TORT – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND
SUBSEQUENT BREACH – AT COMMON LAW – where the plaintiff
claims he
injured his back carrying steel mesh sheets (‘first incident’) at a
Source
Original judgment source is linked above.
Catchwords
TORT – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY ANDSUBSEQUENT BREACH – AT COMMON LAW – where the plaintiffclaims heinjured his back carrying steel mesh sheets (‘first incident’) at aresidential renovation project in 2016(‘job site’) – wherethe plaintiff was an employee of the second defendant at the time of the firstincident –where the first defendant was the principal contractor for thejob site – where the first defendant contracted the second defendanttoundertake concreting works at the job site – where the second defendantwas supplied with the engineering plans –where the plaintiff claims thefirst defendant had a duty of care as the occupier of land – whereobligations are owed underthe Work Health and Safety Act 2011 (Qld),Work Health and Safety Regulations 2011 (Qld) and other safety standards– where the first defendant had organised an activity involving a risk ofinjury – where
the operation of the activity was the responsibility of the
second defendant – whether the first defendant as the principal
contractor
had a duty to take reasonable care to supervise and monitor and ensure a safe
system of work for specialised work by independent
contractors
TORT – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION
– where the plaintiff ultimately sustained a prolapsed
disc at the L5/S1
and experience impingement of the right side S1 nerve root – where the
first and second defendant say the
plaintiff has a pre-existing degenerative
spinal condition – where the plaintiff continued to have back pain and
‘flare
ups’ after the first incident – where the plaintiff
sometimes completed ‘lighter duties’ after the first
incident
– where the plaintiff otherwise performed his usual concreter duties
– where the plaintiff sustained further
injury in 2017 (‘second
incident’) – where the plaintiff did not did not see a health
practitioner until after
the second incident – where the third defendant
had taken over the running of the plaintiff’s employer at the time of
the
second incident – where there were issues with the plaintiff’s
credibility and reliability – whether the second
incident and the symptoms
the plaintiff continues to experience, are causally connected to any injury from
the first incident
TORT – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND
SUBSEQUENT BREACH – CIVIL LIABILITY LEGISLATION –
where the second
defendant admits that it breached the duty of care it owed to the plaintiff
– whether the second defendant’s
breach of duty was a necessary
condition of the plaintiff’s injuries
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY
– GENERALLY – where the plaintiff experienced an
associated
worsening of his pre-existing psychiatric condition – where the dominant
injury was the plaintiff’s back injury
– where the Injury Scale
Value is to be assessed – where the plaintiff was otherwise fit and able
to work and was an
experienced and qualified concreter – where the
plaintiff has not undertaken any course, training or rehabilitation towards
obtaining new employment – where the plaintiff was assessed as being able
to perform sedentary to light work – where
there is a potential option for
the plaintiff to obtain further surgery – where there was a significant
change in the plaintiff’s
domestic duties only after the second incident
– whether the plaintiff sustained a serious permanent impairment in the
thoracic
or lumbar spine which may involve bilateral or multilevel nerve root
damage or a change in motion segment integrity – whether
the plaintiff has
a residual earning capacity of greater than one day a week – whether there
is a need for ongoing treatment
and management of the plaintiff’s injury
– whether the plaintiff’s evidence of past and future care needs is
reliable
Workers Compensation and Rehabilitation Act 2003 (Qld),
s 270, s 305D, s 305E, s 306N, s 306O, 306P
Workers Compensation and
Rehabilitation Regulation 2014 (Qld), s 129, s 130, sch 8, sch
12
Work Health and Safety Act 2011 (Qld),
s 5, s 19, s 20, s 267
Work Health and Safety Regulations 2011 (Qld), s 60
Caltex
Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
(2009) 75 NSWLR 649,
cited
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320,
cited
Guirguis Pty Ltd v Michael’s Patisserie System Pty Ltd
[2017] QCA 83
[2018] 1 Qd R 132, cited
Kerle v BM Alliance Coal Operations Pty
Limited [2016] QSC 304
(2016) 262 IR 381, considered
Leighton Contractors v Fox
[2009] HCA 35
(2009) 240 CLR 1, considered
Onassis v
Vergottis [1968] 2 Lloyd’s Rep 403, cited
Stevens v Brodribb
Sawmilling Co Pty Ltd (1986) 160 CLR 16, cited
Thompson v Woolworths
(QLD) Pty Ltd [2005] HCA 19
(2005) 221 CLR 234, distinguished
Woolworths Ltd v
Perrins [2015] QCA 207
[2016] 2 Qd R 276, cited
Judgment (361 paragraphs)
[1]
TORT - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH - AT COMMON LAW - where the plaintiff claims he injured his back carrying steel mesh sheets ('first incident') at a residential renovation project in 2016 ('job site') - where the plaintiff was an employee of the second defendant at the time of the first incident - where the first defendant was the principal contractor for the job site - where the first defendant contracted the second defendant to undertake concreting works at the job site - where the second defendant was supplied with the engineering plans - where the plaintiff claims the first defendant had a duty of care as the occupier of land - where obligations are owed under the Work Health and Safety Act 2011 (Qld), Work Health and Safety Regulations 2011 (Qld) and other safety standards - where the first defendant had organised an activity involving a risk of injury - where the operation of the activity was the responsibility of the second defendant - whether the first defendant as the principal contractor had a duty to take reasonable care to supervise and monitor and ensure a safe system of work for specialised work by independent contractors
[2]
TORT - NEGLIGENCE - DAMAGE AND CAUSATION - CAUSATION - where the plaintiff ultimately sustained a prolapsed disc at the L5/S1 and experience impingement of the right side S1 nerve root - where the first and second defendant say the plaintiff has a pre-existing degenerative spinal condition - where the plaintiff continued to have back pain and 'flare ups' after the first incident - where the plaintiff sometimes completed 'lighter duties' after the first incident - where the plaintiff otherwise performed his usual concreter duties - where the plaintiff sustained further injury in 2017 ('second incident') - where the plaintiff did not did not see a health practitioner until after the second incident - where the third defendant had taken over the running of the plaintiff's employer at the time of the second incident - where there were issues with the plaintiff's credibility and reliability - whether the second incident and the symptoms the plaintiff continues to experience, are causally connected to any injury from the first incident
[3]
TORT - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH - CIVIL LIABILITY LEGISLATION - where the second defendant admits that it breached the duty of care it owed to the plaintiff - whether the second defendant's breach of duty was a necessary condition of the plaintiff's injuries
[4]
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - GENERALLY - where the plaintiff experienced an associated worsening of his pre-existing psychiatric condition - where the dominant injury was the plaintiff's back injury - where the Injury Scale Value is to be assessed - where the plaintiff was otherwise fit and able to work and was an experienced and qualified concreter - where the plaintiff has not undertaken any course, training or rehabilitation towards obtaining new employment - where the plaintiff was assessed as being able to perform sedentary to light work - where there is a potential option for the plaintiff to obtain further surgery - where there was a significant change in the plaintiff's domestic duties only after the second incident - whether the plaintiff sustained a serious permanent impairment in the thoracic or lumbar spine which may involve bilateral or multilevel nerve root damage or a change in motion segment integrity - whether the plaintiff has a residual earning capacity of greater than one day a week - whether there is a need for ongoing treatment and management of the plaintiff's injury - whether the plaintiff's evidence of past and future care needs is reliable
‑‑A Mellick with J V Pagliano for the second and third defendants
[19]
[1] The plaintiff, Mr Luke Sawyer, brings an action in negligence to recover damages from the defendants in respect of personal injuries he says he sustained whilst working as a concreter for a business named 'Cretek Concreting', ('Cretek').
[2] His claim involves two alleged incidents.
[3] The first is said to have occurred on 22 August 2016 on a job site at a residential property in Ascot. The first defendant's construction business, trading under the trading name 'SW Constructions', ('SWC'), was the principal contractor for the construction project. It had engaged Cretek to undertake some of the concreting works. Cretek was at the time run by the second defendant.
[4] Mr Sawyer and another Cretek employee were tasked by their supervisor to complete foundation preparations for a concrete slab that was to be installed at the site. In performing that task, they had to lift, carry and lay steel mesh sheets. Mr Sawyer claims he injured his lower back when bending and reaching whilst holding one of the mesh sheets as he and his co-worker attempted to position it in place for the slab foundation. He also claims he subsequently sustained further injury, in the form of an aggravation of a pre-existing depressive condition, as a consequence of his physical injury.
[5] Mr Sawyer's case is that the first incident, and his resultant injuries, were caused by SWC and Cretek breaching the duty of care they each owed him to ensure a safe system of work and to not expose him to unnecessary risks of injury.
[6] Thereafter, Mr Sawyer continued to work as a concreter for Cretek, albeit he says he did so with constant lower back pain that increased over time due to the work duties he was required to perform. He did not seek any medical treatment or see a doctor about his back until after the second incident, almost one year later.
[7] The second incident is said to have occurred on 3 July 2017, when Mr Sawyer was working for Cretek at another job site. The third defendant company had by this time taken over the running of Cretek and was Mr Sawyer's employer. The company is now in liquidation.
[8] Mr Sawyer claims that he exacerbated or aggravated his initial back injury during the second incident, when he bent over to get a drink during a work break. He also claims that he suffered further resultant aggravation of his psychiatric injury. Subsequent medical investigations revealed a prolapsed vertebral disc in his lumbo-sacral spine.
[20]
[14] There are four major liability issues to consider in this case.
[15] The first issue concerns the alleged duty of care owed to Mr Sawyer by SWC. Mr Sawyer claims it owed him a duty of care in its capacity as the principal contractor in occupation and control of the job site at the time of the first incident. SWC denies it owed any such duty of care. Furthermore, even if it did, it denies any breach of such a duty.
[16] In contrast, the second defendant, being Mr Sawyer's employer at the time of the first incident, admits that it owed Mr Sawyer a duty of care which it breached.
[17] The second issue concerns causation. There is no dispute that Mr Sawyer sustained a prolapsed L5/S1 disc at some point in time. What is in dispute is when and how he sustained it. The first and second defendants do not admit the first incident occurred as alleged. Each denies that Mr Sawyer sustained any injury, or at least any significant injury, to his lower back on that occasion. They say that any injury he may have then suffered was minor and resolved in a short time. They further say that Mr Sawyer had a pre-existing degenerative condition in his spine, and it was that condition or some other independent cause, and not any breach of a duty they may have owed, that likely caused Mr Sawyer's prolapsed disc.
[18] Regardless of when and how Mr Sawyer's prolapsed disc was caused, the defendants accept that aggravation of Mr Sawyer's pre-existing psychiatric condition was part of the sequelae of the development of his lumbosacral spine condition.
[19] The third issue concerns Mr Sawyer's alternative case against the second and third defendants and the alleged over period of time injury he claims he sustained. Existence of a duty of care, breach of duty and causation are all in issue. Mr Sawyer claims that because the second and third defendants were aware that he had previously hurt his back and continued to experience ongoing back pain they owed him a special, higher duty of care to ensure he was not exposed to risks of injury when continuing to carry out his work duties. The second and third defendants deny they owed Mr Sawyer any such duty of care. They say they were not aware that he had sustained a significant injury to his lower back during the first incident or that he continued to experience ongoing pain. Furthermore, they deny breaching any duty of care that they may have owed Mr Sawyer and deny that any injuries Mr Sawyer sustained were caused by such a breach.
[21]
The circumstances of the first and second incidents
[22]
[21] Before considering the disputed issues, it is necessary to further detail what happened in the first and second incidents.
[23]
[22] The first incident occurred at a residential job site at Yabba Street, Ascot on 22 August 2016. The owner of the residence was undertaking substantial renovations of the property, worth more than $1 million. She engaged an architect for the project and he prepared plans for the renovations. She also engaged SWC to undertake and manage the building works on the property.
[23] Part of the building work to be carried out involved raising the existing house and installing a polished concrete slab underneath. The concrete slab was to be constructed in accordance with plans prepared by an engineer. SWC did some of the preliminary work for the slab installation, including excavating the ground and installing footings. It engaged Cretek to perform additional work for the slab installation, including completing some of the necessary preparatory formwork and foundation work to ready the area for the concrete pour. One aspect of the work to be done by Cretek was laying and fixing steel mesh sheets on the prepared ground to reinforce the concrete once it was poured.
[24] The engineer's plans detailed the location for the installation of the polished concrete slab and specified the materials that were to be used for its foundation, including the type of steel mesh sheet that was required. The particular steel mesh was identified as 'SL81', being a 6m x 2.4m square grid patterned product formed by 8mm thick bars spaced at 100mm horizontal and vertical intervals. Each sheet weighed approximately 105kg.
[25] Cretek first began its work at the site on about Friday, 19 August 2016. On Monday, 22 August, four Cretek workers, Dwaine Stewart, Hepara McMath, Tamati Waho and Mr Sawyer, attended at the site at about 6:30am to complete the preparations for the concrete pour. Mr Stewart was the Cretek supervisor. Two workers from SWC were also onsite attending to other jobs.
[26] In previous days SWC had already performed preliminary work to put the footings for the concrete slab in place. That involved excavating trenches and filling them with concrete to create the first stage of the slab foundation. The Cretek workers were to finish the preparations to have the foundation ready for the concrete pour.
[27] At the commencement of the workday on 22 August, Mr Stewart tasked Mr Waho to work with him to complete the formwork and directed Mr Sawyer and Mr McMath to complete the other slab preparations. Their work involved levelling a sand base that had been left on top of the footings, covering it in sections with a plastic membrane, laying the steel mesh sheets on top of those sections, tying adjoining sheets together and then fixing them in place.
[24]
[31] Mr Sawyer said that he saw the steel mesh when he arrived at the job site. He could see it was a heavier than usual mesh. He mentioned to Mr McMath that he had used the SL81 mesh before, but with three or four people carrying it. He said he was a bit concerned about how the two of them were going to carry the sheets.
[32] According to Mr Sawyer, there was quite a lot of excess sand to remove before the plastic membrane sheets could be laid. His recollection was that it took until about 9:30am to remove the sand. He estimated it was about 11:00am when they started carrying the mesh. He recalled Mr Stewart had left the job site around 9:30am and did not return until about 1:30pm. During his absence, Mr Waho continued doing the formwork alone. Mr Sawyer said that he thought about asking Mr Waho to help with carrying the mesh but because Mr Stewart was not on site, Mr Waho had to keep going with the formwork to finish the job.
[33] Mr Sawyer said Mr Stewart did not give him any instructions about putting the mesh in place before he left the site, only that he and Mr McMath were to lay the sheets that day.
[34] As to the method he and Mr McMath used to carry the mesh sheets, Mr Sawyer explained that they each stood at one end of the sheet, raised it from the ground until it was upright, then held it by grasping a rod about 500mm from the bottom with their right hands while supporting the top with their left hands. They then carried each sheet to the area where it was to be laid.
[35] Mr Sawyer recalled carrying and laying 26 sheets in total. He said it was about when they were laying the fourteenth sheet that the incident occurred. He estimated the time was about 1:30pm to 2:00pm. He said he and Mr McMath had carried the sheet to the area where it was to be laid but there were numerous plumbing pipes protruding from the ground in that area. As a result, the laying of this particular sheet was more difficult than the others. To ensure they did not break any pipes, he and Mr McMath had to first put one end of the sheet on the ground. They then tipped the other end of the sheet over, holding it while squatting down to get it into position.
[36] Mr Sawyer described his left arm had been above his head supporting the top of the sheet and his right arm had been fully extended to the right side of his body and as he squatted and reached out to get the sheet to balance on top of the pipes. He said that it was whilst squatting and reaching out with the sheet above his head that he felt a 'click' in his lower back.
[25]
[38] Mr McMath's evidence was contained in a written statement received as an exhibit.
[39] Mr McMath confirmed that Mr Sawyer had hurt his back when they had been performing work duties for Cretek at the Ascot job site. He stated that he and Mr Sawyer had been carrying heavy steel mesh from the driveway to underneath the house where there were some plastic pipes sticking up. He recalled this was where Mr Sawyer hurt his back, as he bent over to place a sheet of the steel mesh. He could not recall exactly what Mr Sawyer had said but he remembered that Mr Sawyer had told him he had hurt his back.
[40] According to Mr McMath, he and Mr Sawyer kept working and carried more of the mesh sheets, but Mr Sawyer was struggling. Mr McMath stated that he could see Mr Sawyer's back was sore.
[26]
[41] On 5 October 2016, Adrian Quillan completed an incident investigation form in respect of the first incident. He recorded that the incident occurred at the Ascot job site on 22 August 2010 (sic. 2016) at approximately 11:30am and that Mr Sawyer had reported the incident to Mr Stewart at approximately 15:00.
[42] Under the executive summary section, Mr Quillan wrote:
[27]
Luke notified his supervisor immediately, but continued to work. Luke did not do anything differently while carrying the mesh but, being a heavier piece of mesh, could have offset any possible injury by requesting extra help on site to lift (i.e. a 3-man lift for the heavier sheet).
[28]
[43] Similarly, as to the root causes of the incident, Mr Quillan noted:
[29]
A heavier-than-usual piece of steel mesh was carried by only 2 men as per normal - a third man should have been utilised to offset the extra weight.
[30]
[44] Mr Quillan signed the incident investigation form, confirming he was satisfied the information recoded in it was correct. Mr Sawyer did not sign the form.
[31]
[45] There was ultimately no real dispute about the occurrence of the first incident. Mr Sawyer's description of when and how the event occurred is supported by the evidence given by Mr McMath and the information recorded in the Cretek incident investigation report.
[46] I find that the first incident happened in the way described by Mr Sawyer in his evidence.
[32]
[47] There was no dispute about how the second incident occurred, nor that Mr Sawyer injured his back on that occasion.
[33]
[48] The second incident happened on 3 July 2017. Mr Sawyer referred to it as one of the occasions he experienced a 'flare-up' of his back pain. He explained that on that day he was at a job for Cretek and had gone to his Esky to get a drink. As he bent over to pick up the drink, he felt severe lower back pain.
[49] Despite the sudden pain he experienced, Mr Sawyer said that he did not seek medical attention that day. He recalled that after the incident he had to attend a second job, which was about an hour's drive away. He said that after driving to the second job his back pain was a lot worse and he could not work, so he left and drove home. He sought medical treatment the next day.
[34]
[50] I find the second incident occurred in the way Mr Sawyer described in his evidence.
[35]
[51] Whilst I have considered the whole of the evidence, I will summarise only the evidence directly relevant to this issue at this point.
[36]
[52] Mr Sawyer gave evidence that when he arrived at the Ascot job site one of the SWC workers unlocked the temporary fencing so that he and the other Cretek workers could enter. He recalled there were two workers from SWC on-site all day. They spent quite a lot of their day looking over plans that they had laid out on a plan desk, which Mr Sawyer identified from photographs as a slanted lectern structure situated a few metres away from the location where Mr Sawyer had hurt his back.
[53] Mr Sawyer could not recall if the two SWC employees were at the plan desk when he had carried the first 13 mesh sheets to lay them under the house. However, he did recall that they remained present on-site throughout the day and that they were always visible.
[54] Mr Sawyer identified a Cretek Safe Work Method Statement, ('SWMS'), dated August 2016. It was a generic document and not specific for the work to be done at the Ascot job site. He recognised it as a kind of document he had used on other occasions. He had not read this particular SWMS and had not been asked to sign it before starting work on 22 August 2016. He had never signed one specific for the Ascot job site.
[55] The SWMS noted as 'High Risk Activities', 'lift and carry objects between 20 - 55kg...'. Mr Sawyer said that no-one from either Cretek or SWC had talked to him about those activities.
[56] Mr Sawyer stated that there were occasions where he had been asked to sign a SWMS when working on a big commercial site, where workers had to do an induction before entering the site. He said that on those occasions the head contractor would have their own documents that the workers would have to sign. He said there had been occasions when he had been working for Cretek on those job sites that he had been directed by the head contractor's people to do certain things. He said that he had complied with those directions because 'the foreman is in charge of the job' and he would have to follow those directions even above his own boss.
[37]
[57] Mr Dixon is a building industry consultant. He holds various building and construction qualifications. He was engaged by Mr Sawyer's solicitors to provide two expert reports.
[58] In his first report, dated 1 November 2021, Mr Dixon noted that under the Work Health and Safety Act 2011 (Qld), ('WHSA'), and the Work Health and Safety Regulations 2011 (Qld), ('WHSR'), the Hazardous manual tasks Code of Practice 2011 was an approved Code of Practice. He further noted that the Code of Practice applied to anyone who had a duty of care in the situations described in the Code and that it provided guidance on how to manage risk of musculoskeletal disorders, ('MSD'), arising from hazardous manual tasks carried out in the workplace. He cited s 60(1) of the WHSR_,_ which provided that a person conducting a business or undertaking must manage risks to health and safety relating to a musculoskeletal disorder associated with a hazardous manual task. The task Mr Sawyer was performing on 22 August 2016 when he injured his back was within the definition of a 'hazardous manual task'. Accordingly, Mr Dixon opined:
[38]
So, [SWC's] "obligation to prevent the injury incident" is that of, "a person conducting a business or undertaking". The obligation includes the WHS Regulations specific to managing the potential risks associated with a hazardous manual task that could result in an MSD injury.
[39]
[59] On the specific issue of SWC's obligations as the head contractor for the Ascot job, Mr Dixon stated:
[40]
Site safety is (first and foremost) the responsibility of the head contractor (in this case [SWC]) to identify the hazardous manual tasks, examine and assess the risks of MSDs and ultimately to implement control measures to eliminate and / or minimise the risk of worker injury from a MSD.
[41]
[60] Mr Justin O'Sullivan is an ergonomist and safety consultant who was engaged by Mr Sawyer's lawyers to provide two expert reports.
[61] In his initial report, dated 31 January 2020, Mr O'Sullivan set out a number of matters said to be relevant to the issue of whether SWC owed a duty of care to Mr Sawyer. He referred in particular to the obligations of a builder under a generic 'Housing Safety Workplan' document published by Master Builders Queensland. He summarised those obligations as follows:
[42]
(a) a safety workplan must be prepared by the builder for any project exceeding $80,000;
(b) the builder must provide a copy to a subcontractor or discuss relevant parts with a subcontractor before their work commences;
(c) the plan must be available to anyone on the work site;
(d) the builder must ensure a subcontractor provides a SWMS for any task or activity which the builder reasonably believes could cause bodily harm or injury;
(e) the builder must ensure all workers have undergone a generic industry induction and record details;
(f) the builder must ensure adequate housekeeping and appropriate and safe access so as to control risk to workers;
(g) all persons on site were required to follow all work health and safety directions of the builder and any SWMS provided by their employer;
(h) the builder was required to ensure orderly conduct of all work and oversee coordination of all health and safety aspects pertaining to the project;
(i) the builder must also ensure trade contractors have certain contractual obligations in relation to management of health and safety matters... [consistent with the builder's obligations].
[43]
[62] He further referred to the obligations of contractors and suppliers under Australian safety standard AS/NZS4804:2001: Occupational Health and Safety Management Systems, which he said outlined hazard identification and risk assessment requirements for the activities of contractors and suppliers. In particular he noted that in respect of goods purchased from a supplier the standard provided:
[44]
Notwithstanding the contractor's and supplier's obligations contained in contract documentation, the organisation remains accountable for safe work practice, procedures and equipment on site.
[45]
[63] When cross-examined by counsel for the first defendant, Mr O'Sullivan said that the general principle in safety management was that 'control is set from the top'. He said that in the construction industry this was not only due to the requirements of the WHSA and the WHSR but had arisen over the years from various sources in terms of professional safety principles. He agreed that the size of the job was relevant to the application of work health and safety principles and obligations but did not consider time on site was as relevant. He confirmed his opinion that SWC, as the head contractor, having engaged Cretek as an independent concreter to do the concreting work, retained an obligation to ensure that the system of work of the contractor was performed in a reasonably safe manner. He agreed that in this case if Cretek had appropriately allocated its four workers then the steel mesh could have been moved about the site in a reasonably safe manner.
[46]
[64] Mr Hall is an employee of SWC. He was the leading hand working on the project at the Ascot job site in August 2016.
[65] He recalled Cretek arrived on site on 19 August to commence their preparation works ahead of the slab pour. He said that on that day they were doing boxing and formwork. He said SWC 'would have run lines and double-checked pipes and stuff' but apart from that they had no other part to play in Cretek's work activities. He confirmed that Cretek was working under the house in the area where the slab was to be constructed and that SWC were working elsewhere on the block. He said he was again onsite on 20 August when SWC would have been preparing footings.
[66] With respect to 22 August, Mr Hall said he was there when the concreters were onsite, preparing the slab, while he and another SWC employee were preparing some footings around the perimeter of the property for landscaping blockwork. He could not recall having anything to do with the work of the concreters. He identified a timesheet for the work undertaken at the job site that day and that an entry, which read 'slab prep', related to the work being done by the concreters for the slab preparation whilst another entry, which read 'tie steel in footings', related to the work that SWC was doing that day.
[67] Mr Hall said he first learned of an allegation that a Cretek worker had suffered an injury at the work site on 22 August 2016 sometime in early 2018. He was unable to recall which workers from Cretek were onsite that day. He could not remember giving any Cretek employees any instructions with respect to safety aspects or what they were supposed to do or not do on the site on that date. He said he did not ever notice any unsafe work practices being conducted by Cretek or its employees.
[68] Mr Hall confirmed that the concrete slab was subsequently poured on the following Saturday, 27 August, and that he was again present at the site on that occasion.
[69] In cross-examination, Mr Hall confirmed that the formwork that he had been doing at the site involved laying steel mesh in strip footings. He agreed that this steel mesh had also been stored on the driveway area at the front of the property, in the same area where the steel mesh that had been delivered for the work that Cretek was doing had been placed.
[70] Mr Hall agreed that as the leading hand onsite he had control over who entered the site and their conduct onsite. He agreed that he could give directions to any subcontractors onsite. He accepted that part of his role was to ensure that subcontractors produced the appropriate paperwork before starting work onsite. He was unable to recall whether a SWMS had been provided to him by Cretek. He said that there were some SWMS' from some trades and they were kept in a site box. He agreed that part of his role was to look at those documents to ensure they were realistic and that they demonstrated that people coming onto the site were going to do their work in a safe way. He accepted that his obligation was not simply to put them in the site box but to understand what was in them and then watch the workers onsite to ensure that they were complying with the SWMS.
[47]
[73] Mr Wehl is a licensed builder and the sole director of the first defendant. His company specialises in house renovations. He confirmed that in 2016 SWC entered into a contract to renovate the house at the Ascot job site. As part of that job, SWC raised the house, poured a new concrete slab underneath, built in underneath and switched living rooms to downstairs and bedrooms to upstairs.
[74] He confirmed that SWC engaged other contractors to do specialised work at the Ascot job site on numerous occasions. Those other contractors included Cretek. He said that he had been using Cretek as a contractor for about 10 years before August 2016 and he considered they were a reputable concreter, competent to do the concreting work required. He said he had confidence they could perform the job and that he had never had any concerns about safety aspects of their business.
[75] Mr Wehl confirmed that he had sent an email with the architectural and engineering plans for the Ascot job attached and Cretek had in return provided a quote for their labour. He said that as part of their arrangement, SWC would supply the concrete and materials and Cretek would supply the labour to 'prep the site and pour the concrete.' He confirmed the concrete slab that was to be installed was to have a polished finish and the specific requirements for the slab were contained in the architect's plans. The plans specified that SL81 mesh was to be used for the slab reinforcement.
[76] He recalled that all the footings were poured by SWC on 5 August and that Cretek were later onsite for about a week, on and off, to prepare and pour the slab. He confirmed the slab was poured on Saturday, 27 August.
[77] His recollection was that the concreters had first arrived on Friday, 19 August. He confirmed that he was onsite, on and off during that day. When asked about whether he left it to Cretek to arrange the way in which it was doing its work, Mr Wehl said 'Yes. They're a subcontractor. They get paid to do the job. I don't, you know, want to waste, you know, time and money babysitting them to - to do the job they're being paid to do.' When asked about whether he had any expertise in the way in which the mesh sheets were to be cut, laid or tied, Mr Wehl said that he did not and that was a job he was paying Cretek to do, and they would work out the easiest way to do it as they felt fit. Mr Wehl confirmed that he did not give Cretek any directions about their system of work and that the matter was left to Cretek. Similarly, when asked whether he left it to Cretek to control their work site when they were doing their work, he stated 'That's right. They're a subcontractor. ... I'm not supervising their inter-crew works.'
[48]
[93] Joel Quillan, is a concreter by trade. He and his wife, Linda Quillan, are the trustees of the second defendant. Before October 2016, they operated the Cretek concreting business. After October 2016, Mr Quillan was the managing director of the third defendant company, Cretek Pty Ltd, which took over running the business.
[94] He confirmed that Cretek had done work for SWC in the past and that when they did they would have provided a quote and entered into some type of agreement, whether it was a formal agreement or a 'simple approval'. He said that in order to provide a quote, Cretek would usually receive architectural or structural plans or both. He confirmed Cretek had provided a quote to SWC for the Ascot job.
[95] When cross-examined by counsel for SWC, Mr Quillan agreed that when Cretek had done work for SWC in the past they would normally be emailed the relevant architectural or engineering plans, which would provide information about the type of concrete slab to be constructed and the type of steel mesh for the slab. He agreed that it was necessary to have the plans to be able to assess the scope of the work to be carried out and to provide a quote. He identified a copy of the plans Cretek had received from SWC for the Ascot job. He agreed that when he received the plans he knew that the slab required a polished finish and that SL81 mesh was to be used. He further agreed that he knew SL81 was a heavier mesh and that would have been why four men were onsite on 22 August 2016. He agreed that his normal practice would be to have three or four men to move steel mesh of that kind.
[96] Mr Quillan agreed that the foundation preparation work to be undertaken by Cretek at the Ascot job site was work of a specialist nature. He agreed that part of the duties of a concreter involved cutting mesh as necessary and moving it and tying it in place into the overall fabric for the slab. He agreed that cutting the mesh before moving it would make it lighter and would allow it to be manoeuvred into position. He did not agree however that mesh would always be cut before moving it to lay it where pipes might be protruding. He said sometimes he would put the sheet against the pipes and cut around it in situ.
[97] Mr Quillan agreed that Cretek would normally produce the SWMS when doing work for SWC. He agreed that a SWMS would normally be given to the head contractor at the start of a job and the head contractor would then retain it. In terms of working with SWC, Mr Quillan said that Cretek would not always provide a SWMS when they arrived onsite. He identified the Cretek SWMS in evidence as consistent with the type of document Cretek would provide to SWC in 2016. He described the SWMS as a document that 'covered pretty much everything we did onsite'. He agreed that the SWMS indicated to the head contractor that Cretek had gone through that process of having a safe system of work for its workers. He accepted that it was Cretek's responsibility to ensure its workers had a safe system of work.
[49]
[102] Mr Sawyer contends that SWC owed him a duty to take reasonable care to:[1]
[50]
(a) monitor and maintain workplace health and safety at the site;
(b) direct him not to engage in unsafe work;
(c) warn him of any unnecessary risk of injury; and
(d) avoid reasonably foreseeable but unnecessary risks of injury.
[51]
[103] The particular risk of injury identified by Mr Sawyer is the risk of injury from the manual handling of the SL81 steel mesh sheets that he was required to work with at the job site on 22 August 2016.[2] Mr Sawyer claims that SWC knew, or ought to have known of this risk. Amongst other things, he relies upon the fact that SWC, was a person conducting a business or involved in the management or control of a workplace, within the meaning of the WHSA. As such, he claims that SWC ought to have known of safe manual handling guidelines, such as the Code of Practice, and ought to have carried out a risk assessment as required by a combination of s 19 of the WHSA and s 60 of the WHSR.
[104] Whilst he accepts that the relationship between SWC and Cretek, as principal and independent contractor, is one where the common law does not, without more, recognise the existence of a duty of care owed to him by SWC, Mr Sawyer nevertheless submits that the circumstances here are such that a duty of care, with the content and scope as pleaded, did exist.
[105] Mr Sawyer contends that the existence of such a duty is justified when the totality of the relationship is considered. In particular, he points to the following factors:
[52]
(a) SWC exerted control over the work he performed at the Ascot job site;
(b) the work he was doing was basic concreting preparation work. It was not specialised work and not something he had some specialised knowledge about, over and above SWC. SWC had itself carried out similar work at the site just weeks prior;
(c) a risk of harm of the kind he sustained was foreseeable by SWC - manual handling is well recognised as a source of back injuries;
(d) the nature of the harm was significant;
(e) there was a degree of vulnerability on his part to harm posed by lifting the steel mesh, in circumstances where there were time pressures to get the preparation works done before the concrete pour;
(f) SWC had assumed responsibility for Mr Sawyer by reason of its obligations under the Housing Safety Workplan it adopted for the work site;
(g) SWC was the lawful occupier of the land;
(h) SWC had ordered the SL81 mesh;
(i) SWC had knowledge (either actual or constructive) that the conduct in which Mr Sawyer was engaged at the site would cause harm - it knew of the risk because its own employees has recently done similar formwork at the same site. It also knew the SL81 mesh needed to be manually handled, and saw it being done in an unsafe way on 22 August 2016; and
(j) SWC's obligations under the relevant workplace health and safety legislation, the Code of Practice and Australian Standards.
[53]
[106] SWC submits the totality of the circumstances do not justify the imposition of the asserted duty. It relies principally upon the fact that Mr Sawyer was an employee of Cretek and that its relationship with Cretek was one as between a head contractor and an independent contractor, where the independent contractor had been engaged as a specialist to perform a particular job. It says that it had wholly delegated the task of laying the steel mesh sheets to Cretek, an experienced and competent concreting contractor. It further says it had had no control over the way in which Cretek completed the concreting work and no obligation to monitor or supervise the works carried out by Cretek's employee. It says Cretek's was solely responsible for devising and overseeing the system of work and it had no obligation to interfere or to carry out any risk assessment.
[107] With respect to the opinion evidence of Mr Dixon and Mr O'Sullivan concerning the duties owed by a builder or principal contractor on a construction site, SWC submits that in each instance their evidence assumed that a duty of care would be owed by SWC, which it submitted was ultimately a legal question to be determined by the Court.
[108] As to the potential application or relevance of the workplace health and safety provisions identified by Mr Sawyer in aid of his claim, SWC cites s 267 of the WHSA_,_ which stipulates that nothing in the Act confers a right of action in civil proceedings. It submits that the legislative provisions do not impose any personal civil duty upon SWC.
[54]
[109] The provisions of the Workers Compensation and Rehabilitation Act 2003 (Qld), ('WCRA'), with respect to liability and assessment of damages for personal injury do not apply to SWC as it was not Mr Sawyer's employer. The Civil Liability Act 2003 (Qld) also does not apply.[3] The question of its liability is therefore governed by the common law.
[110] The relevant principles for determining whether SWC owed Mr Sawyer a duty of care in its capacity as the principal contractor were considered by the High Court in Leighton Contractors v Fox.[4] The appellant in that case, Leighton Contractors Pty Ltd, was the principal contractor for a construction project. It engaged a contractor, Downview Pty Ltd, to carry out concreting works, including reinforcing and formwork. Downview then engaged a subcontractor to provide the concrete pumping for a concrete pour. The respondent was engaged by Downview, together with another man named Stewart, for the concrete pumping. After the concrete pour was completed, the workers commenced cleaning the concrete delivery pipes. As a result of the negligent manner in which that was done, a pipe swung around and struck the respondent in the head, causing him injury.
[111] The respondent brought an action in negligence against each of Leighton, Downview and Stewart's company, through which Stewart had been engaged by Downview. The trial judge dismissed the claim against Leighton and Downview but found Stewart's company liable. The Court of Appeal subsequently upheld an appeal brought by the respondent against the dismissal of his claim against Leighton and Downview, holding each was subject to a common law duty of care for the benefit of the respondent and that each was in breach of that duty. Leighton and Downview then appealed to the High Court.
[112] The Court concluded that neither of the appellants owed a duty of care to the respondent. In allowing the appeal, the Court relevantly stated:[5]
[55]
The duty of principals to independent contractors. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees [citation omitted]. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd[6]:
[56]
"An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility."
[57]
[113] The Court also cited the following passage from Mason J's separate judgment in Brodribb:[7]
[58]
Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system...
[59]
[114] The scope and application of these principles were considered by McMeekin J in Kerle v BM Alliance Coal Operations Pty Ltd.[8] The plaintiff in that case was employed as a dump truck operator at a coal mine. His employers provided services to the mine as independent contractors. As the coal mine was located hundreds of kilometres from his home, the plaintiff would drive to the mine and stay there onsite for a number of days at a time, during which he would complete consecutive night shifts, before driving home when he next had days off. After completing several such shifts, the plaintiff crashed his car when driving home one morning, resulting in him suffering significant injuries. Fatigue was a significant contributing cause of the accident. The plaintiff sued his employers and the mine operator, claiming each had breached duties owed to him and thereby caused his injuries. In respect of the mine operator, the plaintiff contended that it owed him a duty of care at common law. The mine operator denied it owed any such duty of care. It submitted that the effect of the authorities on this area of the law was that, absent some special features, a principal only became liable to co-ordinate activities amongst independent contractors and no more. It argued that as it had no such role it did not owe the plaintiff a duty and was not liable.
[115] McMeekin J rejected the mine operator's argument. His Honour considered the principles stated in Brodribb and Leighton were not restricted in their application simply to cases where a principal had a role in co-ordinating the activities of independent contractors. Furthermore, his Honour considered that each of those cases were distinguishable as they did not deal with the novel circumstances of the plaintiff's case. In those circumstances, McMeekin J concluded that the question of whether the mine operator owed a duty to the plaintiff was to be determined having regard to the totality of the relationship between the parties.
[116] Having so concluded, his Honour then approached the question by applying what Allsop P had said in Caltex Refineries (Qld) Pty Ltd v Stavar[9] about then need to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the 'salient features' or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. Adopting the non-exhaustive list of salient features identified by Allsop P as relevant to the inquiry, McMeekin J held that the mine operator did owe a duty of care to the plaintiff, which it had breached.
[60]
(a) the foreseeability of harm...;
(b) the nature of the harm alleged...;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm...;
(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself...;
(e) the degree of reliance by the plaintiff upon the defendant...;
(f) any assumption of responsibility by the defendant - see (c) above...;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant...;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff...;
(i) the nature of the activity undertaken by the defendant...;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant - see (b) above;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff - see (a) above;
(l) any potential indeterminacy of liability...;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff...;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests...;
(o) the existence of conflicting duties arising from other principles of law or statute - not relevant as a disqualifying factor and see (p);
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty...; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law...
[61]
[118] Notwithstanding that his case is not novel, Mr Sawyer relies on Caltex and frames his argument by refence to the salient features he contends were present in this case.
[119] Mr Sawyer also contends that another relevant consideration in this case is the question of occupier's liability. It was not disputed that SWC was an occupier of the job site and that the Cretek employees who attended there were entrants or invitees.
[120] In terms of the extent of SWC's control of the job site, it is pertinent to note that counsel for SWC made a concession in these terms at trial:
[62]
The first defendant controlled the work site ... but the under-house slab area and the driveway was under the control of the second defendant during its work activity.
[63]
[121] The duty of an occupier of land is to take reasonable care to avoid a foreseeable risk of injury to an entrant, arising from the physical state of its land, on the assumption that the entrant uses reasonable care for their own safety.[11]
[122] Occupier's liability was a feature of the case in Leighton. It was one of the factors that had led the Court of Appeal to allow the appeal in respect of the dismissal of the respondent's claim against Leighton. In rejecting this aspect of the case against Leighton, the High Court said:
[64]
It may be accepted that Leighton, as the occupier of the site, owed a duty to persons coming onto it to use reasonable care to avoid physical injury to them. However, this says nothing about whether Leighton owed a duty to Mr Fox to take reasonable care to prevent him suffering injury on the site as the result of the negligent conduct of Mr Stewart. The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken.
[65]
[123] In Thompson v Woolworths (QLD) Pty Ltd,[12] the High Court considered a case where the appellant, who had sustained a back injury while delivering goods to the respondent's store, sued the respondent for damages for negligence. The appellant was an independent contractor who injured her back whilst attempting to move heavy industrial waste bins obstructing the access to the supermarket's delivery bay for the truck she was driving. It was the task of the supermarket staff to move the bins, but the supermarket operator was aware that many delivery drivers moved the bins themselves, to save time, and was aware of the consequent risk of injury to those drivers.
[124] The Court noted that the issue of liability was not concerned simply with an occupier's liability for hazards associated with the static condition of the premises. That was because the appellant was on the respondent's premises for a 'mutual commercial purpose' and was required to conform to certain systems and procedures established by the respondent. While it was not disputed that the respondent owed the appellant a duty of care, there was disagreement about the appropriate formulation of that duty.[13] On that aspect, the Court relevantly observed:[14]
[66]
The status of the respondent as occupier of the land on which the appellant was injured was one aspect of the relationship that gave rise to a duty of care. It gave the respondent a measure of control that is regarded by the law as important in identifying the existence and nature of a duty of care. There was, however, more to the relationship than that, and, as was agreed on both sides, the problem was not one that concerned only the physical condition of the respondent's premises...
[67]
The purpose for which, and the circumstances in which, the appellant was on the respondent's land, constituted a significant aspect of the relationship between them. The appellant, in the pursuit of her own business, was delivering goods to the respondent for the purpose of sale in the course of the respondent's business. To do that, she was required to conform to a delivery system established by the respondent... Since the respondent established the system to which the appellant was required to conform, the respondent's duty covered not only the static condition of the premises but also the system of delivery...
[68]
...the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury.
[69]
[125] As to the significance of the workplace health and safety legislation cited by Mr Sawyer in aid of his case, I accept that SWC was 'a person conducting a business of undertaking' and 'a person with management or control of a workplace', within the meaning of those concepts under ss 5 and 20 of the WHSA. Consequently, I accept that the Act imposed health and safety duties upon SWC pursuant to ss 19 and 20. However, it is plain, by virtue s 267 of the Act_,_ that the statutory duties imposed under that Act did not give rise to any correlative private rights.[15] Nevertheless, obligations owed by SWC under the WHSA and the WHSR remain relevant to determining the existence and scope of any duty of care owed by SWC, albeit bearing in mind that such obligations do not impose any more stringent or onerous burden than a duty to exercise reasonable care.[16]
[126] A similar position pertains to any obligations SWC may have had under any relevant Australian safety standards.[17] They are a guide to, but they cannot dictate, the standard of reasonable care required in the circumstances of individual cases.[18]
[70]
[127] The authorities I have referred to above clearly establish that in some circumstances a principal contractor will be under a duty to use reasonable care to ensure a safe system of work for independent contractors. Whether such a duty arises is to be determined by considering the nature of the relationship between the parties and the totality of the circumstances.
[128] Having done so, I do not consider the circumstances that existed here at the time of the first incident are such that a duty of care of the kind and scope as pleaded by Mr Sawyer should be imputed.
[129] The relationship between SWC and Cretek was contractual. SWC was the principal contractor, engaged by the owner of the Ascot premises to undertake a residential renovation project. SWC engaged Cretek to perform a particular part of the renovation works, namely the installation of a polished concrete slab.
[130] Under that contract, Cretek was required to do the necessary preparation works for the slab foundation and the finishing works for the slab after the concrete pour. The preparation works included laying the SL81 mesh sheets to reinforce the concrete slab. Whilst the project was substantial for a residential renovation, it was nevertheless conducted on a small site and was not a commercial project. It did not involve many different trades or individuals working on the site at any one time. Both SWC and Cretek were small businesses.
[131] Before it was engaged, Cretek was provided with the engineering plans for the job. The plans noted the particular area on the property where the polished concrete slab was to be installed and specified that SL81 mesh sheets were to be used for the reinforcement of the slab. That particular mesh was heavier than usual but specifically required for the polished concrete slab that was to be installed. SWC were to provide the materials and Cretek was to provide the labour. Cretek provided a quote to SWC for the work to be undertaken, which was accepted by SWC. In doing so, I am satisfied that Cretek was aware that the foundation preparation works it would be required to undertake would involve laying the heavier than usual SL81 mesh sheets. I do not consider it was necessary for SWC to provide any further written or oral warning to Cretek that heavier than usual mesh sheets were to be used.
[132] The manual handling of heavy items by workers performing duties on a work site poses an obvious risk of physical injury, including a back injury of the kind sustained by Mr Sawyer. In a general sense, it may be said that the risk of such harm was foreseeable by SWC. But that only holds good in my view if foreseeability of harm is assessed either by reference to a general abstract task of manual handling of any kind or by accepting that SWC retained control and responsibility for ensuring a safe system of work for the particular tasks being performed by Mr Sawyer.
[71]
Did Mr Sawyer injure his back? If so, what was the nature, extent and consequences of that injury?
[72]
[144] These matters are central to the disputed issue of causation. There are two aspects in which causation is challenged. The first, which I deal with here, concerns the question of medical causation. The second, which I will later address, concerns whether a causal connection between a breach of duty by the defendants and Mr Sawyer's claimed injury, loss and damage has been established.
[145] Whilst the defendants did not really challenge Mr Sawyer's account that he had hurt his back and felt pain during the first incident, they each dispute that he sustained any significant injury. They further dispute that his prolapsed disc, discovered after the second incident, was caused by any injury he had sustained during the first incident.
[146] On the defendants' cases, the more likely explanations for Mr Sawyer's lower back condition are that he had a non-work related pre-existing degenerative disc condition and/or some other non-work-related event or incident occurred which was the cause of his injury.
[73]
[147] After Mr Sawyer felt a 'click' in his back when handling the mesh sheet during the first incident, he and Mr McMath continued to carry and lay the remaining mesh sheets. Mr Sawyer said his back felt 'pretty terrible' but he kept going. He described feeling a sharp pain down low in his back, which felt like it was towards the front, centre on the inside of his spine. He also recalled experiencing aching pain.
[148] He kept working until about 4:00pm to 4:30pm. He said his back pain remained at about the same level while he was still at work but got a lot worse when driving home. He recalled telling his wife that his back was hurting. He did not go to see a doctor about his back, despite his wife telling him he should. He said that he talked to his wife about going to see Joel or Adrian Quillan the next day.
[149] According to Mr Sawyer, he and his wife went to see Joel and Adrian at the Cretek office at about 9:00am the next morning. He said that he had earlier called to let them know that he could not work that day. He believed that he had told them that he had hurt his back and asked if he could come in and see them. He did not work that day.
[150] He recalled that he went into the office to speak to Adrian and Joel by himself, as his wife was making a telephone call outside. He said she later came in as she wanted to ask questions about his 'QLeave'. He could not recall exactly what he had said to Adrian and Joel but thought he had told them that he felt a click in his back when carrying the steel mesh and going over plumbing pipes. He did not recall having any subsequent meetings or further discussions with them about the first incident or his back pain, however he said they would sometimes come on-site and he 'would have probably mentioned it to them.'
[151] He did not recall speaking to Joel about his back on 30 September 2016, as recorded in the incident investigation form, and did not recall speaking to Adrian about having to complete the form. He had never seen the form before he commenced his claim.
[152] Mr Sawyer's recollection was that he started back at work on Thursday, 25 August, as there had been a rain cancellation on the Wednesday, 24 August. He said that it was tough going back to work as he always had pain but that he managed to work through it. He recalled having 'flare-ups' of his back pain in November 2016 and February 2017. He said that each time he had a flare-up his back just started to hurt and the pain increased for no reason. He described the February flare-up occurring at a time when he was visiting his brother and sister-in-law at a house they were staying at in Noosa. He recalled that on that occasion the flare-up happened as he stepped off the verandah of the house onto the grass.
[74]
Well, it has pretty much destroyed my life. There's not a lot I can do around the house. I used to help. I used to do all the yard work. I used to keep the yard immaculate. I'd mow every week, every weekend. Now it's just a mess. So I'm not able to do that. I'm not able to help with the housework. Cooking, cleaning the car, I can't really do. Any sport, I can't do that any more. I play guitar and drums: I can't do that for very long anymore. Just short amounts every now and then.
[75]
[172] When cross-examined by counsel for SWC, Mr Sawyer disagreed with the suggestion that at best he had only a little twinge in his back during the incident on 22 August 2016. He reiterated that he 'felt a click' that was 'a bit more than a twinge'. He rejected the proposition that he had not suffered any pain in his back on that occasion. He maintained that he had taken the next day off work. He disagreed with the suggestion that he had not done any light duties between 22 August through until March 2017, insisting that he had done light duties in November 2016 and February 2017, coinciding with the two flare-up he had at those times. He agreed that he otherwise performed his normal concreting work.
[173] Mr Sawyer accepted that when he applied for workers compensation on 5 July 2017, he had stated that he had suffered an injury on 3 July 2017, however he denied that he was then saying that was the cause of his back pain. In response to a suggestion that it was only after he had made his workers compensation application that he had tried to attribute significant problems with his back to the first incident, Mr Sawyer stated, 'Yeah, well, that was the first time I'd ever had back pain.'
[174] When cross-examined by counsel for Cretek, Mr Sawyer again denied suggestions put to him that he only had symptoms for a day or so after 22 August 2016 and that he had not had the next day off work. He also denied that he had no real recollection of reporting the incident to Joel Quillan on 22 August 2016. He disagreed with the suggestion that he had had no contact with Adrian or Joel Quillan on 22 or 23 August 2016 about any back injury.
[175] When asked further about supposedly going to the Cretek office on 23 August, Mr Sawyer agreed that it was not necessary for him to attend the office to inform his employer that he could not work that day but added that he had already reported that morning that he was not working and had asked to come in to see Adrian and Joel in the office. He accepted that he had no immediate concerns about his QLeave entitlements, and he could have inquired about that by telephone or email but said that he considered it was better to do things like that face to face.
[176] He agreed that between the first and second incidents he had not seen a doctor about his back pain. He also agreed that he ignored his wife's advice to see a doctor about his back. He agreed that during the same period he had however seen doctors about other matters, including for his diabetes and depression, for which he was prescribed medication. He conceded that he did not seek any advice about his back on those occasions but added, 'I agree it was stupid. In hindsight I wish I had of, had I known it would end up how it has.' He rejected the suggestion put to him that he did not seek any such advice because he really had no problems with his back other than longstanding niggles.
[76]
[178] In the Cretek incident investigation form, Adrian Quillan summarised the incident as a 'non-treatment injury' with no 'off-site impact'.Under the section of the form that recorded what happened, Mr Quillan wrote:
[77]
Luke was carrying a sheet of 101 mesh with Hep McMath, when he noticed a twinge in his lower, middle back. Luke notified Dwayne Stewart & Hep McMath (Mon. 22.8.16). JQ was notified several weeks later on Friday 30.9.16.
[78]
[179] Later in the form, Mr Quillan described the nature of the injury in these terms: '(unassessed) lower, middle back pain - minor'. As to the cause of the injury, he noted that it involved 'lifting' and the mechanism of the injury was 'strain'.
[180] As to the immediate actions taken to fix or prevent the incident, he noted:
[79]
N/A - Luke continued to work with it over the coming weeks, indicating that it would come and go.
[80]
[181] When cross-examined about the Cretek incident investigation form, Mr Sawyer agreed that he had provided the information that was recorded in the incident summary. However, he did not recall telling Adrian that the injury was 'minor', as recorded in the form, but accepted that it was possible that he might have said that.
[81]
[182] Mr Sawyer was cross-examined about text messages he had received from, and sent to, each of Adrian and Joel Quillan.
[183] He agreed that he and the other Cretek workers would usually receive notice of the jobs they were to attend via text message, primarily from Adrian, and that they would ordinarily reply by text message if they were unavailable for some reason. He agreed that he had received a text message from Adrian in the afternoon on 22 August 2016, advising that he and others would be working on a job at Coorparoo the next day. When it was put to him that he had not responded to say that he could not work because he had back problems, Mr Sawyer said that he was working at the time he received the message but would have later replied to it by telephone. He agreed that on 27 August he had texted Adrian to see if there was any work available on the coming Monday as he had already had a few days off.
[184] Mr Sawyer accepted that he had a good relationship with both Adrian and Joel Quillan and that he had known them through family and religion connections even before he started working for them. He further agreed that on occasions when he needed time off, he had sent text messages to Adrian to inform him. He also agreed that whenever he had personal or medical problems he had been quite frank with Adrian and Joel about those matters. He accepted that before 3 July 2017 he had not sent any text messages to Adrian about having a back problem. He agreed that following the second incident he had sent a text message to Adrian that day advising that he had hurt his back. He agreed that he had never sent a text message to Joel to report anything to him about any back problems he was having between August 2016 and July 2017.
[185] Although he said that he did not recall any later conversation with Joel about his back injury in September or October 2016, when shown the relevant text message, Mr Sawyer agreed that on 5 October 2016 Adrian had sent him a message which read:
[82]
Call me when ya free please mate I just need to complete an incident report for your sore back you mentioned to Joel last Friday mate.
[83]
[186] Mr Sawyer did not recall responding to this text message but rejected the suggestion that if he had really been to the office on 23 August 2016 as he claimed that it would be absurd for Adrian to be texting him about completing an incident report on 5 October 2016. He said that it did not surprise him that it took that long as they were 'extremely unorganised.'
[187] Mr Sawyer agreed that there were no text messages from March 2017 that referred to him requesting, or being on, light duties. He agreed that he had sent a text message to Adrian on 30 March requesting work as he needed the money and that he had sent a similar message requesting work on 26 June 2017.
[84]
[188] The second defendant tendered a document titled 'Communications Report' which contained summary details of communications between WorkCover and Mr Sawyer in respect of his workers compensation claim.
[189] The report recorded that the first contact between the claims officer and Mr Sawyer was during a telephone call on 5 July 2017. The report's details of that call included:
[85]
Worker screeding and bending over handling concrete
[86]
[190] Mr Sawyer was questioned about the contact he had with WorkCover after applying for workers compensation. He agreed that he had probably had an initial discussion with the claims officer on 5 July 2017 about how the injury was suffered. He agreed that he told the claims officer about each of the things recorded in the WorkCover Communication report. Although he did not recall, he agreed that he would have been asked about any previous injuries. He could not remember whether he had identified the 22 August 2016 incident as a cause of his injury. He said that he believed he always told WorkCover the truth when dealing with them.
[191] Mr Sawyer disagreed with the suggestion that he had not told WorkCover about the first incident before February 2018. He maintained that he had told Dr Bryant about it when he had seen him in September 2017.
[87]
[192] Mr Sawyer agreed in cross-examination that he had engaged his solicitor in February 2018. He further agreed that on 25 February 2018, he had signed a Notice of Claim, which was subsequently given to the defendants, in which he alleged he had suffered a serious injury at the Ascot job site on 22 August 2016.
[193] He agreed that he had then provided a very detailed account of the first incident. He further agreed that in it he had stated that on the way home from work after the first incident, he either dropped into the office to report the injury to Joel Quillan or telephoned him to report it. He agreed that he had said nothing then about going to the Cretek office the following day but maintained that he had done so. He agreed that he could not recall whether he went into the office or telephoned Joel on his way home but said it was more likely that he made a telephone call. He also agreed that whilst he had given evidence that he and his wife had attended the Cretek office on 23 August 2016, that was not in his Notice of Claim and he could not explain why it was not included.
[194] When asked if he could point to any report or record where he had said to anyone before meeting with his solicitor that he had suffered an injury on 22 August 2016, Mr Sawyer said the first record was the Cretek incident investigation form and that he had also told Dr Shahsanaei and Dr Bryant.
[195] Mr Sawyer agreed that he had looked through the GP records and the other records and reports and that he had not seen any other reference in those documents about him reporting his injury at any earlier time.
[88]
History recorded by Dr Shahsanaei - General Practitioner
[89]
[196] Mr Sawyer initially saw Dr Shahsanaei on 4 July 2017. The consultation notes for that day created by Dr Shahsanaei record:
[90]
[197] When cross-examined about what he had said to Dr Shahsanaei, Mr Sawyer agreed that he had told him that he said he had a history of back injuries at work but added '...that'd be referring to the flare-ups that I'd had'.
[91]
[198] Mr Sawyer was referred to Dr Samy by his general practitioner, Dr Gupta. He first saw him on 5 July 2018. In a report for WorkCover dated 9 July 2018, Dr Samy recorded:
[92]
[Mr Sawyer] described that while at work in August 2016 he hurt his back. He described that he was carrying steel sheets when he suddenly felt a sharp pain in the back. He reportedly continued to do the work for the entire day and drove back home. He described that he took a day off from work due to pain and went back to work, the day after. He went back to his regular duties and was able to perform his role without any problems. 7 months later, he did describe that he hurt his back again but continued to work without any distress. In July 2017 he described that his back pain increased and unsure what triggered the pain.
[93]
[199] When asked about what he had said to Dr Samy, Mr Sawyer agreed he told him each of the things outlined in the recorded history, except he denied saying he was able to perform his role without any problems after the first incident and did not recall saying that he was able to continue working without distress after hurting his back seven months later.
[94]
[200] Dr Coyne examined Mr Sawyer on 2 August 2019, at the request of lawyers acting for WorkCover for the purposes of preparing a medico-legal report. In his initial report, dated 20 August 2019, Dr Coyne noted:
[95]
Mr Sawyer provided a history of sustaining an injury on 22.08.16 in the course of his employment as a concreter. He said this day was a heavy day of work at a house construction site. He said his duties on this day included carrying, with the assistance of a colleague, sheets of 6 m x 2.4 m steel mesh weighing in total 130 kg. He said he and his colleague carried the mesh sheets upright, with one person at each end. He said he and his colleague carried 18-20 lots of mesh in the course of the afternoon.
[96]
Mr Sawyer said on one particular carry he and his colleague were negotiating a number of plumbing pipes, which caused him to twist and squat more than usual when lowering the sheets. He said as he was lowering the sheets he felt a "click" in his low back. He said he did not have a great deal of low back pain, but his low back ''just didn't feel right".
[97]
Mr Sawyer said the following day his low back pain remained severe, and he was unable to go to work. He said the following day again there was improvement, and he attended work. He said over several days his low back pain resolved. He said he did not seek any medical or allied health attention.
[98]
Mr Sawyer said he had a further episode of low back pain in December 2016 or January 2017, when pain persisted for a week. He said there was no specific incident which brought on this episode. He said he did not seek medical attention, and remained at work.
[99]
Mr Sawyer said he had a further episode of low back pain around March 2017, when pain persisted for approximately two weeks. He again said there was no specific incident which caused this pain. He said during this two weeks of symptoms he was on light duties. He said after two weeks, when his pain had resolved, he returned to normal duties. He again said he did not seek medical attention during this episode of pain.
[100]
Mr Sawyer said on 03.07.17 he leaned forward to retrieve a drink from an esky, which resulted in severe low back pain. He said he had not performed any notably heavy tasks at work that day up to that point. He said not long after he developed this low back pain he drove to another worksite. He said when he got out of his motor vehicle at this worksite he "could barely walk" due to low back pain. He said he told the site supervisor that he wouldn't be able to work, and went home.
[101]
[201] In his evidence in chief, Mr Sawyer said that he had read Dr Coyne's initial report and noted Dr Coyne had written that his condition had 'resolved'. He said that was not what he had told Dr Coyne. He believed the words he had used were that his back pain had 'settled down', which to him did not mean that it had gone away but that between flare-ups it did settle down. He said that when he next saw Dr Coyne, he tried to explain that was not what he had said but Dr Coyne would not listen to him.
[202] When cross-examined, Mr Sawyer again denied saying that his pain had resolved on either occasion as Dr Coyne had recorded. He otherwise accepted that what Dr Coyne had written was accurate.
[203] Mr Sawyer agreed that he saw Dr Coyne again on 5 May 2022 but disagreed with the suggestion that Dr Coyne went over the same history with him again and confirmed with him that it was accurate.
[102]
[204] Dr Gupta referred Mr Sawyer to Dr Michael Bryant for treatment. Mr Sawyer first saw him on or about 19 September 2017. In his report of that date, Dr Bryant recorded the following in respect of Mr Sawyer's back pain:
[103]
Thank you for asking me to catch up with Luke, who, as you know, hurt his back whilst concreting on 4 July 2017.
[104]
Luke had not done anything particularly challenging that day but recalls doing one job in the morning, stopping and driving to a second job over an hour away, before not being able to get out of the car because of low back pain.
[105]
The pain down his right leg, which he currently experiences, probably did not start until three or four weeks ago.
[106]
Luke informs me today that the back pains are worst in the mornings but by the afternoon the leg is overtaking the back discomforts.
[107]
Luke acknowledges chronic low back pain and admits to me today that he always has a little bit of back niggle. It has not, however stopped him from working in his heavy physical role as a concreter for Cretek, concreters out at Brendale.
[108]
His work often sees him stoop forwards screening [sic. screeding] concrete and of course, the job is quite heavy and physical.
[109]
[205] In a subsequent report, dated 9 November 2017, Dr Bryant described a similar history and mechanism of injury recounted by Mr Sawyer. However, with respect to Mr Sawyer's relevant past medical history, Dr Bryant wrote:
[110]
Luke acknowledges chronic low back pain and admitted to some minor back niggles over many years in his role as a concreter. He continued to work in that role, however, despite the back pains.
[111]
[206] When it was put to Mr Sawyer in cross-examination that this was what he had told Dr Bryant he responded, 'No, not many years, but I did say over the last year'. He agreed that he answered truthfully when he gave the history of his complaint to Dr Bryant.
[112]
History recorded by Dr Hewitt - Orthopaedic surgeon
[113]
[207] Mr Sawyer was examined by Dr Peter Hewitt on 5 February 2020, at the request of his lawyers, for the purposes of preparing a medico-legal report. Dr Hewitt's initial report, dated 20 February 2020, recorded the following history given by Mr Sawyer:
[114]
The first episode of lower back pain that Mr Sawyer experienced occurred at his workplace on 22 August 2016. At the time, he and a coworker were moving sheets of reinforcing steel in preparation for laying a concrete slab underneath a house which had been lifted as part of a renovation. The reinforcing steel mesh weighed approximately 105 kg. In addition to carrying and laying the steel mesh, fixing of the mesh (which involved repeated squatting, reaching and pulling) was also involved at the time.
[115]
The episode of pain occurred when he was standing up after cutting away sections of the steel mesh with a bolt cutter to fit around six pipes. He states that this was a particularly awkward and difficult task. Although he had ongoing back pain for the remainder of the shift, he still completed his shift. The following day, Mr Sawyer woke with a significant exacerbation of this lower back pain with associated stiffness, such that he was unable to attend work that day. At that time, the pain was localised to his lower back region with no lower limb radiation. He submitted an incident report to his workplace, but he did not see a doctor for treatment. Instead, he rested up at home on that day.
[116]
Following that episode, Mr Sawyer suffered recurrent episodes of lower back pain on a number of occasions. A specific episode that he recalls occurred in November 2016 came on spontaneously. That episode of pain lasted approximately one week, and he continued working with the pain through a normal working week. At that time, the pain again spontaneously settled, and he did not seek medical attention.
[117]
A further episode of lower back pain occurred in March 2017. On this occasion he was not at his workplace, but rather visiting his brother-in-law on holidays. He recalls stepping down off a back verandah, a distance of approximately 200cm, and suffering a further episode of lower back pain. This episode was more intense than previous episodes, however he continued to work through the pain for a further two weeks before it spontaneously settled. During this episode, Mr Sawyer self-medicated with Panadol and low-dose anti-inflammatory medication; however, once again, he did not again seek medical attention for his pain.
[118]
On 3 July 2017, he was at his workplace working bent-over retrieving something from his esky when he experienced another episode of low back pain on straightening up. Immediately after the onset of pain with this episode, he drove for approximately one hour to another job site. The pain had intensified by the time he had reached the job site, however, and he was unable to perform any heavy manual activities on that date. On the following morning, Mr Sawyer was experiencing severe lower back pain, causing difficulty walking, and he therefore finally attended a local general practitioner about his back condition.
[119]
[208] When cross-examined about what he had said to Dr Hewitt, Mr Sawyer agreed that he had said that his pain had spontaneously settled after each of the incidents Dr Hewitt had noted referred to in recounting the history of Mr Sawyer's complaint.
[120]
History recorded by Dr Feberwee - Pain specialist
[121]
[209] During cross-examination, Mr Sawyer agreed that on 3 April 2019 he had been examined by Dr Heide Feberwee, a pain physician. He agreed that he had told Dr Feberwee that he had experienced intermittent back pain over the years because of the physical nature of his work. He further agreed that what he had said was true.
[122]
[210] Mr Tippett had been employed by Cretek since 2000. He initially commenced as a concreter but later progressed to a leading hand or supervisor. He worked with Mr Sawyer from 2009 to 2017. He had been Mr Sawyer's supervisor at various times in the year before Mr Sawyer ceased work. He estimated he would have worked with Mr Sawyer once per week or fortnight during that period.
[211] He gave evidence that he knew of Mr Sawyer's back 'at the end...but nothing before that had happened'. When asked to clarify what he meant by 'before' he said that he was aware Mr Sawyer had back problems 'in the last nine months to year...'. He said someone had told him about Mr Sawyer's back problems, but he could not recall if it was Mr Sawyer or someone else who had told him.
[212] When asked about whether there were any steps he generally took on occasions where he knew a worker had an injury or illness, Mr Tippett said '...probably most days someone would come in and say they're sick or something, but if there was someone that was - needed to be on light duties and - yeah, we'd take care of that if we could and give them the easier tasks for the day.' He said that there were not a lot of easier tasks for a concreter, but he gave examples of a few different jobs that could be done. He did not recall any specific time when he had put Mr Sawyer on light duties but added that, '...there was plenty of times when guys were on light duties and I would direct him in that way, but not a specific circumstance as such.'
[213] Mr Tippett was cross-examined by counsel for each of the defendants about a statement he had made on 23 September 2019. A copy of the statement was tendered and received as an exhibit.
[214] According to Mr Tippett's statement, Mr Sawyer stopped working for Cretek in about the middle of 2017 '...after about a year or so of him having a bad back at work.' Mr Tippett stated that up until the time Mr Sawyer stopped working for Cretek, he had not been aware that Mr Sawyer had suffered any specific injury to his back. His recollection was that from 2009 until roughly halfway through 2016 Mr Sawyer seemed fully fit and he did not recall Mr Sawyer ever complaining about back pain or looking like he had any back limitations.
[215] Mr Tippett could not recall in his statement whether Mr Sawyer had told him or whether he knew some other way before Mr Sawyer had stopped working for Cretek that he had injured his back at any particular point in time.
[123]
[220] Mr Sawyer's wife, Centaine Sawyer, gave evidence that Mr Sawyer had telephoned her on his way home from work on 22 August 2016. She said Mr Sawyer told her about the job that he had been on and how he had hurt himself because of the particularly large steel that he did not usually use. She recalled that when he got home he appeared to be clearly in pain from his back as he walked stiffly and would 'sort of grimace'. Her evidence was that before that day Mr Sawyer had not previously complained about his back.
[221] She said she told Mr Sawyer that he needed to call his boss and let them know that he had hurt himself and she thought he should make an appointment to see a doctor. She said that Mr Sawyer did not go to the doctor as she had advised, but this was a recurring theme in their relationship as 'convincing him to go to the doctor for anything was extremely difficult'.
[222] Although he did not go and see a doctor, Mrs Sawyer recalled Mr Sawyer rang Joel Quillan. She said he did so because he was not sure whether he would be able to work the next day because of his back. Mrs Sawyer said she was nearby at the time and could hear her husband speaking on the telephone. Her recollection of the call was that he 'was just explaining about the job and how he had hurt himself during that day' and 'giving a few details, I guess.'
[223] According to Mrs Sawyer, she and her husband went to the Cretek office the following morning at about 9:00am. She explained that Mr Sawyer needed to go into the office as he had a tool that he had to drop off. She said that she initially stayed outside to make a telephone call while Mr Sawyer went in to talk to Joel and Adrian. She stated that about half an hour later she went into the office as she wanted to ask Joel about whether he had records or information about Mr Sawyer's superannuation or QLeave. She recalled that when she entered the building, Mr Sawyer was in one of the offices speaking to Adrian and Joel. She did not hear any of their conversation as they had finished by the time she arrived. She then spoke to Joel about Mr Sawyer's QLeave.
[224] Mrs Sawyer stated that her husband did not work on 23 August and that she was 'pretty sure' that he also did not work on 24 August as it had been raining.
[225] When asked whether Mr Sawyer ever spoke to her about having back pain, Mrs Sawyer said, 'Yeah...on and off he had flare-ups, but it never completely resolved itself to the point that he was fine...' She gave evidence that after he hurt himself they spoke about whether he should continue concreting, as they were worried that he would not be able to keep going, but that he was determined to keep working. She explained that they had financial pressures at the time and that Mr Sawyer would work even when he was sick as he was paid on a daily rate.
[124]
[241] Mr Quillan had known Mr Sawyer for quite a long time. He had employed him at Cretek, initially as a labourer. He confirmed Mr Sawyer was employed on a casual contract, which was commonly the case with Cretek's workers. He was aware Mr Sawyer had medical issues of depression and diabetes and confirmed Mr Sawyer would sometimes need a day off work every now and then because of these conditions.
[242] According to Mr Quillan, Mr Sawyer would usually be put on smaller jobs wherever possible because he was not as qualified or as experienced as some of the other concreters. He vaguely recalled the job at the Ascot site but did not recall ever attending it.
[243] Mr Quillan confirmed that Cretek used a simple Outlook calendar to record the details of jobs and the workers allocated to different job sites. He said they would also try to enter any updated information into the calendar as well but accepted that it 'wouldn't be perfect'. He identified a printout of the calendar for the period 18 August 2016 to 16 September 2017, which recorded details of the Ascot job and showed that Cretek workers had attended at the job site on 19, 20 and 22 August 2016.
[244] Mr Quillan had no recollection of receiving a telephone call or an office visit from Mr Sawyer at the end of the workday on 22 August 2016. He did not recall receiving a visit from Mr and Mrs Sawyer at the Cretek office on 23 August 2016 or ever speaking to Mrs Sawyer about QLeave.
[245] With respect to the process of Cretek recording work injuries or incidents, Mr Quillan said that as part of their SWMS workers would contact him or Adrian to inform them if an injury was sustained onsite and they would then do an incident report. When asked what he would have done if Mr Sawyer had reported that he had suffered an injury at work, Mr Quillan stated, 'I would have spoken to Adrian, who was our health and safety officer, and instigated that incident report.'
[246] Mr Quillan had no recollection of allocating Mr Sawyer any light duties during the period between August 2016 and July 2017. He said that ordinarily if someone was to be allocated light duties it would be put into the work calendar by Adrian, as he was responsible for organising the jobs and workers to be onsite. Mr Quillan said it was rare that anyone would be on light duties and there were not many light duties available in the concreting business. He confirmed there was no record in the calendar of Mr Sawyer being on light duties in March 2017.
[125]
[252] Adrian Quillan is the brother of Joel Quillan. He has qualifications in concreting and construction. He was employed by Joel and his wife and commenced working at Cretek in about 2016. His role was to assign concreters to jobs, to attend at site meetings and to be the point of contact for Cretek's concreters. He was also assigned the role of workplace health and safety officer.
[253] Mr Sawyer was already working for Cretek when Mr Quillan commenced working there. He already knew Mr Sawyer at that time because of their shared religion. He knew Mrs Sawyer through Mr Sawyer.
[254] Mr Quillan said that as part of his role as the workplace health and safety officer, he would complete incident reports if someone reported an injury in the course of work. He said that if the worker's injury stopped the worker from doing their normal work duties as a concreter, they would ask them to be assessed by a doctor and they would ask the doctor to give them suitable light duties or to indicate how much time, if any, they would need off work. Mr Quillan said that they would otherwise, 'often rely heavily on the person themselves to tell us if they were capable of working or not'.
[255] As to the allocation of work, Mr Quillan confirmed that they used the Outlook calendar arrangement to outline who was going where on which particular day and time. He identified the Outlook calendar printout that had earlier been tendered for the period from August 2016 to August 2017. He confirmed he was largely responsible for entering the details in the calendar. He said that they tried to keep the calendar as accurate as possible but that it would not be a perfect document.
[256] In terms of the work that would be allocated to Mr Sawyer, Mr Quillan said that they would generally try to keep him on the residential work as opposed to major projects. Mr Quillan said this was because they knew he was dealing with things like depression and diabetes and so they tried to keep him away from high pressure, stressful situations.
[257] Mr Quillan confirmed that he had sent a text message to Mr Sawyer, and other workers, at 2:25pm on 22 August 2016, allocating them to work at another job site at Coorparoo at 6:30am the following day. He did not remember receiving any telephone call or text message from Mr Sawyer later that day. He did not remember Mr Sawyer and his wife coming into the Cretek office the next morning. He had no recollection of Mrs Sawyer ever visiting the office. He said that if Mr Sawyer had come into the office and said that he had suffered a back injury the previous day at work he would immediately have done an incident investigation report and would have asked Mr Sawyer if it was serious enough that he needed to go to the doctor.
[126]
[264] The first time Mr Sawyer sought medical treatment for his lower back pain was on 4 July 2017, when he saw Dr Shahsanaei at the Strathpine GP Superclinic. Dr Shahsanaei provided Mr Sawyer with a request for a CT scan of his lumbar spine. He advised Mr Sawyer to come back in a few days for investigation results and further follow up and management.
[265] On 4 July 2017, Mr Sawyer underwent the CT scan. The radiologist's report noted the following findings:
[127]
L5/S1: Slight loss of disc height at this level with broad based disc bulging a little more pronounced left paracentrally. The disc abuts the origin of the S1 nerve roots and may mildly displace the proximal course of the left S1 nerve root. The L5 nerve roots pass without impingement. The facet joints are normal. No pars defect or spondylolisthesis. No paravertebral pathology.
[128]
Prominent broad based disc bulging at L5/S1 may mildly impinge the S1 nerve roots, left more so than right. Clinical correlation advised.
No other significant abnormality is detected.
[129]
[266] On 5 July 2017, Mr Sawyer returned to see Dr Shahsanaei. The consultation notes for that visit recorded: 'Bulging lumbar disc; Nerve pain; Nerve root compression, lumbar spine; and Diabetes'. Mr Sawyer was advised to avoid heavy physical activity, especially heavy lifting, pushing and pulling and to come back in a few days for further follow up and management.
[267] On 29 August 2017, Mr Sawyer underwent an MRI scan. The radiologist's report noted the following findings:
[130]
At L5/S1, a central focal disc herniation is present with partial effacement of the lateral recesses. This likely leads to abutment of the bilateral S1 descending nerve roots.
[131]
Mild abutment of the bilateral S1 descending nerve roots. Correlation with a dermatomal distribution of patient's symptoms is suggested to determine the clinical significance of the above described findings.
[132]
[268] On 31 August 2017, Mr Sawyer saw Dr Gupta at Warner Lakes Family Practice about the results of his MRI scan. Dr Gupta referred Mr Sawyer to see Dr Michael Bryant.
[269] Mr Sawyer first saw Dr Bryant on 19 September 2017. After examining Mr Sawyer, Dr Bryant considered Mr Sawyer should be trialled on a S1 nerve root injection to see what sort of response he might obtain.
[270] On 21 September 2017, Mr Sawyer underwent a CT guided right S1 nerve root injection. On 28 September 2017, Dr Bryant saw Mr Sawyer again for review. In his letter to Dr Gupta of that date, Dr Bryant noted that Mr Sawyer had reported two days of significant pain improvement after the injection. He further noted:
[133]
I am concerned, however, about Luke's disc bulge. It is essentially fairly minor and the nerve compression is not horrendous and I would certainly recommend a second opinion for Luke prior to going through the surgery process.
[134]
[271] Dr Bryant referred Mr Sawyer to Dr Steven Yang for a second opinion. In a letter dated 14 November 2017, Dr Bryant wrote to Dr Gupta that Dr Yang had seen Mr Sawyer and was optimistic that surgery may be able to get Mr Sawyer's problems back under control and allow him to return to work. He further noted that Mr Sawyer still reported severe and disabling pains. Dr Bryant advised that he would be putting in a request to WorkCover to perform a discectomy.
[272] On 30 November 2017, Dr Bryant performed a right-sided L5-S1 microdiscectomy and rhizolysis on Mr Sawyer at St Andrew's Private Hospital.
[273] In a subsequent letter to Dr Gupta, dated 11 December 2017, Dr Bryant advised that Mr Sawyer had been discharged from hospital after an 'uneventful discectomy and rhizolysis'. He further noted that Mr Sawyer had had some improvement in his pains already and was optimistic that would continue. In a further letter to Dr Gupta, dated 21 December 2017, Dr Bryant advised that Mr Sawyer felt that after the operation his leg pain was now worse than before. He noted that whilst Mr Sawyer's pains were settling down, 'he still clearly has a long way to go before he is going to be ready to look at a return to work.'
[274] On 15 January 2018, Mr Sawyer underwent another MRI scan of his lumbosacral spine. The radiologist's report on that occasion noted:
[135]
There is evidence of a right L5 laminectomy and discectomy. There is a subtle non-enhancing central disc protrusion measuring 4mm. Prominent enhancing tissue located at the discectomy site is consistent with post-surgical change...
[136]
Post-surgical change with enhancing granulation tissue seen to encase the bilateral S1 descending nerve roots as well as the right L5 exiting nerve root at L5/S1. Small residual paracentral disc protrusion at L5/S1 as described above.
[137]
[275] On 18 January 2018, Dr Bryant reviewed Mr Sawyer. In a subsequent update letter to Dr Gupta, Dr Bryant advised that Mr Sawyer had had a repeat MRI scan which showed 'no ongoing compression of the nerve and, in fact, the nerve is nicely decompressed and well rounded'. However, Dr Bryant also noted that there had been 'some further degeneration in the disc' and that Mr Sawyer may require a discectomy and fusion procedure in the future to try to get his pains better controlled.
[276] In a further update letter to Dr Gupta, dated 15 February 2018, Dr Bryant noted that Mr Sawyer still had not had any particular improvement in his right-sided leg pains. He advised that as a 'last ditch effort' he would ask Mr Sawyer to see a pain specialist, Dr Daniel Berge, for an opinion. Mr Sawyer saw Dr Berge on four occasions between 5 March 2018 and 12 June 2018. Dr Berge referred Mr Sawyer for nerve conduction studies.
[277] On 19 March 2018, Mr Sawyer underwent the nerve conduction studies. The results were in keeping with a chronic S1 radiculopathy.
[278] On 4 June 2021, Mr Sawyer attended at the Warner Lakes Family Practice, complaining of 'acute left back pain radiating to buttock'. Mr Sawyer was sent for a further CT scan of his lumbar spine. The radiologist's report of the scan noted:
[138]
L4-5, a small disc bulge has increased in size since a previous MRI examination from January 2018. No associated neural compromise.
[139]
At L5-S1, a moderate disc bulge is present with partial effacement of the neural foramina. This will lead to impingement of the bilateral L5 exiting nerve roots.
[140]
Moderate disc bulge L5-S1 with likely impingement of the left L5 exiting nerve root.
[141]
Right-sided neural compromise, of uncertain clinical significance.
[142]
[279] On 6 June 2021, Mr Sawyer was taken by ambulance from his home to the Redcliffe Hospital Emergency Department after complaining of severe lumbar back pain. The Emergency Department's Clinical Summary recorded:
- Work injury 5 years ago when heavy lifting as concreter
- Herniated disc at L5-S1 with discectomy 2 years later
- Ongoing pain since this time in lumbar spine and radiating to R buttock and down back of R leg
[143]
- This afternoon developed sudden worsening of pain in lumbar spine and down R leg, 10/10 severity, worse with movement that could not be controlled with usual techniques
[280] On subsequent examination, after being given Endone, Mr Sawyer's pain was recorded as having improved to a level of '4/10', which Mr Sawyer described as 'close to his baseline'. Mr Sawyer was discharged from hospital later that evening, having been advised to see his General Practitioner for consideration of neuropathic agent and referral to a spinal surgeon for potential definitive management.
[281] On 11 June 2021, Mr Sawyer's General Practitioner made a neurosurgery referral to the Royal Brisbane and Women's Hospital, ('RBWH'), for Mr Sawyer. Mr Sawyer was placed on a waitlist for spinal surgery.
[282] Mr Sawyer subsequently saw his General Practitioner at Warner Lakes Family Practice and obtained a request for a further MRI scan. On 25 June 2021, Mr Sawyer had the further MRI scan of his lumbar spine. The radiologist's report noted:
[144]
Disc desiccation and degeneration appearing similar to previous MRI. Broad-based disc bulging with new right paracentral disc extrusion compressing the right S1 nerve root. The L5 nerve roots appear to pass without impingement. No facet joint arthropathy. No fracture or stress fracture. No abnormality in the paravertebral soft tissues.
[145]
Large right paracentral disc extrusion at L5-S1 is new since the previous post operative MRI. Compression of the right S1 nerve root is seen as a result.
[146]
[283] Mr Sawyer had a neurosurgery consultation at the RWBH on 1 July 2021. After a further review in November 2021, a letter dated 8 December 2021 from the RBWH neurosurgery unit to Warner Lakes Family Practice, noted that Mr Sawyer had been advised of the possibility of a right S1 nerve root block for 'diagnostic utility' and that 'given surgery has been performed in the same location previously and that there is an S1 nerve root of large size which is likely peroneal scarring there is decreased chance of success with surgery.'
[147]
[284] In his report of 31 January 2020, Mr O'Sullivan set out his initial opinion in respect of occupational health and safety issues relating to the first incident.
[285] In terms of the risk of potential injury occasioned by the mechanisms of handling heavy mesh sheets of the kind Mr Sawyer and his co-worker dealt with on 22 August 2016, Mr O'Sullivan opined:
[148]
The task performed on the day of the initial onset was excessive in its demands and likely to place very high stresses on the low back...
[149]
[286] In a supplementary report, dated 1 March 2021, Mr O'Sullivan further explained the force mechanisms and physical stresses that may have been placed upon Mr Sawyer's back when carrying and laying the SL81 mesh sheets. After discussing and illustrating the levels of spinal stress potentially involved, Mr O'Sullivan concluded:
[150]
The above methods can be applied to the task performed by Mr Sawyer to illustrate the impact or risk of injury for the lumbar spine based on estimates of spinal compressive stress. They are necessarily simplified quantitative methods. They do not illustrate the effect of dynamic or intersegmental movement in the spine nor the effect of a full range posture on ligament tension. It is also difficult to determine what proportions of vertical and horizontal force Mr Sawyer applied to the large sheet of mesh though, even with a significant horizontal component, the likely stress on the spine will still exceed recommended limits.
[151]
The indications of the above methods are that the action of lowering the heavy mesh, as described, is one where very high spinal stress is likely.
[152]
[287] Mr Sawyer was assessed by Dr Hewitt for the purpose of preparing medico-legal reports for this proceeding.
[288] In his initial report dated 20 February 2020, Dr Hewitt noted the reported history of Mr Sawyer's back injury, as set out above, as well as the course of his treatment since July 2017. He noted that Mr Sawyer denied any previous injuries or symptoms in the region of his lower back prior to the onset of back pain on 22 August 2016.
[289] Upon examination, Dr Hewitt noted Mr Sawyer had ongoing pain in the region of his lower back and intermittently radiating down his right leg. With respect to the back pain, he noted the pain was maximal in the centre of Mr Sawyer's lower back region and that Mr Sawyer said the pain was constant. With respect to the right leg pain, he noted that it was intermittent in nature, occurring two to three times per week in association with Mr Sawyer's lower back pain, and that Mr Sawyer was aware of associated paraesthesia which was predominantly over the lateral aspect of his right calf and lateral border of his right foot.
[290] As to the nature and origin of Mr Sawyer's back injury, Dr Hewitt opined:
[153]
The temporal history of the onset of Mr Sawyer's symptoms and the heavy manual nature of the work he was involved within the construction industry, in my opinion, are in keeping with an injury over time of the period nominated; namely, from 22 August 2016 through to 27 August 2017. It is my opinion, based on the history provided to me by Mr Sawyer, that he suffered an acute disc prolapse during this one year period, which slowly progressively increased in size until it began encroaching on his nerve roots, resulting in his right S1 radicular pain beginning in August 2017.
[154]
[291] According to the AMA Guide to the Evaluation of Permanent Impairment, 5th Edition, ('AMA5'), Dr Hewitt assessed Mr Sawyer within the DRE Lumbar Category III and determined his percentage of whole person impairment, ('WPI'), was 13%. Dr Hewitt then added 1% WPI for surgical scarring to arrive at a combined WPI of 14%. He further assessed Mr Sawyer as having rateable pain of 'moderate severity' and opined, '...it is my opinion that the impairment assigned for lumbar DRE Category III does not adequately encapsulate Mr Sawyer's pain-related impairment. Therefore there exists a further impairment of 2% whole person impairment.' As a result, Dr Hewitt determined a total 16% WPI for Mr Sawyer's back injury.
[292] On 25 March 2020, Mr Sawyer's lawyers wrote to Dr Hewitt, advising that the initial report did not include all the details of Mr Sawyer's description of the first incident. The letter then set out excerpts from Mr Sawyer's Notice of Claim and Statement of Claim and the history recorded by Mr O'Sullivan in his initial report, each of which were said to be accurate descriptions of the circumstances of the incident. A further report, based on these descriptions of the incident, was requested.
[293] Dr Hewitt provided a supplementary report, dated 26 April 2020, in which he opined:
[155]
From the mechanism described of the workplace injury that occurred on 22 August 2016, and the temporal relationship of the onset of these symptoms whilst performing this heavy manual work task and the subsequent progression of pain over the ensuing 24 hours, it is my opinion that Mr Sawyer suffer [sic. suffered] an acute disc prolapse of the lumbo-sacral disc on the 22 August whilst at work.
[156]
It is likely that the acute lumbosacral disc prolapse which occurred on 22 August 2016 would have altered the biomechanics of Mr Sawyer's spine at the lumbosacral junction. As a result degenerative changes would have followed due to the altered biomechanics and the inflammatory response caused by the injury (as distinct from age-related changes).
[157]
This accelerated progression of degenerative changes at the lumbar spine is likely to have occurred without further injury, however the nature of the ongoing heavy manual work in which Mr Sawyer was engaged in during the period from 23 August until 27 August 2017 would have only increased the likelihood of progression of the disc prolapse to the point where it began encroaching upon his lumbar nerve roots, causing the development of radicular symptoms.
[158]
The biomechanical and inflammatory changes causing the accelerated progression of degenerative changes to occur in Mr Sawyer's lumbar spine over the period from 23 August 2016 until 27 August 2017 are the direct result of the herniation (prolapse) of the lumbosacral disc. The prolapse of the disc was, in my opinion, most likely due to the awkward, heavy manual duties performed by Mr Sawyer at his workplace on 22 August 2016. It is unlikely at the age of 26, with no previous symptoms or history of back injury, that there were any age-related effects involved in the injury to Mr Sawyer's lumbosacral disc on 22 August 2016.
[159]
Therefore in my opinion, in the absence of the initiating workplace injury on 22 August, it is unlikely that Mr Sawyer would have experienced the accelerated degenerative progression of disease that lead to him requiring surgery.
[160]
He would more likely still be working in his original capacity as a concreter, had he not been required to perform the manual lifting tasks on the 22 August 2016, that created forces on his lumbosacral disc that exceeded the limit of the disc's load-bearing strength. As a result, failure of the structural integrity of the annulus of the disc occurred, in the form of a posterolateral radial tear which allowed the herniation of nucleus pulposus material into the spinal canal.
[161]
[294] In a further supplementary report, dated 7 February 2021, Dr Hewitt reiterated his opinion that the accelerated progression of degenerative changes in Mr Sawyer's lumbar spine were the direct result of the prolapsed lumbosacral disc work injury Mr Sawyer sustained on 22 August 2016. In particular, he stated:
[162]
Whilst is open to interpretation whether degenerative changes present at this level predated the injury or are a result of the accelerated degenerative changes that occur following an acute disc prolapse. There is evidence in the literature, supported by the references that I have provided in my previous reports, that the latter is more likely to be the case.
[163]
[295] Dr Hewitt re-examined Mr Sawyer on 19 August 2021 and provided an updated progress report, dated 7 September 2021, in which he noted that Mr Sawyer had undergone further CT and MRI investigations of his lumbar spine in June 2021. Having reviewed the results of those investigations, Dr Hewitt opined:
[164]
Further investigation in the form of CT scans and MRI scans of his lumbar spine confirms that there has been progression of the disease at the lumbosacral junction. On the basis that the initial acute disc prolapse was incompletely treated, it is my opinion that the new extension of disc protrusion occurring at the lumbosacral junction reflects the incomplete treatment and progression of disease that has occurred following the acute disc prolapse that Mr Sawyer first experienced at his workplace on 22 August 2016.
[165]
... there has been progression of the degenerative disease and disc prolapse material from the lumbosacral disc, in particular on the right side affecting the right S1 nerve root, which now has a significant S1 right-sided radiculopathy, based on clinical findings and his latest MRI scan, dated 25 June 2021.
[166]
[296] Prior to trial, Dr Hewitt provided a more recent supplementary report, dated 29 January 2024, in response to a request by Mr Sawyer's lawyers to clarify his opinion about the injury sustained by Mr Sawyer on 22 August 2016 in light of further information. Dr Hewitt noted the new information he was asked to assume was that:
The plaintiff did complain of low back pain on 22 August 2016.
He did not take the next day off work or any days off work by reason of low back pain till 3 July 2017.
He was not on light duties for a fortnight in March 2017 or at any other time in that period.
He did not see a doctor or allied health professional about low back pain in that period.
He performed his usual concreting work in that period. The work is physically demanding and sometimes involved jackhammering for hours at a time.
From time to time in that period, by reason of financial circumstances, he requested extra work.
There is no record of the plaintiff having or complaining of sciatica or referred symptoms in his lower limbs at any stage in that period.
[297] He then went on to state:
[167]
In my earlier reports dated 20 February 2020, 26 April 2020, 7 February 2021 and 7 September 2021, I opined that Mr Sawyer had sustained an acute lumbo-sacral disc prolapse at his initial injury on 22 August 2016. This opinion was based on the history, provided by Mr Sawyer that he was unable to resume work on the day after his accident due to severe low back pain, which remained intense for 48 hours and that the ongoing low back pain prevented him from resuming all of his normal duties without restriction leading him to make a request to his supervisor for a restriction of duties. He had also restricted his contribution to household chores from this time.
[168]
Documentary information provided to me in his most recent brief has challenged this assumption. I therefore have prepared a further supplementary report with consideration to the possibility that the symptoms arising from the workplace accident on 22 August 2016, did not prevent Mr Sawyer from continuing his normal work.
[169]
[298] Assuming these facts, Dr Hewitt provided the following revised opinion:
[170]
On the basis of the above information, should it be proved to be correct, then in my opinion more likely than not Mr Sawyer did not sustain a prolapsed disc on 22 August 2016. The above statements however do not exclude the probability that on this date, he sustained a significant injury to his lumbo-sacral intervertebral disc, most likely in the form of a radial tear of the annulus fibrosus.
[171]
Based on his description of the work activity on 22 August 2016, (the date of the onset of his symptoms,) namely combined flexion, twisting and heavy lifting, undertaken in a confined workspace at the job site and the temporal relationship of this activity to the onset of his low back pain, I remain of the opinion that, more likely than not, Mr Sawyer sustained a significant injury to his lumbo-sacral intervertebral disc on this date. The increase in the level of his pain over the next 24-48 hours suggest the development of an inflammatory response, which requires more than just microscopic degenerative changes within the annulus to initiate.
[172]
Therefore whilst it is unlikely that in the above scenario that Mr Sawyer would return to work so quickly if he had a prolapsed lumbar disc, a radial annular tear alone may not have prevented such a return to work if Mr Sawyer felt he was under financial duress. Such an annular tear however may not have had the opportunity to heal with scar tissue if he had not rested and had resumed manual work prematurely because of financial necessity. The ongoing multiple exacerbations of his lumbar pain that occurred over the ensuing year can then be explained by a gradual extension of the radial annular tear.
[173]
In my opinion it is unlikely that the simple act of reaching over to pick up a can of soft drink as described on 3 July 2017 would have resulted in a lumbar disc prolapse unless there already existed a significant predisposing structural weakness of the annulus, such as a radial tear.
[174]
[299] In cross-examination, Dr Hewitt was asked about the recorded history he had taken from Mr Sawyer as set out in his initial report and the instances where he had noted that Mr Sawyer had said his pain had 'spontaneously settled'. Dr Hewitt rejected the suggestion that he understood Mr Sawyer's pain had completely settled at any time. He explained that his understanding of the history was that episodes of exacerbation had settled and that he was not sure Mr Sawyer was ever pain free. He accepted that he had not recorded that Mr Sawyer's pain was ongoing but added that he had not recorded that he was pain free either.
[300] Dr Hewitt agreed that in February 2020 his view was that Mr Sawyer had suffered an over-period-of-time injury and added that was still his view. Somewhat inconsistent with his earlier evidence, Dr Hewitt said that he was of the view that Mr Sawyer had sustained an over-period-of-time injury because he was not having ongoing pain.
[301] As to the nature of Mr Sawyer's injury and its causes, Dr Hewitt gave the following evidence:
[175]
The most significant event from a mechanical injury point of view was that which occurred on the 22nd of August 2016. That's when he was lifting very heavy mesh in a confined space, repeatedly twisting and bending and turning, the nature - the mechanism of which would be most likely the - in my opinion, the cause of the initial radial tear in the annulus of his lumbosacral disc. It may not have reached a point of affecting the structural integrity, however, of the lumbosacral disc at that time, but, in my opinion, that's when the radial tear began...
[176]
...the further exacerbations of pain that occurred were episodes where the tear probably extended and became a little bigger each time, till eventually, by the time he - he was investigated, most specifically with an MRI scan in August of 2017, he clearly demonstrated by this stage he had developed a prolapsed lumbosacral disc. So the radial tear had progressed to the point where it had affected the structural integrity of the intervertebral disc, resulting in a prolapsing at some point between the - August 2016 and August 2017. At some point between those two times, he developed a disc prolapsed [sic.], in my opinion. And based on the mechanisms of all the events that he described associated with back pain, the most likely mechanism to have caused the initial tear was the one that occurred on the 22nd of August 2016, in my opinion.
[177]
[302] When asked whether his opinion as to the nature and duration of Mr Sawyer's over-period-of-time injury would be different if he assumed the history of 'chronic back pain' and 'minor niggles' recorded by Dr Bryant was correct, Dr Hewitt was unable to give a definitive answer but stated:
[178]
... saying that you've got a chronic problem with your back and you get minor niggles now and then doesn't sound like he's relating any specific injury to me, so I would - it doesn't change my diagnosis that the main injury occurred on the date that he has a vivid memory of recalling the exact details of what incapacitated him completely for at least 24 hours.
[179]
[303] As to matters dealt with in his supplementary report of 26 April 2020, Dr Hewitt confirmed that Mr Sawyer had not said anything to him about experiencing any symptoms over a period of years prior to August 2016. However, Dr Hewitt added that had he been told that Mr Sawyer had previous minor back symptoms it would not have changed his assessment that as of 21 August 2016 Mr Sawyer had a 0% impairment of his lumbar spine, according to AMA5 guides.
[304] In response to the suggestion that between his initial report and his supplementary report his opinion had changed from one where Mr Sawyer had sustained an over-period-of-time injury to one where he had suffered an acute disc prolapse of the lumbosacral disc on 22 August 2016, Dr Hewitt stated that he made the assumption at that time that Mr Sawyer had suffered a minor disc prolapse that then got bigger but that on reflection he believed Mr Sawyer had sustained a radial tear in the annulus. He further stated that the tear at that time was probably not to the extent that it affected the structural integrity of the disc to result in a prolapse but that it had started then and propagated from that time onwards.
[305] Dr Hewitt rejected the suggestion that by seeking clarification of his initial opinion by provision of a supplementary report, Mr Sawyer's lawyers had sought to focus causal responsibility for Mr Sawyer's injury on the discrete event occurring on 22 August 2016, rather than an injury occurring over a period of time, and that was the reason he had changed his opinion. Dr Hewitt stated that he had always been of the opinion that there was an acute injury on 22 August 2016 and the only variation in his opinion was as to the extent of that injury at the time. He explained that whether the initial acute injury was a small disc prolapse that became bigger over time, which was his initial opinion, or a radial tear of the annulus which eventually progressed to become a disc prolapse, which was his revised opinion, his view remained that it was an injury over time.
[306] Dr Hewitt agreed with the suggestion that an acute L5/S1 disc protrusion would cause a significant onset of symptoms and stated that was why he had revised his opinion from the initial injury being a small disc prolapse to being a radial tear that had not yet progressed to the point of being a disc prolapse. He further agreed it would have been unlikely that Mr Sawyer could have performed his usual concreting work, between August 2016 and July 2017, if he had sustained an acute disc prolapse on 22 August 2016.
[180]
The diagnosis is a clear-cut established radiological diagnosis. An MRI scan done in August of 2017 clearly demonstrates that he has a lumbosacral disc prolapse. What is not - what is in dispute is at what time that disc prolapse occurred. Now, the only event that I'm aware of that he specifically describes a mechanism likely to cause damage to the lumbosacral disc is on that - the date of his original injury, the 22nd of August 2016. I have not been provided with any other occasion where it is likely that that would have caused a tear, but on that occasion, I would agree the mechanics of what he described are likely to have caused the tear. I mean, in association with severe pain lasting, you know, in an extreme level for at least 48 hours.
[181]
[311] When it was put to him that he had not seen any radial tear on the MRI scans he had reviewed, Dr Hewitt stated:
[182]
Well, the radial tear occurred before the disc prolapse. The MRI scan is a year after the injury, but the mere presence of a disc prolapse on the MRI scan dated August 2017 indicates there was an underlying radial tear. It's by far the most common cause of a disc prolapse.
[183]
[312] Dr Campbell assessed Mr Sawyer, at the request of his lawyers, for the purpose of preparing a medico-legal report for this proceeding. In his report, dated 5 November 2021, Dr Campbell recorded the history of the two incidents and the onset of Mr Sawyer's back injury symptoms as follows:
[184]
Mr Luke Sawyer stated that he was involved in a work accident on 22 August 2016. At the time he was required to perform home renovations in his capacity as a concreter. He manoeuvred a 105 kg steel mesh from a driveway to under a house with the help of a co-worker and whilst bending reaching, twisting and lifting to do so noted onset of increasing lower back pain and stiffness.
[185]
Mr Sawyer stated that he advised his employer of the lower back complaint on the day of the injury.
[186]
Mr Sawyer required one day off work. Thereafter he was able to return to work but he experienced ongoing lower back pain thereafter.
[187]
Mr Sawyer stated that he experienced a worsening of the lower back pain two months later lasting one week followed by a return to baseline levels. There was no specific precipitating event. He experienced a further worsening of lower back pain in February 2017 which again settled to the baseline levels over two weeks.
[188]
Mr Sawyer experienced a further flare-up of lower back pain at work on 03 July 2017 whilst retrieving a bottle out of an esky.
[189]
[313] Dr Campbell further noted that before 22 August 2016 Mr Sawyer enjoyed good health and had no past history of lower back pain contributing to his current impairment. In terms of his present symptoms at the time of his examination of Mr Sawyer, Dr Campbell wrote that Mr Sawyer had 'lower back pain/stiffness' and the lower back pain occurred daily, was moderate to severe in nature and was associated with right sciatica to the ankle region.
[314] In terms of diagnosis and mechanism of injury, Dr Campbell opined:
[190]
Mr Luke Sawyer was involved in a work accident on 22 August 2016 in which he sustained a disc injury at L5/S1 whilst manoeuvring a 105 kg steel mesh from one worksite to another with the help of a co-worker in his capacity as a concreter. The lower back pain persisted thereafter. He experienced severe exacerbations of the lower back injury in the months that followed including a flare-up on 03 July 2017 whilst bending to retrieve a bottle out of an esky. The subsequent CT scan lumbar spine showed a disc bulge at L5/S1. He was referred to a neurosurgeon for an opinion and further imaging revealed a right L5/S1 disc protrusion requiring surgery. Post-operative imaging showed evidence of a recurrent right L5/S1 disc protrusion awaiting further treatments.
[191]
The mechanism of injury is that of a disc protrusion at L5/S1 as a result of lifting and bending at work on 22 August 2016 to manoeuvre a 105 kg steel mesh into position. The disc injury was destabilised thereafter performing manual handling tasks leading to surgical intervention.
[192]
[315] Dr Campbell assessed Mr Sawyer, in accordance with the AMA5, as DRE Category III, suffering a 13% WPI. In terms of apportioning his WPI between 'claim related impairment' and 'pre-existing/subsequent impairment', Dr Campbell considered an 11% WPI could be considered work-related. He further elaborated:
[193]
As stated above, Mr Sawyer's impairment is at 13% whole person of which 11% can be considered due to the work injury of 22 August 2016 and 2% due to external physical factors (two subsequent flare-ups).
[194]
The incident at work on 03 July 2017 cannot be considered a work injury but more an incidental event and has not contributed to overall causation.
[195]
[316] As to the origin of Mr Sawyer's injury and whether he had suffered an over-period-of-time injury, Dr Campbell stated:
[196]
... the main causative factor for Mr Sawyer's persisting lower back complaint has been the work injury of 22 August 2016. There was no 'over a period of time' work injury.
[197]
[317] A memorandum of a discussion between Dr Campbell and Mr Sawyer's lawyers on 29 January 2024, signed by Dr Campbell, was received as a trial exhibit. The memorandum noted that Dr Campbell had received updates to his brief of materials and had now had the opportunity to access and review online the relevant radiological reports. According to the memorandum, upon reviewing the updated materials the only change Dr Campbell would make to his 5 November 2021 report would be to his opinion as to the disc protrusion shown on the 29 August 2017 MRI. Rather than it being a right disc protrusion, he believed it showed a central disc protrusion and that it was borderline whether it showed a clear sign of nerve root compression at the time. The memorandum also recorded that Dr Campbell believed that the cause for Mr Sawyer's surgery in November 2017 was the 'work event on 22 August 2016' and that the surgery had led to a bigger disc protrusion on the right-hand side, which he considered was a recognised complication of surgery.
[318] In cross-examination, Dr Campbell confirmed that he had been asked to provide an opinion about what occurred with respect to Mr Sawyer's back condition from an incident said to have occurred more than five years before he examined Mr Sawyer. He agreed that in formulating his opinion he relied upon the history of the reported symptoms and the event to form an accurate opinion. He agreed with suggestion that if Mr Sawyer had only one day off work after the 22 August 2016 incident and had then returned, and been able to perform his regular work without problems and no ongoing back complaint for the next seven months, that would indicate that the injury had resolved. He further agreed that if Mr Sawyer then suffered further pain performing duties or doing other things that, depending on the timeframe, it would be reasonable to assume they would be unrelated to the 22 August 2016 incident.
[319] Dr Campbell accepted that he had been provided with reports from Dr Bryant and that he would have read those reports. He could not recall asking Mr Sawyer about the history recorded by Dr Bryant in his report of 9 November 2017, that Mr Sawyer 'acknowledged chronic back pain and admitted to some minor back niggles over many years in his role as a concreter'. He said he must have missed that entry in the material provided to him, but added that there was nothing else in the documentation he had received of any past history of back pain and that he did not place a great deal of weight on treating clinician's reports.
[198]
...if I had have seen that comment by Dr Bryant about the past history, I wouldn't have read much into that. I think we all get a bit of lower back pain over the years, so I think my overall conclusions would have been unchanged. So that's the first comment. The second comment is everyone has a bit of wear and tear in their back as they get older. That's normal, so some clinicians say that's due to degenerative changes. I would just say that's just all normal age-related changes. So, once again, that - none of that would change my opinion.
[199]
I wouldn't give much - any weight to the fact that there was some pre-existing niggly aches and pains of the back. So there's nothing in his - there's nothing in his medical records to suggest there was anything significant prior to the work injury, and there's been no investigations. There's been no time off work. There's been no interference with his activities of daily living prior to the accident, so therefore I acknowledge that he's had some intermittent back pain in the past, as everyone has, but I just haven't - haven't apportioned any weight to it as far as impairment assessment goes.
[200]
[321] When asked about the history recorded in Dr Coyne's reports that Mr Sawyer's pain had 'resolved', Dr Campbell said that he had seen what Dr Coyne had written and he had discussed it with Mr Sawyer, who was adamant that his pain had persisted. He agreed that he had not included any reference to this discussion in his report.
[322] In response to the suggestion that an acute L5/S1 disc protrusion would cause a significant onset of symptoms, Dr Campbell said that a disc protrusion would often cause back pain and if it was pinching on a nerve it would cause sciatica, but added that symptoms will vary widely between one patient and another and that in any individual there was a wide spectrum of presentations. He accepted though that an acute disc protrusion could affect a person's mobility, agility, endurance, strength and their ability to bend, squat, lift and carry, albeit he qualified his answer by saying 'once again, to varying degrees'.
[323] Dr Campbell did not accept the proposition that given the usual work duties Mr Sawyer performed between 22 August 2017 and 3 July 2017 that it was highly unlikely that he had suffered an acute prolapse of the L5/S1 disc on 22 August 2016. He again reiterated that there were a variety of presentations and responses to an injury and that 'some patients will stop working and others will try to soldier on' and that in Mr Sawyer's case he assumed that he had chosen to soldier on and do his best and try and see things out. Dr Campbell added that he considered that type of response was reasonable. He accepted that the fact that Mr Sawyer was able to continue working may have meant that he did not have a back injury at all but said that it was 'equally reasonable' that he did and that '...he's just soldiered on until he's got to a point where he can't go any further.'
[324] When it was further suggested to Dr Campbell that the two posited scenarios were not equal scenarios, Dr Campbell said '... I would say equally there's no evidence to suggest that he hasn't sustained a - a lower back injury lifting a 150 - 105 kilogram steel mesh at work on - on the subject date.' When it was then further put that such a scenario was then a matter of speculation, Dr Campbell said 'Yes. Yeah. Yes. I - I think - I think - and this - and that's - and that's why we're discussing it today in court. It's - because it's a grey area.'
[201]
[326] Dr Coyne was engaged by lawyers acting for WorkCover Queensland to assess Mr Sawyer and provide a medico-legal report for the purpose of this proceeding.
[327] In his initial report, dated 20 August 2019, Dr Coyne set out the history of Mr Sawyer's back complaint, which I have already set out above.
[328] Dr Coyne then set out the further history provided by Mr Sawyer of episodes of low back pain in December 2016 and January and March 2017 and the circumstances of the second incident on 3 July 2017. He then summarised the course of Mr Sawyer's subsequent treatment for his back condition, noting that Mr Sawyer said there had been some improvement in his symptoms over the past year, but that his symptoms had not resolved. He noted Mr Sawyer described his worst persisting symptom was low back pain and that it was present 'most of the time' but he would have occasional days without pain. He further noted Mr Sawyer said that he had no history of low back pain or injury prior to August 2016.
[329] With respect to the nature and cause of Mr Sawyer's back condition, Dr Coyne opined:
[202]
Mr Sawyer describes developing low back pain in association with a work incident on 22.08.16 when carrying heavy sheets of steel mesh. This history indicates that Mr Sawyer likely sustained a lumbar spine disc or other soft tissue injury in this incident.
[203]
Mr Sawyer further reported that low back pain in association with this incident resolved over several days, and he did not find it necessary to seek medical or allied health assistance. He provided a history that he did not further experience low back pain for 3-4 months, until December 2016/January 2017.
[204]
Mr Sawyer's history of resolution of symptoms within several days of the subject incident of 22.08.16 suggests that the lumbar spine injury sustained in this incident was of a mild nature, which resolved.
[205]
When Mr Sawyer underwent lumbar spine MR imaging in August 2017, a background of L5/S1 degenerative change was evident. This background of degenerative change was longstanding, and likely to have present at the time of the August 2016 incident.
[206]
Mr Sawyer's history suggests that the incident of 03.07.17 is the most significant factor in the development of his ongoing condition, as unlike on previous occasions symptoms did not resolve following this incident.
[207]
In summary, the history provided by Mr Sawyer indicates that the lumbar spine injury sustained in the subject incident of on 22.08.16 was a relatively mild injury, with resolution within several days. It is likely underlying L5/S1 degenerative disc change was the most significant factor in the development of Mr Sawyer's subsequent episodes of low back pain to July 2017. Mr Sawyer likely significantly aggravated his underlying degenerative disc change on 03.07.17 when bending over to retrieve a drink from an esky, with symptoms subsequently remaining severe despite lumbar disc surgery.
[208]
The subject incident of 22.08.16 may have made some contribution to the lumbar disc degeneration which is likely the principal factor in Mr Sawyer's ongoing condition subsequent to the July 2017 incident. However Mr Sawyer's history of rapid recovery from this injury, with no persisting symptoms and a return to his usual employment as a concreter, indicates that any contribution of this incident to his overall degenerative disc change is of minimal significance, and it is likely constitutional factors are the principal factors involved in the disc degeneration underlying his subsequent episodes of low back pain and his ongoing symptoms following his bending incident of July 2017.
[209]
Mr Sawyer's history of developing right leg pain following the bending incident of 03.07.17 suggests that this incident was the precipitating cause of his acute disc protrusion which was considered by his treating surgeon to be irritating the right S 1 nerve root to cause Mr Sawyer's right leg pain.
[210]
[330] By reference to the AMA5, Dr Coyne considered Mr Sawyer fulfilled the criteria for classification in DRE Category III and assessed him as having a 12% WPI. However, given his opinion as to the cause of Mr Sawyer's condition and the insignificant injury Mr Sawyer sustained on 22 August 2016, Dr Coyne opined that the first incident in itself would not have resulted in any WPI.
[331] Dr Coyne provided an updated report on 8 June 2022, after seeing Mr Sawyer again on 5 May 2022. At the outset of his further report, Dr Coyne stated:
[211]
Mr Sawyer provided a history of sustaining an injury on 22.08.16 in the course of his employment as a concreter. He agreed that the history recorded in my previous report was accurate.
[212]
[332] Dr Coyne then repeated the history previously provided by Mr Sawyer of the two incidents and the onset of his back pain. He noted the course of Mr Sawyer's further symptoms and treatment since his earlier examination and initial report, including an episode in June 2021 when Mr Sawyer's symptoms were so severe that he was taken by ambulance to the Redcliffe Hospital Emergency Department for assessment. He recorded that Mr Sawyer said currently his most severe persisting symptom was right leg pain but that he also continued to have constant low back pain.
[333] Having re-examined Mr Sawyer and considered updated imaging and documentation, Dr Coyne stated that there was no change to the opinions he had expressed in his initial report with respect to Mr Sawyer's claim in relation to the 22 August 2016 incident. He reiterated his view that that incident was unlikely to be of significance in his ongoing symptoms following his lumbar spine episode of 3 July 2017 and further stated:
[213]
Mr Sawyer's ongoing physical and psychological distress is acknowledged. However his current condition likely relates to a combination of underlying lumbar spine degenerative change and adverse psychosocial factors. It is implausible that a minor lumbar spine soft tissue injury sustained in the course of his work in August 2016 is a significant contributing factor to his current presentation.
[214]
[334] Dr Coyne referred to various other medical reports that had been provided in respect of Mr Sawyer and the conclusions expressed by others, including Drs Bryant, Hewitt and McPhee, and stated:
[215]
The impression from the above reports is that there is no clear history of a significant lumbar spine injury being sustained by Mr Sawyer on 22.08.16.
[216]
[335] He then referred to Dr Campbell and stated:
[217]
Dr S Campbell (neurosurgeon) in his report of 06.12.21 attributed Mr Sawyer's persisting lumbar spine condition primarily to the incident of 22.08.16. However Dr Campbell obtained a history from Mr Sawyer of ongoing low back pain following this incident, which was not the history obtained by myself and other physicians who have reviewed Mr Sawyer.
[218]
[336] A file note, signed by Dr Coyne, of a conference between Dr Coyne and the second and third defendants' legal representatives held on 14 December 2023 was received as a trial exhibit.
[337] The file note recorded that Dr Coyne was asked to assume a history which included:
Mr Sawyer did complain of low back pain on 22 August 2016;
He did not take the next day off work or any days off work by reason of low back pain until 3 July 2017;
He was not on light duties at any time in the period between 22 August 2016 and 3 July 2017;
He did not see a doctor or allied health professional about low back pain in that period;
He performed his usual concreting work in that period and from time to time, by reason of financial circumstances, requested extra work;
There was no record of him having or complaining of sciatica or referred symptoms in his lower limbs during that period.
[338] The file note further recorded that in a letter dated 19 September 2017, Dr Bryant had noted that Mr Sawyer gave a history that the pain down his right leg probably did not start until three or four weeks after the incident on 3 July 2017.
[339] Dr Coyne considered these matters reinforced the opinions he had previously expressed in his reports, that on 22 August 2016 Mr Sawyer had suffered a 'minor self-limiting injury with no long term effects.' He further stated that if the disc herniation as shown on the 29 August 2017 MRI scan had been caused acutely by the 22 August 2016 incident, Mr Sawyer would most likely have suffered a good deal of pain and not have been able to work for up to several months, particularly performing heavy manual work. Furthermore, Dr Coyne considered Mr Sawyer would have experienced referred leg symptoms because the disc herniation was close to the nerve root.
[340] A further file note, signed by Dr Coyne, of a conference between Dr Coyne and the second and third defendants' legal representatives held on 6 February 2024 was received as a trial exhibit. It noted that Dr Coyne had reviewed Dr Hewitt's report dated 29 January 2024 and set out his opinions with respect to the conclusions stated by Dr Hewitt's in that report.
[341] Dr Coyne noted that he had written in his 20 August 2019 report that Mr Sawyer had said that his low back pain had 'resolved' after the 22 August 2016 incident and again 'resolved' after the subsequent flare-up episodes of low back pain. The file note then recorded Dr Coyne stated:
[219]
The plaintiff may not have used the word "resolved' but I would not have included "resolved" in my report without confirming with him he was pain/symptom free and unrestricted in his movements.
[220]
[342] The file note also recorded that Dr Coyne stated that when he saw Mr Sawyer again on 5 May 2022, he undertook his usual practice of reading back the previously obtained history to the patient and that had Mr Sawyer told him any part was inaccurate he would have recorded that additional information. He confirmed that Mr Sawyer agreed that the history as previously taken was accurate.
[343] The file note further recorded that Dr Coyne had gone back to review the MRI scan taken on 29 August 2017 and that having done so he advised:
[221]
As indicated in my first report, the scan demonstrated L5/S1 degenerative disc change, with an associated central/left disc protrusion which was in contact with the left S1 nerve root. The protrusion is broad-based, rather than focal, and therefore consistent with degeneration.
[222]
There could have been an acute component to the protrusion resulting from the incident the plaintiff said occurred on 3 July 2017.
[223]
Disc protrusions occur, whether over time or acutely, in discs weakened by degeneration.
[224]
I cannot see any evidence of tear of the annulus fibrosus. If the plaintiff did sustain a significant disc injury on 22 August 2016, his condition would not have resolved in a short period, and he would have had significant difficulty performing the demanding physical work involved in concreting.
[225]
[344] In cross-examination, Dr Coyne accepted that he had no independent recollection of Mr Sawyer telling him that his pain had 'resolved' when he gave his history of his back condition. He accepted that Mr Sawyer could have used the word 'settled' and agreed that in his vernacular the word 'settled' would mean 'resolved', but added that he would have taken away the impression from speaking to Mr Sawyer that his pain had gone away
[345] When asked about the second occasion he had seen Mr Sawyer, Dr Coyne said that, although he had no independent recollection of doing so, he would have gone through his first report with Mr Sawyer, albeit not word for word. Dr Coyne did not recall Mr Sawyer telling him on that occasion that his pain had not resolved within days after the 22 August 2016 incident. He added that it would be unlikely that Mr Sawyer had told him that because if he had he would have made a note of it in his second report. When it was pointed out that Mr Sawyer's evidence was that he had tried to tell Dr Coyne that that part of the history was not accurate and that Dr Coyne had spoken over him and moved on, Dr Coyne stated 'that's not what - how I usually conduct any consultation or medico-legal assessment with a patient.'
[346] Dr Coyne was asked to assume a set of facts, consistent with Mr Sawyer's evidence of unresolved pain after the first incident, of continuing to work, with occasional light duties, and of resting on weekends while neglecting household chores. Upon those assumptions he accepted as reasonable the proposition that it would make it likely that the 22 August 2016 incident gave rise to an injury to Mr Sawyer's back that was more than a minor injury. However, in response to the further proposition that it likely would have caused an injury to the L5-S1 disc, Dr Coyne stated:
[226]
I don't - don't know how you - if that - if it's possible to be that specific, if the - the history is assumed, as you stated, it's possible he may have had a - a - a lumbar disc or a musculoligamentous or a facet joint injury that might've been of some significance, but just on the assumptions that you've stated, it would be difficult to say that the specific injury was to the L5-S1 disc.
[227]
[347] Dr Coyne agreed that on the assumptions he was asked to make about the history, the 22 August 2016 incident could have caused a disturbance of the biomechanics in the spine, resulting in an accelerated rate of degeneration of the facet joints. He further agreed that, after such an incident, it was possible that returning to concreting work in pain might lead to a worsening of the condition and that at a certain stage an innocuous event, such as lifting a water bottle out of an Esky, would give rise to an exacerbation of a pre-existing injury. Dr Coyne did not however accept the further suggestion put to him that such an outcome was probable, stating instead that he thought it was equivocal, although possible, because the 3 July 2017 event may have been independent of any pre-existing lumbar spine complaint.
[348] Dr Coyne accepted that manual handling of heavy mesh sheets, in the manner described by Mr Sawyer, was the sort of activity that may well give rise to a disc injury in the spine. He agreed that would be much more likely to cause such an injury rather than an innocuous task like bending over to get a drink from an Esky.
[349] When asked whether it was uncommon to see radiological signs of lumbar spondylosis in a 26-year-old man, Dr Coyne stated that the radiological features of lumbar spondylosis increase with age, so such changes are more likely to be seen in an older person than someone in their 20s, but that it was certainly not uncommon to see those changes in someone in their 20s.
[228]
[350] Cretek submits that the evidence, considered as a whole, does not support a finding that Mr Sawyer sustained a serious lower back injury on 22 August 2016. It contends that the more likely explanation for Mr Sawyer's back injury is that he had a pre-existing degenerative disc condition which progressed to the point where, on the occasion of the second incident, an innocuous event precipitated a disc prolapse at the L5/S1 level in his spine. Thus, it argues, not only was there no significant injury occasioned by the first incident but that the cause of Mr Sawyer's back injury does not stem from any alleged breach of duty on its part.
[351] A central theme underpinning Cretek's denial of Mr Sawyer's claim was that Mr Sawyer was pursuing a false and exaggerated claim which only came to be formulated in a way that attached significance to the first incident after Mr Sawyer had engaged his solicitors in February 2018. Cretek argues the motivation for doing so was because of the likelihood of establishing that it breached the duty it owed Mr Sawyer on that occasion, in contrast to the unlikelihood of establishing that it breached its duty on any subsequent occasion, particularly during the second incident. It says Mr Sawyer's claim is inconsistent with the earlier contemporaneous evidence, which demonstrates that the back injury Mr Sawyer sustained during the first incident was minor and resolved after a short time. It submits that Mr Sawyer's claim is essentially based on a disingenuous rewriting of the history.
[352] Cretek says Mr Sawyer's evidence ought not be accepted as it was unreliable. It further submits that both Mr and Mrs Sawyer were not credible witnesses. Amongst other things, Cretek submits I would reject Mr Sawyer's evidence because:
[229]
(a) the supposed visit to the Cretek office on 23 August 2016 is a fabrication, intended to add to the significance of the injury sustained on 22 August 2016 and to establish knowledge of it by Cretek;
(b) the incident investigation form recorded his injury as 'minor' and that he did not need any time off or treatment;
(c) he continued to work after the first incident through until the second incident;
(d) he did not see a doctor until after the second incident;
(e) there is no independent evidence to support his evidence that he:
(i) continued to have lower back pain after the first incident; or
(ii) requested to be allocated, or performed, light duties.
(f) his claim that he was performing demanding manual work during the working week, but was an invalid at home on the weekends, defies belief;
(g) the histories of his back complaint that he gave to Dr Coyne, Dr Bryant, Dr Feberwee and Dr Samy are inconsistent with his claim that he continued to experience pain after the first incident;
(h) he failed to tell Dr Shahsanei, Dr Bryant and WorkCover about any injury suffered by him during the first incident;
(i) his claim for past economic loss includes a false claim for $2,000 for two weeks' lost wages due to him being off work in March 2017; and
(j) some of the allegations he detailed in his 25 February 2018 Notice of Claim were false or inconsistent with the version of events he gave in evidence at trial.
[230]
[353] Cretek submits that I should accept and prefer the medical opinion evidence of Dr Coyne. It says Dr Coyne was a measured and thoughtful witness, who listened carefully to the questions and gave reasonable and reasoned responses to questions in cross-examination, making appropriate concessions. It submits that Mr Sawyer's assertions that the history Dr Coyne obtained from him contains two errors as to 'resolution' of his pain symptoms and that Dr Coyne spoke over the top of him should be rejected.
[354] In respect of Dr Campbell, Cretek submits that whilst he attempted to keep open a possible connection between the first incident on 22 August 2016 and Mr Sawyer's present impairment, including by relying upon the general practitioner's notes made on 4 July 2017, he nevertheless reluctantly conceded there were difficulties with that causal connection.
[355] As to Dr Hewitt, Cretek submits he was a combative witness who was determined to give speeches and avoid dealing with any assumptions that would require him to deviate from opinions favourable to Mr Sawyer's case. It submits that Dr Hewitt gave non-responsive answers to questions, avoided answering questions and gave speculative answers designed to favour Mr Sawyer's case. It submits that no reliance should be placed on Dr Hewitt's evidence as he was a partisan and combative witness determined to advance Mr Sawyer's case.
[356] For its part, SWC submitted that I should reject Mr Sawyer's evidence for similar reasons. It adopted the submissions made by Cretek.
[357] Mr Sawyer contends that all of the evidence points to the fact that he did sustain a serious back injury in the way that he alleges. He says that the alleged mechanism of injury, namely lowering a 105kg piece of mesh steel with one other co-worker, trying to feed it over protruding pipes, is plainly consistent with a lower back injury of the kind he says he sustained. He submits that I should find that the first incident on 22 August 2016 caused an injury to his L5/S1 disc which worsened over time, ultimately leading to a significant aggravation of his disc injury on 3 July 2017. He says that his initial injury is the root cause of his current symptomology.
[358] Alternately, Mr Sawyer submits, based on the evidence of Dr Hewitt, that the continuing heavy worked performed between August 2016 and July 2017, over a period of time, caused the initial injury to his disc to worsen and that it is this over a period of time injury that is causally related to the more significant symptoms that came on from 3 July 2017.
[231]
(a) he is a shy and introverted person and a reluctant communicator, particularly with strangers;
(b) he is a stoic man and not a 'whinger', which would explain why he continued to work whilst in pain and did not go to see a doctor, despite his wife urging him to do so;
(c) he had financial pressures which led him to continue working despite his ongoing back pain;
(d) Mr Tippett confirmed that there were occasions when he gave injured or ill workers light duties and although he could not specifically recall doing that for Mr Sawyer, he was aware that Mr Sawyer had back pain for about a year before he stopped work;
(e) it is clear from the Cretek incident investigation form that Mr Sawyer reported his injury and ongoing symptoms of back pain to Adrian and Joel Quillan. Whilst it is not clear why the report was completed in October 2016, the report shows that Mr Sawyer was continuing to experience pain six weeks after the first incident and that it had not 'resolved';
(f) the evidence of Adrian and Joel Quillan about whether Mr Sawyer attended the Cretek office on 23 August 2016 was vague and uncertain. The evidence given by he and his wife should be preferred;
(g) the tendered photograph showing the unusual way in which he tied his shoes on 12 September 2016 is objective evidence that supports his and his wife's evidence that he continued to suffer a back complaint after the first incident;
(h) the history recorded by Dr Bryant in November 2017, that Mr Sawyer had said that he had 'chronic back pain' and 'niggles' over 'years' does not accurately reflect what was first recorded in his initial September 2017 report and is equivocal in any event. All these references are consistent with Mr Sawyer having back pain symptoms since the first incident. Further, the use of the word 'niggles' is simply consistent with him having minor niggles from time to time in the past and is not an admission of having a pre-existing back injury or symptoms before the first incident;
(i) he had given consistent accounts of having back pain since the first incident to Dr Shahsanei on 4 July 2017;
(j) the statements recorded by Dr Samy in his report of 5 July 2018, that Mr Sawyer initially returned to work 'without any problems' and 'without any distress' are not statements by him accepting that his condition had resolved. Rather they are consistent with the evidence that he and his wife gave that he returned to his regular duties, rested on weekends and requested and performed lighter duties when necessary.
[232]
[362] The defendants' challenge with respect to medical causation concerns the nature, extent and consequences of any back injury that Mr Sawyer may have sustained during the first incident, and whether the subsequent back injury he sustained on 3 July 2017, and the symptoms he continues to experience, are causally connected to any back injury from the first incident.
[363] The starting point for consideration of these issues is to note that it is an incontrovertible fact that at some point in time Mr Sawyer sustained a prolapsed disc at the L5/S1 level of his spine. This was apparent from the CT scan done on 4 July 2017 and the first MRI scan on 29 August 2017. It is also an incontrovertible fact that as a result of his disc injury and subsequent surgery complications, Mr Sawyer has experienced impingement of the right side S1 nerve root and associated radiculopathy.
[364] The defendants do not challenge these facts, nor do they dispute the fact that Mr Sawyer continues to experience some pain and symptoms.
[365] The central matters in dispute relate to when, how and why Mr Sawyer sustained his prolapsed disc and consequent nerve impingement.
[366] Each of the medical experts who gave evidence in this case have proffered their opinions as to the likely nature, extent and cause of Mr Sawyer's disc protrusion. Their differing views are largely explicable by the fact that each of them has based their opinion upon a different set of assumed facts. As set out in the summary of evidence above, amongst other things, each of the medical experts proceeded upon a history of events said to have been described to them by Mr Sawyer. Accordingly, the extent to which their opinions are relevant and capable of acceptance depends heavily upon the accuracy of the factual assumptions upon which they are based.
[367] It is therefore necessary that I first find the facts relevant to the basis for the opinions expressed by the medical experts so that, in turn, I may evaluate the relevance and weight of their opinion evidence. In doing so, it is necessary that I consider the whole of the evidence and resolve the central disputed issues of fact.
[368] It is here that my assessment of the reliability and credibility of the evidence given by Mr Sawyer and Mrs Sawyer is highly significant. That is because many of the disputed facts that Mr Sawyer contends should be determined in his favour depend primarily, if not solely, upon whether I accept the evidence given by him and his wife.
[233]
Most experienced judges subscribe to the view expressed by Goff LJ in Armagas Ltd v Mundogas SA (The "Ocean Frost") that it is essential "when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities". Goff LJ was referring to cases of fraud, but the statement is of general application. As Goff LJ observed in the same passage:
[234]
"It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."
[235]
This is not a recent revelation. About 60 years earlier, for example, Atkin LJ, after observing that "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour", confirmed that trial judges were encouraged "to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events".
[236]
[371] In a more expansive analysis of the task of assessing witness credibility, Lord Pearce said in Onassis v Vergottis:[20]
[237]
"Credibility" involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.
[238]
[372] Of particular relevance in the present case are the following comments made by Basten JA in Container Terminals Australia Ltd v Huseyin,[21] with respect to the necessity to exercise a degree of caution in relation to placing reliance upon apparent inconsistencies between a witness' evidence and the histories recorded in medical records:
[239]
In the present case the appellant sought to challenge the acceptance of oral testimony of the plaintiff in part on the basis of inconsistent histories given to medical practitioners. The apparent inconsistencies were put to the plaintiff in cross-examination, without obtaining any significant concession. Her Honour was entitled to discount the inconsistencies, for reasons which might have been repeated, but which are too commonplace to require repetition. They include the following:
[240]
(a) the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that he or she will have any real recollection of the circumstances in which the record was made);
(b) medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort;
(c) the histories did not make reference to the questions which elucidated the replies;
(d) the material recorded was a summary of answers rather than a verbatim recording, and
(e) there may be a range of factors, including fluency in English, the practitioner's knowledge of the background circumstances of the accident and the patient's understanding of the purpose of the question, which will affect the content of the history.
[241]
[373] With those matters in mind, I record that my general impression of Mr Sawyer was that he was an unsophisticated man who, for the most part, gave his evidence in a fairly straightforward manner. I generally accept he was an honest and reliable witness. There were however two significant aspects of his evidence that cause me to have some doubts about his credibility. The first aspect is in respect of his evidence about speaking to Dr Coyne to attempt to correct the inaccurate descriptions in Dr Coyne's reports that his symptoms had 'resolved'. As I will explain further below, I do not accept his evidence on this point. The second aspect is in respect of his evidence about the extent of his pain symptoms and its impacts upon his level of functioning in the period between the occurrence of the first and second incidents. As I will also detail later, I do not fully accept Mr Sawyer's evidence in this regard.
[374] For these reasons I have approached all of Mr Sawyer's evidence with some caution, particularly where it was not supported by other independent evidence.
[375] I make a similar observation in respect of the reliability of Mr Sawyer's evidence. There were occasions when Mr Sawyer's evidence was vague on certain issues. Further, at times he readily conceded in cross-examination that his recollection of certain events was unclear or he was unable to recall exactly what had happened. In those instances, I have looked to, and preferred, other relevant evidence to determine disputed facts.
[376] I have made a similar assessment of Mrs Sawyer. Whilst I generally found her to be an honest and reliable witness, the same credibility issues outlined above with respect to Mr Sawyer's evidence also cause me to question the credibility of her evidence on those points and more generally. Whilst I do not wholly accept the defendants' argument that Mrs Sawyer deliberately gave false evidence to support her husband's claim, I do doubt the veracity of the evidence she gave about speaking to her husband about Dr Coyne and the evidence she gave about Mr Sawyer's level of functioning in the period between the first and second incidents. Further, I am satisfied that she overstated the level of his past domestic activities and the level of his care needs in the past gratuitous care schedule that she prepared. Again, these are matters that cause me to approach her evidence with a degree of caution and circumspection.
[242]
...in clinical practice we consider acute low back pain or chronic low back pain. Acute means it happened for a few seconds or few minutes, like a fall or a fracture, and chronic obviously means long-term, and in this - in this context means more than 12 weeks.
[243]
[397] When further asked about the 'forth time' entry, Dr Shahsanei gave this evidence:
[244]
Actually, this is about chronic back pain. When a patient has chronic back pain it doesn't mean every single second, 24/7, they have back pain. They can have good times and bad times. It gets worse. It gets better. And could be aggravating accidents. So it means the patient told me he has been in pain since more - I specifically ask patients for how long have you had this pain, and then I put chronic or acute. I've put chronic here. I have - I - I ask the patient for how long have you had this pain and how it happened, and he explained to me, "I've had it more than 12 weeks." Maybe he said four or five months. Not accurately. But in my - in my definition, would be 12 weeks. And he mentioned this is the fourth time it happened so I've mentioned it here.
[245]
[398] In my view, this evidence and explanation of the notes is consistent with Mr Sawyer's claim.
[399] The next supposed inconsistency concerns what is recorded in the WorkCover Communication Report in respect of the conversation between Mr Sawyer and a WorkCover officer on 5 July 2017. The report notes, 'Had strains - no MVA or falls in past'. Although he could not recall the conversation, Mr Sawyer accepted that he had given this information. In my view, the fact that Mr Sawyer may have given these details and not mentioned the first incident on 22 August 2016, does not provide evidence that he did not sustain an injury to his back at that time. I do not find it surprising at all that the report does not record that Mr Sawyer said he had previously hurt his back in August 2016. The purpose of the report was to record communications with Mr Sawyer about the injury he had just sustained to his back on 3 July 2017, and for which he was receiving workers' compensation benefits. When asked whether he had any previous injuries to his back, he advised that he had sustained 'strains' to his lower back. In my view, that is consistent with his account.
[400] I consider it is entirely artificial to seize upon this statement, and other statements to similar effect, as some kind of admission or concession by Mr Sawyer that any injury he may have suffered on 22 August 2016 was minor in nature and did not result in any ongoing problems for him, otherwise he would have mentioned it. It must be borne in mind that Mr Sawyer is not a doctor. He hurt his back on 22 August 2016 and thereafter experienced pain which, I am satisfied, did not completely go away but for the most part was mild to moderate in severity and manageable. He had not seen a doctor about his back before 4 July 2017. He saw the doctor then because he had experienced an onset of severe pain. The doctor noted he had complained of 'chronic low back pain'. There had been no earlier imaging investigation into the nature and extent of his back injury before that date. It is hardly surprising that Mr Sawyer did not pinpoint the first incident as the cause of his back issues. Even if by saying that he had suffered back 'strains' in the past Mr Sawyer was including the occasion when he hurt his back on 22 August 2016, I do not consider that characterisation by him of his injury is necessarily inconsistent with his claim.
[246]
- hurt his back at work - carrying steel sheets
- felt sudden pain in the back
[247]
- He kept working the entire day
- Once he finished work + drove home - pain kicked in - stayed at home the next day and took rest
- He went back to work + had no pain 2/7 after this index incident
[248]
- 'twisted the wrong way at work' - 'hurt my back again' continued to work
[249]
[407] The suggestion in the handwritten notes that Mr Sawyer said he went back to work and had no pain two days after the August 2016 incident is inconsistent with Mr Sawyer's case. However, this is a matter that I place little weight upon given that Mr Sawyer was not cross-examined about making such a statement.
[408] As for Dr Coyne, the major point of controversy is whether Mr Sawyer said that his low back pain had 'resolved' after the first incident and again after the flare-up in around March 2017. These matters were recorded in Dr Coyne's initial report of 20 August 2019 and reiterated in his subsequent report of 8 June 2022. Mr Sawyer denied ever saying that his condition had resolved. He believed that he had said that it had 'settled'. He said he tried to raise this matter with Dr Coyne when he next saw him, but that Dr Coyne would not listen and just moved on. Although Dr Coyne conceded in his evidence that Mr Sawyer could have said 'settled' rather than 'resolved', he maintained that his impression after speaking to Mr Sawyer was that his pain had gone away. He denied that when he next saw him, Mr Sawyer had tried to tell him that his pain had not resolved as had been recorded in the first report.
[409] I accept Mr Sawyer's evidence that he did not use the word 'resolved' rather, he said 'settled'. However, I do not accept that Mr Sawyer attempted to raise the issue with Dr Coyne when he saw him on the next occasion but was unable to do so as Dr Coyne would not listen and just moved on. Mr Sawyer's evidence on this point was unconvincing. It is also inherently unlikely that this would have happened, particularly in circumstances where Mr Sawyer had apparently provided a similar description of events (i.e. 'spontaneously settled') to the expert engaged by his own lawyers, Dr Hewitt, when he saw him on 5 February 2020. Further, it would not be consistent with Mr Sawyer's reserved personality and nature for him to have raised this with Dr Coyne, nor would it be consistent with Dr Coyne's usual practice and professional obligations for him to have dismissed Mr Sawyer if he had. Although Dr Coyne did not have a specific recollection of the particular conversation, he recalled undertaking his usual practice for any subsequent examination when he next saw Mr Sawyer, which was to read back to the patient the previous history taken and to ask if it was accurate or otherwise.
[250]
My understanding is that he was able to keep working and worked without painkillers. I have no - there was no understanding on my part that he had no pain or that his back felt as, like, normal as it did before the incident. He continued working, and then what my focus is there is how his back's behaved over the next period of time in terms of what he considered significant events in the history of his back, and that's what I've focused on.
[251]
My understanding was one day that he felt pretty good or that he might have felt good for a couple of days, but I was more interested in the longer term effects of this back injury, because there can be longer term effects that develop over time. That was what my focus was on: what happened to his back in the period following.
[252]
[415] In terms of the longer-term effects, Mr O'Sullivan had recorded in his report that Mr Sawyer had described that his back was 'no longer the same and he would suffer onsets of pain for no apparent reason' after 22 August 2016.
[416] I note that Mr Sawyer was not cross-examined about whether he had told Mr O'Sullivan that he was 'feeling pretty good' after the first incident. Irrespective, I do not consider any of this evidence to be necessarily inconsistent with Mr Sawyer's evidence or his case.
[417] As to other apparent inconsistencies between what Mr Sawyer had stated in his detailed account in his Notice of Claim and what he had said about matters in his evidence, in my view these matters are largely immaterial. I consider they are relevant to my assessment of the reliability of Mr Sawyer's evidence but have no real bearing on my assessment of his credibility.
[418] That brings me then to the critical disputed fact, which is whether Mr Sawyer continued to have back pain after the first incident. I am satisfied that he did. Given what I have concluded about the Sawyers' evidence with respect to the issue about Dr Coyne's report, I do have some concerns about unreservedly accepting the Sawyers' evidence on this point. Nevertheless, I am satisfied that there is sufficient support for their evidence to be found in the other evidence to which I have already referred, particularly the consultation notes of Dr Shahsanei. Even the report of Dr Bryant, referring to Mr Sawyer reporting 'chronic low back pain' provides some support for their evidence.
[419] A difficulty in this case is that other than the Cretek incident investigation form, there is no other contemporaneous report or medical record noting that Mr Sawyer was experiencing ongoing pain during the period between the two incidents. That is because Mr Sawyer did not attend upon any medical practitioner for treatment or assessment of his back pain until 4 July 2017. Putting aside for the moment any question about the degree of pain that may have been experienced, there are two possible explanations for Mr Sawyer's failure to see a doctor. The first is that Mr Sawyer did not experience ongoing pain at all and therefore did not need to see a doctor. The second is that Mr Sawyer did experience ongoing pain but decided not to see a doctor about it.
[420] In my view, the latter is the more likely explanation. I accept the evidence given by each of Mr and Mrs Sawyer explaining Mr Sawyer's reluctance and failure to see a doctor about this complaint during that time. I accept that Mr Sawyer is a stoic individual, that he decided to manage his pain as best he could, and to put up with it as he needed to keep working for financial reasons. I accept the evidence given by both Mr and Mrs Sawyer that Mr Sawyer's pain had never gone away entirely at any stage between 22 August 2016 and 3 July 2017. Rather, it settled down to what is best described as a manageable 'baseline level' that enabled Mr Sawyer to keep working. I also accept the evidence of Mr and Mrs Sawyer that there were occasions before 3 July 2017 where Mr Sawyer experienced flare-ups of his back pain and symptoms, but on those occasions his pain and symptoms also settled back to his baseline level after a time. Mrs Sawyer's evidence, supported by tendered photographs, that as a result of his pain and restrictions Mr Sawyer was unable to tie his shoes in the usual way, and had to lift his foot up and tie them on the side, also provides some evidence that Mr Sawyer was continuing to experience pain, at least in early September 2016.
[253]
(a) Mr Sawyer injured his lower back in the course of performing his work duties at the Ascot job site on 22 August 2016. The injury occurred in the way Mr Sawyer described in his evidence;
(b) Mr Sawyer reported the injury to his supervisor, Mr Stewart, on that day;
(c) Mr Sawyer spoke to his wife at home that evening about the injury he sustained at work and they discussed that he should call the Quillans to let them know that he would not be able to work the following day. He called Joel Quillan to say that he had hurt his back and may not be able to work the next day. Mr Sawyer decided to wait until the following morning to see how his back was feeling;
(d) On the morning of 23 August 2016, Mr Sawyer telephoned Adrian Quillan to advise that he would not be able to work that day because he had hurt his back the day before whilst working at the Ascot job site;
(e) Later that morning, at about 9.00 am, Mr and Mrs Sawyer attended at the Cretek office. Mr Sawyer spoke to Joel and Adrian Quillan and told them he had hurt his back;
(f) Mr Sawyer did not attend work on 23 August 2016, because of the back pain he was experiencing. He also did not attend work the following day because the job had been rained out. He next worked on 25 August 2016, resuming his normal duties as a concreter. By that time his back pain had settled down but had not completely gone away;
(g) On 30 September 2016, Mr Sawyer spoke to Joel Quillan to advise him that he continued to experience lower back pain and symptoms, that would come and go, for the past few weeks after the work injury he sustained on 22 August 2016;
(h) On about 5 October 2016, Joel Quillan requested Adrian Quillan complete the Cretek incident investigation form in respect of Mr Sawyer's injury. Adrian spoke to Mr Sawyer by telephone to obtain further details which he then included in the form. The form was not produced to Mr Sawyer for verification or signing at any stage;
(i) Mr Sawyer did not see a doctor or other health practitioner about his lower back injury and pain at any time between the first incident and 4 July 2017;
(j) Mr Sawyer continued to experience ongoing pain in his lower back after the first incident. Whilst his pain settled to a mild to moderate baseline level after a few days, it never completely resolved and persisted through until the second incident on 3 July 2017;
[254]
[426] I now turn to the expert medical evidence and my findings about the nature, extent and consequences of the injury Mr Sawyer sustained to his lower back.
[427] I am satisfied on the balance of probabilities that Mr Sawyer sustained an L5/S1 disc injury as a result of performing work duties at the Ascot job site on 22 August 2016. Having regard to the evidence of Mr Sawyer as to the nature of the duties he was performing at the time he felt the 'click in his back' and the immediate pain he experienced, and the evidence of Mr O'Sullivan with respect to the significant force that would be exerted upon the spine when lifting and laying an SL81 mesh sheet in the way Mr Sawyer described, I am well satisfied that the injury occurred through that mechanism.
[428] As to the nature of that injury, I prefer and accept the evidence of Dr Hewitt, and find as a fact, that Mr Sawyer suffered a radial tear of the annulus fibrosus of his lumbosacral disc. In my view Dr Hewitt's opinion provides the most logical and common-sense explanation of the cause of Mr Sawyer's back injury and condition on the facts I have found. In my opinion it is consistent with what most likely occurred according to the probabilities of the matter. I am satisfied that this was a significant injury, albeit not one that affected the structural integrity of the disc at the time. I further accept Dr Hewitt's opinion, and find as a fact, that this injury progressed over the ensuing year as the radial tear gradually extended, culminating in a loss of structural integrity and an ultimate prolapse of the disc during the second incident on 3 July 2017.
[429] Whilst Dr Campbell and initially Dr Hewitt were of the opinion that Mr Sawyer had sustained an acute prolapse of his L5/S1 disc on 22 August 2016, I consider this to be unlikely. On the basis of the facts that I have found, it seems to me that ultimately each of the medical experts expressed the consistent view that Mr Sawyer could not have returned to his normal duties so soon after the first incident if he sustained a full prolapsed disc at that time.
[430] I do not accept Dr Coyne's evidence that the origin of Mr Sawyer's lower back pain and symptoms was a pre-existing degenerative disc condition. His opinion is a theory of medical causation that is ultimately based upon inaccurate factual assumptions, in particular the incorrect assumption that Mr Sawyer did not continue to experience ongoing lower back pain after the first incident.
[255]
Was Mr Sawyer's injury caused by a breach of duty?
[256]
[439] The provisions of Part 8 of the WCRA apply in respect of Cretek's alleged liability.
[257]
[440] Division 3 of Part 8 deals with the issue of causation in ss 305D and 305E, which provide:
[258]
(1) A decision that a breach of duty caused particular injury comprises the following elements -
[259]
(a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
[260]
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty - being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) - should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
[261]
(3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach -
[262]
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
(b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
[263]
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.
[264]
In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
[265]
[441] Section 305D(1)(a) is a statutory statement of the 'but for' test of causation.[24] A 'necessary condition' for the purposes of s 305D(1)(a) is a condition that must be present for the occurrence of the harm.[25]
[442] In Woolworths Ltd v Perrins,[26] McMeekin J made the point that a finding that events at a place of employment led to an injury was not the same as demonstrating that the employer caused the injury by a breach of their duty of care. His Honour there said:[27]
[266]
In order to establish the necessary causal link between any arguable negligence on the part of the employer and the injury suffered by the employee, it is necessary to show that the measures that it is said the employer failed to adopt would protect the employee from injury, not "could' or "might". [Queensland CorrectiveServices Commission v Gallagher citing Vozza v Tooth & Co Ltd; Turner vSouth Australia] In that latter case Gibbs CJ said:
[267]
"When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Ltd ..." (emphasis added)
[268]
[443] In this case Mr Sawyer pleads that his lower back injury and psychiatric injury were caused or contributed to by the second defendant's breach of duty.
[444] The second defendant's breach of duty is pleaded as:
[269]
(a) allowing or requiring the plaintiff to handle mesh that was over the limit;
(b) failing to direct the plaintiff to:
(i) cease handling the mesh as it was over the limit;
(ii) only handle mesh as part of a team where the plaintiff's handling contribution was under the limit;
(c) failing to warn the plaintiff of risk of injury from carrying mesh weighing more than the limit;
(d) failing to use a system of work that did not require the plaintiff to handle mesh over the limit;
(e) failing to cut the mesh into smaller pieces within the limit;
(f) failing to direct the plaintiff to cut the mesh into small pieces within the limit;
(g) failing to provide a gantry crane and mini tracked crane or similar mechanical lifting aids or adequate manual assistance;
(h) failing to carry out an adequate risk assessment that identified the risk;
(i) failing to implement the findings of a risk assessment;
(j) failing to send the plaintiff for a medical assessment.
[270]
[445] Mr Sawyer claims that the first incident, and the injuries he subsequently suffered as a result, would not have occurred had the second defendant:
[271]
(a) adequately monitored and maintained workplace health and safety at the site;
(b) directed him not to handle mesh, or to cease handling the mesh, or to handle it as part of a team, as he would have complied with such a direction;
(c) warned him of the risk of injury from handling the mesh, as he would have heeded the warning and either not have handled the mesh, would have handled it as part of a team, or ceased handling the mesh;
(d) cut the mesh into smaller pieces within an appropriate weight limit;
(e) provided a gantry crane, mini tracked crane or similar mechanical lifting aid, or adequate manual assistance;
(f) carried out a risk assessment;
(g) implemented the findings of the risk assessment.
[272]
[446] The second defendant admits that it breached the duty of care it owed to Mr Sawyer. Had the breach of duty not been admitted, I would have been so satisfied.
[447] Given the factual findings I have made with respect to the occurrence of Mr Sawyer's back injury and medical causation, it follows that I am therefore satisfied, on the balanced of probabilities, that the second defendant's breach of duty caused Mr Sawyer's injuries, namely:
[273]
(a) the initial disc injury Mr Sawyer sustained on 22 August 2016;
(b) an aggravation or exacerbation of his existing psychiatric illness;
(c) the subsequent disc prolapse Mr Sawyer sustained on 3 July 2017; and
(d) a subsequent further aggravation or exacerbation of Mr Sawyer's existing psychiatric illness.
[274]
[448] I am satisfied that Cretek's breach of duty was a necessary condition of the occurrence of each of these injuries. I am satisfied that had Cretek taken the measures identified by Mr Sawyer, the first incident would not have occurred, and Mr Sawyer would not have sustained his injuries. I am further satisfied that it is appropriate for the scope of Cretek's liability to extend to each of the injuries its breach of duty has caused.
[449] I therefore conclude that the second defendant is liable for Mr Sawyer's injuries, damage and loss.
[275]
[450] Although I have concluded that the first defendant is not liable for Mr Sawyer's injury, I will nevertheless make a provisional assessment of the quantum of damages that I would otherwise have awarded in his case against the first defendant. Such damages are to be assessed under the common law. Neither the WCRA nor the Civil Liability Act apply to this assessment of damages.
[451] Aside from specific submissions about Mr Sawyer's claims for general damages in respect of past and future care, the first defendant adopts the quantum submissions of the second defendant in so far as they also relate to it.
[453] For the purposes of assessing general damages, it is necessary that I assess the Injury Scale Value ('ISV') for Mr Sawyer's injury.[28] In doing so, I must consider the range of ISVs stated in sch 9 of the WCRR.[29] Where, as here, there are multiple injuries, I must consider the range of ISVs for the dominant injury. The dominant injury here is Mr Sawyer's lower back injury.
[454] However, to reflect the level of adverse impact of Mr Sawyer's multiple injuries, I may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury.[30] Further, if I consider the level of adverse impact on Mr Sawyer is so severe that the maximum dominant ISV is inadequate to reflect the level of impact of his multiple injuries, I may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV.[31] If that were the case, then I note that the WCRR provides that the ISV for the multiple injuries should rarely be more than 25% higher than the maximum dominant ISV.[32]
[455] For psychiatric injuries, sch 11 of the WCRR provides for a 'psychiatric impairment rating scale', ('PIRS'). The ranges of ISV for mental disorders in sch 9 are referable to the PIRS rating for the psychiatric injury as determined under sch 11.
[456] Where an injured worker has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV, sch 8 provides that, in considering the impact of the aggravation of that condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.[33]
[457] Once I have assessed the ISV for Mr Sawyer's multiple injuries, the amount of general damages that may be awarded is to be determined according to the applicable general damages calculation provisions set out in the table in sch 12 to the WCRR.[34]
[458] Mr Sawyer submits that his general damages should be calculated according to the following assessment:
[277]
(a) lower back injury or aggravation - item 90, ISV range 16 to 35;
(b) psychiatric injury or aggravation - item 12, ISV range 2 to 10; and
(c) an assessed ISV of 35, plus 25% uplift, producing an ISV of 44 = $109,480.00.
[278]
[459] The second defendant submits that Mr Sawyer's ISV should be assessed as 15, in accordance with the following:
[279]
(a) item 91, moderate lumbar spine injury with ISV range of 5 to 15; and
(b) because of secondary aggravation of his long standing pre-existing psychological condition - an assessed ISV of 15 = $25,150.00.
[280]
[460] I do not accept Mr Sawyer's submission that the appropriate range of ISV in sch 9 is 16 to 35 as provided by item 90. That item applies where the injury is a 'serious thoracic or lumbar spine injury'. The sch 9 table notes that such an injury 'will cause serious permanent impairment in the thoracic or lumbar spine' and 'may involve bilateral or multilevel nerve root damage' or 'a change in motion segment integrity, for example, because of surgery'. The evidence does not establish that Mr Sawyer has sustained such an injury.
[461] On my assessment, the appropriate range of ISV in sch 9 is 5 to 15 as provided by item 91, which applies for a 'moderate lumbar spine injury - fracture, disc prolapse or nerve root compression or damage'. That in my view is the appropriate description of Mr Sawyer's lower back injury according to the medical evidence.
[462] There is no basis for me to make any separate assessment of the ISV for Mr Sawyer's psychiatric injury. His ISV is to be assessed by considering the range of ISVs for his lower back injury, which is the dominant injury. However, in making that assessment I must take into account the impact of the aggravation of Mr Sawyer's psychiatric injury which resulted from the physical injury he sustained.
[463] In doing so, I commence by assessing Mr Sawyer's ISV as 15, being at the top of the item 90 range. I then consider it appropriate to make a higher assessment of the ISV because of the impact of Mr Sawyer's psychiatric injury, being the aggravation of his pre-existing psychiatric condition.
[464] In that respect, I note Dr Lotz, consultant psychiatrist, provided a medico-legal report, dated 8 November 2021, in which he outlined the nature of Mr Sawyer's psychiatric injury. He concurred with the 'general consensus of the diagnosis of Adjustment Disorder with mixed anxiety and depressed mood on the background of a pre-existing depressive disorder.' He considered Mr Sawyer's prognosis was unfavourable and concluded a PIRS rated at 10% (11% WPI - 2% for pre-existing and +1% treatment effect).
[465] Professor Whiteford, consultant psychiatrist, provided a medico-legal report dated 4 August 2020, in which he noted Mr Sawyer had chronic depression from adolescence. His opinion was that Mr Sawyer had a 'pre-existing depressive disorder' and met the criteria for a diagnosis of a 'persistent depressive disorder' under the DSM-5. He did not consider that any aggravation of Mr Sawyer's depression was caused by the first incident, however, I have found otherwise. Notwithstanding, Professor Whiteford stated, 'My current impairment rating is 4% and my best estimate is that about half of that is pre-existing.'
[281]
[470] I would have awarded $80,000 in general damages and allowed interest of $6,312, calculated by applying a rate of 2% on half that sum over a period of 7.89 years.
[282]
[471] Mr Sawyer makes a claim for his past economic loss from 3 July 2017 to date.
[472] He was previously employed by Cretek on a casual basis as a concreter. He had worked for Cretek since 2009. Until 24 October 2016, his employer was the second defendant. From 25 October 2016 onwards his employer was the third defendant.
[473] A summary of Mr Sawyer's tax records and earnings was in evidence. It showed that for the financial year ending 30 June 2017, Mr Sawyer's net income from his employment with Cretek was $52,461 (a weekly net amount of $1008). From the records, the defendants calculate Mr Sawyer's average net weekly income, over the five-year period to 30 June 2017, was $777.
[474] Mr Sawyer sustained his disc prolapse during the second incident on 3 July 2017. Thereafter, he attempted to return to work on a WorkCover claim but was unable to do so because of his injuries. He ceased his employment with Cretek on 27 August 2017. He received unemployment benefits through Centrelink for a period. He was then self-employed, running his own oven cleaning business for a time between 16 March 2019 to 16 June 2021. His total earnings from that business were $73,102. Mr Sawyer's evidence was that he was able to manage doing that work four days per week, but then needed three days to recover. He said that in the months before he stopped working his pain gradually got worse each week, until it became unbearable. This was at the time he was admitted to Redcliffe Hospital.
[475] He currently receives a Disability Support Pension through Centrelink. He has not worked since he ceased his oven cleaning business in June 2021.
[476] Mr Sawyer estimated that at the time of the first incident he was working between 45 to 50 hours per week. He had intended to keep working as a concreter. Although he had long-term medical conditions of Type 1 diabetes and depression, neither impacted significantly on his ability to work. On occasions he would require a day off due to anxiety or depression, but he was otherwise able to work full-time.
[477] In the period since Mr Sawyer ceased work altogether, there have been two periods where Mrs Sawyer has undergone operations and she has therefore required assistance from her husband. Mr Sawyer accepts that his claim for past economic loss should be discounted for those periods, being from 25 March to 1 September 2018 (22.9 weeks) and from 8 November 2021 to 1 May 2022 (24.9 weeks).
[283]
(a) one day off (i.e., 23 August 2016) - $200;
(b) plus:-
(i) anticipated earnings from 3 July 2017 to date over 345 weeks = $347,760 (i.e., $1008 x 345);
(ii) less actual earnings (ignoring workers' compensation and Centrelink which must be refunded and private TPD insurance benefits):-
(A) 2017/2018 year - $6,511;
(B) 2018/2019 year - $13,739;
(C) 2019/2020 year - $30,686;
(D) 2021/2022 year - $nil;
(E) 2022/2023 year - $nil;
(F) 2023/2024 year to date - $nil;
(iii) sub-total $50,936;
(c) Total - $297,024.
[284]
[480] The second defendant contends for a lower total. On 3 April 2019, the third defendant went into administration. The second defendant submits that Mr Sawyer's employment with Cretek would have ended at this time, irrespective of any incapacity due to his injuries and this should be taken into account. It further submits that because Mr Sawyer failed to adduce any evidence of notional employment, had pre-existing medical conditions, gained his employment with Cretek through friendship, and later became self-employed after taking over the oven-cleaning business from his father-in-law, he would most likely have had difficulties in obtaining further employment in the open labour market and therefore a discount of about 30% should be applied to any calculation of past economic loss.
[481] The second defendant submit Mr Sawyer's past economic loss should be calculated as follows:
[285]
(a) notional income from 27/08/2017 to 12/02/2024 (337 weeks at $900 per week) = $303,300;
(b) reduced by the plaintiff's income from oven cleaning (i.e., $73,102) to $230,198; and
(c) further 30% reduction, to give a final total of $161,139.
[286]
[482] In my view it is appropriate to use the figure of $1008 net per week to calculate Mr Sawyer's past economic loss, as that was the most recent measure of what Mr Sawyer was currently earning before he ceased working for Cretek. I do not consider it appropriate to apply an arbitrary 30% discount as the defendants submit. I am satisfied that, had he not been injured, Mr Sawyer would most likely have been able to obtain similar employment as a concreter within the building and construction industry. He was after all a young man who was otherwise fit and able to work and he was an experienced and qualified concreter who had worked in the role for many years.
[483] On my assessment, I calculate Mr Sawyer's past economic loss as follows:
[287]
(a) one day off (i.e., 23 August 2016) = $200;
(b) plus - anticipated earnings from 3 July 2017 to date of judgment - 10 July 2024 (i.e., $1008 x 366 weeks) = $368,928;
(i) 2017/2018 year - $6,511 (from employment with Cretek);
(ii) 2018/2019 year - $13,739 (from self-employment);
(iii) 2019/2020 year - $28,677 (from self-employment);
(iv) 2020/2021 year - $30,686 (from self-employment);
(v) 2021/2022 year - $nil;
(vi) 2022/2023 year - $nil;
(vii) 2023/2024 year to date - $nil;
[288]
[484] Interest is allowable on this sum after deductions are made for the workers compensation and Centrelink benefits Mr Sawyer received during the period. The tax records show that Mr Sawyer received a total of $55,959 in net benefits paid by WorkCover Queensland for the years 2017/2018 and 2018/2019. He then received a total of $43,403 in unemployment benefits and disability support pension payments from Centrelink for the years 2018/2019 to 2022/2023. As payments from Centrelink for the current year, 2023/2024, are not presently known, I accept the defendants' submission that an estimate should be made, and I add an amount of $19,587 (being the net benefits paid for the 2022/2023 year) to arrive at a final amount of $62,990 The deduction to be made to the figure of $289,515 is therefore $118,949, which gives a total of $170,566.
[485] The applicable interest rate must not be more than the 'appropriate rate', being the rate for 10 year Treasury bonds published by the Reserve Bank of Australia under 'Interest rates and yields - capital market' as at the beginning of the quarter in which the award of interest is made.[38] As of 1 July 2024 the rate was 4.385%.
[486] I therefore calculate the interest payable on the sum of $170,566 to be $26,248.67.
[289]
[487] I would have awarded the same amount of $289,515 but calculated the interest payable, after deductions for the WorkCover and Centrelink payments received, as $59,860.14, by applying a rate of 5% per annum.
[290]
[488] Mr Sawyer is entitled to be compensated for loss of the superannuation that he would have received. He submits the amount should be $29,702, by applying a rate of 10%. to his calculation of past economic loss of $297,024. However, I note that the pleaded rate is 9.5%. The defendants submit that the amount should be $15,308, by applying a rate of 9.5% to their calculation of past economic loss of $161,139.
[489] It seems to me that, consistent with the pleaded case, the appropriate amount for the past lost superannuation is to be calculated by using a rate of 9.5%, applied to the amount I have calculated of $289,515 for past economic loss, giving an amount of $27,503.93.
[291]
[490] Mr Sawyer claims past special damages totalling $57,163.66 in respect of the out-of-pocket expenses he has incurred, including likely refunds to Medicare and his private health insurer, ($9,537.43), and the amount that he must refund to WorkCover ($47,626.13) for treatment and rehabilitation costs incurred by it in respect of Mr Sawyer's workers' compensation claim. His claim for out-of-pocket expenses was supported by a schedule which summarised the dates, costs and other details of the expenses he claimed to have incurred.[39]
[491] The defendants do not dispute Mr Sawyer's entitlement to claim past special damages. However, they contend that the amount recoverable for his out-of-pocket expenses should be discounted to $7,000 to reflect the fact that he has not taken into account, in respect of his claim for travel expenses, multi-purpose travel, and in respect of his claim for anti-depressant medication, that he would have incurred those expenses anyway. Further, the defendants say Mr Sawyer would also have incurred the cost of attending on a GP for prescriptions for anti-depressant medication.
[492] It does seem to me that there has been some double counting of some of the travel expenses Mr Sawyer claims he incurred, and no allowance has been made for the fact that Mr Sawyer would have incurred the costs of attending upon his GP for his anti-depressant medication and therefore the total claim should be discounted somewhat.
[493] I will allow a total amount for past special damages of $55,626.13, which comprises the $47,626.13 WorkCover refundable and an amount of $8,000 for the out-of-pocket expenses, inclusive of interest.
[292]
[494] Mr Sawyer claims an amount of $601,800 for future economic loss. He calculates this amount by allowing for a sum of $800.00 net per week until age 70, a period of 36 years, discounted at 5% using a multiplier of 885, less a 15% discount for the vicissitudes of life.[40] The sum of $800 net per week was put forward by Mr Sawyer on the basis that his residual earning capacity is probably limited to about a day a week, (around $200 per week), leaving a loss of earning capacity of $800 net per week.
[495] The defendants submit that the appropriate amount for future economic loss is $256,800. They calculate this amount according to the following submissions:
[293]
(a) the present value of $900 net per week for 33 years (multiplier of 856) is $770,400;
(b) that amount must be reduced not only for the usual vicissitudes but also for physical and psychological vulnerability and residual earning capacity;
(c) the plaintiff should only be allowed 1/3 of notional income.
[294]
[496] The defendants again make the point that Mr Sawyer did not adduce evidence of any notional employment and submitted that the evidence shows he has not taken any steps towards obtaining employment or undertaking courses, training or rehabilitation towards obtaining employment.
[295]
[497] Mr Sawyer's evidence was that as of 22 August 2016 he was working between 45 to 50 hours per week as a concreter for Cretek. He said he enjoyed concreting work and had no intention of changing careers, stopping work or reducing the number of hours that he worked.
[498] He said that his literacy skills were 'pretty good' but his computer skills were 'not very good'.
[499] When cross-examined by counsel for the first defendant, Mr Sawyer agreed that he had seen Ms Natalie Foxcroft, an occupational therapist, in April 2022. He accepted that he had discussed with her that because he was on a disability pension, he was not permitted to work more than 15 hours per week. When asked if he was at that time working on a goal of returning to work, he said '...well, I would like to one day, but at this point it's not going to happen.' He agreed that he had discussed with Ms Foxcroft the possibility of making musical instruments or doing greenkeeping work at a golf club, adding, 'That's what I would like to be able to do, yeah.' He agreed that he had told Ms Foxcroft that he did not like office work.
[500] When cross-examined by counsel for the second and third defendant, Mr Sawyer agreed that, since he ceased working in about June 2021, he had not enrolled in any courses and had not made any inquiries of Centrelink about any support or assistance they might provide with respect to courses, rehabilitation or retraining. He agreed that his literacy skills were 'pretty good' and that he had done well at school. He further agreed that one of his goals was to return to work. He accepted that there were many TAFE courses that could be done at home but that he had not looked into doing any. He disagreed that he might be able to run a small business from home, stating that he was 'no good with computers or anything like that.' He said that he had done computer literacy courses at high school, but it never helped him as he never understood computers.
[296]
[501] In his report of 5 November 2021, Dr Campbell noted that Mr Sawyer was not currently working and that he was focusing on his medical recovery. He opined:
[297]
His prospects of returning to work as a concreter or carpenter are poor. Any exposure to repetitive manual handling tasks would likely cause reinjury and would be best avoided.
[298]
Mr Sawyer would be suited to sedentary type work in the future but will struggle to find employment due to the stigma of a lower back complaint, difficulties with sitting/standing/lifting/bending, poor mobility and a lack of transferrable skills.
[299]
[502] In his report of 7 September 2021, Dr Hewitt noted that Mr Sawyer's ongoing back problem was now complex in nature, involving not only progression of his L5/S1 disc prolapse and right S1 nerve root compression but also the adverse effects of other external factors such as ongoing high dependence on opioids, an underlying depressive condition and incomplete surgical treatment of his original condition. With respect to his ability to work, his opinion was:
[300]
It is likely that there is now a chronic pain condition superimposed on his original lumbar disc injury. This, in combination with the above factors, significantly limits Mr Sawyer's ability to have continued working in a manual nature in the past, and his ability to undertake significant work in the future.
[301]
It is possible that appropriate surgical intervention may improve his symptoms however a successful outcome in Mr Sawyer's case is by no means certain. Prospects for future employment without a successful surgical outcome are in my opinion poor.
[302]
[503] After seeing Mr Sawyer again on 5 May 2022, Dr Coyne stated in his report of 8 June 2022:
[303]
At this assessment Mr Sawyer presented with deterioration in his symptoms in 2021 consistent with his June 2021 lumbar spine MRI scan demonstrating a large right L5/S I disc protrusion. He reported having gone on a disability support pension. Regardless of any further therapy these factors suggest that the prospect of Mr Sawyer returning to any form of future meaningful employment is low. His physical lumbar spine condition secondary to his underlying lumbar spine degenerative change would likely restrict his capacity for future employment, domestic, and recreational activities of anything other than a light or sedentary nature.
[304]
Adverse psychosocial factors are likely resulting in an incapacity for employment and other activities beyond that related to Mr Sawyer's physical lumbar spine condition.
[305]
[504] In his report of 8 November 2021, Dr Lotz expressed the following view about Mr Sawyer's ability to work:
[306]
Due to his ongoing symptoms of anxiety and depression, his ability to look for work in the foreseeable future is limited.
[307]
In addition from his experience and qualifications, it appears he will need to reconsider an alternative career which is more sedentary. He does not have any qualifications in this field and would have to consider upskilling.
[308]
From his description, he would be cognitively limited in doing any course to upskill.
[309]
[505] Mr Gordon Siebel, an occupational therapist, was engaged by Mr Sawyer's lawyers to provide medico-legal reports for the purpose of this proceeding. In his first report, dated 11 March 2022, Mr Siebel documented the results of his functional assessment of Mr Sawyer and addressed Mr Sawyer's future functioning and employability.
[506] Mr Siebel's opinion was that Mr Sawyer's functional capacities were best categorised as 'sedentary'. He noted Mr Sawyer had a range of specific functional restrictions: an occasional lifting and carrying capacity of less than 5kg; lessened tolerances for prolonged standing; walking, sitting and driving; inability to perform tasks requiring high levels of balance; poor abilities with activities requiring crouching, stooping, kneeling and crawling to handle items below knee height. He assessed Mr Sawyer's capacity to work as a cleaner, concreter or carpenter as 'commercially unable'.
[507] In terms of Mr Sawyer's occupational outlook, Mr Siebel noted that there were variables in Mr Sawyer's favour, including an excellent work ethic and demonstrated motivation to return to and remain in full time work after the first incident. However, he also noted that there were many impediments, including his chronic pain, adoption of a sedentary lifestyle and his limited residual functional capacity.
[508] Mr Siebel's overall opinion was:
[310]
He is currently commercially unemployable and further significant improvement in his functional capacity will be necessary before he can begin to contemplate a durable return to work. He will realistically find it very challenging to source another appropriate job in the future.
[311]
[509] When cross-examined by counsel for SWC, Mr Siebel stated that his assessment was that Mr Sawyer was suited to 'sedentary physical strength demand work' and that he did not consider that he was in the 'light physical demand' category. He said there were multiple occupations that would fit into the sedentary physical demand category. His view was, 'generally that everyone is able to do some sort of work, almost everyone, given the opportunity, given the motivation and willingness to change' but he said that when he had seen him, Mr Sawyer was not receptive to considering any alternative occupations from any physical strength category, not even the sedentary category.
[510] Mr Siebel agreed that, theoretically, Mr Sawyer could work full time, from home, as a call centre operator. He further agreed that Mr Sawyer could theoretically work on a part-time basis of up to 20 hours per week in a role such as a 'door greeter' at Bunnings, provided he could sit, stand and vary his posture. He did not think he could work as a greenkeeper on a golf course but agreed that he might be able to work as a musical instrument maker. He agreed that if Mr Sawyer had enough motivation he would be able to work in a sedentary position, at least part-time and possibly even full-time.
[511] When cross-examined by counsel for Cretek, Mr Siebel agreed that in his previous assessment of Mr Sawyer he had identified chronic pain as a significant impediment to Mr Sawyer's ability to work. He agreed though that if, because of a change in medication (i.e., medicinal cannabis) Mr Sawyer's pain was a lot better that would call for a reassessment of his employability.
[312]
[512] Ms Foxcroft, occupational therapist, was engaged by SWC's lawyers to provide a medico-legal report for the purpose of this proceeding. She saw Mr Sawyer on 19 April 2022 for an assessment. The results of her assessment and her opinions about Mr Sawyer's functional capacity and ability for work were set out in her report of 4 May 2022.
[513] She considered that Mr Sawyer would be unable to work as a concreter and it was unlikely he could return to any of the jobs he had previously done given his reported symptoms and demonstrated physical capacities. However, she considered it was possible that Mr Sawyer could commence working 15 to 20 hours per week in a light to medium role and that he may be able to increase his hours to full-time over a period of 8 to 12 weeks. She noted that Mr Sawyer's pre-existing depression may impact on his incapacity for work. She further noted that his disc injury may impact on his current incapacity for work and considered that further medical opinion should be obtained in that regard.
[514] When cross-examined by Mr Sawyer's counsel, Ms Foxcroft agreed her physical assessment of Mr Sawyer's demonstrated lifting capacity could not be above the 'light' work category (i.e., 7.5kg max.). She agreed that she had not actually documented Mr Sawyer's lifting tolerances with lighter weights than 7.5kg but disagreed that this meant that she could not express any opinion about Mr Sawyer's lifting capacity for work. She disagreed with the suggestion put to her that it was doubtful that Mr Sawyer would even fall into the light work category and 'somewhat' disagreed that he would meet the medium physical demands category.
[515] When cross-examined by counsel for SWC, Ms Foxcroft agreed that, even assuming Mr Sawyer was only fit for light work activities, there were a number of occupations at that level that she had identified in her report that Mr Sawyer was vocationally suited to doing, including administration officer, working from home roles, retail assistant, carpark attendant, storeperson, musical instrument maker and wood machinist.
[313]
[516] In my view, the evidence demonstrates Mr Sawyer has a greater residual earning capacity than he has suggested. As between Mr Siebel and Ms Foxcroft, I prefer the evidence of Mr Siebel. I consider it likely that Mr Sawyer could work at least part time, two to three days per week, in a sedentary to light work role. Accordingly, I proceed on the basis that he will have a loss of earning capacity of about $500 (around half of his pre-injury earning capacity). Using a period of 33 years (until age 67), discounted at 5% using a multiplier 856, less 15% for vicissitudes of life, I assess Mr Sawyer's future economic loss as $363,800.
[314]
[517] The parties are agreed that the appropriate rate to apply to calculate Mr Sawyer's future loss of superannuation is 11%.
[518] Therefore, on my assessment of Mr Sawyer's future economic loss, the amount I allow for this head of damage is $40,018.
[315]
[519] Mr Sawyer's claim is for $108,062.48, comprised of:
[316]
(a) $20,00 for future lumbar spine surgery;
(b) $4,500 for 18 months of monthly psychological treatment at a cost of $250 per session;
(c) $6,970 for pain management, therapy and rehabilitation;
(d) $70,154.75[41] for medicinal cannabis for 49 years (based on Mr Sawyer's life expectancy); and
(e) $6,437.73 for visits to GPs and travel to the GP and pharmacy.
[317]
[520] The defendants submit that the amount allowable should only be $15,589. This amount is in respect only of Mr Sawyer's ongoing need for medicinal cannabis, with an estimated cost of $20 per week for 40 years (multiplier of 917) discounted by 15% for vicissitudes. They say no allowance should be made for future surgery as it is not positively advised, and Mr Sawyer would be a poor candidate given his psychological condition.
[521] With respect to a future need for further surgery, Dr Campbell noted in his 5 November 2021 report that Mr Sawyer was 'hopeful of undergoing further surgery' and went on to state:
[318]
Mr Sawyer is currently waiting a further surgical opinion. I have reviewed the post-operative MR scan lumbar spine and believe it would be reasonable for him to undergo redo surgery, if willing, at a cost of $20,000 to $25,000.
[319]
[522] Dr Hewitt, in his report of 7 September 2021 stated:
[320]
It is possible that appropriate surgical intervention may improve his symptoms however successful outcome in Mr Sawyer's case is by no means certain. Prospects for future employment without a successful surgical outcome are in my opinion poor.
[321]
[523] Dr Coyne, in his 8 June 2021 report, stated:
[322]
Further management of Mr Sawyer's lumbar spine condition will likely be difficult... Assuming an up to date lumbar spine MRI scan continues to demonstrate a significant disc protrusion, further surgery may be an option, whether a revision L5/S1 discectomy or an L5/S1 discectomy/fusion. However given Mr Sawyer's history of previous surgery, ongoing symptoms despite previous surgery, maintenance [sic. of] opioid medication, and the presence of significant adverse psychosocial factors, the prospect of significant benefit from further surgery may be low.
[323]
[524] Mr Sawyer gave evidence that his initial surgery in November 2017 had made his symptoms worse and that he was no longer on a wait list for surgery. As I understand his evidence, he saw a neurosurgeon after his June 2021 flare-up which saw him hospitalised at Redcliffe Hospital, and that doctor had told him it would be 'risky' to do another operation but he was happy to try it if Mr Sawyer wanted. Mr Sawyer explained that he did not go ahead with surgery at that time, stating, 'I'd rather someone to be a bit more confident than that if they're going to operate on my spine again.'
[525] In my opinion, it is reasonable to make allowance for future surgery costs as it is indicated by the medical experts as a potential option and there is a likelihood Mr Sawyer will pursue it again in the future. I allow $20,000 for this future expense.
[526] As to the future need for psychological treatment, in his report of 8 November 2021 Dr Lotz recommended Mr Sawyer continue with his psychologist for a further 18 months on a monthly basis, with an average cost of $250 per session. Despite that recommendation at the time, it seems Mr Sawyer did not continue to see his psychologist but did continue to take his anti-depressant medication.
[527] In his further report of 18 July 2022, Professor Whiteford expressed the opinion that Mr Sawyer should continue on anti-depressant medication and have monthly consultations with a psychologist until he undertakes either a multi-disciplinary pain management program and/or spinal surgery to reduce his pain and physical disability. He noted that a standard fee for a one-hour consultation with a psychologist was $235.
[528] There is no dispute that Mr Sawyer has experienced aggravated symptoms of his pre-existing depression and continues to do so. As I have found, this was a result of the physical injury he sustained to his lower back. I accept Mr Sawyer's evidence that, in terms of his mental state, he is not really the person he used to be before his back injury. In my opinion it is reasonable to allow for the 18 further psychological counselling sessions that Mr Sawyer claims, at a cost of $250 per session and totalling $4,500.
[529] In terms of the need for future pain management, therapy and rehabilitation, in his report of 11 March 2022, Mr Siebel recommended that Mr Sawyer undertake:
[324]
(a) consultation with a pain physician to identify further medical approaches to assist him to manage his persistent pain (no cost estimate given);
(b) consultation with an exercise physiologist - six sessions at $120 per session;
(c) vocational rehabilitation to assist his return to appropriate employment if/ when his functional capacity improves - costing in excess of $4000; and
(d) further physical rehabilitation in the event of further surgery - 15 to 20 sessions at of physiotherapy at $110 per session.
[325]
[530] Mr Siebel was not challenged about any of these recommendations when he gave evidence at trial. In my opinion they are each reasonably likely future needs and allowance should be made for those costs as Mr Sawyer claims.
[531] As to the future expenses for attending the GP and the pharmacy and medical cannabis, the tendered out of pocket expenses schedule notes that in 2023, Mr Sawyer attended his GP on eight occasions and went to the pharmacy on seven occasions to obtain cannabis oil and went three times for his anti-depressant medication. Each time the out-of-pocket cost for the cannabis oil was $97. The schedule notes that each GP visit was covered by Medicare.
[532] In his evidence, Mr Sawyer said it cost him about $100 for a bottle of cannabis oil and he needed a new bottle every five weeks. He said he only needed to see his GP every three or four months to obtain his prescription as it would usually have two or three repeats.
[533] In my view it is reasonable to allow an ongoing cost of $20 per week for these ongoing costs, for a life expectancy of 49 years, discounted by 5% (using a multiplier of 971), less a 15% discount for vicissitudes. That equates to $16,507.
[534] In total therefore I allow $47,927 for future special damages.
[536] The total agreed amount to be deducted from the damages assessment of the WorkCover refund in respect of the claim against the second defendant is $129,029.63. No such deduction would be made in the claim against the first defendant.
[329]
[537] These claims are only made against the first defendant.
[330]
[538] Mr Sawyer makes a claim for past paid care of $500, for the costs of mowing and gardening, together with interest on that amount of $186.50 (5% for 7.46 years). I am satisfied it is appropriate to allow an amount of $600, inclusive of interest. There is no basis to allow interest on $500 for 7.46 years. The tendered invoices for lawn maintenance were for services provided from August 2022 to January 2023.[44]
[539] Mr Sawyer also makes a claim for past gratuitous care provided to him by his wife. The parties agree that the appropriate rate for past gratuitous care provided is $55 per hour.
[540] Mr Sawyer's pleaded claim under this head of damage is for $142,150, for 2,843 hours of care at $55 per hour from 22 August 2016 until the filing of his Second Further Amended Statement of Claim on 31 January 2023. He also claims interest at the rate of 2% for 6.4 years.
[541] At trial the claim was put forward on the basis of evidence given by Mr and Mrs Sawyer and a schedule titled 'Centaine Sawyer gratuitous care', which was prepared by Mrs Sawyer. The schedule contained details of the particular services provided, the periods during which services were provided and a calculation of the total hours of extra care needed by Mr Sawyer during those periods together with a calculation of the hours of services actually provided to Mr Sawyer.
[542] According to the schedule, between 2 August 2016 and 3 February 2024, Mr Sawyer needed a total of 4,897 hours of extra care but was actually provided with 3,714.9 hours of care by Mrs Sawyer. If charged at a rate of $55 per hour, the cost of the services needed would equate to $269,335 and the cost of the services actually provided would be $204,317.14.
[543] In closing submission, Mr Sawyer's claim for past gratuitous care was said to be for $51,959, based on a total of 953.8 hours derived from a table of care needs set out in Mr Siebel's supplementary report of 25 March 2022. Mr Siebel's evidence was based entirely on Mr Sawyer's self-reporting of his assistance needs. Mr Sawyer also claims interest of $19,380.71 on this sum, calculated at a rate of 5% over 7.46 years.
[544] The first defendant contends Mr Sawyer's claim is grossly exaggerated and the schedule prepared by Mrs Sawyer is a fabrication which does not provide acceptable evidence to support the claim. It submitted that the assessment of care needs is no more than 1.5 hours per week, from November 2017. On its calculation the appropriate amount to allow for this head of damage at the date of trial is: $55 x 1.5hrs x 52 weeks x 6.25 years = $26,812.50.
[331]
[549] Mr Sawyer's pleaded claim for future care was $366,000, based on $55 x 7.5 hours per week for 50 years, discounted at 5% (multiplier of 976).
[550] His claim at trial for future paid care was $10,418.66 and his claim for future gratuitous care was put as $200,268.76, based upon the evidence of Mr Siebel and an agreed rate of $55/hr. Mr Siebel's assessment was based in part on Mr Sawyer's self-reporting of his care needs but was also based on his own opinion as to Mr Sawyer's expected functional recovery, functional presentation and his assessment of the demands of daily living tasks.
[551] The same matters I have set out above with respect to the inadequacy and unreliability of the evidence in respect of Mr Sawyer's past gratuitous care claim apply equally to his claim for future gratuitous care.
[552] The first defendant submits the assessment for future gratuitous care, to age 70, should be no more than $55 x 885 (5% discount tables for 36 years) = $48,730.00.[45] The first defendant therefore submits that only 1 hour per week of future gratuitous care will be required.
[553] In my view the appropriate allowance for future care should be calculated at 2 hours per week for a life expectancy of 49 years. I would therefore allow $106,810, calculated at $55 x 2 hours per week x 49 years (5% discount multiplier of 971).
[332]
[554] In summary, I assess Mr Sawyer's damages as follows:
[333]
[555] I make the following orders:
Judgment for the plaintiff against the second defendant for the amount $781,082.09.
The plaintiff's claims against the first defendant and the third defendant are dismissed.
[556] I will hear the parties on the issue of costs.
[334]
[1] Second Further Amended Statement of Claim, paragraph 5.
[22] Second Further Amended Statement of Claim, paragraphs 31(e), 32(e) and 54(d); Reply to first defendant's amended defence, paragraphs 29(c)(i), 30; Reply to second and third defendant's amended defence paragraphs 28, 29(e)(iv), 44.
[24]The Corporation of the Synod of the Diocese of Brisbane v Greenway[2017] QCA 103; [2018] 1 Qd R 344, 356-357 [37]-[38], 358 [44] (McMurdo JA, Morrison JA and Bond J agreeing), 361 [56] (Bond J, Morrison JA agreeing).
[35] American Psychiatric Association's Diagnostic and Statistical Manual, Fifth Edition ('DSM-5').
[357]
[37] Mr Sawyer's calculations did not accurately reflect the figures recorded in the summary of his tax records and earnings (Exhibit 3).
[358]
[40] The 'usual discount' is 10 - 15% - see Peebles v WorkCover Queensland(2021) QSC 21. Mr Sawyer accepts the upper limit is applicable due to his pre-existing depression.
[359]
[41] The plaintiff's calculation appears to be wrongly calculated at $85 per week.
[45] To arrive at this figure the first defendant would have had to use a multiplier of 866.
Parties
Applicant/Plaintiff:
Sawyer
Respondent/Defendant:
Steeplechase Pty Ltd [2024] QSC 142
Legislation Cited (6)
Health and Safety Act 2011
Health and Safety Regulations 2011
Compensation and Rehabilitation Act 2003
Compensation and Rehabilitation Regulation 2014
Reform Act 1995
Liability Act 2003
Cases Cited (10)
(2009) 75 NSWLR 649
(2016) 262 IR 381
(2009) 240 CLR 1
(1986) 160 CLR 16
(2005) 221 CLR 234
(1987) 162 CLR 479
(2000) 205 CLR 166
(2001) 52 NSWLR 705
(2012) 246 CLR 182
(1981) 148 CLR 438
[9] Mr Sawyer was off work for a time. He submitted a claim for, and subsequently received, workers compensation benefits. He commenced rehabilitation and later returned to work for a few weeks, but eventually ceased working for Cretek as he says the pain from his injured back was too severe and prevented him from continuing to work as a concreter.
[10] Despite subsequent surgery and treatment, Mr Sawyer claims the condition of his prolapsed disc, and the symptoms it caused him to experience, worsened. He is now on a disability support pension and no longer works at all.
[11] Mr Sawyer's primary case is that his injuries are all attributable to the first incident, for which the first and second defendants are liable. Alternatively, he says he sustained initial injuries as a result of the first incident, which were then aggravated or exacerbated over a period of time due to the further work duties he performed, culminating in the injuries he sustained as a result of the second incident.
[12] On either scenario, Mr Sawyer claims that the defendants are liable for the injuries, loss and damage he says he has suffered.
[13] The defendants deny Mr Sawyer's claims. Liability and quantum are both in issue.
[20] The fourth issue concerns the extent of the first defendant's liability, in the event that it is held to be liable. There are two relevant aspects. First, it claims its liability ought to be reduced on account of Mr Sawyer's contributory negligence. Second, it seeks to recover contributions from each of the second and third defendants, as joint tortfeasors under the provisions of the Law Reform Act 1995 (Qld).
[28] The SL81 mesh sheets were already present on site when the Cretek employees arrived. SWC had earlier ordered them and arranged for their delivery. The sheets were left stacked in a pile out in the open on a driveway area towards the front of the property.
[29] In total, Mr Sawyer and Mr McMath were required to lay and fix about two dozen of the SL81 steel mesh sheets over the previously prepared footings. In order to do so, they had to pick up the sheets from the pile at the front of the property, one at a time, and then carry each one to the required location under the house. They were then required to manipulate each sheet into position to lay it on the ground over a section of the levelled sand base covered by one of the plastic membranes. Once the mesh sheet was in position it could then be tied to adjoining sheets and fixed in place. Most of the footings were clear of obstructions but some areas contained protruding plumbing pipes. Where the section of the footings was clear of obstructions Mr Sawyer and Mr McMath could lay the sheet by simply putting one end down on the ground and then lowering the top end down until it was flat and in position. Where there were protruding pipes, the sheet could not be laid that way. Instead, it was necessary for the workers to lift the sheet, holding it horizontal over the footings and to then lower it down to sit on top of the pipes, where sections of the sheet could then be cut to allow it to fit over the pipes. The sheet could then be lowered to the ground and laid.
[30] It was while performing these duties that Mr Sawyer claims he hurt his back.
[37] According to Mr Sawyer, just after they had laid the sheet, he told Mr McMath that he had felt a click in his back. He said that Mr McMath told him that his back was not feeling too good either. A while later, when Mr Stewart was back on site, Mr Sawyer told him that he had felt a click in his back and that his back was hurting. He did not remember what Mr Stewart may have said to him in response.
[71] Mr Hall accepted that he did not really have an independent recollection of 22 August 2016. He vaguely remembered Dwayne Stewart had been there and also recalled Mr Waho was doing box work. He was unable to recall whether the concrete pour had already been booked to take place at that time or whether there were time pressures to get all of the preparation work done. He also could not remember whether there were only two Cretek workers available to carry the mesh from the driveway area to place it in the footings where the slab was going to be poured. He was unable to recall seeing two people carrying mesh on that day. He agreed that the site was very open and that it was a common occurrence to see people carrying mesh, but nothing stuck in his memory of seeing two certain people carrying the SL81 mesh.
[72] Mr Hall agreed that SL81 mesh was not commonly used and that the usual mesh used was 'SL82', which was a bit over 50kg in weight. He agreed that using only two people to lift the heavier SL81 mesh would raise a safety issue. He agreed that the job site was not big and accepted that he could see the activities of the Cretek workers from where he was working.
[78] When asked whether SWC had a safety officer onsite on 19 August, Mr Wehl said that they did not as there was no reason and no requirement to have a safety officer for a job of that size.
[79] Mr Wehl said that he was onsite on 22 August for a time. His evidence was that before 22 August, no one from Cretek had made any complaint about the state of the job site, the task that they had to perform or the weight of the steel mesh that was to be used. He said he was not watching Cretek do their work on 22 August but believed there were three to four workers onsite. He was not aware of any unsafe work practices being undertaken and he did not see SL81 mesh being lifted by only two workers. When asked about whether Cretek had provided any SWMS prior to starting their work, Mr Wehl stated, 'They normally turn up with a - with a work method statement on the day, yes ... At the beginning of it.' He confirmed that would be the case for every job that he had done with Cretek and that the SWMS would be put in the job box onsite. Mr Wehl stated that he did not retain a copy of Cretek's SWMS.
[80] As to further work arrangements, Mr Wehl said that contractor staff were not required to provide attendance sheets at the job site and that SWC did not provide any training or induction to the contractor or its employees.
[81] Mr Wehl confirmed that on 22 August 2016, SWC's employees, Tim Hall and Nathan Brown, were onsite doing some work upstairs and also some work on a landscaping footing for a block wall situated to the side of the property.
[82] Mr Wehl said he was not aware at the time that anyone claimed to have had hurt themselves at the site. He said he only became aware 18 months later, when he received Mr Sawyer's Notice of Claim.
[83] In cross-examination, Mr Wehl again confirmed that he did not recall seeing anyone carrying any mesh on 22 August 2016. He said that he did not know Mr Sawyer. He agreed that SL81 mesh was not used in every job, but that SWC had probably used it three or four times on other job sites in the past. He said it was a specialised product for a polished slab and added that in this case the polished slab was designed by the engineer and they would install what the engineer had designed.
[84] Mr Wehl accepted that SL81 mesh was a heavy mesh, weighing about 105kg, and that it would be considered a high risk in terms of manual handling. He agreed that it could be quite dangerous to workers onsite if they did not use appropriate manual handling techniques.
[85] In terms of his role and responsibilities, Mr Wehl confirmed that as the operator of a building company he had an obligation to do regular risk assessments. He added however, 'I engage a contractor to - to perform the - the job, and he provides the labour that he sees fit to get the job completed, as per his quote.' When asked whether he carried out a risk assessment once he received the plans from the engineer, Mr Wehl said that he did not. He again emphasised that he engaged the contractor to do the job and that Cretek was supplying enough labour to do the job. When it was put to him that it was not a 'totally arm's-length contract' because SWC were supplying the mesh, Mr Wehl stated, 'His contract was to do labour only ... to install the products that we supply.'
[86] When asked whether SWC had flagged with Cretek that SL81 mesh was going to be used on the job site, Mr Wehl said, 'Joel has the plans and the specifications ... he knows that ... he would've known that it was SL81 and quoted accordingly. And certainly, on the day of the job that they turned up and saw the SL81 lying in a pile in the driveway, they would've flagged it at that point to say "Hang on. This is not what we discussed, and we're not going to proceed any further".'
[87] Mr Wehl accepted that he did not warn Cretek that SL81 mesh was to be used but added that they had been supplied the plans and specifications to do the job. He accepted that he did not do a risk assessment when he saw the architect's plans in respect of the use of the SL81 mesh but rejected the suggestion that he did not give any consideration to the safety of workers onsite in respect of the SL81 mesh, stating 'I don't believe that to be correct. The contractor knew that it was [SL]81 mesh being used, and it was their responsibility to have enough labour onsite to get that installed safely.'
[88] Mr Wehl confirmed that SWC had ordered the concrete truck for the slab pour. He was not able to confirm the original scheduled date for the slab pour but said that it had been poured on the Saturday. When it was put to him that the Cretek workers were under pressure to complete all of the slab preparations by the end of the day on 22 August 2016, before an imminent slab pour, Mr Wehl responded by pointing to a photograph of the work site taken on 24 August 2016, noting that it showed that at that stage the slab preparations had not been finished and that there was still a significant amount of work to be done by Cretek.
[89] Mr Wehl was shown photographs of work being undertaken at the site on 12 August 2016 by SWC's employees. He confirmed that SWC laid concrete footings. He said trenches under the house had been dug by a contractor and the SWC 'would have supervised the digging.'. When it was put to him that he supervised all the contractors onsite, he said, 'Well ... we're there ... We supervise the - the contractors.' In response to the suggestion that it was part of the role of the head contractor to supervise all contractors onsite, Mr Wehl said, 'Well, you're pointing them in the - you're making sure that they're - yeah, doing it as per specification and - and the plans.' He agreed that this supervision also extended to ensuring that the subcontractor did the work as per the SWMS.
[90] When shown further photographs of the work done on 12 August, Mr Wehl confirmed that SWC had installed timber boxing as part of doing the footings. He also confirmed that one of his workers had used a vibrator to help set the concrete when the concrete pour for the footings was carried out. He further confirmed that his workers had carried the steel to the trenches and placed them in the trenches and that they had supervised the concrete pumper pumping the concrete into the footings. Mr Wehl confirmed that those tasks were all standard things that concreters do. When it was suggested to him that it was a fairly common thing for SWC to have its workers do some of the concreting work, Mr Wehl stated, 'We do footings. We never pour the slab. We're not skilled to do - well, not licensed and not skilled to do slabs.' When it was further put to him that it was a similar process to installing the footings, Mr Wehl stated, 'No, it's a totally different process and we're - my crew's predominantly carpenters, not concreters. So we'd never tackle pouring a slab ourselves.'
[91] When further asked about the SWMS, Mr Wehl agreed that the document was important to ensure subcontractors coming onto the site were going to do their work safely. When it was put to him that, as the head contractor, he needed to look at the document to see what the subcontractor was going to do to perform their work, he said, 'Yeah ... I didn't read the document on the day, no.' When shown the SWMS that had been tendered, Mr Wehl was unable to say whether it was the document he received from Cretek in respect of the Ascot job site. When it was put to him that if he had received a SWMS like that, that would lead him to question whether it had taken into account the fact that there was going to be SL81 mesh used on the site, Mr Wehl said, 'Well, there was enough people onsite - we assumed that there was enough people onsite ... to do it safely.'
[92] Mr Wehl confirmed that SWC had obtained a Master Builders' Housing Safety Workplan and had prepared a safety workplan for the site. He was shown a copy of the generic Housing Safety Workplan that Mr O'Sullivan had referred to and accepted that it was the version of the document that had been used at the Ascot job site. He confirmed that it set out many of the obligations that SWC had as the builder in respect of a construction site. He accepted that was so because SWC had control of the job site, that it could exclude people from the site if it chose to, and that it could ask subcontractors to leave the site if it was not happy with the way they were performing their work. Mr Wehl agreed that according to the Housing Safety Workplan, any person intending to do construction work at the site must hold a general induction before starting work. He confirmed however that no inductions were done for this job site. He further agreed that the Housing Safety Workplan provided that subcontractors must follow properly approved SWMS' as provided, signed and dated by their employer and comply with the site rules.
[98] In cross-examination by counsel for Mr Sawyer, Mr Quillan accepted that he did not have an independent recollection about the quote for the Ascot job. He accepted that, although he had agreed to the question put by counsel for SWC that there had been four workers at the job site on 22 August 2016 because he had noticed the mesh to be used was SL81, he could not definitively say why there had been four workers allocated on that day. He was not sure whether the reason why there was four workers was because there was an urgency to finish the preparations that day.
[99] In response to the suggestion that he did not give any consideration to the dangers posed by SL81 mesh when preparing the SWMS for the job, Mr Quillan said that it was his brother, Adrian, who had prepared the SWMS. He was unable to recall whether SWC had said they should be aware that SL81 mesh was being used for the job and they might want to allow extra staff.
[100] Mr Quillan accepted that the quote provided to SWC was dated 12 April 2016, but that the actual work done by Cretek did not start until 19 August 2016. He agreed that it was common that there would be changes to a construction site plan and that there were certain tasks which had been covered in the Cretek quote which were not ultimately performed by Cretek. He agreed there was no mention in the quote of a polished slab. He agreed that a polished slab required a lot more care and attention by the concreter to get it right, adding that it was the mesh that would keep it from cracking and that the screeding had to be done well so as to not leave lines in the surface.
[101] Mr Quillan agreed that he had previously given a statement to WorkCover in August 2019. He accepted that in his statement he had said that there was no contract between Cretek and SWC for the Ascot job and that SWC had a supervisor onsite to oversee the work being completed by Cretek workers and to monitor progress. In response to the suggestion that on jobsites such as the Ascot job the head contractor's leading hand was required to oversee Cretek's work, Mr Quillan said 'to a certain degree, yes.' When it was put to Mr Quillan that he would expect the head contractor's leading hand to step in and stop Cretek workers doing anything unsafe, Mr Quillan said, 'I wouldn't expect, but I'd assume ... If it was unsafe, then yes, I'd want them to step in.'
[117] The seventeen salient features identified by Allsop P in Caltex[10] were:
[133] By the time those tasks were to be performed by Cretek's employees, SWC had ordered the mesh sheets and had arranged for them to be delivered and placed at the front of the job site. It was evident that the sheets would have to be carried by Cretek's employees from that location to the area under the house where they were to be laid. Accordingly, I do consider the situation pertaining at that time was one where SWC had organised an activity involving a risk of injury to Cretek's employees and therefore it owed a duty to use reasonable care to avoid or minimise the risk of injury to the Cretek workers who would be engaged in that activity onsite.
[134] However, the acknowledgement of such a duty is not to be equated with a duty of care of the kind and scope as pleaded.
[135] SWC had engaged Mr Sawyer's employer, Cretek, to perform a particular job. Cretek was competent to devise and control its own system of work. SWC had worked with Cretek in the past. Mr Wehl considered Cretek was a reputable and competent concreter capable of performing the work it had been engaged to carry out. How the activity was to be done was a matter for Cretek. It was supplying the labour and it was responsible for deciding how the task would be carried out. I consider the situation was one where SWC had organised the activity but where its operation was then put in the hands of Cretek and it assumed and retained responsibility for devising, implementing and supervising a safe system of work in respect of the tasks its employees would carry out. The work it was performing on 22 August 2016 was a self-contained activity that did not require co-ordination with other activities onsite. In my view the existing circumstances did not make it necessary for SWC to retain and exercise a supervisory power over Cretek's system of work.
[136] This was also not a scenario where SWC retained control over Cretek's work systems because of its status as an occupier of the site or because of its duties under workplace health and safety legislation, or Australian standards, or by virtue of its contractual obligations. Although SWC was the occupier of the site, unlike the situation in Thompson, this was not a case where it had established and maintained a system for performing a particular activity with which Cretek and its employees were to conform. SWC did not direct or prescribe how the SL81 mesh sheets were to be handled.
[137] It might be said to the contrary that SWC had in fact established a system whereby Cretek and its employees were obliged to comply with legislative and contractual workplace health and safety obligations and Cretek's SWMS whilst working onsite, and that SWC was therefore responsible for ensuring compliance with that system. In that way, it may also be said that it was necessary for SWC to retain and exercise a supervisory power over Cretek's system of work. Again, I accept that such obligations existed in a general sense, however I do not consider that it necessarily follows that SWC had a duty of care that would require it to supervise and monitor Cretek's system of work with respect to the manual handling of the SL81 mesh sheets. Similarly, whilst SWC may have a general duty that extends to directing the workers of independent contractors not to engage in unsafe work practices, I do not consider it would extend to obliging SWC to pre-warn or direct Cretek's employees not to lift, carry and lay the mesh sheets in the way as was subsequently done by Mr Sawyer and Mr McMath on 22 August 2016.
[138] Before the job commenced, there was nothing about the work to be performed that required SWC to give any such direction. Cretek had provided a SWMS which noted manual handling risks, so it may be accepted that both Cretek and SWC were aware, or ought to have been aware, of the inherent risk of harm involved with lifting and carrying of objects between 20-55kg. However, it was for Cretek to determine who was to perform the work and how it was to be carried out in a way that would avoid the risk of injury from performing such work activities. Once in action, the task being performed was not one that was so obviously unsafe that a casual observer would immediately have recognised it to be so. Whilst they would have been aware that the work was being undertaken, I accept that the SWC personnel onsite did not notice any particular unsafe work practices being undertaken with respect to the handling of the SL81 mesh. In part that was no doubt due to the fact that they were not obliged to monitor and supervise the particular execution of that task by Cretek's employees and were therefore not concerned about the carrying out of an ordinary onsite activity by other workers that had been specifically engaged to perform that job by another employer.
[139] I do not accept the submission made on behalf of Mr Sawyer that the work being undertaken by Cretek was not specialised, as it was similar in nature to work that had been recently done at the site by SWC's own employees. The work was not entirely the same. Although the general task of laying mesh sheets to reinforce a slab might properly be described as non-specialty work, the work Cretek was performing was in respect of a specialty product - a polished concrete slab. I accept Mr Wehl's evidence that it was not a job for which SWC had the requisite knowledge or expertise. That was why it had engaged Cretek.
[140] I also do not accept the submission that Mr Sawyer was in a position of vulnerability because there were time pressures to get the preparation work done before a concrete pour. I am not satisfied on the evidence there was to be an imminent concrete pour. In any event, even if there was, I do not consider SWC was obliged to forewarn Cretek that additional staff would be required to attend onsite on 22 August 2016.
[141] Finally, I do not consider it was necessary for SWC to undertake a risk assessment of the task. That was Cretek's responsibility. Cretek knew the nature of the particular tasks to be carried out on 22 August 2016. It knew, or ought to have known, of the risks involved. It had sufficient workers onsite to safely lift, carry and lay the SL81 mesh. It could have directed all four workers to perform that task. Alternatively, it could have instructed its workers to cut the mesh sheets, which could easily have been done, before handling them. It was ultimately Cretek's duty and responsibility to ensure that the work its employees were to perform would be carried out safely.
[142] Accordingly, I find that SWC is not liable for any injury, loss or damage claimed by Mr Sawyer.
[143] Given my conclusion it is not necessary to consider the remaining liability issues insofar as they relate to Mr Sawyer's claim against SWC. I will however indicate that had I been required to determine the issue of contribution as between the defendants as joint tortfeasors, I would have apportioned SWC's liability as 10%.
[153] Mr Sawyer said he always had back pain throughout the entire period from 2016 to 2017. He said that he could, 'sort of manage, a bit, to keep working.' When the pain was worse, he would ask his site supervisor for light duties. He said the supervisor he mainly discussed this with was Simon Tippett, but that he had also mentioned it to Peter Price and Michael McClymont.
[154] As to the light duties that he had performed, Mr Sawyer said that if they were pouring a slab, they would get him to do the levelling of the concrete with a laser level. He recalled that on one occasion he did 'quality-control', checking the height and edges of a concrete pour and tidying them up. He said that he did not do any of the heavy concreting work on the times that he had a flare-up, but that he did do screeding, patching, some grinding and a little bit of jackhammering, albeit with a little hammer drill.
[155] He otherwise worked performing his usual concreter duties between the first incident and the second incident. He said that over that period he worked during the week and rested on the weekends so that he 'would be right for the next week of work.' He said his wife did all the housecleaning and he relied on his daughters and father-in-law for help doing other chores such as car-cleaning, mowing and hedging.
[156] He confirmed that he had stopped work after the second incident, then had returned three days a week on WorkCover, until September 2017 when he ceased working for Cretek altogether.
[157] Mr Sawyer said that he went to see a doctor at the Strathpine Superclinic (i.e., Dr Shahsanei) on 4 July 2017, the day after the second incident. He told the doctor that he had hurt himself; that he had had ongoing pain for a while; that it had been made a lot worse; and that he wanted to see what the doctor thought he should do. He said the doctor gave him ibuprofen and referred him for a CT scan. On a subsequent occasion the doctor prescribed Lyrica to help with nerve pain he was then experiencing.
[158] Mr Sawyer said that he was later referred by another general practitioner (i.e., Dr Gupta) to see Dr Bryant, a neurosurgeon, for further treatment. He ceased taking Lyrica after a few weeks on the advice of Dr Bryant. He recalled receiving an injection in his spine before undergoing microdiscectomy surgery on 30 November 2017 at the St Andrew Hospital. He described his symptoms before the surgery involved back pain as well as sciatic pain down his right leg, which had commenced around the start of July, when he was on WorkCover, but then got significantly worse after he had been off work for about three and a half weeks. He recalled he went back to work three days per week for about five weeks, but as the pain was getting worse in his right leg, he decided he could not keep working. He could not remember if he ever had any sciatic pain before the second incident but said there might have been a little.
[159] According to Mr Sawyer, his pain and symptoms became a lot worse after his back surgery. He said the sciatic pain would shoot down the back of his leg into his foot. He said his pain is still present today and that it never stops. He said it 'feels like lightning going down your leg'. He described his back pain as 'very sharp pain' and said it 'aches and throbs'.
[160] In terms of other treatment and pain management for his back pain, Mr Sawyer said that he had done physiotherapy, hydrotherapy and acupuncture and that he had seen a pain specialist who put him onto a pain management program with a physiotherapist and a psychologist. As part of that program, he would attend the gym. He also said he had been on painkillers, like Endone, for about six months after the surgery.
[161] In March 2021, he started working again. He took over an oven and barbeque cleaning business from his father-in-law. He performed that work for just over two years. He said that he was able to manage his pain okay during that time but that he could only manage four days a week of work as he needed three days to recover.
[162] He explained that the pain gradually got worse each week for about the three months leading up to June 2021, when he had another bad flare-up and then stopped working altogether. He said the pain on that occasion was unbearable and that he just lay on the bed and could not move. His wife called an ambulance. The paramedics gave him morphine and Endone. He was taken to the Redcliffe Hospital and subsequently referred to the Royal Brisbane Hospital to see a neurosurgeon. He said he was advised that it might be risky to do another operation on his spine, so he did not undergo further surgery. He recalled that after this incident he was on buprenorphine patches for his pain for about a year to a year and a half and that he would take Endone when he needed it.
[163] Mr Sawyer said that he would still have flare-ups from time to time but the last bad one he recalled was in October 2021. He said there was not really any particular event or incident that would bring on a flare-up.
[164] In terms of ongoing pain management, Mr Sawyer said that since about November 2022 he had been taking medicinal cannabis oil. He said it had definitely helped with the pain, to the point where he was able to cease taking Endone, except when he had a flare-up.
[165] With respect to his psychiatric condition, Mr Sawyer gave evidence that he had experienced depression in the past, starting from when he was 15 years old. He said that he was prescribed Zoloft at that time and that he had been on and off it a few times but would always end up back on the anti-depressant medication. He was not entirely sure but did not think he was on anti-depressant medication leading up to the occurrence of the first incident in August 2016.
[166] Mr Sawyer said that when he worked for Cretek he had a few days off work because of his depression. He estimated three or four days off for that reason over the seven years that he worked for Cretek.
[167] As to how his physical injury impacted on his mental state, Mr Sawyer said that after the first incident he started to feel heightened levels of depression. He recalled being fairly depressed around the end of January 2017 while working on a month-long job. He said that when he had flare-ups, he felt an increase in his depression or anxiety and that it was 'tough to get through.'
[168] He stated that when he stopped working as a concreter that made his depression significantly worse. He explained that a lot of it had to do with him no longer being able to work or being able to do the things he used to do. He said he felt heightened levels of depression and anxiety each time he would get a scan result or when Dr Bryant told him that he would never do concreting again.
[169] He said that he continues to experience anxiety. He gave examples of having trouble going to the shops and being anywhere with a lot of people. He said he was 'not really the person I used to be', describing how he used to be patient and never get angry but now he was frustrated all the time and had quite a temper.
[170] As to his current physical capacities, Mr Sawyer said he could stand comfortably for about ten minutes and probably stand for about an half hour before the pain would become unbearable and he would need to sit down. He said he could walk for around half an hour but could not run. He could bend at the waist but if he had to bend down for a few seconds he could not. He still went to the gym but could not lift much weight if his back was not supported by a machine. He estimated he could squat with 10kg held close to his body. He described his energy levels as 'fairly low' and generally 'not real good.'
[171] When asked to describe how his work-related back injury, depression and anxiety affected his activities of daily living, Mr Sawyer said:
[177] Mr Sawyer denied the suggestion that he was never on light duties because of his back during the period between August 2016 and July 2017. He maintained that he had been on light duties in around November 2016 and again in late February or early March 2017. He accepted that he had not actually taken any time off in March 2017, but was unaware that his pleaded claim included a claim for $2,000 for two-weeks' loss of wages in March 2017. He was unable to explain why that claim had been made.
[216] Counsel for SWC put to Mr Tippett that given what he had said in his statement it was fair to say that he did not know when he had heard that Mr Sawyer had a sore back. In response, Mr Tippett said that he knew that it was eight to ten months before Mr Sawyer stopped work. He rejected the suggestion that it might only have been four months before Mr Sawyer stopped work.
[217] When cross-examined by counsel for Cretek, Mr Tippett agreed that he did not know the precise date of when Mr Sawyer might have hurt his back or for how long he had a sore back. When taken to what he had put in his statement about not being aware that Mr Sawyer had suffered any specific injury to his back, Mr Tippett clarified that what he meant by that was that he was not aware of Mr Sawyer suffering any injury to his back 'beforehand', meaning 'before that injury'.
[218] Mr Tippett agreed he could not recall Mr Sawyer ever complaining to him about back pain or looking like he had back limitations.
[219] Mr Tippett also agreed that he had no specific recollection of assigning light duties to Mr Sawyer. When asked whether he would report to Adrian or Joel Quillan if someone had asked to be put on light duties, Mr Tippett said that in most cases they would already have told him that someone needed to be on light duties. He agreed that if someone onsite requested to be put on light duties, he would most likely pass that on to Joel or Adrian.
[226] Mrs Sawyer could not recall any particular incidents when Mr Sawyer complained of back pain in the period after the first incident through until when Mr Sawyer ceased working. She said there were flare-ups but nothing in particular other than the 3 July 2017 incident. She said that his back pain was constant and did not go away during that time. She said that Mr Sawyer would sometimes mention from time to time that his back was hurting. She said he was not really a 'whinger' but that he did mention 'quite a few times that his back was hurting from a big day at work'.
[227] In terms of her observations of Mr Sawyer between 22 August 2016 and July 2017, Mrs Sawyer said that she noticed he would bring his foot up and cross his legs to be able to tie his shoes and that he could not tie the laces in the middle. She said he did not do this before, and she first noticed it during a family trip to Sydney in early September 2016. Mrs Sawyer identified photographs which showed the different ways Mr Sawyer tied his shoes before and after the first incident.
[228] Mrs Sawyer gave evidence that she had a couple of conversations with her husband about a report that had been provided by Dr Coyne. She could not remember exactly when the conversations took place, but said they had discussed whether he needed to clarify whether Mr Sawyer's back pain had 'resolved', as Dr Coyne had written. Mrs Sawyer said that she reminded Mr Sawyer that when he next had an appointment to see Dr Coyne to talk to him about the fact that the back pain had not resolved or gone away. She said that Mr Sawyer said that he would talk to Dr Coyne about it.
[229] Mrs Sawyer said that Mr Sawyer previously used to play the drums but could no longer do so because it hurt too much. She said he also used to sit on the floor when he played the guitar but no longer did that and now sat in a chair. She said he used to be able to do a lot more with the children, such as taking them to play soccer, but he could no longer play soccer or sports or anything like that. She said he used to play with the dog but that was not possible anymore.
[230] With respect to household duties and chores, Mrs Sawyer said that before 22 August 2016 Mr Sawyer did all the outside chores, such as washing the dogs, cleaning the car, hedging, weeding, but that for the inside chores they mostly did everything 'fifty-fifty' as they were both working. She said that after the first incident, Mr Sawyer was not able to help as much with things like mowing, hedging, dog washing, house cleaning, cooking and grocery shopping, as he would use the weekends to recuperate to make sure his back was 'in okay working order' to get back to work on Monday. Her evidence was that their life completely changed after 22 August 2016.
[231] Mrs Sawyer said that after the second incident Mr Sawyer's capacity for activities around the house decreased even more and he was not able to do anything.
[232] When cross-examined by counsel for SWC, Mrs Sawyer agreed that her husband continued to work full time as a concreter after the first incident. She maintained that he nevertheless still required care from herself and others at home during that period. She said her husband needed to work to financially help their family. She reiterated that on weekends he would take time to recuperate.
[233] Mrs Sawyer denied the suggestion that her husband never had any back pain at home during the period between the two incidents. She reiterated that he had back pain the entire time. She said that she had been telling her husband to go and see a doctor and denied that she was not telling the truth about that. She said he was very reluctant to see doctors and she had not been able to convince him to see a doctor between August 2016 and July 2017. She denied the suggestion that she was making up her evidence to support Mr Sawyer's claim for a work-related injury that occurred on 22 August 2016, stating, 'No, I haven't...this injury's ruined our life. I wouldn't make something like that up.' She denied the suggestion that Mr Sawyer's back pain did not start until about seven months after 22 August 2016 and maintained that her husband had back pain from that day.
[234] With respect to the history noted in Dr Coyne's first report, Mrs Sawyer said that she had never seen the report itself but that her husband had spoken to her about it and told her that Dr Coyne had said that his back pain had resolved, and he wanted to clarify that that did not happen.
[235] When cross-examined by counsel for Cretek, Mrs Sawyer agreed that whenever her husband had been unable to work for whatever reasons that he would text or telephone Joel or Adrian Quillan. She agreed that there was no need for him to go into the Cretek office to let them know he could not attend work. In response to the suggestion that there was also no need to go into the office to make an inquiry about QLeave, Mrs Sawyer said that there was as she wanted to get the information. She agreed that as of August 2016, Mr Sawyer had been a long-term employee at Cretek and that he was on good terms with both Joel and Adrian.
[236] With respect to the supposed visit to the Cretek office on 23 August 2016, Mrs Sawyer maintained that she had attended at the office with her husband on that date. She was not sure when she had first mentioned the matter but agreed that she had included it in a statutory declaration she made on 30 November 2019. She agreed that she had not referred to the need to drop a particular tool back to the office when she made her statutory declaration. She agreed that she did not know the particulars of any conversation her husband had with Adrian or Joel.
[237] Mrs Sawyer disagreed with the proposition that, if her husband had suffered any injury on 22 August 2016, he was nevertheless feeling 'pretty good' within a few days. She agreed that he had returned to his normal work duties but disagreed with the characterisation of her husband as being an 'invalid' at home. She said the duties he did at home certainly lessened. She further explained that he was the sole income earner, so he needed to be at work to be earning money for their family. She said that his pain was that bad when he worked all week that he needed to recuperate. She said that he needed to go and see a doctor, but he ignored her telling him to do so for over ten months.
[238] Mrs Sawyer said she had attended with her husband to see a doctor on 4 July 2017 after the second incident. She did not however recall what he had said to the doctor about when he had hurt his back. In response to propositions that Mr Sawyer had told the doctor that the onset of his pain had occurred the previous day, Mrs Sawyer said she was not sure how to answer the question as he had 'been in pain yesterday and previously'. She recalled that he had told the doctor that he was a concreter but could not recall whether he had said anything to the doctor about any previous injuries.
[239] Mrs Sawyer agreed that she had attended with her husband to see Dr Bryant for his initial appointment. She recalled that he told Dr Bryant that he hurt himself initially on 22 August 2016 and then went on to explain how he had other incidents when his back had 'flared up'. She denied that Mr Sawyer had told Dr Bryant that he hurt his back in his role as a concreter on 4 July 2017. She denied that he had said he had a history of chronic low back pain and minor niggles over many years. She could not recall what her husband had said to Dr Bryant about the onset of leg pain.
[240] As to the conversations she said she had with her husband about Dr Coyne's report, Mrs Sawyer denied the suggestion that if anything was said by Mr Sawyer it was simply that he was unhappy he had made a mess of things by 'going off script' and saying he had recovered after 22 August 2016. Mrs Sawyer said, '...there was no script for Luke to go off. Just the facts.'
[247] Mr Quillan recalled seeing the incident investigation form. He said it would have been filled out by Adrian. Other than what was noted in it, he had no information about Mr Sawyer's back condition before 3 July 2017. He said he was aware that on that date Mr Sawyer suffered a back injury.
[248] Mr Quillan denied that he had received a telephone call from Mr Sawyer, on either the evening of 22 August 2016 or early the next morning, in which Mr Sawyer said he had hurt himself at the worksite and would not be able to work on 23 August. He did not recall any discussion about Mr Sawyer saying he had a tool that he needed to return and that he wanted to come into the office. He did not recall Mr Sawyer coming to the Cretek office and denied that Mr Sawyer had then told him he had hurt himself the day before. He had no recollection of Mrs Sawyer being there to discuss Mr Sawyer's QLeave entitlements. He added that they had a procedure to follow and if anything had been said they would have done an injury report.
[249] When asked about the incident investigation form, Mr Quillan accepted that he had no independent recollection of Mr Sawyer telling him he had hurt his back, as the report recorded. However, he said that he knew that he had been told that as he asked Adrian to do the incident report. He could not remember if Mr Sawyer had told him that he was still in pain when he reported the incident.
[250] In response to the suggestion that he was well aware after 22 August 2016 that Mr Sawyer was having ongoing back pain, Mr Quillan said 'No...we'd not have allowed him to work with that.'
[251] Mr Quillan accepted that the Cretek Outlook calendar did not record light duties in respect of any worker, adding, 'we just didn't have light duties much that we could give.' He was not aware of whether Mr Sawyer had ever spoken to his supervisors about being allocated lighter duties. He further accepted that the calendar did not record Mr Sawyer reporting the first incident on 30 September 2016, as the incident report indicated.
[258] Mr Quillan was asked about the text message he had sent to Mr Sawyer on 5 October 2016 which read: 'Call me when ya free please mate I just need to complete an incident report for your sore back you mentioned to Joel last Friday mate'. He could not remember sending the message but accepted that he must have done so. He confirmed there was no reply message from Mr Sawyer but he did not know what had happened as a result of the text he had sent.
[259] Mr Quillan identified the incident investigation form he had completed, signed and dated on 5 October 2016. He confirmed the source of the information in the report would have been Mr Sawyer, however he could not remember how he obtained the information. He said he had no recollection of discussing the seriousness of the injury with Mr Sawyer but stated that part of the form required that to be discussed. He further stated that he would only have written the information in the report, 'Lower middle back pain minor', on Mr Sawyer's advice.
[260] Mr Quillan could not remember Mr Sawyer ever asking to be allocated to light duties but said there were occasions when workers went on light duties.
[261] When cross-examined by counsel for the plaintiff, Mr Quillan agreed that he had no independent recollection of taking the information recorded in the incident report. He accepted the recorded information: 'Luke continued to work with it over the coming weeks, indicating that it would come and go' referred to Mr Sawyer working with pain that would come and go.
[262] Mr Quillan was unable to recall any visit by Mrs Sawyer to the Cretek office on 23 August 2016 to speak about QLeave. He was unable to recall Mr Sawyer attending the office that day because he had a tool he needed to return while he took the day off. In response to the further suggestion that Mr Sawyer had attended at the Cretek office on that occasion and had mentioned that he had hurt his back the previous day, Mr Quillan repeated that he did not recall either Mr Sawyer or Mrs Sawyer being at the office on 23 August 2016.
[263] Mr Quillan did not recall offering Mr Sawyer any medical treatment at any stage or referring him to a doctor. He accepted that, in circumstances where Mr Sawyer had told him that he had continued to work with back pain over the coming weeks after 22 August 2016, he possibly should have told Mr Sawyer to go and get his back checked by a doctor
[307] In response to the suggestion that if Mr Sawyer had not experienced back pain, except for a day or two after the 22 August 2016 incident, from which he had spontaneously recovered and was then able to perform his normal duties through until 3 July 2017, it would reduce the possibility that he had suffered any sort of serious injury on 22 August 2016, Dr Hewitt stated, 'But not impossible... It is possible to continue working in a manual way... and still have significant spinal pathology.' Dr Hewitt did not accept the further suggestion that any event involving lifting, twisting, turning or bending over the entire period of Mr Sawyer's employment could have been the 'triggering event' for what was discovered on the scans conducted in 2017, as there was no other reported history given by Mr Sawyer of any other specific event that caused his back pain.
[308] Dr Hewitt agreed that he and each of Drs McPhee, Coyne and Campbell had assessed Mr Sawyer's level of impairment under the AMA5 and that they were agreed that the DRE III category applied to Mr Sawyer's back condition. In response to the suggestion that there was no significant variation between his and the other doctors' assessed percentage of whole person impairment, Dr Hewitt said that he thought there was some variations but that he was the only one who had added an additional percentage for pain because Mr Sawyer was not asymptomatic after his surgery. He agreed that if saw Mr Sawyer again and assumed, as per Mr Sawyer's evidence, that he had subsequently been treated with medical cannabis, had ceased using opioids and had experienced a significant improvement in his symptoms and mood, that he would revisit his assessment.
[309] With respect to his revised opinion as stated in his most recent report of 29 January 2024, Dr Hewitt confirmed that on the basis of the further information he was asked to assume it was unlikely Mr Sawyer had suffered a disc prolapse on 22 August 2016, but that did not preclude the possibility he had suffered a significant injury to his lumbosacral disc in the form of a radial tear of the annulus fibrosus.
[310] In response to a suggestion that there would be a whole range of factors that would need to be considered in combination in order to arrive at an accurate diagnosis in respect of Mr Sawyer, Dr Hewitt stated:
[320] Given the history recorded by Dr Bryant, Dr Campbell was asked whether Dr Bryant's opinion that 'it is likely that there are some underlying degenerative changes in the lumbar spine in keeping with his longstanding history of back pain', was a reasonable conclusion. In response, Dr Campbell stated:
[325] Dr Campbell agreed that he, along with Drs McPhee, Coyne and Hewitt, had assessed Mr Sawyer in accordance with the AMA5 as being a DRE Category III. He confirmed that he had not added any further percentage impairment for pain and that his assessment was generally the assessment that would be made if a person was able to be assessed for a percentage impairment within DRE Category III, unless there was some additional impairment.
[359] Mr Sawyer submits that if I accept the evidence given by both he and his wife about his back pain not settling down, then it would be unsafe to accept the opinions of Dr Coyne. Instead, he submits, the evidence of Drs Hewitt and Campbell should be accepted.
[360] Mr Sawyer accepts that there is inconsistent documentation of what he has previously told people about the state of his back in August 2016. However, he submits that I would nevertheless accept his evidence that he was in continuous pain after the first incident, and that there were flare-ups when the pain became worse from time to time, but his pain would always return to a 'baseline' level. He submits I would find that he told Dr Coyne that his pain had 'settled' and never said that it had 'resolved'. He says this is consistent with other accounts he gave.
[361] Mr Sawyer otherwise points to the following matters in particular to explain the supposed inconsistencies between his account and the history of his back pain that he gave to others and the various other issues raised about the reliability and credibility of his evidence:
[369] In undertaking my assessment of their evidence, I am mindful of the following statements and principles that have been expressed in respect of the need for caution and circumspection in approaching issues of credibility and the evaluation of evidence in respect of disputed facts.
[370] In emphasising the importance of objective facts proven independently of a witness' testimony, the Court in Guirguis Pty Ltd v Michael's Patisserie System Pty Ltd[19] noted:
[377] The first disputed fact of significance is whether Mr Sawyer called Joel or Adrian Quillan, either on the way home from work on 22 August 2016, or early the following morning on 23 August 2016, to inform them that he had hurt his back at work. I am satisfied that Mr Sawyer did telephone Joel Quillan to report the incident on 22 August 2016, after he had come home from work. Although Mr Sawyer's recollection of making a telephone call on that date was vague, Mrs Sawyer gave clear evidence, which I accept, that she was present when Mr Sawyer telephoned Joel Quillan from their home to explain that he had hurt himself at work and was not sure whether he would be able to work the next day. Mrs Sawyer was not directly challenged about witnessing this telephone call. Further, I consider my conclusion on this issue is supported by other surrounding evidence.
[378] Although Mr Sawyer did not give evidence of making this call, he did give evidence about speaking to his wife about going to see the Quillans the next day and that he would wait to see how his back was in the morning. He gave further evidence that he telephoned the office early in the morning on 23 August 2016, to make sure the Quillans were there and to advise them that he would not be able to work that day. I accept Mr Sawyer's evidence and am satisfied that he did make that telephone call.
[379] There was evidence in the trial that in the early afternoon on 22 August 2016, Adrian Quillan had sent a text message to Mr Sawyer advising him that he was required for work at another job site on 23 August 2016. There was no reply from Mr Sawyer and no further text messages, either from Mr Sawyer or from either Joel or Adrian Quillan about Mr Sawyer attending that job. In my view, the absence of any such messages is entirely consistent with Mr Sawyer having communicated to the Quillans, at least by the morning of 23 August, that he would not be able to work that day. Had he not, I would have expected there would have been evidence that Adrian Quillan had either texted or telephoned Mr Sawyer to seek an explanation from him about his absence from the job site. No such evidence was adduced.
[380] Furthermore, although the matter was denied on the pleadings, it ultimately seemed to be accepted by the defendants as the trial unfolded that Mr Sawyer did not actually work on 23 August 2016. To the extent that the Cretek Outlook calendar recorded that Mr Sawyer had been allocated to work on 23 August 2016, I do not accept that the document provides any reliable evidence that he did attend work that day. The Outlook calendar was clearly not a complete and accurate record. It appears to have been mostly used on an ad hoc basis to record some, but not all, details of particular jobs. While it may have recorded the workers who were scheduled to attend a job site on a particular day, it was certainly not a reliable 'roll call' of the workers who did attend those jobs. As Adrian Quillan accepted, it was not a 'perfect document'.
[381] The next related disputed fact is whether Mr and Mr Sawyer attended at the Cretek office on the morning of 23 August 2016. Both Mr and Mrs Sawyer gave evidence that they did attend at the Cretek office that morning. Mr Sawyer gave evidence that, while he was there, he reported his back injury to the Quillans. I accept their evidence and reject the assertion that this aspect of their evidence was a fabrication. Their recollection of events was substantially similar and contained details which, although not exactly the same, suggest genuine recollection by each of them of the event. In particular, both recalled that Mrs Sawyer came to the office as she wanted to ask about Mr Sawyer's QLeave entitlements. Although there was no need for Mrs Sawyer to go into the office to make that inquiry, it makes sense that she did go on that occasion as Mr Sawyer was already going there. Further, Mrs Sawyer had a particular recollection that Mr Sawyer needed to go to the office as he had to return a particular tool that was needed at the job site that day. She also gave detailed evidence of the office layout which she was not challenged about.
[382] I also note that the evidence given by each of Mr and Mrs Sawyer at trial was not the first occasion they had mentioned going to the Cretek office that morning. Each was cross-examined about prior statements they had made. Although the evident purpose of the cross-examination was to elicit evidence of inconsistencies that might bear adversely upon an assessment of their reliability and credibility, the cross-examination confirmed that they had each previously stated that they had attended the Cretek office. When he was cross-examined, Mr Sawyer accepted that when he first gave his Notice of Claim on 25 February 2018, he had stated that on 22 August 2016 on his way home from work he had either 'dropped into the office and reported the injury to my boss, Joel Quillan, or I may have phoned him to report it.' Whilst I do not consider this prior statement strongly supports the evidence given at trial about this issue, the position is different with respect to Mrs Sawyer. When she was cross-examined, she confirmed that she had made a statutory declaration on 30 November 2019, in which she had stated that she went with Mr Sawyer to the Cretek office on the morning of 23 August 2016. This was consistent with her evidence at trial. Although she accepted her earlier statement was inconsistent insofar as she had not mentioned returning a tool to the office that morning, the inconsistency was immaterial and her explanation for it was convincing - she recalled going to the office with Mr Sawyer in their ute rather than in the family car, as Mr Sawyer had to drop off the tool.
[383] In my view the evidence given by Joel and Adrian Quillan on these issues was vague and uncertain. In his evidence in chief, Joel said he had no recollection of receiving any telephone call from Mr Sawyer on 22 August 2016 or receiving a visit at the Cretek office from the Sawyers the next day. Despite that, when cross-examined by counsel for Mr Sawyer, he positively denied receiving any telephone call from Mr Sawyer on either 22 or 23 August. Similarly, although he had no recollection about Mr Sawyer coming to the office on 23 August or Mrs Sawyer being there to discuss Mr Sawyer's QLeave, he positively denied that Mr Sawyer had told him at that time that he had hurt his back. The basis for his denials seems to be the absence of an injury report being completed at that time. Adrian Quillan also did not recall receiving any telephone call from Mr Sawyer, on 22 or 23 August 2016, and did not recall the Sawyers coming to the office on 23 August. Indeed, he had no recollection of Mrs Sawyer ever visiting the Cretek office. Again, Adrian relied upon the absence of any completed incident report at that time to conclude that Mr Sawyer had not reported the incident either on 22 or 23 August as he claimed.
[384] In each case therefore, neither witness was able to give positive evidence to refute the Sawyers' accounts of what had occurred. Rather, each relied upon the absence of evidence of what they ordinarily 'would have done' had an injury been reported by a worker. In my view, in the absence of further evidence establishing the reliability of the purported system or practice and adherence to it, evidence of that kind is of slight probative value and does not provide a satisfactory basis to preclude findings on these disputed facts consistent with the evidence of the Sawyers, which I accept.
[385] That then brings me to the Cretek incident investigation form. This was a particular piece of evidence that the defendants relied upon as objective evidence, said to be contrary to the evidence of the Sawyers.
[386] Although the Quillans gave evidence that had they been told of the incident they would have followed their procedures and completed an incident investigation form straight away, it is quite obvious that they did not follow such procedures in the way they claimed. The form indicates that Mr Sawyer reported the incident to his supervisor, Mr Stewart, on the date that it occurred. Yet, no incident investigation form was completed at that time. The form then indicates that Mr Sawyer reported the matter to Joel Quillan on 30 September 2016. Yet, the form was not completed at that time either. One explanation for this apparent delay may be that Adrian was not able to complete the form until 5 October 2016. In that regard, I note that it appears from the text messages in evidence that Adrian was away overseas for about a week at the time and that he did not return until about 4 October 2016. It might be the case that Mr Sawyer had spoken to Joel about the matter on 30 September, but Joel then waited until Adrian returned before asking him to complete the form as he was the workplace health and safety officer. Nevertheless, whatever the explanation, the form was not completed straight away or immediately as the Quillans suggested would have been done in their evidence. I also note that the form was not signed by Mr Sawyer, so as to confirm that he had reviewed the details of the incident recorded in the form and that he was satisfied the information recorded was correct.
[387] In those circumstances, I do not consider the form provides a reliable independent piece of objective evidence that is contrary to, or inconsistent with, the evidence of the Sawyers.
[388] Furthermore, in my view, the contents of the form provide some support for Mr Sawyer's case that he had ongoing pain after the first incident. In that respect I note the report states, 'Luke continued to work with it over the coming weeks, indicating that it would come and go' and elsewhere describes the injury as 'Lower, middle back pain - minor'. I infer from these notes that Mr Sawyer reported to Joel Quillan that he had ongoing pain, on and off, from 22 August until at least 30 September 2016, as a result of the incident when he hurt his back at work. I further infer that it was for that reason that Joel Quillan requested Adrian Quillan complete the incident investigation form.
[389] I will return later to the issue of whether Mr Sawyer had ongoing back pain and, if so, what was the nature and severity of his pain.
[390] The next disputed issue is whether Mr Sawyer ever performed light duties because he was experiencing back pain. I am satisfied that he did, however the description of 'light duties' is somewhat misleading. On the evidence adduced at trial there were no formal light duties, nor was there any formal process or procedure at Cretek whereby an injured worker in the position of Mr Sawyer might apply for, and be granted, light duties. I accept however that there were limited tasks that could be performed by a concreter that would be considered as 'lighter duties'. Regardless of the terminology, there were some tasks that were less demanding than others and there was evidence that on occasions injured workers could perform those lighter duties, with the approval of the onsite supervisor. Mr Sawyer gave that evidence and Mr Tippett confirmed a practice of giving sick or injured workers easier tasks. Whilst Mr Tippett also referred to a practice of running things past the Quillans or, in most cases, being informed by the Quillans that someone would need to be put on light duties for a particular work shift, I do not consider that the evidence establishes this was an invariable practice. It seems to me from the evidence that ad hoc arrangements with respect to the duties to be performed by workers attending at a particular job site or location was commonplace. Again, whilst there are no written records of Mr Sawyer performing any light duties, I do not consider this is a factor that causes me to doubt his evidence. As I have already noted, the Cretek Outlook calendar was not a comprehensive record in which all facets of the jobs and work tasks undertaken by workers was recorded. It recorded general details of the work to be done at job sites but did not record any real description of the particular tasks that workers would be required to perform. Further, as was conceded by Adrian Quillan in cross-examination, there is no record of anyone performing light duties within the Outlook calendar for the entire year between August 2016 and August 2017. This stands in contrast to the evidence given by Mr Tippett. Similarly, the fact that no mention is made in any of the SMS messages of Mr Sawyer requesting light duties or discussing light duties with either of the Quillans does not cause me to doubt Mr Sawyer's evidence. Again, on the evidence given by Mr Sawyer and supported by Mr Tippett, I accept that this was a matter that he would discuss as necessary with his supervisor on site.
[391] I do not draw any adverse inference against Mr Sawyer for not calling the other Cretek supervisors, Mr Peter Price and Mr Michael McClymont, which he had named in his evidence as persons he had spoken to about doing light duties. Mr Sawyer's evidence was that the person he mostly told was Mr Tippett, as he knew him pretty well and he was the supervisor he mainly worked with, but that he had also 'mentioned it' to the other supervisors. In those circumstances I do not consider I should conclude that, if called, the other supervisors would not have given evidence that supported Mr Sawyer's case.
[392] The next issue of significance is whether Mr Sawyer made a false claim for the loss of two weeks' wages in March 2017. A claim in that respect has always been pleaded since the commencement of the proceeding and at trial was articulated as: '2 weeks of work in March 2017 about $2,000 net'.[22] Mr Sawyer agreed in cross-examination that he had not had two weeks off work at that time and was unable to explain why this claim for loss of wages was made. The defendants contend this is a patently false claim that must have been pleaded on instructions from Mr Sawyer. They point to the fact that no explanation has been given by either Mr Sawyer, or his solicitor, for its inclusion in the pleadings. I accept that there is no basis for this claim. However, the real significance of the point taken by the defendants here is whether I should conclude that it was a deliberately false claim made by Mr Sawyer, such that it must inevitably bear adversely on my assessment of Mr Sawyer's credibility.
[393] Given Mr Sawyer's ready acceptance that he did not have any time off in March 2017, the continued inclusion of this claim in the pleadings is perplexing to say the least. Nevertheless, I do not consider it was a deliberately false claim on Mr Sawyer's part. I am not prepared to draw the inference that, knowing it to be false, Mr Sawyer instructed his lawyers to pursue this claim. That proposition was not put to Mr Sawyer in cross-examination. Although it is true that Mr Sawyer's legal representatives will have acted on his instructions to formulate his claim and commence and pursue the proceedings on his behalf, I cannot rule out the obvious reasonable inference that this aspect of his claim is more likely the result of an oversight or misunderstanding, rather than a deliberate attempt to falsely claim a relatively small amount of money. My impression of Mr Sawyer was that he was completely bewildered when cross-examined about this aspect of his claim. I did not detect any sign that he was lying about the matter.
[394] The next area of dispute concerns the apparently inconsistent histories given by Mr Sawyer at different times when compared to his evidence and his case. In general, I do not consider the highlighted areas of inconsistency to be of any real significance. Furthermore, I do not consider the matters relied upon by the defendants as purported inconsistencies undermine Mr Sawyer's credibility or are clearly contrary to his claim that he sustained a significant injury during the first incident. In my view, the supposed inconsistencies are, in each case, either not evident, entirely explicable or immaterial.
[395] The first in time is the history as recorded by Dr Shahsanei in his consultation notes on 4 July 2017. In my view, the notes do not establish any significant inconsistency in Mr Sawyer's versions of events. The notes record that Mr Sawyer advised that he had a history of back injuries at work and that this was the 'forth [sic. Fourth] time'. To my mind, that is consistent with Mr Sawyer's evidence that after he suffered his initial back injury in August 2016, there were two major flare-ups, in about November 2016 and February 2017, before the second incident on 3 July 2017. The fact that the consultation notes do not record Mr Sawyer having stated clearly and unequivocally that he sustained a significant back injury on 22 August 2016, is immaterial to my mind.
[396] Furthermore, it is pertinent to note that the consultation notes also record the following action to be undertaken, 'Imaging request printed to Queensland Diagnostic Imaging: CT Scan - Lumbar spine. (chronic LBP+ shooting pain to lower limbs).' In giving evidence at trial, Dr Shahsanei explained 'LBP' was an abbreviation for 'low back pain'. When asked about what the word 'chronic' meant, Dr Shahsanei said:
[401] The most significant of the apparent inconsistencies are the histories taken from Mr Sawyer by each of Dr Bryant, Dr Samy, Dr Coyne, Dr Hewitt, Dr Feberwee and Mr O'Sullivan. The defendants submit that what each of them has recorded in their reports about what Mr Sawyer said when relating the circumstances of the first incident and the subsequent resolution of his pain and symptoms is clearly contrary to the claim he now makes. The defendants characterise these inconsistencies as Mr Sawyer 'going off script'.
[402] With respect to Dr Bryant, his 9 November 2017 report recorded that Mr Sawyer had acknowledged 'chronic low back pain' and had admitted to 'some minor back niggles over many years in his role as a concreter'. The defendants say this history is not consistent with Mr Sawyer's case The second and third defendants confirmed in their written closing submissions that they had undertaken their cross-examination of Mr Sawyer in reliance on the history recorded by Dr Bryant in that report.
[403] I do not consider that these statements provide evidence of any material prior inconsistent statement made by Mr Sawyer. Dr Bryant did not give evidence at trial. His report and the letters he had written to Mr Sawyer's referring general practitioner, Dr Gupta, were tendered by Mr Sawyer as part of a bundle of medical records that I received as an exhibit. When asked about the history as recorded in Dr Bryant's report, Mr Sawyer did not agree that he had said all of what had been written by Dr Bryant. In particular, he denied saying the words 'over many years' but accepted that he had said 'over the last year'.
[404] I accept Mr Sawyer's evidence. In his first letter to Dr Gupta, dated 19 September 2017, Dr Bryant had written, 'Luke acknowledges chronic low back pain and admits to me today that he always has a little bit of back niggle.' Inexplicably, by the time of his 9 November report, the statement had become, 'Luke acknowledges chronic low back pain and admitted to some minor back niggles over many years in his role as a concreter.' It seems to me that the second version of the history was an inadvertent elaboration or embellishment added by Dr Bryant in summarising the history and does not accurately reflect what Mr Sawyer had actually said. Accepting, as I do, that Mr Sawyer told Dr Bryant he had chronic low back pain and minor back niggles over the past year, I consider his prior statements to Dr Bryant to be consistent with his case.
[405] As for the history taken by Dr Samy, the defendants point to the fact that his report of 5 July 2018 notes that Mr Sawyer said that after he hurt his back in August 2016, he went back to his regular duties and was able to perform his role 'without any problems' and that after a flare-up seven months later he again 'continued to work without any distress'.
[406] I am not prepared to conclude that Mr Sawyer made the statements which are attributed to him. Dr Samy's report, a file note and a further report, were tendered by the first defendant. Dr Samy did not give evidence at trial. When asked about what Dr Samy had noted, Mr Sawyer did not recall making these statement. He maintained that he did not go back to work without problems and speculated that Dr Samy may have misunderstood him. I bear in mind that the purpose of Dr Samy taking the history was to provide an opinion about Mr Sawyer's psychological issues rather than to make any assessment as to his back injury and its nature and causes. It seems to me quite unlikely that Mr Sawyer would have made these statements to Dr Samy in circumstances where he had already commenced proceedings in which he claimed he had ongoing back pain after the first incident. Furthermore, I note that the tendered handwritten notes of Dr Samy do not contain these statements. Instead, the notes relevantly record the following:
[410] I also do not accept the evidence given by Mrs Sawyer that she had discussed this apparent discrepancy with her husband before he saw Dr Coyne a second time and that he had said that he would talk to Dr Coyne about it. Her evidence on this point was short in detail and somewhat difficult to follow. She agreed in cross-examination that she had not actually seen Dr Coyne's report and that the discussion with her husband was not about the contents of the report but rather about the first appointment he had with Dr Coyne. She could not recall when they discussed the matter but said there were a few conversations. She was unable to say whether Mr Sawyer had told her that Dr Coyne had recorded a different history of what had occurred after the 22 August 2016 incident. Mr Sawyer gave no evidence of any such conversations, despite being prompted in his evidence in chief by a question, asking him whether he had a discussion with anyone about correcting an error in Dr Coyne's report before he went back to see him again. Again, it also seems to me inherently unlikely that Mr Sawyer would have discussed this matter with Mrs Sawyer at this time given what he said to Dr Hewitt about the matter.
[411] Despite these conclusions, I do not consider that I should find the Sawyers gave deliberately dishonest evidence about these matters. With the passage of time, they may have reconstructed or reimagined what actually occurred, influenced by hindsight and an appreciation now of the significance of the history recorded by Dr Coyne, whilst maintaining an honestly held, but false, conviction that they had always taken issue with the matter. Regardless, I do consider the evidence given by each does adversely affect my assessment of the credibility and reliability of their evidence, not only on this point but also as a whole.
[412] As to the history first taken by Dr Hewitt as reported in his 20 February 2020 report, I do not consider the descriptions that Mr Sawyer agreed he had provided that his pain had 'spontaneously settled' after each of the first incident and his subsequent flare-ups are inconsistent with his account that he continued to have ongoing pain. I note Dr Hewitt's evidence given in cross-examination was that he understood Mr Sawyer was describing how episodes of exacerbation of his pain had settled and that he was not sure that Mr Sawyer was ever pain free.
[413] As to the history given to Dr Feberwee, I do not consider that the recorded history that Mr Sawyer had 'experienced intermittent back pain over the years because of the physical nature of his work' is inconsistent with his claim. In my view, it is consistent with his accounts given in evidence of having back pain from August 2016 through until July 2017.
[414] Finally, with respect to the history recorded by Mr O'Sullivan, the supposed inconsistency emerged in cross-examination, where Mr O'Sullivan accepted that he had recorded in his interview notes that Mr Sawyer had told him that after the first incident he returned to work on 24 August 'feeling pretty good'. Mr O'Sullivan agreed that he had not included this in his reports. When asked why, he said:
[421] The fact that Mr Sawyer may have seen doctors during that period for his anti-depressant medication and in respect of diabetes or other matters does not mean that it would be implausible that he would not have taken the opportunity to also consult a doctor about his ongoing back pain as the defendants contend. In my view such behaviour is entirely consistent with his personality, as described by his wife in her evidence, and of him continuing to manage his back condition himself, in circumstances where I accept his pain and symptoms settled to baseline levels after the initial incident and after flare-ups.
[422] I do not consider it is inconsistent with Mr Sawyer's case and his evidence that he was able to continue performing his regular duties during the working week, whilst at the same time he did not perform his usual household duties on the weekends. As I understand the evidence, Mr Sawyer would recuperate on the weekends by way of resting and not engaging in physical activities at the home as a way of managing his ongoing back pain symptoms. The pejorative description employed by the defendants that Mr Sawyer was a 'weekend invalid' is neither accurate nor appropriate. I am satisfied that Mr Sawyer's ongoing pain from his back condition was such that he, and his wife, considered it necessary for him to rest and recuperate on weekends, so that he would be fit enough to continue working during the weekdays. I reject the defendants' submission that this state of affairs 'defies belief'. To my mind it is entirely plausible. I accept Mrs Sawyer's evidence that Mr Sawyer's performance of household duties lessened after the first incident.
[423] However, that is not to say that he was physically incapable of performing any household duties at all. Rather, he chose to do less as a way of managing his back condition. This has implications for Mr Sawyer's past gratuitous care claim which I will address further when considering the quantum of his damages claim.
[424] That now brings me to the question of the degree of pain that Mr Sawyer continued to experience. Whilst I accept that he had ongoing back pain, it was obviously not a constant debilitating level of pain. I am satisfied that the severity of his pain fluctuated and was likely at a mild or moderate level for the most part. Regardless of how it might be described, the pain Mr Sawyer experienced was not so severe that it prevented him from continuing to perform his usual, physically demanding duties as a concreter. Nevertheless, I find that it was constant, rather than episodic. When he first hurt his back during the first incident, he experienced initial sharp pain, followed by aching pain. He was able to continue working but later that day, after driving home, his pain became more severe. It then remained at that level until the next day, before reducing in severity back to a mild to moderate level over a period of about the next 24 to 48 hours, to the point where he could tolerate returning to work on 25 August 2016. That is the 'baseline level' of pain that I accept Mr Sawyer continued to experience. His pain and discomfort were present but in the background and he could cope. Thereafter, before the second incident on 3 July 2017, his pain and symptoms became significantly worse again on the two occasions when he described having flare-ups, in about November 2016 and March 2017. I am satisfied that on each of those occasions he experienced short-term episodes of increased pain before it again returned to the baseline level. It remained that way until the occurrence of the second incident on 3 July 2017, at which time Mr Sawyer experienced sharp lower back pain which became more severe after he left the job site and started to drive to the next location. His pain was still at a severe level the following morning, causing him to see Dr Shahsanaei at the Strathpine Superclinic. Thereafter, the imaging studies identified his prolapsed disc and nerve impingement, and he has since undergone various treatment strategies for his ongoing pain.
[425] To summarise and recap, I am satisfied that the following facts have been established on the balance of probabilities:
(k) Mr Sawyer suffered flare-ups of his back injury in about November 2016 and March 2017. On each of those occasions he experienced an increase in pain in his lower back, but after a short while it again settled down, back to his baseline level;
(l) During these times Mr Sawyer carried out lighter duties with the approval of his immediate worksite supervisor. At all other times, Mr Sawyer continued to perform his regular duties. He did so, notwithstanding that he continued to experience some pain;
(m) On 3 July 2017, Mr Sawyer further injured his back at work in the way he described in his evidence. It was at that time that he sustained his prolapsed disc.
[431] I acknowledge that Dr Coyne did give evidence about the degenerative change that he was able to see in the MRI scans he reviewed, however this evidence requires closer scrutiny. Each of the medical experts accepted that the 29 August 2017 MRI showed degenerative change in Mr Sawyer's disc. I accept that as a fact. However, only Dr Coyne proffered an opinion about how long that condition may have been present, suggesting that it was longstanding and likely to have been present at the time of the first incident. I cannot accept that opinion. In my view, it amounts to no more than a bare ipse dixit.[23] None of the experts who were called sought to demonstrate their opinions by explaining the relevant anatomy and physiology of the lumbosacral spine and the L5/S1 disc in any real detail. None of the CT or MRI scans were in evidence before me. The evidence I received about the scans was contained in the radiologist reports and the evidence of the medical experts who reviewed those reports and the source scans.
[432] With one exception, no evidence was given by any of the medical experts to explain what features, markers or indicators might indicate that any degenerative change seen in the August 2017 MRI had been present at a much earlier stage, predating the first incident. That exception was referred to in the most recent file note of a conference between the legal representatives of the second and third defendant and Dr Coyne, held on 6 February 2024, which recorded that Dr Coyne had advised that the scan showed the protrusion was 'broad-based' rather than 'focal', which he said was consistent with a degenerative condition.
[433] In my opinion, the identification of that feature does not of itself provide a sufficient basis for me to accept Dr Coyne's opinion. In any event, I note Dr Coyne's description of a 'broad-based' protrusion is contradicted by the report of the radiologist who performed the MRI, which clearly states that the scan showed 'a central focal disc herniation' was present at the L5/S1 level. Given that Mr Sawyer was only 26 years old at the time of the first incident and, I accept, had no history of lower back pain before the first incident, I consider it most unlikely that he had a pre-existing degenerative condition and that this was the cause of his pain and symptoms on 22 August 2016, or that this and 'constitutional factors' were the likely cause of the disc prolapse he sustained on 3 July 2017.
[434] I also do not accept Dr Coyne's evidence dismissing Dr Hewitt's opinion with respect to a likely radial tear of the annulus fibrosus. Again, Dr Coyne's opinion in this respect was based on the fact that he said he could not see any such tear in the August 2017 MRI scan. As I comprehend the evidence though, there would be no such tear visible at that stage as the disc had ruptured, leading to the extrusion of the nucleus pulposus matter when the disc lost structural integrity. In other words, the tear that had been there would most likely have been obliterated and no longer evident on the MRI.
[435] The final matter with respect to Dr Coyne's evidence that requires comment is his opinion that if the disc herniation as shown on the August 2017 MRI scan had been caused acutely by the 22 August 2016 incident, then Mr Sawyer would most likely have suffered a good deal of pain and would not have been able to work for several months thereafter, particularly performing heavy manual work. In my view, Dr Coyne's opinion fails to engage with the expert evidence adduced by Mr Sawyer. Neither Dr Hewitt nor Dr Campbell suggested that the extent of the injury sustained by Mr Sawyer on 22 August 2016 was as it appeared in the MRI scan taken more than one year later. Rather, each of them expressed the view that it was likely that the initial disc injury was exacerbated or aggravated, to the point where the extent of the injury was as shown in the August 2017 MRI scan. I am satisfied, and find as a fact, that was the case.
[436] I find, on the balance of probabilities, that the initial disc injury Mr Sawyer sustained on 22 August 2016 was a significant injury and that it was the substantial cause of his subsequent disc prolapse on 3 July 2017. I further find that the subsequent development of his prolapsed L5/S1 disc condition, his continuing lower back and nerve pain and associated symptoms and complications, and his current back complaints have all been caused by the injury he sustained on 22 August 2016.
[437] Given the findings I have made with respect to the nature of the injury sustained by Mr Sawyer during the first incident and medical causation, it is not necessary to consider Mr Sawyer's alternative over-period-of-time injury claim against the second and third defendants.
[438] It follows that I am satisfied that the third defendant is not liable and it only remains now to consider the second aspect of the causation issue in respect of the case against the second defendant.
[466] In his subsequent report, dated 18 July 2022, Professor Whiteford noted that there had been a further aggravation of Mr Sawyer's psychiatric condition as a result of the aggravation of his back pain in June 2021. As a result, Professor Whiteford revised his opinion to a 7% PIRS rating, with 2% attributed to his pre-existing depression, 2% arising from aggravation of his depression caused by the August 2016 back injury and an additional 3% caused by the further aggravation of his depression caused by the aggravation of his back pain in June 2021.
[467] I am satisfied it is appropriate to uplift the ISV of 15 for the dominant injury by 25%, resulting in an assessed ISV of 19.
[468] Accordingly, by reference to the sch 12 table, I arrive at an assessment of $34,030 for general damages.
[469] No interest is allowable on an award for general damages.[36]
[478] Mr Sawyer submits that his past economic loss should be calculated using the net weekly amount of $1008 for this last full year of employment with Cretek. The second defendant submit that an appropriate figure is $900, after adjusting the five-year average net weekly income figure of $777 to allow for inflation.
[479] Mr Sawyer therefore calculates his past economic loss as follows:
[545] I do not intend to descend into a detailed analysis of the evidence and further submissions that were made in respect of this claim. I do not accept Mrs Sawyer's schedule is reliable. I agree with the first defendant's submission that it provides exaggerated estimates of the hours of care Mr Sawyer needed and the hours of care provided to him. I also do not accept the evidence of Mr and Mrs Sawyer on this issue. In my view it overstated the true position.
[546] I do not accept that Mr Sawyer performed anything like 17 hours of pre-injury domestic activities as of 21 August 2016. I also do not accept that there was a drastic reduction in the hours of domestic activities he performed after the first incident. I am satisfied that he had previously done most of the outdoor chores but do not accept that he contributed to other domestic chores equally with Mrs Sawyer. In my view, between the dates of the first incident and the second incident, there was likely little change in Mr Sawyer's overall contribution to household chores and he likely needed little assistance with personal care to deal with the symptoms of his back injury. I have already accepted that he would recuperate at home on the weekends, but I do not find that there was any significant change in the level of his domestic activities.
[547] I do accept that after the second incident, Mr Sawyer experienced real difficulties in his ability to perform his usual household duties and required additional care.
[548] In my opinion, the appropriate amount to award for this head of damage would be calculated as 2 hours per week from 4 July 2017. As at the date of judgment that equates to $55 x 2hr x 52 weeks x 7.019 years = $40,148.68. I would, allow interest at 5% on this amount, yielding $14,090.18.