Workers Compensation

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QCA awards 42 year old care worker $480k for ankle, hip and back injuries

QCA awards 42 year old care worker $480k for ankle, hip and back injuries

Case note: RSL Care Limited v Wallace [2019] QCA 23

A 42 year old residential care worker has successfully sued her employer, RSL Care Limited (the Appellant) for an injuries to her ankle, hip and back arising out of a slip in her workplace.

This was an appeal from a decision of the District Court of Queensland. The appeal was heard on 10 April 2018. Judgment was delivered on 19 February 2019.

The decision at first instance

Ms Jillian Wallace (the Respondent) was employed by the Appellant, as a residential care worker. Her duties included showering residents. The Respondent suffered personal injuries when she slipped and fell on 27 March 2008, while showering a patient who was confined to a wheeled shower chair, while showering.

The Respondent was crouched whilst showering the patient’s legs and as she went to get up, her left foot slipped and she ‘went over’ as her ankle twisted outwards. 

The Respondent said that the floors were slippery when they were wet and even more so when they were contaminated with soap or shampoo.  While the Respondent made no complaint to anyone in a position of authority about the slipperiness of the floor prior to the incident, other staff gave evidence to the effect that the floor was slippery when wet. 

Both parties led expert engineering evidence about the slipperiness of the floor.

The Court preferred the Respondent’s expert evidence from Mr Brendan McDougall of Intersafe, to that of Paul Stephenson of Kinetic Engineers, for the Appellant.  Friction tests undertaken by Mr McDougall were confined to wetting the floor surface with water.  Testing of the area in which the Plaintiff was working revealed the floor surface to be well below the suggested minimum requirements for the relevant Australian Standard. 

The primary judge found that regardless of the cause, the surface where the Respondent was required to work was inadequate and, as a result she slipped, suffering injuries.  The Respondent identified that the Appellant ought to have had in place a system of appropriately installing or maintaining the floors of the ensuites.  The Appellant did not do so and accordingly, the primary judge found the Appellant negligent.

Issue on appeal

On appeal, the Appellant argued that the primary judge, ‘erred in finding a breach of duty upon an unsound factual foundation concerning the slip standard of the floor ensuite’. The Court of Appeal summarised the Appellant’s argument as follows:

  1. The primary judge relied upon expert opinion as to the slip resistance of the floor; 
  2. The expert opinion was based upon testing performed five (5) years after the Respondent’s accident; and
  3. The conclusion that the Appellant had been negligent amounted to speculation and conjecture.

By cross-appeal, the Respondent challenged the primary judge’s award for future economic loss on the basis that it was against the evidence and was manifestly inadequate.

Findings of the Court of Appeal on liability

The Appellant’s appeal was unanimously dismissed by the Court of Appeal, with the judgment written by Justice Bond. The Court determined that the combination of:

  1. Mr McDougall’s testing results measuring the inadequacy of slip resistance; 
  2. Mr McDougall’s evidence concerning likely explanations for the measured inadequate slip resistance; 
  3. Mr McDougall’s evidence as to the importance of regular testing and the ease of remedying identified concern with slip resistance; 
  4. the evidence as to the Appellant’s failure to comply with manufacturer’s guidelines both before and after the incident; and
  5. the lay evidence which described a subjective view of the floors at the time of the accident which was consistent with the Respondent’s case and inconsistent with the Appellant’s case,

was such that it was open for the primary judge to find in favour of the Respondent. The Court also concluded that the failure by the Appellant to adduce any other evidence addressing how the flooring was dealt with (before or after the accident) allowed the primary judge to more readily draw that inference.

Findings of the Court of Appeal on quantum

The cross-appeal was also dismissed by the Court. The Court of Appeal noted that while there was a body of evidence supporting a finding of a higher award on future economic loss, such a finding was dependent upon the primary judge accepting the Respondent’s evidence about the impact of her ankle injury. The primary judge found that the Respondent’s evidence concerning her on-going difficulties resulting from her injury could not be accepted as there were misgivings about her evidence. The Respondent’s claim for future economic loss based on notional earning capacity of $1,000 per week net and a residual earning capacity of $660 was not accepted by the Court. Using the 5 per cent tables, the Court allowed the Respondent an ongoing weekly loss of $100. The Court of Appeal was unwilling to disturb that finding. The Respondent was awarded $78,300 for future economic loss.

At trial, the Respondent submitted that she should be entitled to an award of $1,177,570.94. The Appellant submitted that an award in the range of $290,589.64 to $637,887.54 was appropriate.  The award by the primary judge of $480,784 under the various heads of damage was broken down as follows:

General damages $65,000

Interest $9,300

Past economic loss $201,570

Interest $25,944

Past superannuation $18,140

Future economic loss $78,300

Future superannuation $8,613

Specials $32,460

Interest thereon $5,676

Future pharmaceuticals $3,868

Future GP expenses $22,241

Past paid care $1,680

Future care $7,992.

Costs

Further to a hearing on costs on 21 June 2017, the Respondent was awarded costs of the action on a standard basis. Her application for certification for two counsel was dismissed. Proceedings were commenced in the Court in April 2013. The Appellant was awarded costs thrown away by reason of an adjournment of the trial on 7 November 2016. Both the Appellant and the Respondents appeals were dismissed with costs.

Considerations

This case should be of concern to defendants. It demonstrates that the passage of time will not necessarily be an obstacle to a plaintiff, where:

  1. the plaintiff has lay and expert evidence in support of their case; and
  2. the defendant cannot offer a satisfactory explanation as to how a risk was dealt with,

irrespective of the possibility that the hazard may have changed between the date of the incident and the time of testing by an expert. 

In this case, the Court of Appeal was unwilling to interrupt the trial judge’s findings on liability and accepted that it was open to the judge to prefer the opinion of an expert as to slipperiness of the surface, over the subjective recollections of lay witnesses. 

Kate DenningQCA awards 42 year old care worker $480k for ankle, hip and back injuries
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Supreme Court awards 55 year old haul truck driver $719k for back injury

Supreme Court awards 55 year old haul truck driver $719k for back injury

Case note: Krobath v Thiess Pty Ltd [2018] QSC 309

A 55 year old dump truck operator has successfully sued his employer, Thiess Pty Ltd (the Defendant) for an injury to his lumbar spine arising out of the drop of a load of rocks into the tray of the rear dump truck he was operating. He was awarded $719,698.15 on 20 December 2018, plus costs.

The defence of this claim was conducted by the Defendant’s insurer, WorkCover Queensland.

Background

The Plaintiff sought damages for an incident where an excavator dropped a load of rocks, including a rock which was approximately 2-3m wide, into the tray of the rear dump truck he was operating. The impact of the jolt, tossed him about ‘violently’ in the cabin.

The Plaintiff first reported his injury to the employer on 29 February 2012. While the injury was not immediately reported to the Defendant, the Plaintiff’s overburden tally sheet for 1 November 2011 contained an unusual note at 5:50pm made by the Plaintiff which was:

  • Big rock drop into tray

The Plaintiff’s explanation for why he did not report the injury were that he:

  • did not feel any symptoms of an injury until the following morning; and
  • felt that his job would be in jeopardy if he complained.

The first time that the Plaintiff consulted a doctor after the incident was on 23 November 2011.

His GP’s notes recorded a ‘jarring’ ‘incident’ to the Plaintiff’s back but also recorded, ‘no injury’. An added problem for the Plaintiff was that his GP’s notes contained the words, ‘5/12 LS back pain’ – which the doctor interpreted to mean, five (5) months of back pain. The GP with whom the Plaintiff attended on 23 November 2011, had not seen him previously.

Issue for determination

The Defendant filed an Amended Defence at the commencement of the trial, admitting that if the Plaintiff was injured in the way alleged, the incident and any injuries sustained by the Plaintiff were caused or contributed to by the negligence and/or breach of contract of the Defendant.

Accordingly, His Honour Justice Crow reasoned that the only issue for determination was whether the Plaintiff injured his back in the way he claimed.

However, further questions arose about the extent to which the injury was contributed to buy the Defendant’s conduct, because of arguments advanced by the Defendant.

WorkCover Queensland’s case

The Defendant denied the allegations by the Plaintiff that between approximately 4:40pm and 6:30pm on 1 November 2011, the Plaintiff was operating a dump truck and that the excavator in question was loading trucks.

The evidence at trial revealed that this was technically correct. The dump truck and the excavator were not operating for the whole of that two (2) hour period.

However, the Defendant’s own records identified that both the excavator and the dump truck would have been operating at 5:50pm, being the time of the ‘big rock’ incident shown in the Plaintiff’s overburden tally sheet.

The Defendant also led evidence that:

  • the Plaintiff had a pre-existing back condition;
  • the incident did not cause the injury; and
  • the Defendant had safe procedures in place with respect to loading of large rocks.

Findings of the Court

The Court was satisfied that the injury was sustained as a result of the incident on 1 November 2011. In a judgment delivered on 20 December 2018 in Rockhampton, found in favour of the Plaintiff. The hearing was 10-12 December 2018.

The Court accepted that while there was no contemporaneous report of an injury by the Plaintiff to his employer, the Plaintiff’s reasons for not complaining were adequately explained.

It is unclear whether the pleadings involved a dispute about section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). Section 305B requires a Plaintiff to prove that a risk of this type was forseeable, not insignificant and, that a reasonable person in the position of the Defendant would have taken particular precautions to address that risk.

With respect to the Defendant’s procedures, while the judgment does not specifically deal with section 305B of the WCRA, it:

  • lists several similar incidents at the workplace in the months prior to 23 November 2011, involving other workers; and
  • observes that efficient management for mine equipment, ‘reasonably requires the deployment of skilled operators between different plant’.

The Court determined that the entry in the doctor’s notes referring to a back injury over five (5) months was a mistake. There was no corroborating evidence to support a finding that the Plaintiff had been suffering ongoing back problems before the incident. In fact, to the contrary:

  • he had passed a mine medical examination;
  • he had worked numerous 12.5 hour shifts without complaint or any limitation visible to other workers;
  • his last attendance with that medical practice was in July 2010 (16 months prior); and
  • no other medical practitioner took that history in the course of the claim.

As to whether the incident caused the Plaintiff’s injury, the Court found that the evidence from the Defendant’s expert Dr Atkinson, Neurosurgeon, supported a view that workers suffer neck and back injuries in incidents just like this. This was notwithstanding Dr Atkinson’s evidence that symptoms of injury and an incident like this, generally occur simultaneously.

Considerations

This case and our previous article, ‘Injuries from vibration or a sudden jolt’will be of interest to those in the mining and construction industries.

Judgments in cases like these reveal that some of the key considerations for the Courts are:

  • previous complaints about equipment;
  • the condition of any equipment;
  • reporting of the incident;
  • pre-existing degeneration; and
  • expert evidence on liability.

A chronology which sets out all of the events, evidence and witnesses can assist parties to understand the strengths and weaknesses of their case, at an early stage.

A defence advanced about a pre-existing medical condition should be well supported. In this case, the single entry in the Plaintiff’s GP’s notes (in the absence of other evidence about that pre-existing condition) was insufficient.

Kate DenningSupreme Court awards 55 year old haul truck driver $719k for back injury
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