injury were said to include "handling and awkward postures (such as twisting, bending and over reaching)" and "asymmetric lifting - lifting loads asymmetrically e.g. by twisting the trunk or lifting with one hand can cause hazardous stresses to the lumbar area of the spine".
[95]
[59] Relevant "control options" were said to include "Avoid asymmetric handling. This puts uneven stresses on the discs and back muscles." Reference was then made to the need to "provide suitable handholds for loads which have to be held or carried at the side of the body". Under the heading "control options - individual factors" reference was again made to training as being important.
[96]
[60] The standard did not prescribe any particular maximum weight but clause 10.8 which, as I have mentioned, was summarised in the O'Sullivan report, provided that the further the centre of gravity was away from the spine, the greater the increase in the stress on the back. It referred to appendix 4 in the standard, which specifically dealt with the effect of posture on muscular effort and discs. Reference was made in appendix 4 to the need to train workers to keep loads as close to the body as possible during all lifting and other postural issues.
[97]
[61] Under the heading "how much weight to handle" the standard provided:
[98]
"Arbitrary weight limits for loads to be handled manually cannot be set because of the many factors involved. The effect on the worker (the effort needed and increased load on the lumbar discs) is the vital factor, but it is not measurable in normal life.
[99]
The following tools have been developed to assist with this complex problem.
[100]
A formula for assessing lifting tasks developed by the National Institute of Occupational Safety and Health US takes the following factors into account -
Distance of the load's centre of gravity from the worker;
Height of the hands at the beginning of the lift and distance the load travels;
The average frequency of lifts (lifts/minute or/hour)."
[101]
[62] After a reference to another source of recommended weights, the standard provided:
[102]
"Recommendations for a weight limit in a particular industry could be made by consulting either tool, deciding on a general combination of handling circumstances and deriving of value."
[103]
[63] The respondent submitted that the appellant had not established a prima facie case of contravention of s 28(1) because of the vague and inconclusive nature of
[104]
Mr O'Sullivan's report concerning the 22.5 kg lift, because the evidence from Mr Auld was that the lift was a task done on "quite regular occasions" without there being any suggestion of injury sustained thereby, and because of the absence of any suggestion from the medical witnesses that the lift posed any risk of injury to the appellant.
[105]
[64] I reject these submissions. I accept that Mr O'Sullivan's report was in some respects vague and inconclusive, but nevertheless it did support the view that the lift involved a risk of injury. That the risk might have been managed in the various ways described in the report and the standard which I set out above served only to emphasise that there was a risk. Whilst Mr Auld did give evidence that the lift was a task done on "quite regular occasions", he did not give evidence that a lift containing meat of the weight lifted in the particular lift involved here was regularly done; nor did Mr Auld or anyone else give any evidence concerning the question whether or not workers had been injured as a result of such lifting. As to the third point, it is equally true that the medical witnesses did not give evidence that the lift did not pose a risk of injury to the appellant.
[106]
[65] Accordingly, the onus shifted to the respondent of proving that it had discharged its duty of care pursuant to s 26(3)(b) or that it had established a defence under
[107]
s 37(1)(b)(ii). Contrary to the submissions made for the respondent, it did not discharge that onus merely by the evidence that the lift took only a matter of seconds, that the tub was lifted only a short distance, and that the appellant and Mr Auld did not have to walk or carry the tub anywhere because it was close to the bin into which the meat was to be tipped. In truth the respondent made no attempt to discharge the onus. As the respondent submits, Mr Auld gave evidence that he was trained as to how to carry out the lift (by keeping the weight close to his body and using two hands when tipping the tub into the bin) but, as I earlier mentioned, the trial judge found that the appellant did not normally work in the room where he complied with his supervisor's request to participate in the lift. The respondent did not adduce evidence or put to the appellant that he received any training of the kind given to Mr Auld.
[108]
[66] For these reasons I would uphold the appellant's contention that the trial judge erred in failing to find that the respondent breached the statutory duty it owed to the appellant under s 28 of the Act.
[109]
[67] The remaining questions concern the quantum of damages recoverable by the appellant.
[110]
Did the trial judge err in finding that the significant injury was not sustained on 19 November 2003?
[111]
[68] Five doctors gave evidence at the trial: Dr Williams (a consultant orthopaedic surgeon who treated the appellant and performed surgery on his back on 15 April 2004), Dr Curtis (the appellant's witness, an orthopaedic surgeon), Dr McPhee (a spinal surgeon), Dr Weidmann (a neurosurgeon) and the general practitioner Dr Tutt. Their final reports (with the exception of one part of Dr Curtis's final report) were generally opposed to the appellant's contention that he sustained his significant back injury, a prolapsed disc injury, in the 19 November 2003 incident. The doctors attributed greater significance to the appellant's history of earlier back and leg pain related to earlier incidents. That was the view accepted by the trial judge.
[112]
[69] The appellant challenged that view. The broad thesis advanced by his counsel was that the back injuries the appellant sustained before the 19 November incident were relatively insignificant, that the appellant was always able to get pain relief for them from his chiropractor, and that the appellant had virtually recovered from his earlier injuries before the demonstrably much more significant 19 November incident, after which the appellant got progressively worse. The appellant's counsel submitted that effectively all of the evidence "except for the doctors' recantations" was to the effect that the accident on 19 November was the only significant incident.
[113]
[70] In order to explain why I consider that the submission must be rejected it is necessary to summarise the evidence.
[114]
[71] The appellant had suffered from back pain of varying severity for many years before he was injured in the 19 November 2003 accident. He was off work for about a week (returning to light duties for a short time thereafter) after he had suffered severe pain when he bent down to pick up a two to four kilogram rib fillet from the floor in January 2000. In May 2000 he had consulted a chiropractor, whose notes recorded that he was then experiencing occasional sciatic pain in the left leg to his knee which "comes and goes", but which he had not experienced for about six months. He subsequently complained to the chiropractor in February 2003 that his right sacroiliac area was very sore, and in late May 2003 he consulted the same chiropractor about left lower back twinges. In a further consultation in late June 2003 he complained that his left lower back was very sore.
[115]
[72] The appellant reported having fallen over in the locker room at work on 27 August 2003 after losing balance whilst putting on his work pants. On 30 September 2003 he made a statement to the respondent's workers' compensation manager, Ms Dawson, in which he said that he could not say he was suffering pain after the 27 August fall but that he knew he had done something to his lower back: "it just didn't feel right". He kept working, despite a little soreness in his back on the morning following the event, and his chiropractor told him that he had torn a ligament.
[116]
[73] On 17 September 2003 the appellant suffered what he later described as a "soft tissue injury" to his back as a result of a heavy day at work in which he was required to pull meat towards himself across his work table. In his statement he said that by the end of that day he had "definite pain" in his back which he thought "really aggravated my back problem". On the following morning his back was "really painful"; he 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". He attempted work on 18 September 2003 but he had to stop. He consulted his general practitioner, Dr Mann.
[117]
[74] Dr Mann was not available to give evidence at the trial but a doctor in the same practice, Dr Tutt, proved Dr Mann's notes. His notes of a consultation on
[118]
19 September 2003 referred to the appellant having suffered lower back pain on his left side since before work on 27 August, which had become worse in the two days preceding the 19 September consultation, that the appellant had been seeing a chiropractor, and that he was suffering pain in his left buttock and at the back of his left thigh. The appellant saw his chiropractor on 23 September 2003 and told her that on the previous Thursday he had suffered acute pain in his left lower back while pulling heavy beef and experienced a sharp pain in his left thigh when bending forward: he said it was the same feeling as he had had when he had overbalanced at the end of August when putting on his overalls. In his statement of 30 September 2003 the appellant referred to his back pain being not as severe as it had been, but that he still had pain going down his leg and in his buttocks on the left side. He referred to his difficulties with bending.
[119]
[75] Dr Mann's notes of 26 September 2003, when she certified that the appellant would be fit to return to pre-injury duties on 29 September, referred to back pain localising over the left side, and to the lessening leg pain. Notes of subsequent visits by the appellant to the chiropractor in October also record sharp pains going into the appellant's left upper leg and a sore lower back, and other symptoms.
[120]
[76] On 28 October 2003 the appellant again consulted Dr Mann. The appellant reported that he was getting better but was still suffering from occasional flares. He still had tenderness over his lower back, knee and sacroiliac joint on the left-hand side on the lower back. His straight leg-raising examination was only to 75 per cent on his left side. The appellant reported similar symptoms in late October 2003, when he told the respondent's Ms Dawson that he was still getting pain in his lower back which ran down his leg. On 5 November he told his chiropractor that he was suffering from pain in his lower back and left leg. He was still seeing his chiropractor on a regular basis through October and into early November 2003 to deal with the combined effects of the August and September injuries.
[121]
[77] The trial judge referred in more detail to the history which I have briefly summarised and then discussed the sequelae to the 19 November 2003 accident. The appellant's counsel contended for error in the trial judge's observation[35] that the appellant did not report the 19 November 2003 incident "until some 25 or 26 days later on 15 December when he reported to his supervisor, Mr McLagin." As counsel for the appellant pointed out, the appellant had in fact reported the incident to the respondent's workers' compensation manager, Ms Dawson, on 2 December 2003 and signed a statement on 4 December 2003. In that statement the appellant referred to the incident at work on 19 or 20 November 2003 in which Mr Auld had asked him for help in lifting a tub of red meat and to the fact that when he lifted the tub the appellant experienced "an increase in my back pain". The trial judge, however, was certainly aware of that. He had referred to it, and quoted that part of the statement, in paragraph [5] of the reasons. That the trial judge's reference to the appellant's delay in reporting the matter for 25 or 26 days bears no particular significance is evident also from the trial judge's immediately following reference to the written statement of 4 December 2003, in which the appellant said (13 days after the incident): "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."
[122]
[78] After the appellant responded to a question in cross-examination that he told
[123]
Ms Dawson about the incident, who told him he would have to fill out a form dealing with this as a separate incident, the appellant nevertheless agreed that he "didn't report it, for example, to Mr McLagin, until the 15 December" and that he did not make any complaint to anyone at work. It thus appears that the trial judge's remark that the appellant did not report the incident until 15 December simply reflected a distinction drawn during the appellant's evidence.
[124]
[79] There was in any event no particular significance in this context in the difference between a delay of some 13 days (between about 19 November and
[125]
2 December) and a delay of some 25 or 26 days (between about 19 November and 15 December). The point made by the trial judge was that the appellant made no contemporaneous complaint about the 19 November incident and it was not so significant as to render him incapable of continuing to work.
[126]
[80] The appellant kept his scheduled appointment with Dr Mann on 25 November 2003. He told Dr Mann that he'd had a "small flare at work the day before" but that his back pain was settling. The appellant did not advert to the 19 November incident, although it had occurred only six days earlier. Rather, as the appellant accepted in evidence, he told Dr Mann that the condition was caused by the 27 August 2003 incident.[36] Dr Mann accordingly issued a medical certificate which noted that the plaintiff was suffering from a soft tissue injury to the lower back caused by a fall at work on 27 August 2003.
[127]
[81] I interpolate here that the trial judge found that Dr Mann's notes of this consultation and the appellant's chiropractor's notes were not provided to the medical specialists until after they had expressed opinions which, in some respects, favoured the appellant's claim that the most serious injury had been incurred in the 19 November 2003 incident.[37] After these notes and the appellant's chiropractor's notes were provided to those doctors their final opinions were opposed to the appellant's claim. The appellant's counsel initially seemed disposed to challenge the finding that the specialists did not have the GP's and chiropractor's notes when they initially expressed opinions favourable to the appellant, but in the end he abandoned any such challenge.
[128]
[82] When the appellant consulted Dr Tutt on 15 December 2003 he told Dr Tutt, according to his notes, of a "recent exacerbation when lifting the tray a few weeks ago". I reject the submission for the appellant that this was clearly a reference to the incident of 19 November 2003. That is not clear at all. It will be recalled that a few weeks before 15 December, on 24 November, the appellant had suffered a "small flare at work", according to Dr Mann's 25 November notes. This issue was raised at trial with Dr Tutt, whose evidence was to the effect that had he been told that the incident involved a tub he would have written "tub" rather than "tray".
[129]
[83] On 16 December 2003 the appellant consulted Dr Mann. Her notes refer to lumbo sacral back pain which had not settled. The notes refer to the pain radiating now to the appellant's left knee.
[130]
[84] On 18 December 2003 the appellant signed a statement which commenced: "Further to previous statements provided in relation to my injury sustained on 17 September..." The appellant said that "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..." After giving further details of the very significant discomfort and restrictions by then afflicting the appellant, he said: "I cannot highlight any specific event to cause further injury to my back."
[131]
[85] The appellant contended for error in the trial judge's finding that it was important that in the appellant's statement of 18 December 2003 he could not identify any specific event causing the further injury to his back since the 17 September 2003 incident.[38] That was submitted to be falsified by the fact that in the appellant's statement of 4 December (putting into writing his statement of 2 December 2003), he had notified the respondent of the 19 November incident. But the trial judge did not overlook the earlier statements: he had quoted the relevant part of the
[132]
4 December statement in the immediately preceding paragraph. Although that statement did refer to an aggravating effect of the 19 November incident it attributed much more significance to the 17 September incident. The trial judge correctly appreciated that the 18 December statement attributed the appellant's then very serious injury to the 17 September incident and did not identify any other causally relevant event.
[133]
[86] Dr Tutt gave one report, in the form of a signed conference note between him and the respondent's junior counsel. He considered that the symptoms noted by
[134]
Dr Mann in September and October 2003 were consistent with resolving symptoms of a disc prolapse; if the appellant had suffered a significant injury to the disc on
[135]
19 November 2003 he would have expected the appellant to complain of leg pain on 25 November 2003.
[136]
[87] The other doctors each gave more than one report. They expressed views that were in some respects very favourable to the appellant in the earlier reports, but each concluded in their final reports that it was more likely that the appellant had not suffered his serious injury in the 19 November 2003 incident. Of the final reports, only Dr Curtis's final report arguably supported the appellant's position. In earlier reports Dr Curtis had attributed most significance to the 19 November 2003 incident. In Dr Curtis's report of 22 May 2008, he said that the facts that the plaintiff was off work after the 17 September 2003 incident and suffered the pain I have earlier described were consistent with a disc injury in that incident and that the pain described by the appellant after the November 2003 incident in his written statement of 4 December 2003 was not consistent with an acute disc protrusion occurring at that time; but he added that as against those factors the history recorded in the general practitioner's notes of 15 and 16 December 2003 was consistent with an acute disc protrusion occurring on 24 November 2003.
[137]
[88] The opinions of those doctors were investigated at length at the trial. They maintained those opinions when the appellant's evidence was put to them. After a careful analysis the trial judge concluded that the medical evidence pointed overwhelmingly to the prolapsed disc injury having occurred on
[138]
17 September 2003 or some earlier date but not on 19 November 2003.[39] His Honour considered that the part of Dr Curtis's final report which supported the appellant's case was a "lone beacon in a sea of otherwise confident medical opinions to the contrary".[40]
[139]
[89] The appellant's counsel referred to the trial judge's acceptance of the appellant's evidence that he felt a sharp pain or a burning sensation in his back when he lifted the tub of meat on 19 November 2003.[41] However I do not accept the further submission that the trial judge accepted the appellant's evidence that he had not felt anything of a similar kind on any previous occasion, including in the August and September incidents, and that his symptoms after the 19 November incident were much worse than after the earlier incidents. That evidence was not reflected in findings by the trial judge.
[140]
[90] His Honour accepted instead the evidence of the appellant's own contemporaneous statements.[42] The effect of those statements was that the appellant had suffered more severe pain in his back immediately after the September incident than he had after the 19 November incident; that after the earlier incident the appellant had also suffered pain in his left leg down to his knee which he did not suffer in the
[141]
19 November incident; and the effect of the 17 September incident was so severe that the appellant was required to cease work for a period whereas he was able to continue working after the 19 November incident.
[142]
[91] Although the appellant said in his statement of 4 December 2003 that by the time of the 19 November incident "I was recovering well from my injury sustained on
[143]
17 September 2003" the same statement made it clear that his symptoms persisted to some extent: he said that when he pulled meat across a table towards himself (as was part of his job) " I would experience discomfort half way up my buttock about my hip level on the left hand side. I just tried to be careful".
[144]
[92] That the pain generated in those earlier incidents had largely resolved before the
[145]
19 November incident was not inconsistent with the view that the serious injury occurred before the latter date. All of the doctors who gave evidence were fully informed of the appellant's medical history and all of them adhered to the opinion that the history was not consistent with the appellant's significant injury having been incurred in the 19 November incident. More specifically, Dr Williams, whose final report the trial judge accepted, said that in some 80 per cent of patients the pain associated with a disc injury seems to be slowly resolving, as appeared to be the case for the appellant after the September incident, but in some 20 per cent of patients the pain spontaneously recurs at a later date without a significant event.
[146]
[93] The appellant's counsel referred to the appellant's evidence that in the weeks leading up to his ceasing work on 15 December 2003 his back pain got worse and little things like twisting or a sudden movement could cause pain; the pain was much more severe by 15 December 2003 than it had been after the September incident;[43] since the November incident the appellant could not engage in many activities he had formerly enjoyed;[44] and he referred also to the fact that the trial judge accepted that Mrs Parry gave honest evidence that it was only after the November incident that she noticed that her husband was depressed, in pain and otherwise seriously adversely affected by his back condition.[45]
[147]
[94] As the trial judge observed, however, the evidence that there was a deterioration in the appellant's condition after 19 November (which ultimately led to the appellant's surgery) was not inconsistent with the trial judge's conclusion that the acute prolapsed disc did not occur on that date.[46]
[148]
[95] Although the doctors' final opinions express slightly varying views as to the development of the appellant's disease, each of Dr Williams,[47] Dr McPhee,[48]
[149]
Dr Tutt,[49] and Dr Weidmann,[50] having reviewed the evidence that the appellant suffered back and leg pain at times before 19 November and did not complain of severe pain or leg pain or stop working after the 19 November incident until 15 December, finally concluded that it was unlikely that the appellant sustained the disc protrusion in the 19 November incident. They were given that information, derived from the GP's and chiropractor's notes, by the respondent's junior counsel. Their receipt of that information explained why they revised their views in their final reports, a point much relied upon by the appellant's counsel.
[150]
[96] The appellant's counsel argued that the specialists were induced to resile from their original opinions favourable to the appellant by the selective omission of information from the material provided to the doctors. The criticism was directed to the following information provided to Dr Williams (which was reflected in the information provided to the other specialists):
[151]
"(r) the plaintiff ceased work on 15 December 2003. That day his General Practitioner noted a complaint of left upper thigh pain;
[152]
(s) on 16 December 2003, the Plaintiff's general practitioner noted a complaint of lumbo/sacral back pain with pain in the left thigh to the knee;"
[153]
[97] The appellant's counsel argued that the statement in (r) was misleading because it omitted reference to Dr Tutt's note of 15 December that the appellant had been having chiropractic treatment "without improvement now since recent exacerbation when lifting the tray a few weeks ago". As to (s), the appellant's point is that
[154]
Dr Mann's 16 December record also noted "not settled since lifting at work and chiropractor helping" and referred to pain of a severity that the appellant had not earlier experienced.
[155]
[98] I have already rejected the appellant's submission that the reference to "lifting the tray a few weeks ago" was clearly a reference to the incident of 19 November 2003. More importantly, the doctors whose opinions the trial judge accepted were
[156]
cross-examined and they declined to attribute significance to the points now made for the appellant. What the doctors thought were significant were the appellant's contemporaneous statements which suggested to them that the appellant had suffered the serious injury in an earlier incident and not in the 19 November incident. To the extent that the information recorded in the 15 and 16 December notes might be thought to conflict with that in the 25 November note, which attributed no significance to the 19 November incident, there were good reasons for the trial judge to place more weight on the 25 November note. It was closer in time to the 19 November incident and it was consistent with the undisputed fact that, unlike the 17 September incident, the appellant had continued working after the
[157]
[99] Dr Curtis observed in his second (25 January 2006) report that in the absence of leg pain below the knee and in view of the appellant's rapid improvement after the September incident (evidenced by Dr Mann's notes of her 19 September 2003 consultation) it was unlikely that the appellant has sustained the disc protrusion at that stage. After the respondent's counsel provided to Dr Curtis a fuller picture of the back and leg pain, Dr Curtis resiled from that opinion in his third (15 May 2007) report. He then referred to evidence that the appellant had leg pain before the
[158]
19 November 2003 incident, to the absence from Dr Mann's notes of 25 November of any complaint of continuing and increasing back and leg pain, and to the appellant's omission to seek treatment between 19 and 26 November and concluded (on the basis of assumptions as to that history) that it was more probable than not that the 19 November injury was part only of progression of degenerative disease (it might have "put a nail in the coffin") rather than the event that caused the disc prolapse.
[159]
[100] In Dr Curtis's fourth (9 May 2008) report, he concluded after reviewing the GP's notes that each of the August, September and November incidents aggravated a
[160]
pre-existing degenerative disc disease, which later led to subsequent disc protrusion and sequestration. He attributed the immediate cause of the disc protrusion to the "small flare at work yesterday" referred to by Dr Mann in her 25 November 2003 notes. In Dr Curtis's final (22 May 2008) report, a signed diary note of a conference between Dr Mann and the respondent's junior counsel, he revised his previous opinion in light of his consideration of the pain experienced by the appellant and his being off work for about a week after the 17 September incident and the appellant's symptoms recorded by Dr Mann on 25 November 2003, which he thought were not consistent with an acute disc protrusion occurring on 19 or 24 November 2003; although he thought the history in the 15 and 16 December notes was consistent with an acute disc protrusion occurring on 24 November 2003.
[161]
[101] The appellant's counsel argued that the appellant's evidence that he first felt shooting pain below the knee "about say December, November, I suppose, of 2003" was inconsistent with the expert opinion that the significant injury was not sustained in the 19 November 2003 incident. Dr Curtis expressed the opinion in his second report that the absence of leg pain below the knee and its rapid improvement as at 19 September 2003 made a diagnosis of acute disc protrusion unlikely at that stage. But that does not falsify Dr Curtis's final opinion, after he had been given the full history of the appellant's symptoms, that the appellant's statements of his symptoms recorded in his written statement of 4 December 2003 and in Dr Mann's notes of
[162]
25 November 2003 were not consistent with an acute disc protrusion occurring on 19 November 2003: none of the doctors concluded that the absence of leg pain extending below the knee ruled out the occurrence or inevitability of a disc bulge or protrusion. Dr Tutt, for example, observed that the fact that pain was not noted below the knee did not exclude the presence of a disc prolapse compressing the sciatic nerve root.
[163]
[102] The appellant's counsel argued that Dr Williams' opinion that the appellant did not sustain the significant injury on 19 November 2003 was falsified by his evidence in cross-examination that pain passing below the knee into the foot was far more consistent with neural compression than was pain that radiated to the level of the knee (which may be referred pain) and that as soon as pain went beyond the knee it was more likely than not to be a nerve compression problem. The appellant's leg pain before the 19 November incident was not reported in terms that suggested that it extended below the knee. Dr Williams agreed that he was not previously aware of that fact but he disagreed that it meant that the disc protrusion was more likely than not to have occurred in November 2003. He referred to the lack of precision in the reporting of such pain and also to his view that it was difficult to divorce the recorded leg pain in September and the subsequent pain in November. The appellant argued that no reliance could be placed on this evidence, but why that was so was not explained: as I have mentioned, there was evidence that the absence of radiation below the knee of leg pain did not rule out the disc injury having occurred or having become inevitable.
[164]
[103] Dr Williams issued a certificate dated 26 May 2004 in which he certified that the appellant injured the disc "lifting a tub of meat at work", which was a reference to the 19 November 2003 incident. The appellant's counsel argued that this was significant because it was inconsistent with Dr Williams' evidence that his opinion was that the injury did not occur in the 19 November incident and it demonstrated error in a statement in Dr Williams' eighth report (of 22 August 2005) that he was before that time unaware of any specific incident on that date. (Dr Williams made that statement in the course of commenting upon Dr McPhee's report of 17 March 2004 which referred to the incident.) In cross-examination Dr Williams maintained that he had not known about the 19 November 2003 incident even though it was referred to in the respondent's 2 February 2004 letter to him. Dr Williams' explanation for not having referred to the 19 November 2003 incident in his reports was that he probably relied upon the history the appellant had given him, which had not referred to the 19 November 2003 incident. He said also that the statement in the certificate probably reflected what the appellant told him. His notes referred to "worsened carrying heavy beef, September '03'" and he thought that he probably equated that with what the appellant told him and what he put on the certificate.
[165]
[104] The trial judge referred to this point and remarked that Dr Williams' approach seemed unusual although there was evidence by Drs McPhee and Tutt that they too relied upon what the patient told them rather than what was said in the letter of instructions.[51] Perhaps when Dr Williams wrote his 22 August 2005 report he overlooked information given to him by the respondent on 2 February 2004 and by the appellant on 25 May 2004 that there was an incident on 19 November 2003 and that the appellant attributed his accident to it. But however that may be, the point is not very significant. In Dr Williams' 22 August 2005 report he expressed the view, favourably to the appellant, that if there was a significant incident on 19 November 2003 then it, rather than the 17 September event he had identified in his earlier reports, was the significant event. That opinion accorded with the initial opinion expressed by Dr McPhee but both doctors later resiled from those opinions after they had been given more information. Dr Williams' possible memory lapses at an earlier time have no significant bearing upon those conclusions.
[166]
[105] The appellant's counsel attributed significance to the failure of the trial judge to take into account that Dr Williams' fifth (8 June 2004) report, concerning the 25 May consultation, did not mention that Dr Williams had given the 26 May certificate attributing the appellant's injury to the 19 November 2003 incident. There was no significance in that because the 8 June report dealt only with the appellant's condition and prognosis. It did not express any view about the cause of his injury.
[167]
[106] In my respectful opinion the trial judge did not err in fact in finding that the appellant suffered his prolapsed disc injury as a result of incidents that preceded the 19 November incident.
[168]
The decision to set aside subpoenas to give evidence
[169]
[107] It is necessary at this point to refer to the appellant's ground of appeal[52] that the trial judge erred in failing to permit the appellant to call as witnesses in his action three doctors who had constituted the Orthopaedic Assessment Tribunal which had examined the appellant and expressed an opinion as to causation.
[170]
[108] On the first day of the trial the trial judge heard an application by Q Comp to set aside the appellant's subpoenas to those three doctors. After hearing from the appellant's counsel, who identified the evidence those doctors would give, the trial judge concluded that the purpose and inevitable effect of the subpoena was to call the tribunal's decision into question contrary to s 515 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).
[171]
[109] At the hearing of the appeal the appellant abandoned an application to amend the notice of appeal by adding a ground that the trial judge erred in acceding to the application by Q Comp to set aside the appellant's subpoenas. It follows that the question whether the trial judge erred in setting aside the subpoenas is not before this Court. The appellant's counsel did not identify any other ruling by which the trial judge failed to permit the appellant to adduce evidence from the doctors. This ground of appeal must be rejected accordingly.
[172]
[110] I would add that this argument could not have succeeded for another reason. The appellant did not in his notice of appeal or in his counsel's argument seek a new trial for the purpose of adducing the evidence of these doctors. Rather, the argument presented by the appellant's counsel was that it was unlikely that the trial judge would have reached his conclusion on causation had he had the benefit of hearing this additional evidence. The argument could not succeed because nothing was put before the Court to show what evidence these doctors would have given when presented with the evidence adduced at the trial of the appellant's full medical history.
[173]
Did the trial judge err in rejecting the appellant's contention that the respondent was estopped from denying that the appellant suffered the significant injury in the 19 November 2003 incident?
[174]
[111] The appellant pleaded in his reply that the respondent was estopped from alleging that the appellant had suffered his serious injury as a result of the 27 August or
[175]
17 September events. As I construe the appellant's rather complex surrejoinder, the appellant also pleaded in it that the respondent should not be permitted to depart from representations to the effect that the appellant had not sustained his serious injury in the earlier incidents and that he had suffered the serious injury in the
[176]
[112] The trial judge rejected the estoppel claim, finding that the appellant had failed to prove essential elements of the claimed estoppel, namely a representation, reliance upon that representation, and a consequential detriment.[53] The appellant contended that the trial judge erred in each of those conclusions.
[177]
[113] In my view the appellant's challenge failed to clear the first hurdle. He failed to prove that the respondent made the representation upon which the estoppel plea depended.
[178]
[114] The only representations upon which the appellant relied for its estoppel claims were statements in the respondent's "notices of assessment" which it issued on
[179]
17 March 2005. On that date the respondent issued separate notices of assessment for the injuries sustained by the appellant in different incidents and offered to pay a sum in full and final satisfaction of any claim arising out of each incident. In respect of each of the 27 August 2003 and 17 September 2003 incidents the notices included assessments of the appellant's injury as a "soft tissue injury lower back" occasioning a 0.67 per cent degree of permanent impairment. In each notice the respondent offered to pay the appellant $1,170 to settle any claim arising out of the incident.
[180]
[115] For the 19 November 2003 incident the respondent's notice of assessment assessed the appellant's injury as a "prolapsed intervertebral disc in lumbosacral spine with referred pain, treated surgically by discectomy or fusion with resolution of referred pain but persisting low back pain" occasioning an eight per cent degree of permanent impairment. The respondent offered to pay the appellant $13,970 to settle any claim arising out of that incident.
[181]
[116] The appellant rejected the latter offer but in the appellant's "responses to notice of assessment" dated 19 April 2005 he accepted the respondent's offers for the two earlier incidents. The appellant pleaded that had the respondent ever informed the appellant that it would be asserted that the injury giving rise to the present claim was occasioned in either of the earlier incidents he would not have accepted the respondent's offers for those incidents and he would not have confined his claim to the 19 November incident.
[182]
[117] The trial judge construed the appellant's pleading as alleging a representation by the respondent in its notices of assessment that if the appellant brought a claim for damages the respondent would not deny that the appellant sustained his serious injury in the 19 November incident:[54] a species of equitable estoppel.[55] That was not challenged in the appellant's notice of appeal. Nor did the appellant's counsel contend for error in the trial judge's conclusion that the estoppel plea failed if that representation was not made out.
[183]
[118] The trial judge concluded that the notices of assessment did not of themselves convey any such representation.[56] His Honour thought that an estoppel might have arisen had the respondent done or said something else to convey a representation that it would not in subsequent litigation deny that the appellant sustained his serious injury in the 19 November incident. (That view finds support in Castillon v P & O Ports Limited).[57] But the trial judge concluded that there was no evidence of any such conduct or statement. Nor was any such case pleaded. The appellant's case on estoppel stood or fell on representations alleged to have been conveyed by the notices of assessment.
[184]
[119] The appellant's written outlines of argument asserted that the notices of assessment constituted the relevant representation; that in light of their contents the appellant was entitled to assume that the respondent would be contending upon the trial of the action that the injury of significance was occasioned on 19 November 2003.
[185]
[120] However the notices of assessment did not express any such representation. The respondent did state that the appellant sustained a "work related impairment" of eight per cent from a prolapsed disc injury on 19 November 2003, but that statement was made in a notice that was plainly concerned only with the appellant's entitlements under the Workers' Compensation and Rehabilitation Act 2003 (Qld). The respondent made no representation in the notice that it would not adopt a different position in the different context of subsequent civil proceedings. The appellant's submissions did not explain the basis of a proposition that such a representation might be gleaned from the notices.
[186]
[121] The respondent, as a self insurer, issued the notices under the Workers' Compensation and Rehabilitation Act 2003 (Qld). Accordingly, in order to decide whether the notice was capable of justifying the appellant's alleged assumption that the respondent would not plead defences inconsistent with the notices it is necessary to examine the relevant provisions of that Act.[58]
[187]
[122] The relevant provisions were in Part 10 of Chapter 3. Under those provisions, the insurer or the worker was entitled to ask for an assessment to decide if the worker had sustained a degree of permanent impairment from injury: if so, the worker might become entitled to lump sum compensation payable under and calculated in accordance with that Act.[59] The Act required that the respondent (as a self-insurer) include in each notice of assessment issued to the appellant an assessment by a doctor of the degree of permanent impairment attributable to the injury described in the notice.[60] The respondent was obliged to issue the notice within 14 days after receiving assessment of the appellant's permanent impairment.[61] The amount of compensation payable under the Act was fixed by reference to that assessment.
[188]
[123] The notices of assessment thus had no direct bearing on the question whether the appellant was entitled in subsequent proceedings to recover damages, and if so how much and on what basis, or what defences the respondent might plead to such a claim. The notices of assessment directly concerned only the regulation of the payment of statutory compensation for workplace injuries.
[189]
[124] The assessment of injury under the Act in this case did potentially affect the appellant's proceedings for damages in other ways: assessment was a necessary
[190]
pre-condition of the appellant's entitlement to seek damages for the injury,[62] the appellant was obliged to elect between seeking damages and receiving his statutory entitlement to lump sum compensation,[63] and the assessment also potentially affected the costs orders that could be made in the damages proceeding.[64] But the Act contained no provision that made the assessment of injury stated in a notice of assessment binding upon the respondent in the appellant's proceedings for damages.
[191]
[125] No ground appears for implying that the notices had such an effect. I am unable to discern it in the stated objects of the Act or to derive it by implication from the relevant provisions. In my respectful opinion the trial judge was correct to find that the notices of assessment did not convey the representations alleged by the appellant.
[192]
[126] That being so, I would reject the appellant's appeal from the trial judge's finding that the appellant had not made out the estoppel he asserted.
[193]
[127] The trial judge also found that the appellant did not rely upon any representation derived from the notices of assessment but rather upon his own solicitor's advice[65] and a decision of the Orthopaedic Assessment Tribunal of which Q Comp notified him before he accepted the respondent's offers in relation to the August and September injuries (but which the appellant did not convey to his solicitor).[66] The appellant's argument in the appeal assumed that this finding was in error but the argument did not explain the basis upon which this Court could overturn that finding of fact, a finding which necessarily turned in part upon the trial judge's assessment of the appellant's oral evidence.[67] I would reject this aspect of the appellant's appeal on this further ground.
[194]
[128] The trial judge accepted that the appellant experienced severe and persisting pain and was never free from pain, sometimes increasing to an extreme level. As his Honour recognised, the question was how much of that was attributable to the
[195]
19 November incident. Because the trial judge concluded that the 19 November incident, whilst contributing to the appellant's then back condition, was not the cause of his acute prolapsed disc injury, he rejected the appellant's claim for $50,000 and instead allowed $30,000 on the footing that, adopting Dr McPhee's description, the 19 November incident "was the straw that broke the camel's back" and led to the surgery on 15 April 2004.
[196]
[129] The appellant's counsel referred in his oral submissions in reply to Dr Curtis's opinion in his first (21 September 2004) report that only some 2.5 per cent of the appellant's 25 per cent impairment was pre-existing and the balance was attributable to the 19 November 2003 incident. The trial judge's findings, which I would affirm, attributed much less significance to the 19 November incident. The appellant has not demonstrated any error in this component of the award.
[197]
Did the trial judge err in construing a medical report in the course of rejecting the appellant's claim that he had lost the capacity to earn income for five years?
[198]
[130] The appellant's final attack upon the notional award of damages was his argument that the trial judge erred in construing Dr Curtis's opinion in his 21 September 2004 report as meaning that the appellant's working life had not been shortened by the effect of the 19 November incident.[68]
[199]
[131] At the time of trial the appellant was 56 years of age. The appellant gave evidence that he had intended to work until age 65. Dr Curtis said that after the accident the appellant was coping with light work but would be unable to resume fuller duties and it was probable that he would need to consider retiring at an earlier age than he had intended, "probably at the age of 55 as opposed to 60 had the injury not occurred". The appellant's counsel argued that this conveyed Dr Curtis's opinion that the appellant's working life had been shortened by five years as a result of the 19 November incident.
[200]
[132] The trial judge was not bound to take that view. His Honour referred to Dr Curtis's opinion that the appellant remained capable of continuing his present light duties until age 60 (and other evidence which supported that view) and found that on the whole of the evidence the appellant's working life had not been shortened by five years.[69]
[201]
[133] I have already rejected the appellant's primary contention that the trial judge should have found that the appellant sustained his serious injury in the 19 November incident. His Honour summarised the evidence which directly related to the claim for lost earning capacity[70] and I did not understand the appellant to identify any particular error in that respect. Having regard to the trial judge's finding[71] that the appellant's pre-November 2003 earning capacity had not significantly altered from that since the November 2003 incident, this component of the notional award could not be regarded as being inadequate.
[202]
[134] The trial judge ordered the appellant to pay Q Comp's costs of its application to set aside the subpoenas. During the hearing of the appeal the appellant's counsel abandoned a challenge to the trial judge's order refusing the appellant an indemnity from the respondent against the appellant's costs liability to Q Comp.
[203]
[135] The appellant appealed against an order made by the trial judge that the appellant pay the respondent's costs thrown away by an earlier adjournment of the trial. Those costs had been reserved by the judge who adjourned the trial. The trial was adjourned because when the matter was called for hearing on 16 May 2007 the appellant applied for leave to file a reply pleading the estoppel discussed earlier in these reasons. The appellant did not challenge the trial judge's conclusion that it was open under s 316(4) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) to order the appellant to pay the costs thrown away by the adjournment if, as the trial judge concluded, the adjournment was necessitated by the appellant's unreasonable delay in pleading the estoppel, but the appellant contended that the respondent should have been ordered to pay the appellant's costs thrown away by the adjournment. His counsel argued that the estoppel plea was precipitated by the respondent's disclosure on 15 May 2007 of Dr Williams' 26 March 2007 report (in the form of a diary note) in which Dr Williams recanted from his earlier opinion that the appellant's prolapsed disc injury was caused by the 19 November incident.
[204]
[136] The appellant's written submissions contended that the late disclosure of the report was a "wilful dereliction" of the respondent's obligations under the UCPR, but the appellant's counsel withdrew that contention in his oral argument. He conceded that the respondent had no obligation to disclose the document until it decided to call Dr Williams, when the document was immediately disclosed.
[205]
[137] The appellant's counsel's argument was irreconcilable with his statement to the judge when the trial was adjourned that paragraph 14 of the defence filed in March 2006 (which denied the appellant's allegation that the plaintiff suffered a prolapsed disc in the 19 November incident) "does, of course, call for a reply and we are remiss in not having done it before today". That concession was appropriate and the trial judge was right to act on it. I would add that, contrary to the appellant's argument, the delivery of Dr Williams' report - which was merely additional evidence supporting the respondent's plea - was no justification for attributing blame to the respondent for the appellant's dilatoriness in pleading the estoppel.
[206]
[138] At the hearing of the appeal the parties sought the opportunity after judgment to make further submissions as to the appropriate orders concerning the costs of the trial. It was not clear whether that extended also to the costs of the appeal, for which the appropriate order appears to be that the respondent pay the appellant's costs assessed on the standard basis; but I would afford the parties an opportunity also to make submissions about the costs of the appeal.
[207]
[139] I would allow the appeal and set aside the orders of the trial judge dismissing the plaintiff's claim. I would instead give judgment for the plaintiff on his claim for the amount assessed by the trial judge (after taking into account the necessary refund but without the allowance for contributory negligence) of $82,327.73. I would give the parties leave to make submissions within 10 days of today, and in accordance with paragraph 37A of Practice Direction No. 1 of 2005, as to the costs of the trial and the appeal.
[208]
[140] WHITE AJA: I have read the reasons for judgment of Fraser JA and agree with his Honour that the appeal ought to be allowed. I also agree that the damages to be awarded to the appellant should be for the amount assessed by the primary judge of $82,327.73. That assessment took into account the relevant refund. His Honour would have reduced this amount by 50 per cent to reflect his assessment of the appellant's contributory negligence in undertaking the lift with knowledge of his vulnerable back. However, contributory negligence was never raised by the respondent, either in the pleadings or at trial and was not sought to be supported by the respondent on appeal.
[209]
[141] I agree with the orders as proposed by his Honour.
[55] See Silovi Pty Ltd v Barbaro(1988) 13 NSWLR 466 at 472, 476, where Priestley JA summarised the effect of the judgments in Waltons Stores (Interstate) Ltd v Maher(1988) 164 CLR 387; [1988] HCA 7 which analysed the different forms of estoppel and their features.