Martin v Mackay City Council

[2001] QSC 433

SUPREME COURT OF QUEENSLAND

CITATION:                Martin v Mackay City Council [2001] QSC 433   

PARTIES:                    SHANE NORMAN MARTIN

(Plaintiff)

v  

MACKAY CITY COUNCIL

(Defendant)

FILE NO:  S201 of 2000

DIVISION:                  Trial Division

DELIVERED ON:       14 November 2001

DELIVERED AT:        Mackay

HEARING DATE:        18^th, 19^th 20^th and 21^st September 2001, 18^th and 19 October 2001.

JUDGE:   Dutney J

ORDERS:Judgement for the plaintiff against the defendant for the sum of $180,186.08.

CATCHWORDS:          PERSONAL INJURY - NEGLIGENCE – Whether back injury was caused by a faulty mower seat or weight lifting – The extent to which mower seat responsible for plaintiff’s injury.

CONTRACT – EMPLOYMENT – NEGLIGENCE - Whether employer breached implied term to provide a safe system of work.

WORKER’S COMPENSATION – DAMAGES – CONTRIBUTION – Whether injury foreseeable – Whether plaintiff has failed to prove the matters in s312(1) of the WorkCover Queensland Act - Whether s312 WorkCover Queensland Act abrogates the rule that contributory negligence does not reduce damages for breach of contract .

Law Reform (Contributory Negligence) Amendment Act 2001.
WorkCover Queensland Act1996 ss 312, 314.

Astley v Antitrust Ltd (1999) 197 CLR 1 – Referred.
Bonser v Melnacis & ors [2000] QCA 13 – Followed.
Simpson v North Aramara Sawmill Pty Ltd [2000] QSC 327 – Cited.

COUNSEL:                   B Harrison for the Plaintiff

P Land for the Defendant

SOLICITORS:              Macrossan & Amiet for the Plaintiff

Heiser, Bayly & Mortensen for the Defendant

Liability

1. Dutney J.  Mr Martin, the plaintiff, was apparently very fit.  He was, or had been, a body builder and a competitive one. This case concerns the seat on an Iseki front deck mower.  The relevance and connection between these seemingly unconnected statements will ultimately become clear.

1. In July 1996, Mr Martin commenced work for the Mackay City Council (“the council”) as a casual labourer.  Mr Martin’s position became permanent on 12 August 1996 when he became an assistant operator at the Mt Bassett Sewerage Treatment Plant.  Not surprisingly, he passed a medical to achieve permanent status.  Two months later Mr Martin applied for and received an internal transfer to the position of Labourer Grade 3 (Plant Operator) with the Parks and Gardens department.  This took effect from 1 October, 1996.  At Parks and Gardens Mr Martin worked initially on a gang - brush cutting and erecting park and playground equipment.  A short time later the plaintiff was designated to perform mowing duties and supplied with a Ford front deck mower. 

1. A front deck mower is a smallish ride-on mower with the cutting blades in front of the vehicle.  It has small, low-pressure tyres but otherwise no suspension other than as provided by the seat.  It has a cushioned seat capable of up and down and front to rear adjustment with suspension provided by means of a scissor mechanism on rollers. Mower operators had charge of their own machine.  These were not pooled and one mower operator used another operator’s machine only when the first operator’s machine was out of service and the second operator on leave of some sort.

1. Mr Martin was based at the council’s Queen’s Park depot.  Three front deck mowers operated from the Queen’s Park depot. Apart from Mr Martin’s Ford, two Iseki front deck mowers operated by Mr Chris Taylor and Mr Scott Illingsworth were based there.

1. Apart from having his own machine, each operator had his own allocated area for mowing.  In Mr Martin’s case, his area covered from Binnington Esplanade in the east to Nebo Road and the Ron Camm bridge in the west and from the levy banks in the north to Kippen Street in the south.  Included in this area was an area of land bordered by Milton, George, Juliet and Evans Streets (“George St”) which had formerly been railway land but had been handed over as parkland when the railway was relocated.  This was a narrow but long stretch of land with trees along the George St and Evans St frontages.  At the Milton Street end was a rougher portion where trucks parked in wet weather causing wheel ruts.  Through a portion of the land was a series of indentations apparently corresponding with the post holes of an old fence line.

1. The Iseki mowers operated by Mr Taylor and Mr Illingsworth were essentially the same as the Ford mower described above.  The council required each operator to service his machine daily before use.  A period of half an hour was allowed and paid for as overtime each day for this purpose.

1. For most of the time Mr Martin was employed by the council as a mower operator a Mr Jacklin was the depot foreman.  It was he who had introduced the daily servicing.  The service schedule was prepared in the lunchroom one day with the operators, typed and laminated and a copy kept with each machine.  A copy of the service schedule was not produced in evidence.  There was some disagreement as to whether or not the operator was required to service the seat.  It is clear, however, that seats were not regularly serviced by operators and, in particular, Mr Taylor did not service the seat on his Iseki.  There was a system whereby the foreman would make snap checks of the operators during servicing to ensure it was carried out correctly but this seemed to be to a large extent honoured in the breach.[1]

[1] Transcript, page 375

1. The council maintained a mechanical workshop on the south side of Mackay at Ness Street.  Traveling by front deck mower this was about 15 minutes from Queen’s Park and about 5 minutes from George Street.[2]  All mechanical work on the mowers which the operators could not do was done at Ness Street.  For this purpose each mower carried with it  a requisition book.  If repairs or work was required the operator filled out a requisition and delivered it with the machine to Ness St.  Apart from the operator completing a requisition and taking his machine to Ness St there appears to have been no formal system in place for reporting faults with machinery and no specific instructions in that regard.  Those in supervising positions had an expectation that any problem would be reported but had taken no steps to introduce a formal regime.[3]

[2] Transcript, page 295

[3] See for example Mr Jacklin at transcript, page 341; Mr Delaney at transcript, p 360; Mr Jakeman at transcript, page 375.

1. Training in the operation of the mowers was given when the operator commenced and, at least in Mr Martin’s case, when he was required to use Mr Taylor’s Iseki on 23 and 24 June, 1997.

1. On 23 June 1997, Mr Martin’s Ford was having bearings replaced at the Ness Street workshop.  Mr Taylor’s machine was available and Mr Martin was instructed to use that.  Mr Ollett, a leading hand, gave evidence which I accept that before Mr Martin went out on the Iseki he was given the manual for the machine and instructed to read it.  Mr Ollett then instructed Mr Martin on the servicing of the machine (although apparently without reference to the seat) before taking him out onto the Queen’s Park oval to practice operation.  Satisfied that he could handle the Iseki Mr Ollett instructed Mr Martin to mow around some trees in the park.  Mr Ollett told Mr Martin to give trees with exposed roots a wide berth because they might damage the machine.  Whatever was not mowed by the front deck mowers near the trees would be attended to later by the whipper snipper team.[4]

[4] Transcript, page 350.

1. Mr Martin said nothing about the seat.[5]

[5] Transcript, page 81.

1. Mr Martin used the Iseki throughout the afternoon on 23 June.  He used it to mow median strips including mounting and dismounting guttering.  Some of the terrain was rough.  Mr Martin said nothing about the seat.[6]

[6] Transcript, pages 81 – 83.

1. Mr Martin’s problems commenced on 24 June 1997.  Mr Martin said in evidence that the seat on the Iseki was in fact inoperable in that it had neither up and down nor forward and backward movement.  It was seized in the position in which Mr Taylor operated it.  Mr Taylor is taller than Mr Martin. Mr Martin said that the position of the seat required him to lean forward and sit on the edge of the seat to operate the pedals.  Mr Martin took the machine to George Street.  His evidence of his experience that day follows:

   “How would you describe what I might term – or how comfortable was the ride once you started operating in that park area? -- It wasn’t comfortable at all.  It wasn’t even comfortable driving to the site.

   And what would you say – well, you’ve mentioned that the area was bumpy.  Did you experience any bumps? – Many.

   How frequently say throughout the course of the morning?  I’ll just deal with the period of time from when you started up until say your morning smoko? – Hundred, couple of hundred, more.

   What time would you have got there? – I probably would have got there around about 20 past 7.

   What time was it your practice to take your smoko? – Usually around about 9 o’clock.

   All right.  You said that you might have been bumped a hundred or a couple of hundred times? – Yeah.

   Did you notice anything at all in terms of your own comfort at any stage of the morning? – Yeah.  At smoko time I was starting to get stiff and sore.”[7]

[7] Transcript, pages 20 – 21.

1. Mr Martin gave evidence that the site of the stiffness and soreness was his lower back.  He made several trips back to Queen’s Park according to his evidence to see if his machine was ready.  One of these trips was between smoko and lunch and at least two were in the afternoon.  Mr Martin had already identified his problem in his own mind as being the seat.  It was never explained why Mr Martin went to Queen’s Park to see if his machine was ready rather than going to Ness Street where the machine was located and which was closer.  Witnesses, including Mrs Chambers who worked in the office at the Queen’s Park depot were called by the defendant to say they had no recollection of seeing Mr Martin at Queen’s Park during the day on 24 June 1997 but I do not regard that evidence as concluding the issue one way or the other.  In the end this depends on whether or not I believe Mr Martin.

1. Mr Martin’s day got progressively worse after smoko:

“How were you between morning tea and smoko? – My pain was getting increasingly unbearable.

Now you mentioned bumps before and that there were quite a large number of them over that period from when you started till morning tea.  How did the frequency of bumps compare after you resumed after the smoko and until you got to lunchtime? – As the day wore on the bumps seemed to be far more frequent and seemed to have more of an effect because I was getting more painful as the day wore on.
…
All right.  How did your pain and stiffness, or what happened to your pain and stiffness throughout that session up until lunchtime? – It increased.  It was very, very difficult to get out of the mower at lunchtime.”[8]

[8] Transcript, page 22.

1. Things got worse in the session after lunch.  Mr Martin thinks he may have mentioned his back pain to someone, probably his acting foreman, Mr Jakeman, when he returned to the Queen’s Park depot at 3:30 or 4:00 pm.  Mr Martin said that he assumed he had suffered a strain.  That night the pain was so intense he was crying with pain and could find no relief.  Notwithstanding this he returned to work the next morning.  His Ford became available and he was driven over to Ness Street to drive it back which he did.  Having driven the Ford back from Ness Street to Queen’s Park depot Mr Martin decided he could not continue that day.  He has not worked since.

1. The issue in the case in relation to liability was whether in fact the plaintiff had injured his back driving the Iseki mower or had injured it weightlifting.  Much of the defendant’s evidence was directed to establishing that the plaintiff had an obsession with body building to the extent that it constituted his major topic of conversation with other council employees.  I accept that Mr Martin was very interested in body building.  I also accept, however, that from the time he commenced work with the counsel he was not actively engaged in that activity although he was doing weight training at home with free weights.  The defendant pointed to what appear to be occasional muscular injuries to Mr Martin’s back in the 1980’s from weightlifting as revealed by his general practitioner’s report.  I am not persuaded theses have any relationship to the plaintiff’s present complaints.

1. Other evidence was led on behalf of the council to cast doubt on the veracity of the plaintiff’s claims.  The defendant led evidence that Mr Martin’s work performance had declined steadily in the period leading up to 23 June 1997.  Mr Jacklin gave evidence[9] that at the time he started with the parks and gardens department the plaintiff was smartly turned out and conscientious.  Some time later his appearance declined and his work performance fell such that it was necessary for Mr Jacklin to speak to him about it and an official reprimand ultimately placed on his personnel file.  At about the same time Mr Martin was said to have expressed the view that the maintenance payments he was making for his children from a failed marriage were such as to make working at all a largely unattractive proposition.  This is to be looked at with what is no doubt said to be the inference to be drawn from a conversation between Mr Martin and Mr Taylor on 3 April, 1997 following Mr Taylor’s attendance at a meeting of the workplace health and safety committee.  The minutes of the meeting[10] record that at the meeting, Mr Taylor had expressed concern at the amount of shock being absorbed by drivers operating mowers and raised concern about back injuries.  Mr Taylor met Mr Martin at smoko at Illawong Beach.[11]  The substance of the conversation was not disclosed.  A Mr McDonald was called by the defendant.  Mr McDonald had worked with Mr Martin at the Sarina Shire Council in about 1993.  Mr McDonald recounted an event in which Mr Martin was alleged to have claimed to have suffered a back injury at work in circumstances where no claim was ever lodged and a third party suggested it may have been the result of weightlifting.  Apart from the evidence being largely inadmissible, there is no evidence of any back complaint in the intervening four years and the relevance of any such injury must be marginal.

[9] Transcript, page 295-298.

[10] Exhibit 5, page 9.

[11] Transcript, pages 201-202.

1. None of this evidence persuades me that I should reject Mr Martin when he says that he suffered pain in his back while driving the Iseki mower.  My greater concern is as to the extent to which the seat on the Iseki can be said to be responsible for Mr Martin’s present severely disabled condition and whether the council is liable for it.

1. Two workplace health and safety engineers gave evidence.  Neither considered the seat in the Iseki to be satisfactory from a workplace health and safety point of view.  Of the two I preferred Mr McDonald.  I found Mr Kahler’s oral evidence largely incomprehensible jargon.  Such assistance as I gained from his evidence came from careful reading of his typed report.  The difficulty faced by the plaintiff in connection with seat problems is that the seat apparently complied with the relevant Australian Standard.  Thus, if it was operating correctly I would have to be satisfied that notwithstanding its specification the possibility of injury was foreseeable.  This task is, of course, made much easier by reason of exhibit 5 to which I have already referred.  Despite the submissions by counsel for the council I cannot accept that having been specifically alerted to the possibility of back injury by the driver of the very Iseki mower the plaintiff was using at the time he was allegedly injured the council can be heard to say that they did not in fact foresee the possibility of injury.  At the very least the council ought to have foreseen it.  Mr Taylor’s oral evidence in relation to his concern was curious to say the least.  He claimed in evidence that he was in fact concerned with foam rubber in the seat cushion pushing through the vinyl covering.  He asserted his concern was cosmetic.  I prefer to act on the contemporaneous written record.

1. Having been alerted to the potential seat problem the response to it seems to have been at best tardy.  I would have expected that apart from the safety officer, the depot foreman and the supervisors at the workshop at Ness St would have been warned not to overlook the seat in maintenance of the mowers.  Despite this the foreman at the Queen’s Park depot at the time the potential problem was raised was not informed of the issue.[12]  Mr Jacklin was of the view that had he known about the concern he would have done something about it.  Mr Jakeman who was acting foreman at the time the plaintiff claims to have been injured was not told of the concern.[13]  What he would have done about it is unclear although in view of his failure to otherwise enforce the maintenance programme the likely answer is “nothing”.

[12] Transcript, page 336.

[13] Transcript, page 380.

1. The only steps taken were taken by Mr Dunkley, the safety officer.[14]  Based upon his conversations with mower operators, including Mr Taylor, he wrote a report  which unfortunately did not surface during the course of the trial.  He could not recall its contents. No one who had day to day dealings with either the mowers or the operators seemed to know anything about the report.  Mr Dunkley also instructed drivers to slow down.

[14] Transcript, page 389.

1. The possibility of spinal injury from driving tractors was stated by Mr McDonald, the defendant’s workplace health and safety engineer, to have been long recognised.  Front deck mowers are in fact no more than small tractors.  The spinal injuries relate to long periods of exposure to the vibration and jolting of driving on rough terrain and over obstacles.  Figure 4 to Mr McDonald’s report provides estimated times for exposures before the risk of back injury becomes serious.  For an Iseki driven slowly with a correctly operating seat the danger period commences between 1.5 and 5 hours per day depending on terrain.  At high speed the danger period commences from about .75 hours to 2 hours per day.  Mr McDonald agreed that those times could be reduced if the seat was seized and not operating properly in the proper position for the driver.  Mr McDonald did say and I accept that it is unlikely that the seat would seize vertically in the highest position.  It was far more likely to seize in the bottom position.  He accepted that it was not unlikely an unserviced seat would seize in the horizontal plane.  He also accepted that a regular operator would not necessarily be aware of the fact of seizure if it was seized in the position that suited him.

1. It next becomes necessary to look at the medical evidence.  A report from Central Queensland Imaging dated 23 December, 1997 records degenerative change in Mr Martin at L5/S1 and T11/12.  This seems to be pre existing and not directly related to anything that occurred on 24 June 1996.  The degeneration at T11/12 does not seem significant for present purposes.

1. Dr Bendeich, the defendant’s orthopaedic specialist attributed the onset of back pain in Mr Martin to aggravation of the previously symptomless degeneration at L5/S1.  The Plaintiff’s orthopaedic specialist, Dr White, attributes it to intra-discal disruption together with some aggravation of the pre existing condition.  In considering quantum it will be necessary to look more closely at the areas in which these doctors differed but for present purposes there is uniformity that Mr Martin had a level of back degeneration unusual in a man of his age.

1. Finally there is some evidence which might suggest that the seat on the Iseki mower was repaired on 24 June 1996 thus casting doubt on the whole of the plaintiff’s account.  Mr Martin did not return to work after the morning of 25 June 1996 when he drove the Ford from Ness St to Queens Park.  As I have already mentioned, any repairs carried out to the mowers at Ness St were carried out pursuant to a paper requisition which was kept on the machine’s “Machine History Folder”.  The folder for the Iseki machine contains a requisition dated 26 June 1996 in Mr Martin’s handwriting.  The number on the requisition establishes that the requisition was taken from the requisition book normally kept with Mr Martin’s Ford mower and not the book kept with the Iseki.  The requisition contains the following:

   “Taco/hour meter broken.
   Seat broken – rigid seat no free movement.”

The requisition is then crossed through by Mr Cochran the mechanic at Ness St who would have done the job to indicate it was completed.

1. Two curiosities arise.  First, the requisition is dated after the plaintiff finally ceased work.  Secondly, the seat repair is not recorded in the monthly summary inside the front cover of the Machine History Folder.

1. I am satisfied that the requisitioned work was in fact completed.  Not all work requisitioned was recorded on the cover as an examination of the requisitions and comparison with the cover discloses.  Minor work seems to be left out.  I am not satisfied that the fact of the requisition necessitates a finding that the work was carried out on 23 or 24 June 1996.  It seems to me to be at least as likely that the requisition was filled out either after work on the 24^th or on the morning of the 25^th.  It is as likely a scenario as any other that Mr Martin filled out the requisition after he discovered that the seat could cause back trouble for someone like him who did not regularly use the machine.

1. Having considered all of the above I find that the plaintiff did injure his back on 24 June 1996 riding the Iseki front deck mower.  I further find that this was an aggravation of an existing degenerative condition.  Notwithstanding this I am satisfied that the council knew from the fact that the matter was raised by Mr Taylor at the workplace health and safety meeting that the seats on machines such as this might have insufficient shock absorbent capacity in some circumstances to prevent injury of this type. The council ought to have known this in any event because according to Mr McDonald that fact was notorious.

1. The injury to the plaintiff was rendered more likely because of the inoperable condition of the seat’s horizontal adjustment mechanism.  This had been allowed to happen because of the council’s lack of supervision of the daily maintenance.

1. The defendant relies on the provisions of s312 of the WorkCover Queensland Act 1996. In particular, reliance was placed on subsection (1) paragraphs (b), (c), (d), (e) and (h). So far as is relevant s312 provides:

   (1)    In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim-

   (a)        …
   (b)        that the actual and direct event giving rise to the worker’s injury was actually foreseen or reasonably readily foreseeable by the employer;
   (c)        that the worker did not know and had no reasonable means of knowing that the actual and direct event giving rise to the injury might happen;
   (d)        that the injury sustained by the worker did not arise out of a relevant failure of the worker to inform the employer of the possibility of the event giving rise to the injury happening, in circumstances in which the employer neither knew nor reasonably had the means of knowing of the possibility;
   (e)        that the worker did everything reasonably possible to avoid sustaining the injury;
   (f)          …
   (g)        …
   (h)        that the worker did not relevantly fail to inform the employer of any unsafe plant or equipment as soon as practicable after the worker’s discovery and relevant knowledge of the unsafe nature of the plant or equipment;

   (i)          …

   (2)  …

   (3)     The claimant fails to prove the matter mentioned in subsection (1)(b), the court must dismiss the claim.

   (4)    If the claimant fails to prove any of the matters mentioned in subsection (1)(c) to (i), the court must -

   (a)dismiss the claim; or
   (b)reduce the claimant’s damages on the basis that the worker  substantially contributed to the worker’s injury.”

1. Paragraph (b) does not apply.  I am satisfied on the evidence that the actual and direct event giving rise to the incident was either foreseen or foreseeable.  The paragraph distinguishes between “the injury” and “the actual and direct event” giving rise to it.  The injury in this case was damage to L5/S1.  The actual and direct event causing that injury must therefore be the buffeting of Mr Martin’s back by riding the mower on the rough George Street terrain.  This was in my view plainly foreseeable not only on the basis of Mr McDonald’s evidence that the likelihood of such injury was notorious but because it was specifically raised at the workplace health and safety meeting in April.  That Mr Dunkley thought the likely cause of buffeting would be driving too fast over roots and undulations is, in my view, irrelevant since the direct cause of the injury was buffeting, however occasioned.

1. Paragraphs (c), (d), (e) and (h) are relied on because Mr Martin knew the seat was not operating correctly; knew that the position in which it was seized was not appropriate for him and knew that it was causing back pain from the commencement of the trip to George Street on the morning of the injury.

1. Mr Martin’s evidence, even after the day’s work, was that he considered himself to be suffering a strain injury which would quickly resolve.  He in fact turned up for work on 25 June 1997 intending to commence if his own Ford had been available.  Paragraph (c) relates to knowledge of the event and not the injury.  While I would not find that Mr Martin did or ought to have foreseen the injury it is inescapable that he was aware of the buffeting.  He gave evidence of hundreds of bumps over a relatively short time.  I am therefore not satisfied that Mr Martin has proved the matter set out in paragraph (c).  In this case paragraph (d) overlaps entirely with paragraph (c) although that would clearly not always be the case.  Here, if the worker knew of the event and did nothing he plainly failed to inform his employer of the event.

1. I am satisfied that paragraphs (e) and (h) apply. In the case of paragraph (e) there was a procedure available under which a machine with a problem could have been taken to Ness Street for attention. Alternatively it could have been reported to the foreman. On the evidence such a report would have resulted in some action being taken although precisely what and whether it would have been effective is unclear. Certainly by lunchtime it must have been obvious to Mr Martin that the seat was the cause of at least some of his problems and was not working correctly. There is no evidence, however, which establishes whether attention to the seat at that stage would have avoided the injury. Because the onus in relation to the matters in s312 is on the plaintiff he has failed to satisfy me as required but the absence of evidence must bear upon the extent of the contribution to the injury.

1. Paragraph (h) is related to paragraph (e).  The failure to report the incorrectly working seat is the same failure as was discussed in the previous paragraph.

1. Having found that the plaintiff has not satisfied the onus of proof in relation to matters in s312(1) other than paragraphs (a) or (b) I am required by s312(4) to either dismiss the claim or reduce the damages on the basis of a substantial contribution. This subsection creates an entirely artificial concept of contribution because it is based on a failure of the worker to prove he has not contributed to his injury in circumstances where the employer has been found to be at fault. This is the opposite of the usual common law situation where the onus is on an employer at fault to show that his liability should be diminished by reason of contribution from the worker. The degree of contribution is a matter which is not prescribed. Nor is it required that a cumulative degree of contribution should be applied for each paragraph of s312(1) which applies.[15]  To accumulate contributions where the paragraphs substantially overlap would in my view be plainly unjust.  I would also not find contribution at common law where what the worker knew or foresaw was only the event and not the fact that it could cause significant injury.  In this case although required to find contribution I am not satisfied that the worker’s degree of contribution is a major factor in the suffering of the injury.  Mr Martin was simply carrying out his delegated task on the equipment provided.  In those circumstances I assess the degree of contribution at 10%.

[15] Cf  Workcover Queensland Act s 314.

1. At common law contribution is not available to reduce damages for breach of contract.[16]  Here I am satisfied that the defendant is in breach of the implied term of the Plaintiff’s employment that it provide a safe system of work.  To delegate maintenance to another employee (Taylor) and fail to supervise that maintenance and to be alerted to a potential problem and not take adequate steps to address it even by informing relevant supervising employees is not in my view a safe system of work.

[16] See Astley v Antitrust Ltd (1999) 197 CLR 1

1. I am not aware of any authority dealing expressly with the question of whether or not s312(4) of the WorkCover Queensland Act applies to breaches of contract.  I have been referred by Mr Harrison for the plaintiff to a comment by Atkinson J in Simpson v North Aramara Sawmill Pty Ltd [2000] QSC 327 at paragraph [31] where after noting that it was conceded by the defendant that s312 had been satisfied by the plaintiff in the particular case her Honour added by way of dicta the following:

   “In any event the source of liability in this case is the defendant’s breach of its contract of employment with the plaintiff, which cannot be reduced on account of contributory negligence.”

1. The WorkCover Queensland Act makes no reference to a claim for damages specifically for negligence. Throughout the Act the reference is simply to a “worker claiming damages”. Section 312 refers to damages reduced on account of contributory negligence. Section 314 also refers to a reduction on account of contributory negligence. The difficult question is whether s312 should be taken as a statutory abrogation of the rule that contributory negligence does not reduce damages for breach of contract or whether it relates only to a reduction of damages for negligence. “Damages” is defined in s11 of the Act to mean:

   “damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay the damages to –

   (a)        the worker; or
   (b)        if the injury results in the worker’s death – a dependant of the deceased worker.”

1. The right to claim damages under section 253 of the Act is the only right to claim damages in relation to a work-related injury.[17] This suggests that the provisions of s312 are intended to operate in relation to all claims for damages as defined in s11. Mr Harrison argued that if s312 were construed so as to provide a statutory exception to the Astley decision it would render otiose the transitional provisions in the Law Reform (Contributory Negligence) Amendment Act 2001 so far as they are contained in s21(2). This argument has some appeal but in the end I consider that the words of s312 considered in the light of Bonser compel me to the conclusion that I am required to reduce the damages irrespective of the basis on which the employer is liable for those damages.  In any case s21(2) Law Reform etc Act 2001 would still have operation in relation to cases where the injury preceded the enactment of the present s312 WorkCover Queensland Act or where contributory negligence other than under the compulsory provisions of s312 was found [18].

[17] See Bonser v Melnacis & ors [2000] QCA 13 at [7]. At [10] the Court of Appeal observed that the definition in s11 expressly recognised the familiar right of action against employers for, inter alia, breach of contract.

[18] See s312(5).

1. In my view the statute requires the imposition of the contributory negligence found even though the employer is liable in contract.

Quantum

1. The plaintiff had a pre-existing symptomless degenerative condition at L5/S1 and T11/12 levels which were made symptomatic by the buffeting on 24 June 1997.  This degeneration was prematurely advanced.  Whether without the buffeting this condition would ever have become symptomatic is a matter of debate.[19]  On balance I accept the evidence of Dr Bendeich.  The fact that the ride across from Queens Park to George Street was sufficient to begin symptoms suggests that the plaintiff was treading a thin line between an asymptomatic and symptomatic condition.  In my view the probability is that at some stage not too far distant from 24 June 1997 the condition would have become symptomatic in any event.

[19] Compare Dr White at transcript, page 170 with Dr Bendeich at transcript, page 321-322.

1. On top of the pain and disability directly referable to Mr Martin’s back condition is a psychiatric overlay diagnosed by psychiatrists Drs Likely and James, as an adjustment disorder or in Dr Likely’s case possibly a major depressive illness.  Dr Likely was of the view that with a proper course of medication and counselling the adjustment disorder or depressive illness would be likely to resolve within 12 months.  All three orthopaedic surgeons who gave evidence saw signs of illness behaviour.  In view of the length of time the disorder had persisted, however, a positive outcome could not be guaranteed.  In all the circumstances I assess the plaintiff’s damages for pain, suffering and loss of amenity at $45,000.

1. In relation to past economic loss exhibit 35 identifies the amount the plaintiff would have earned had he remained with the council at $91,532.31.  Having regard to the medical evidence, I propose to assess damages under this head and under the head relating to future economic loss on the basis that the plaintiff, despite his degenerative condition, would have continued to work for the whole of the period from the accident to the date of trial and for 2 years post trial.  This is longer than the period surmised by Dr Bendeich and has regard to the fact that the actual period that the plaintiff could have worked before his condition became symptomatic is largely guesswork.  This period also takes account of the fact that within two years the plaintiff ought to respond to treatment for his psychiatric condition and be left theoretically with the same residual work capacity he would have had in any event.  I therefore allow past economic loss at $95,157.11 to 13 November 2001.  This is the amount calculated to 18 September plus a further 8 weeks at the current rate.  I allow lost superannuation at 12% being the rate in fact paid by the council.  This totals $11,418.85.

1. For the future I allow 2 years at $453.10 net per week being the current pay rate for the plaintiff’s position with the council discounted at 5%.  Even though the plaintiff was not performing at work entirely to the expectations of his employer I am prepared to find that the likelihood is he would have remained with the council.  I saw through the witness box a large number of council employees and the overwhelming impression was of long term employment.  I have assumed the plaintiff would not be promoted.  I allow $44,856.90 together with superannuation at 12% totalling $5,382.83.

1. I allow interest on past economic loss not otherwise met from Centrelink or WorkCover being $60,075.96 at 5% for 3.7 years from the cessation of weekly benefits.  This totals $11,114.05.

1. Special damages met by WorkCover total $6,381.04 which I allow.  This figure was provided by Mr Land.  It is slightly more than Mr Harrison’s figure but Mr Land’s refund figure is also higher by the same amount so the difference is not material.

1. The Fox v Wood component totals $3,309.80.

1. Other special damages claimed by the plaintiff total $630.35 and are set out in paragraph 96 of exhibit 1.  They comprise medical expenses, travelling to medical appointments and pharmaceutical’s.  I allow those costs.  I allow interest on $230.40 of this for 3.7 years at 5% in the amount of $42.64.

1. No claim is made for past or future care with the exception of lawn mowing expenses actually paid of $570.00.  I consider this claim to be reasonable and I allow it together with interest at 5% for 4.4 years since the injury totalling $125.40.

1. Future recurring costs of $2,000.00 are claimed.  This is to cover psychiatrist or psychologist expenses and medication and seems to me to be modest.  I allow this sum.

1. In the result the plaintiff’s damages are assessed as follows:

   Pain and Suffering  $45,000.00

   Past economic loss  95,157.11

   Past superannuation   11,418.85
   Interest on past economic loss   11,114.05
   Future economic loss   44,856.90
   Future loss of superannuation   5,382.83
   Special damages   7,011.39
   Interest on special damages  42.64
   Fox v Wood   3,309.80
   Lawn mowing  570.00
   Interest  125.40
   Future expenses      2,000.00
   Gross  225,988.97

   Less 10% contribution              22,598.89

   Sub total  203,390.08

   Less WorkCover refund              23,204.00

   Total  180,186.08     

1. I give judgement for the plaintiff against the defendant for the sum of $180,186.08.