Hart v Consolidated Meat Group Pty Ltd

[2005] QSC 89

SUPREME COURT OF QUEENSLAND

CITATION:

Hart v Consolidated Meat Group Pty Ltd [2005] QSC 089

PARTIES:

NATALIE JOY HART

(Plaintiff)

v  

CONSOLIDATED MEAT GROUP PTY LTD

(Defendant)

FILE NO:

S327/2004

DIVISION:

Trial Division

DELIVERED ON:

26^th of April 2005

DELIVERED AT:

Rockhampton

HEARING DATES:

1-2 February 2005

JUDGE:

Dutney J

ORDERS:

Judgement for the plaintiff against the defendant in the sum of $307,883.30.

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURY – quantum only – economic loss – where plaintiff now earns more then pre accident

WorkCover Queensland Act 1996 (QLD), s315

COUNSEL:

Mr G. F. Crow for the Plaintiff

Mr W. D. P. Campbell for the Defendant

SOLICITORS:

McKays Solicitors for the Plaintiff

Bruce Thompson Lawyers for the Defendant

1. Natalie Joy Hart was injured on 28 September 2001 while working as a meatpacker at Consolidated Meat Group’s (CMG) Lakes Creek meatworks in Rockhampton.  Boxes of meat being lifted by a forklift fell onto her head rendering her unconscious.  Ms Hart was 25 years old when she was injured.  She was born on 23 August 1976.

2. Liability was not in issue.

3. The medical imaging undertaken subsequently did not disclose any bony injury although Dr White opined that the forms of inquiry undertaken would not necessarily reveal an intradiscal disruption.  On balance I accept that Ms Hart suffered a musculo-ligamentous neck injury commonly called a “whiplash”.

4. Ms Hart was treated conservatively, taking analgesics and anti inflammatory medication (Nurofen) to relieve pain.

5. Ms Hart attended Dr Thomas, an orthopaedic surgeon engaged by CMG Self Insurance, during her initial rehabilitation.  Three reports were tendered.  In the first report dated 24 October 2001, Dr Thomas reported that Ms Hart was in obvious distress and unable to return to work.  Three weeks later on 13 December 2001, he reported that she was progressing satisfactorily but that she should be reviewed if there was no further progress within two months.  In his final report of 6 February 2002, he recorded that Ms Hart had returned to work and was no longer suffering headaches but still had neck and shoulder soreness.  She needed assistance with household chores.  She was sleeping but occasionally had trouble lying on her right hand side.  Dr Thomas regarded her disability at that time as minimal and recommended that she return to work. 

6. While no objectively detectable abnormality can be found, Ms Hart still complains of consistent neck pain and headache.  Having regard to what I later say about Ms Hart’s history since the incident and my impressions of her, I accept that the complaints are genuine.  It is well recognised that even soft tissue injury can result in chronic symptoms in some patients.[1]  The inconsistency between the symptoms Ms Hart now complains of and Dr Thomas’ last report is explicable by reason of the fact that Ms Hart was performing only light duties at the time of the report.  The history which follows shows that whenever Ms Hart commences reasonably heavy work she suffers increased symptoms.  Conversely, when that activity ceases the symptoms subside.

   [1] See transcript page 28, line 40 to 50 (Dr White).

7. Following the incident, Ms Hart was off work for some time following which she returned to the meatworks on light duties.  By the time Ms Hart returned to the meatworks, the meatworks had been shut down by industrial trouble.  Ultimately, the meatworks were closed for many months.  The duties to which Ms Hart returned were of a light maintenance nature. 

8. Had she not been injured, Ms Hart told the Court that she would have moved to Mackay when the Lakes Creek meatworks closed and obtained work at Borthwick’s Bakers Creek meatworks.  Ms Hart was an experienced meatworker.  I accept that she would have been able to obtain work at Baker’s Creek.  This view is reinforced by the apparent ease with which she obtained work at other meatworks despite her injury.

9. Ms Hart resigned from light duties at CMG on 18 February 2002.  She was going through a troubled period in her personal life and returned to her home town of Mackay.

10. In April and May 2002, Ms Hart worked for Network Truck and Car Rentals.  This was casual work provided by a family friend.  The work included some secretarial duties and car cleaning.

11. In May 2002, Ms Hart commenced work at the Casino meatworks in New South Wales.  She commenced doing clerical work and after a period went into the packing room.  Ms Hart’s move to the more physical tasks in the meatworks was driven by her desire for better pay.

12. Ms Hart found the work in the packing room exacerbated the pain in her neck and her headaches.  She relieved the symptoms with chiropractic treatments and massage.  She also had some sessions of physiotherapy.  Ultimately, Ms Hart left the Casino meatworks in December 2002.  One reason for her leaving was that she found the aggravation of her condition intolerable.

13. After leaving Casino, Ms Hart returned to Mackay via the Sunshine Coast.  Despite some effort to find work on the Sunshine Coast, she was unsuccessful.  On her return to Mackay, Ms Hart was employed as a car detailer at Hertz car rentals.  Again, Ms Hart found the work difficult.  She was required to detail up to 30 cars a day.  She found that the awkward positions she was required to adopt in that role aggravated her headaches to the point where she could not continue.

14. Ms Hart’s mother lived in Moranbah.  Ms Hart left Hertz and went to Moranbah to stay with her mother.  While there, she assisted her mother with work as a general cleaner with Abi Group Contractors Pty Ltd.  Initially this was for a few hours about once a week.  The work involved sweeping, mopping and wiping tables.  While the mop bucket caused her some pain, the hours were sufficiently short that the pain was tolerable.

15. While working as a part time cleaner, Ms Hart approached numerous employers seeking permanent employment.  She ultimately succeeded in obtaining a position as a truck driver at the mines.

16. Truck driving at the mines causes Ms Hart severe discomfort with neck pain and headaches.  The work involves driving the tray of the truck under the digger.  The load is then dumped into the truck.  Often lumps of clay stick to the bucket of the digger and must be shaken loose from a height.  Sometimes large rocks are mixed with the load and dumped into the truck.  On these occasions the impact causes severe jarring of Ms Hart’s neck.  On occasions the roads become badly potholed and rough.  This also causes jarring.

17. Shifts at the mines last for 12 hours.  Ms Hart’s neck hurts and she suffers headaches.  She attempts to relieve the discomfort by getting out of the cab whenever she can and stretching.  After work her boyfriend massages her neck.  She also uses ice packs.  Apart from her boyfriend, Ms Hart also receives neck massage from her step-father, her sisters and from time to time from professional therapists.

18. Three orthopaedic specialists have reviewed Ms Hart since she was last seen by Dr Thomas.

19. In June 2003, Dr Shaw expressed the following opinion:

    “It is reasonable to expect Ms Hart suffered a soft tissue injury to the neck in the incident on 20/09/01.  This diagnosis does not account for the protracted symptoms but normal physical examination and a normal CT scan cervical spine discount a discogenic injury or fracture.  It would be reasonable to expect Ms Hart’s soft tissue injury cervical spine to have settled six months after the injury.  It is possible she does experience recurrent musculo-ligamentous pain with heavier work and perhaps this should be minimised.”

20. Dr Shaw concludes that the present symptoms are not injury related although I find difficulty in reconciling this with the paragraph of his report I have set out immediately above.  Ms Hart only seems to experience symptoms when participating in heavier types of work.  When she is not involved in work such as meat packing, car detailing or driving in the mines, all of which put strain on her neck, her symptoms appear to settle.

21. Dr Boys reported in August 2004 that the symptoms complained of were consistent with muscle strain.  He did not regard her as suffering a quantifiable impairment of bodily function.  He thought her symptoms would improve with strengthening exercises.  He did not consider she was incapacitated.

22. Dr White reported in October 2003.  While in substance his opinion does not differ from Dr Shaw or Dr White, he assessed Ms Hart as suffering a 5% impairment and recommended she cease heavy work.  He considered her present occupation of truck driving was unsuitable.

23. The evidence of the lay witnesses called in the plaintiff’s case confirm that on occasions Ms Hart’s pain is severe.  On at least one occasion it was severe enough to induce vomiting.

24. Having reviewed the evidence, I am satisfied that Ms Hart suffered a whiplash style injury.  The symptoms of headaches and neck pain are consistent with that finding.  I am satisfied that the symptoms have largely settled and remain so while Ms Hart undertakes light duties.  I accept that whenever Ms Hart has undertaken heavier, or in the case of truck driving, rougher work her symptoms have increased.  Ms Hart’s evidence in this respect is supported by the evidence of Mr Brodie, Mr McCormack and Mr Holmes.  The end result is that I accept Dr White’s opinion that she has been left with a residual weakness which affects her capacity to work in certain types of occupation.

25. The heavy nature of Ms Hart’s current work as a truck driver was supported by her partner Mr Brodie.  Mr Brodie is nineteen.  He also drives a truck.  Despite having an apparently normal neck, he suffers some neck pain from the work, mainly towards the end of a series of twelve hour shifts.  Despite his youth, his evidence was that he was trying to get work on other machines apart from dump trucks because he wishes to avoid the rough nature of the truck driving work and the dangers of accident associated with it.

26. Ms Hart impressed me as a determined young woman.  She is working in an occupation for which her disability makes her unsuitable.  She does so because of the high financial rewards.  At present she earns about $1,268.00 per week net after tax.

27. Ms Hart’s credibility was attacked on the basis that she had inconsistently claimed to be fully fit when she commenced work in the mines.  She concealed her problems from her employers.  She also concealed it from the Dr Fenner who examined her for her statutory medical examination.  Had she disclosed her disability it is unlikely she would have passed the industry medical examination.  Failure to pass the examination excludes her from the mining industry.  The evidence also disclosed that Ms Hart had failed to declare some part time income in her tax returns.  None of these matters causes me to doubt her evidence on the matters relevant to this case.

28. Ms Hart has had some limited time off work because of her complaints of neck pain and headaches.  In general, however, she has persevered. Her evidence is that she believes she can continue to do so for about two years following which she will need to seek lighter and less remunerative work.  Ms Hart’s history suggests a further two years in her present occupation is realistic.  If Ms Hart did not have the residual weakness, I accept that she would have continued in her present occupation for a reasonable length of time – probably of the order of ten years.  While the evidence suggests that truck drivers come and go and many stay in the mining industry for a relatively short period, other drivers stay for many years.  There are reasons peculiar to Ms Hart that suggest that but for her disability she would be likely to stay for a longer rather than a shorter period.  Ms Hart’s step-father to whom she appeared close lives in Moranbah and works as a lab technician at Goonyella Mine.  Ms Hart’s mother was also living in Moranbah when Ms Hart moved there.  Ms Hart grew up in the Mackay region.  She is therefore a person for whom the Bowen Basin region is familiar.  She is thus not as likely as many others to want to return to major population centres in the South East of the State.  She appears to be strongly motivated by money in the sense that she is prepared to put up with a great deal of discomfort to earn the much higher wages than she could earn anywhere else.  Ms Hart has no present intention to have children.  Ten years is thus a reasonable base figure to adopt in determining the period she would be likely to persist in this type of occupation if she was fully fit.  At the end of that period I find that she would have sought lighter work at a lower level of remuneration in any event.  Her capacity for other types of work is limited, but only in a very minor way.  While some aspects of the meat industry may be too heavy, she has demonstrated a capacity to work in other fields.  I find that after about ten years, with her high work ethic and determination, she should have little difficulty finding work.  Her residual disability after that time is properly reflected in a modest global award to recognise some limitation on opportunity.

29. While Ms Hart suffers significant pain and discomfort as a result of her injury this is largely because she persists in working in an occupation which the medical advice cautions against.  On the other hand, by working in this field the defendant benefits because she suffers no economic loss.  I thus do not propose to discount the award for pain and suffering on this basis.  I consider a figure of $30,000.00 reasonable under this head.

30. The figures submitted by each side for past economic loss are not materially different.  The plaintiff seeks $16,846.00 representing the whole period prior to commencing in the mining industry less a discount of 15%.  The defendant submits a figure of $13,441.14 up to Ms Hart’s examination by Dr Fenner for entry into the mining industry in June 2003.  The defendant’s starting point is an arbitrary $100 per week based on known factors such as the closure of Lakes Creek and Ms Hart’s preparedness to work with the disabilities she has.  I accept that the plaintiff’s figures probably underestimate to some extent the impact of the closure of the Lake’s Creek meatworks.  There would inevitably have been some disruption to Ms Hart’s work pattern even had she gone to Bakers Creek.  She also had some domestic disruption which may have impacted on her earnings.  The evidence I have accepted is that Ms Hart is prepared to work despite her disability.  Apart from leaving Casino meatworks prematurely because of her injury, it is difficult to see why the defendant’s submission should be rejected.  Whether this is looked at as a slightly higher discount to allow for the factors underestimated by the plaintiff or an arbitrary fixed loss seems not to make a great deal of difference.

31. Medical expenses differ between the parties on the basis that Ms Hart had undergone some chiropractic treatments and physiotherapy before she was injured.  The defendant has thus apportioned the post accident expenses.  On the evidence there is no sound basis for that apportionment if I accept, as I do, the plaintiff’s evidence as to the treatment she has undergone and the reasons for it.  Again the difference is minimal amounting in total to less than $1,000.

32. The plaintiff has claimed future physiotherapy at a rate of one treatment per month at the current cost of $43.00 for 30 years.  On my findings it is reasonable to allow that claim for the two years the plaintiff intends to continue in her present occupation and perhaps a further year while she recovers from the aggravation that occupation has caused.  I adopt the same approach in relation to the pharmaceutical expenses which relate to Nurofen and which are claimed at the rate of $4.14 per week.

33. There is a claim for past and future care. Since Ms Hart has not paid for the care claimed in the past I do not propose to allow it. For the future the claim is on the basis that Ms Hart will need someone to provide massage and mow the lawn. Ms Hart lives in a flat. She has no lawn. I do not know when or if she will live in a house with a yard. In any event, when she ceases the driving work I am not satisfied she will be incapable of doing her own mowing. I have allowed for massage in the claim for future physio/chiropractic care. I do not propose to allow anything under this head. Section 315 of the WorkCover Queensland Act 1996 seems to preclude the claim in the circumstances of this case.

34. In the result I assess damages as follows:

    
    
    

    Pain and Suffering......................................................................... 30,000.00

    Interest on $20,000 @ 2% for 3.5 years.......................................... 1,400.00

    Past Economic Loss...................................................................... 13,441.14

    Interest on past loss[2] @ 5% for 3.25 years....................................... 1,072.50

    [2] Past loss less $6,841.14 paid by CMG WorkCover.

    Loss of superannuation benefits (past) agreed @ 8%........................ 1,075.29 

    Future economic loss[3].................................................................. 241,669.20

    [3] $1,268 - $400 = $868 for 10 years (413) delayed by 2 years (99) @ 5%  and discounted by 15% plus global award for subsequent period of $10,000.

    Loss of superannuation benefits (future) agreed @ 9%................... 21,750.21

    Fox v Wood................................................................................... 1,459.05

    Special damages paid by CMG WorkCover................................... 4,827.63

    Special damages paid by plaintiff...................................................... 1,935.70

    Interest on special damages @ 5% for 3.5 years[4]............................... 327.64

    Future physio/chiropractic expenses (146)....................................... 1,448.32

    Future pharmaceutical expenses  .................................................        604.44

    Subtotal..................................................................................... 321,011.12

    Less Refund to CMG WorkCover............................................... (13,127.82)

    TOTAL...................................................................................... 307,883.30

[4] For reasons I cannot identify the plaintiff has excluded from her calculation of interest an amount of $52.75.  I have deducted the same amount for consistency.

1. In the result I give judgement for the plaintiff against the defendant in the sum of Three Hundred and Seven Thousand, Eight Hundred and Eighty Three dollars and Thirty cents ($307,883.30).  I will hear argument about costs.