The Rocky Road to Damages
Mar 2013 |Carter Newell recently acted on behalf of the Second Defendant in the matter Richard Craig Adam v Skilled Group Limited and National Foods Limited1 which went to trial in Rockhampton on 31 January 2013.
The 48 year old male plaintiff was allegedly injured on 5 March 2010 at National Foods' Gracemere factory. The plaintiff was employed by Skilled Group ("the First Defendant") and his labour had been hired to the second defendant, National Foods Limited. He was employed as a labourer in a warehouse, picking and packing milk products.
The plaintiff alleges he was required to work in a confined space moving up to six crates of milk (each weighing approximately 20 kilograms), which required him to twist and turn his body in a cramped area causing an injury to his lower back. He also alleges he was required to use a metal hook which made these movements even more difficult.
Liability
Evidence was led by the plaintiff of an opinion held by Mr Brendan McDougall, an engineer who specialises in industrial safety, that, given the minimum pull force required, "the restricted access to stacks of crates in the centre of the block stack would ….. make a system of work using hooks to move stacks ergonomically unsound". The defendants did not contest this evidence.
The defence called the plaintiff's former supervisor who gave evidence that the hooks were not part of the system of work at the time of the incident. He advised that vendors were known to use the hooks in another part of the plant but those workers were not under National Foods' direction or supervision. National Foods, it was argued, did not provide the hook the plaintiff alleges he used at the time of the incident.
Evidence was led by the defendants' witness that workers were provided with forklifts and trolleys which could be used to move pallets of crates or stacks of crates and that the cold room area was not a confined space as alleged, particularly given the time of day the plaintiff alleges the incident occurred.
The plaintiff called a former co-worker who gave evidence that workers did use metal hooks to move crates of milk around the cold room. He also advised that trolleys and forklifts were available to workers.
It was accepted by the plaintiff that two days before the alleged date of injury he had attended a toolbox meeting at which the importance of reporting all incidents was reinforced. He gave evidence that he did not report his injury due to it occurring late on a Friday evening (although he did work for several hours on both of the following two days and failed to report it) and did advise his employer, the First Defendant, on the Monday after he attended a hospital.
His Honour stated2 that he accepted the plaintiff's account of the incident and the manner in which it likely occurred only due to the supporting testimony of his former co-worker. The defendants were therefore held liable for the plaintiff's injuries as the use of a hook in a confined space to move heavy crates posed a foreseeable risk of injury and resulted in the plaintiff suffering a lower back injury.
Quantum
The defendants maintained an attack against the plaintiff's credibility. His Honour, Justice McMeekin, summarised the credibility issues in paragraph 31 of his judgment as follows:
"[31]
(a) The plaintiff's failure to refer to a back injury sustained in 2005 in New Zealand when he completed an "Employee Capabilities Analysis" form prior to taking up employment with the Skilled Group, or later when reporting his history to investigating specialists;
(b) His claim that he lied to a general practitioner and a specialist neurosurgeon and deceived them in their medical examinations of him by pretending that he was fully recovered when he was not in order to obtain a clearance to return to work after his injury;
(c) His refusal to accept two days a week work when offered to him by the defendants in May 2010 on the ground that he was entitled to six days work a week;
(d) His failure to advise Dr Alan Cook, an orthopaedic specialist who saw him for medico legal examination in February 2011, of his work at a meatworks in October - November 2010 for three to four weeks;
(e) His failure to reveal that post injury employment in several documents sent to the defendants or give credit in his calculations of lost income for the income there earned;
(f) His failure to reveal that employment to Sunsuper in his claim for a Total and Permanent Disability Payment;
(g) The fact that he engaged in that employment for nearly four weeks when allegedly severely disabled by back pain;
(h) The variability of his symptoms;
(i) His relatively few visits to medical practitioners with any complaint of symptoms or requests for medication until October 2011;
(j) His hostility towards Dr Labrom, a specialist engaged by the defendants to provide an independent opinion;
(k) His claim to have a degree of disability not supported by any medical evidence."
His Honour noted3 that "No one of them is of itself compelling but combined they cause me considerable concern".
The plaintiff received a clearance from a neurosurgeon in May 2010 to return to full-time duties. However on receiving that clearance, he was told National Foods could only offer him two days per week. He attended a solicitor that same day to seek legal advice.
The plaintiff accepted under cross-examination that had he been offered six days per week (as he had worked during the two weeks prior to the incident) he would have accepted those days. He provided conflicting evidence as to whether he believed he was physically capable of carrying out six days of work per week.
The plaintiff failed to disclose that he obtained work in September 2010 at a meat works factory. The work involved quartering animal carcasses. The plaintiff left that employment without any explanation to the employer after six weeks.
The plaintiff stated under cross-examination that he had lied to the neurosurgeon to get the clearance. He also accepted that he had failed to inform Dr Cook during an independent medical examination of his work at the meat factory. Dr Labrom's evidence was favoured by the court as it found his opinions were based on more objective findings than the subjective findings of Dr Cook to whom the plaintiff did not provide the whole truth.
Ultimately, the court concluded that the plaintiff's injury due to the subject incident had ceased at some point in May 2010.
Schedules were provided by both parties to the court with the plaintiff's claim being approximately $740,000.00.
Damages in the amount of $27,250.01 was awarded to the plaintiff less the WorkCover refund of $11,014.13. It is interesting to note that the court made no allowance for future economic loss.
As the plaintiff's damages did not exceed the offers to settle previously made by the defendants, His Honour ordered that the damages be set off against the costs order made in favour of the defendants. The plaintiff, therefore, walked away from the proceedings without receiving any money.
Conclusions
The plaintiff in this case presented in a very agitated manner during his evidence in chief and particularly during cross-examination. He fidgeted whilst in the witness box and, at times, his presentation was theatrical.
Credibility was key in this case and ultimately, in terms of quantum, the plaintiff failed to overcome the fact he had turned down two days of work where he believed he was entitled to six days and also his failure to disclose a pre-existing injury to the defendants and post-incident employment which was very physical in nature.
This was a very good result for the defendants and demonstrates that credibility issues and failure to disclose by claimants during the pre-litigated phase can have a substantial impact at trial.
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(1) [2013] QSC 7.
(2) At paragraph 13.
(3) At paragraph 33.
