MURRELL -v- BROSNA CONSTRUCTION PTY LTD (in liq)
[2022] WADC 68
•4 AUGUST 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MURRELL -v- BROSNA CONSTRUCTION PTY LTD (in liq) [2022] WADC 68
CORAM: BOWDEN DCJ
HEARD: 4-8 APRIL, 11-13 APRIL & 20 MAY 2022
DELIVERED : 4 AUGUST 2022
FILE NO/S: CIV 4357 of 2019
BETWEEN: DWAYNE JOHN MURRELL
Plaintiff
AND
BROSNA CONSTRUCTION PTY LTD (in liq)
Defendant
Catchwords:
Assessment of damages following workplace accident - Turns on its own facts
Legislation:
Nil
Result:
Judgment for the plaintiff
Representation:
Counsel:
| Plaintiff | : | Mr B L Nugawela |
| Defendant | : | Mr J R Criddle |
Solicitors:
| Plaintiff | : | Eureka Lawyers |
| Defendant | : | McCabes |
Case(s) referred to in decision(s):
Geraldton Building Co v Cramer [2001] WASCA 244
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Rep 81-192
Majinski v The State of Western Australia [2013] WASCA 10
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Re Equiticop Finance Ltd; Ex parte Brock [No 2] (1992) 27 NSWLR 391
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Vandeloo v Waltons Ltd [1976] VR 77
BOWDEN DCJ:
On 8 December 2016 Mr Murrell suffered injury when formwork he was working on collapsed causing him to fall 3.6 m to the ground. The defendant's negligence has been admitted and it is agreed that Mr Murrell's contributory negligence is 5%.
This trial was to determine the quantum of damages.
The plaintiff gave evidence and called as witnesses Ms Galati, Ms Hunt, Dr Williams, Mr Drabarek and Mr Nuich. A large number of exhibits were tendered by the plaintiff including medical evidence from Dr Williams, Dr Slinger and Dr Barrie.
The defendant called Ms Fernandez and Mr Anderson and tendered a large number of exhibits including medical evidence from Dr Bowles, Dr Gillett and Dr Silbert.
A brief overview of the plaintiff's case
At the time of the incident Mr Murrell was 31 years of age and had worked as a concreter/form worker (here after referred to collectively as a concreter) in the construction industry since he left school.
As a result of the accident, he claims that he will not be able to return to his pre-accident occupation as a concreter and that any theoretical retained earning capacity he does possess should not be deducted from his damages because before he could exercise that retained earning capacity, he needed to undergo a physical work performance evaluation or a functional capacity assessment and physical and upskilling programs that were not provided to him.
A brief overview of the defendant's case
The defendant disputes that the plaintiff is unable to return to his pre‑accident occupation as a concreter but say that in any event, the medical evidence establishes he has a retained capacity to work in other occupations, which they say pay more than his pre-accident earnings, and he has failed to mitigate his damages by unreasonably failing to exercise his retained earning capacity.
The defendant also says that any incapacity to work as a concreter and loss of earning capacity are as a result of causes other than the accident including but not limited to Mr Murrell having lost his licence, being remanded in custody on criminal charges, drug addiction, injuries received in separate cycling and car accidents and whilst playing tennis and in an assault occurring whilst he was in custody and non‑accident related pain he suffered to the thoracic spine and lumbosacral region.
The injuries sustained by the plaintiff in the accident of 8 December 2016
Although the effect of the injuries is in dispute it is not disputed that Mr Murrell received the following injuries in the accident:
1.Non-displaced fractures of the left third and fourth metatarsal bone (foot injury).
2.A scalp laceration.
3.A thoracic spine wedging at T11 (back injury).
The injury to the foot and scalp and their effect on Mr Murrell are relatively non‑contentious. For those reasons the summary of the evidence concentrates mainly on the back injury.
The radiological imaging
Dr Williams' non-contentious summary contained in exhibit 20 and his evidence provides a useful summary of the radiological imaging. Dr Williams reported that:
•X-rays of the thoracic spine performed on 8 December 2016 report:
A mild mid thoracic curvature convex to the right evident. Alignment in the lateral view is satisfactory, there is mild wedging of the body at T11 and an acute compression fracture is suspected. The other thoracic vertebral body heights are preserved. No subluxation or compromise of the spinal canal.
•The X-rays of the spine of 7 July 2021 identified loss of normal cervical lordosis and degenerative change at C6/C7 with anterior osteophytosis and posterior osteophytic lipping, localised uncovertebral bony spurring encroaching into the right C6/C7 foramen, but with no evidence of a high-grade osseous encroachment of the neural foramen.
•More recent lumbar X-rays reported central compression of the L1 superior endplate and mild to moderate spondylotic changes with endplates sclerosis on both sides of the L1 disc and disc height loss at the T12/L1 level.
•The MRI of 12 July 2017 described pre-existing degenerative changes in the lower cervical and lumbar spine particularly at the L1/ L2, L4/L5 and the L5/S1. The L1/L2 showed disc space narrowing and degenerate circumferential annular bulging with endplate lipping. There was minor annular disc bulging at L4/L5 more prominent laterally on the left. There was a shallow disc bulge with annulus fissure. The disc material approached but did not compress or displace the external foraminal left L4 nerve root. There was a shallow posterocentral disc protrusion at the L5/S1 which approached the thecal sac without compression or displacement with no displacement of the S1 nerve root or the intraforaminal L5 nerve root.
X-ray of the thoracic spine of 19 September 2018 showed a mild curvature convex to the right side with the apex shown at the level of the body of T6. There was no increased kyphotic curvature. There was evidence of a mild superior endplate fracture involving the body of T11 with approximately 19% reduction in the height of the body anteriorly. No other fractures were evident. The paravertebral soft tissues were preserved.
Other radiological evidence including the CT of the thoracic spine of 18 November 2020 (exhibit 13) is consistent with these reports.
The evidence
Dwayne John Murrell
The summary of Mr Murrell's evidence which follows is primarily on a chronological basis with other relevant evidence inserted where appropriate. Other parts of Mr Murrell's evidence are summarised when dealing with findings on credibility.
Mr Murrell was born on 22 March 1985.
Mr Murrell left school halfway through Year 10 and commenced working as a concreter and has worked on various projects including on a fly in/fly out basis. He has not worked in any other occupation. He obtained his White Card in 2007 and has certificates for working at heights, working from elevated work platforms, a high-risk licence, tilt panels certificate, bobcat and excavators' certificates and a Manitou certificate (four-wheel drive forklift). Mr Murrell said it was never hard for him to find work. The evidence, which I accept from both Mr Nuich and Mr Drabarek, who each have long experience in the construction industry and have worked with Mr Murrell, support that claim. Mr Nuich described Mr Murrell as a good worker, fit and fair, very capable, and said he knew how to 'run a crew'.
Mr Murrell has never held a motor driver's licence and said he got to and from work via his partner, public transport or via workmates. He was convicted of driving whilst legally disentitled and disqualified from holding a motor driver's licence in August 2004, October 2005, August 2007, September 2007, September 2008, August 2009, May 2012, August 2013, November 2015, November 2018, January 2019, October 2020, and July 2021. In 2013 and 2015 Mr Murrell was sentenced to periods of imprisonment which were suspended for driving whilst legally disentitled (exhibit 8).
Mr Murrell met Ms Hawkins in 2008 and later lived with her. In 2013 some difficulties developed in Mr Murrell's relationship with Ms Hawkins, and she obtained a restraining order. Mr Murrell was arrested in July 2013 for the breach of that order. Mr Murrell said he and Ms Hawkins had sorted their difficulties out when the restraining order expired, and the relationship remained good for a year or so.
Mr Murrell said in May 2015 he was at the top of his game and formed a business partnership with Ms Hawkins. He thought this was the way he could earn more money and provide work for Ms Hawkins who he intended to teach concreting and eventually he hoped to grow the business and employ other persons. The partnership never had a bank account, and his personal bank account was used for both personal and business purposes.
When asked to explain the partnership loss of $5,034 in the 2016 tax return Mr Murrell's original explanation was that because the income was under $40,000 it was not taxable; in another part of his evidence, he said the partnership loss was nothing to do with him.
Throughout 2016 problems arose in Mr Murrell's relationship with Ms Hawkins. Mr Murrell said he was being paid a day rate of $500 and Ms Hawkins $250 and Ms Hawkins felt she was being treated unfairly. Issues also arose over the payment of mortgage expenses.
By the beginning of 2016 Mr Murrell said Ms Hawkins had in effect withdrawn her labour services from the partnership and in July 2016 he assaulted her and was remanded in custody on various criminal charges.
On 25 September 2016 Mr Murrell was stabbed by a fellow prisoner in the face and chest with a pen and subsequently diagnosed with post‑traumatic stress disorder.
On 8 November 2016 he was released from prison and obtained JobSeeker payments and he reunited with Ms Hawkins.
Medical records show that on 15 November 2016 Mr Murrell attended Apollo Health complaining of back pain lasting one week after playing tennis (exhibit 66, page 187). Mr Murrell's evidence was that he had not played tennis.
In December 2016 Mr Murrell worked for two days with a company and then was in his second day of working as a subcontractor for the defendant at the Wanneroo Civic Centre when the incident occurred on 8 December 2016.
On that day a soffit which had been constructed negligently collapsed as Mr Murrell walked across it and he fell 3.6 m to the ground. As he fell Mr Murrell said he struck one of the props supporting the soffit with his head and as he landed foot first with steel boots on, the steel cap of his boot bent backwards causing injury to his left foot and the collapsing formwork fell literally onto his head.
Mr Murrell was treated on site and conveyed to Royal Perth Hospital and discharged, he said, on 9 December 2016 with his foot in plaster and a neck brace.
Mr Murrell said he suffered fractured bones to his left foot, injuries to his head and a fracture of the T11. Mr Murrell's evidence was that he was placed in traction by the ambulance and at the hospital (ts 159, ts 160). Dr Williams' evidence was that there was no mention of traction in the hospital notes (ts 784). Nothing of significance turns on this point.
Mr Murrell said he re-attended the hospital on 19 December 2016 and the cast was removed, and his foot placed in a moonboot. He said he wore the cast for a number of months and wore the moonboot for another four to six weeks (ts 55).
Mr Murrell said that as a result of the accident he was not able to work as a concreter. He said there were not any light duties in the concrete industry other than those incidental to the heavy work that concreting inevitably involved. He said that even residential concrete work required a concreter to be on his hands and knees and could not be classified as light duties.
On 7 February 2017 Mr Murrell met with Ms Hunt, a rehabilitation consultant. She devised a return-to-work programme starting with light duties with the hours gradually increasing until Mr Murrell was, hopefully, able to return to his pre‑accident employment. Ms Hunt's assessment and reports are exhibit 10.
Mr Murrell said that by 8 March 2017 the return-to-work programme with PMC Concreting was approved which involved working three days per week, four to five hours per day. There were restrictions relating to lifting, carrying, bending and climbing and in essence, all he was doing was very basic work patching holes in the concrete and smoothing out corners. Dr Mpofu certified Mr Murrell as fit to undertake the return-to-work programme. Mr Murrell said he was still suffering pain in his back and foot whilst on the programme which he attended from 9 March 2017 until 16 March 2017.
On 16 March 2017 whilst in stage one of the programmes, Mr Murrell fell down the stairs, which he said were full of rubbish and offcuts, onto his wrist and sprained it. Mr Murrell said it took four weeks to recover from that injury. He was certified unfit for work from 16 March 2017 until 27 March 2017 due to left wrist injury and an aggravation of his back injury as result of that incident (exhibit 35). Dr Mpofu certified Mr Murrell fit to continue the programme from 27 March 2017.
Notwithstanding that incident Mr Murrell was deemed to have successfully completed the first phase of the programme.
The second stage of that programme was to run from 3 April 2017 to 16 April 2017. However, that is not what occurred.
In the early days of the second stage, 4 April 2017, there seems to be some confusion as to whether Mr Murrell was working for another concreter or continuing with the return-to-work programme (exhibit 11) and there were concerns as to whether work would be able to be offered to him over the coming weeks (exhibit 11, page 85).
Exhibit 10 includes communications with PMC Concreting identifying that the availability of ongoing work was limited. On 4 April 2017 PMC Concreting advised they had completed work at Wanneroo Civic Centre, and they were asked to confirm that they could offer Mr Murrell further work. No further work availability was confirmed.
The rehabilitation provider's note says that it was agreed to contact an alternate contractor who had indicated that they may be able to provide Mr Murrell with appropriate hours and duties to facilitate his return to work however there is no evidence that any alternate contractor was found (exhibit 10).
Ms Hunt's communications of 7 April 2017 indicates she had been calling and leaving messages daily for Mr Murrell and was having difficult contacting him.
On 12 April 2017 Mr Murrell sent text messages to Ms Hunt and to others to say that he was heading to Broome (exhibit 11) and information was received that he would be returning on Friday, 21 April 2017.
On 11 May 2017 Ms Hunt received a message from Mr Murrell's partner saying they had got back (from up north) but he had left to travel to Queensland to see his daughter. The information conveyed seemed to suggest that Mr Murrell had returned from up north on about 8 May 2017 and left on 10 May 2017 to travel to Queensland and would be returning on 19 May 2017 (exhibit 11). Clearly in view of the fact that Mr Murrell was in custody from 21 April 2017 this information was incorrect. Records show Mr Murrell missed a medical appointment on 3 May 2017.
Mr Murrell's evidence was that he did not return to the work trial because the workplace was a pigsty. He said he hurt himself in the fall of 16 March 2017 and was not putting himself at risk again (ts 59). He said he did not return to work on 4 April 2017 as agreed (ts 167) and does not dispute that he did not complete stage two and subsequent stages of the work trial.
Mr Murrell said he travelled up north because he was really 'crook' and went to Monkey Mia (ts 168) for 'not even a week'. He denied telling people that he had gone to Broome. Bank records for this time reveal withdrawals from Dongara, Monkey Mia, Onslow, Karratha, Point Samson, Newman and Meekatharra (ts 167 - ts 169).
The defendant submits that Mr Murrell's decision to end the work trial and set off on a trip up north is incomprehensible if not bizarre and urge me to infer that the explanation for his behaviour was Mr Murrell's participation in the illicit drugs.
I do not draw that inference.
I find that after PMC Concreting completed their work at the Wanneroo Civic Centre there was no certainty that anyone else was going to be able to provide Mr Murrell with a further work trial. In circumstances where it appears that there was no other employer to continue with the work trial Mr Murrell's behaviour in travelling up north is not incomprehensible.
Mr Murrell attended appointments for physiotherapy at various dates between 21 February 2017 and 30 March 2017 and on 4 and 6 April 2017 but missed appointments on 12 April, 26 April and 6 July 2017 (exhibit 4).
From 21 April 2017 to 13 June 2017 Mr Murrell was in custody for various offences. He said he did not tell the workers' compensation insurer or the rehabilitation provider that he was in prison and received workers' compensation payments while in custody. While in custody he was hit in the groin with an orange and had bruises that day and the next day.
Mr Murrell was released from custody on 13 June 2017. Mr Murrell said that after his release from prison he took cannabis for pain relief.
Mr Murrell agreed that after his release from prison in June 2017 he was using cannabis and methylamphetamine and said he was spending a couple of hundred dollars here and there on drugs. Between his release from custody in June 2017 and going back into custody in October 2017 Mr Murrell made a total of $24,100 in cash withdrawals and Mr Murrell said that a lot of these withdrawals were for the purchase of cannabis and methylamphetamine for both Ms Hawkins and himself as he was in a 'bad patch' during this period (ts 200 ‑ ts 202). Mr Murrell said he would not have been accepted on any concreting site or able to do concreting work considering the rate he was consuming methylamphetamine and cannabis (ts 205).
Around 22 June 2017 Fresh Start Injury Management were appointed as Mr Murrell's vocational rehabilitation providers. Mr Murrell met with Ms Galati on 27 June 2017 (exhibit 9) and she later had some difficulty contacting him (exhibit 11). Ms Galati attempted to restart the return-to-work programme as the previous employer did not have any work.
Ms Galati said she was surprised given the nature of Mr Murrell's work and injuries that the recommendation was to try and return him to the same duties. She said Mr Murrell would require assistance to identify and obtain suitable employment if the preferred option of a new employer with the same duties could not be met. Ms Galati's employment consultant tried to find an alternative employer, but they were unable to do so. Ms Galati did not perform any functional capacity assessment or vocational assessment for alternate work and she was unable to find an appropriate return-to-work placement for Mr Murrell.
On 5 July 2017 Mr Murrell was certified fit for light duties avoiding repetitive back bending and lifting more than 10 kg by Dr Bowles (exhibit 22.2).
Ms Galati said she had difficulty getting hold of Mr Murrell. He generally did not return her calls and she sent him a number of emails and texts. She endeavoured to contact him on 15 and 17 August 2017, 4, 5 and 7 September 2017.
On 8 September 2017 Ms Galati received a text from Mr Murrell to the effect that he promised to see her on Monday. The text also said, 'you're too hot to muck around'. Consequentially Ms Galati handed the file to another consultant to deal with. Ms Galati said that even though Mr Murrell was not contacting her they were still trying to find an alternate placement for him.
Both Ms Hunt and Ms Galati's evidence was to the effect that if they had been advised that Mr Murrell was using methylamphetamine and cannabis they would refer him to a doctor to see if it affected his working capacity and put the file on hold until that matter was sorted out.
I found both Ms Hunt and Ms Galati to be honest straightforward witnesses doing their best to assist the court and I accept their evidence.
During 2017 Mr Murrell arranged for the early release of his superannuation through Cbus some of which was used to pay off his mortgage.
From 3 October 2017 until 15 February 2018 Mr Murrell would not have been gainfully employed as he was remanded in custody on criminal charges and while in custody saw prison medical staff.
Mr Murrell reported back pain in prison in November 2017 and received treatment for the back pain in custody on 12, 19 and 29 December 2017 and in January and February 2018. When transferred to Hakea he reported pain from the work-related injury to the doctors although misdescribing the location of the web fracture. He was released on 15 February 2018.
Mr Murrell saw Dr Mpofu on 19 February 2018 advising that he had been in prison for six months. The doctor's notes refer to the foot discomfort as settled, back pain persists and worse at night. Dr Mpofu certified Mr Murrell unfit from 9 February 2018 until 5 March 2018 with a review on a later date. Dr Mpofu's notes refer to 're-engage with programme' (exhibit 35, pages 82 - 83).
On 18 April 2018 Mr Murrell was reviewed by Dr Bowles. Dr Bowles' report notes that Mr Murrell informed him that he had no plans for work and was not considering anything presently and noted that a settlement conference was coming up. Mr Murrell denied saying that he had no plan to return to work. I prefer the accuracy of the doctor's report to Mr Murrell's recollection.
Mr Murrell said that in May 2018 he redeemed his workers' compensation payments for $55,000. That settlement was registered on 30 May 2018 (exhibit 12). Mr Murrell said some of that money was invested in his superannuation, some he spent, and some was used to retire old debt. Mr Murrell said he went through a bad period and was using drugs as it helped ease his pain. Mr Murrell said he tried to get work but could not and that contributed to the reasons he took drugs. At this time, he was in receipt of Centrelink payments.
Mr Murrell maintained that although exhibit 65 (the workers' compensation settlement papers) looked like they contained his signature he did not remember seeing those papers. He said he was under instructions from his lawyer to sign and he had not seen the documents which he agreed he signed. He said he thought he was going to get a lot more money and was told by his lawyer he should agree to the payout.
Medical records establish that Mr Murrell attended the Armadale hospital on 12 May 2018 saying he had punched a metal pipe and injured his hand (exhibit 42).
Medical records show that on 22 May 2018 Mr Murrell admitted he had used methylamphetamine that day, was very agitated and claimed, inter alia, his partner was trying to poison him (exhibit 66, Dr Tierney).
Mr Murrell said that on 15 June 2018 he called St Johns Ambulance (exhibit 43) saying he might have been poisoned by his partner. He denied saying he had been smoking methylamphetamine during the day. He said he told them he had taken methylamphetamine the day before. He said he told them he could not give his date of birth because he felt he could not talk and agreed that he was on edge and fidgety. He said he told the Armadale emergency department (exhibit 44) that he had taken methylamphetamine earlier that morning. He said he did not discharge himself, they told him to go home.
Medical records show that on 2 July 2018 Mr Murrell visited Dr Potter after smoking a substance '?Methylamphetamine' the previous evening (exhibit 64).
Mr Murrell did not have any recollection of posting a video of 2 July 2018 about his alleged poisoning saying he could not remember everything that happened.
On 3 July 2018 Mr Murrell was taken by ambulance to the Armadale Kelmscott emergency department alleging that he had been poisoned by a black substance (exhibit 45). The notes show that Mr Murrell was agitated and paranoid and he denied to the ambulance officers that he had recently used methylamphetamine and said that he had not used it in months. He was admitted to the emergency department, and was described in the notes as unsettled, agitated, irritable and paranoid (exhibit 46, ts 217 - ts 218).
On 7 July 2018 Mr Murrell possessed drug paraphernalia containing a prohibited drug and was later convicted of those offences.
Mr Murrell said he would smoke both methylamphetamine and cannabis and went through a bad stage from around about 2018 onwards when his life took a turn for the worse. Mr Murrell said he had financial and other pressures and he and Ms Hawkins turned to drugs (ts 99 - ts 101) which he described as the biggest mistake of his life. Mr Murrell said had ended up in hospital a few times and did not want to take drugs after that happened. He sought help from a doctor and a psychologist and was able to get himself off drugs.
On 24 July 2018 Mr Murrell attended the Apollo Health Centre complaining of a lump and swelling at the back of his left hands. He said he had done two days' paid work for Centre Rio Steel Fixing in July 2018 and at the end of the day his back was finished, and his hand was blown up. Steel fixing was generally arduous work, but Mr Murrell said he was not lifting the steel, he was tying it together and nipping the ties.
On 11 August 2018 Mr Murrell was seen at Perth After Hours Clinic after taking benzoate and methylamphetamines the previous night and having an adverse reaction (exhibit 47).
On 12 August 2018 Mr Murrell attended at the Armadale Kelmscott emergency department and was agitated and intense, and suspicious that his water was being poisoned and somebody had given him benzodiazepines (exhibit 48).
On 18 August of 2018 Mr Murrell was charged with a firearms offence and at the police station, complained about chest pain and was taken to the Armadale Hospital (exhibit 49).
On 17 and 18 August 2018 Mr Murrell saw Dr Henry requesting a referral to a psychologist and a mental health care plan. No mention was made of the back injury (exhibit 66).
On 29 August 2018 Mr Murrell said he performed work for Sarich and Sons, in essence holding a laser and spotting for the excavator.
Mr Murrell said that on 4 September 2018 he saw Dr Lambert for chronic back pain and saw her again on 11 September 2018 when he asked for a referral to a chronic pain specialist. He said he had had lost the previous referral and had seen a back specialist because the lawyers told him to go (exhibit 66, pages 192, 193). He denied saying he had wedge fracture at the T4 at the consult of 4 September 2018. The notes reveal that at that consultation he advised he had not had Tramadol prescribed in the last four months.
Medical records show that on 7 September 2018 Mr Murrell attended Dr Hendry in relation to an alleged assault occurring the previous afternoon when Mr Murrell said his wife had hit him in the mouth with a shovel (exhibit 66). Mr Murrell said that after that occurred, he had to finish the job on his own which involved about 30 sqm of a concrete pour for a carport.
On 18 September 2018 Mr Murrell attended Dr Slinger (exhibit 17).
Around the week of 26 September 2018 Mr Murrell was gainfully employed doing what he described as edge formwork for pathways for Mr Cateldo for which he was paid $450 and on 5 October 2018 a further $200.
On 23 September 2018 Mr Murrell saw Dr Mpofu requesting a referral to a pain specialist pending his insurance settlement (exhibit 66).
On 3 October 2018 Mr Murrell said Ms Hawkins registered DDM Concrete and Constructions Pty Ltd (exhibit 73). Mr Murrell said Ms Hawkins wanted to start a company where she was the director and secretary and wanted to do jobs, but she did not understand the nature of the business which required money being put up for retention and the like. Mr Murrell is listed as a 50% shareholder in that business.
Mr Murrell said that around 21 October 2018 he was a heavy user of methylamphetamine.
Around the week of 29 October 2018 Mr Murrell was gainfully employed for two days doing edge formwork for pathways for Impressive Concrete and was paid $550.
On 6 November 2018 Mr Murrell saw Dr Baverstock for back pain, and it was recommended that he undergo pain management. Left hand X‑rays due to soft tissue swelling were performed (exhibit 66).
On 20 November 2018 Mr Murrell received a further driver's licence disqualification for a drink related offence.
In November 2018 Mr Murrell commenced using the Service Seeking.com online platform. Mr Anderson, who also used that online platform gave evidence and said the website operates by the user identifying the service they required, clicking on that area whereby a form appears, the user ticks the appropriate boxes, provides input as to his request for services and provides their contact details and then posts the request to the website.
Mr Murrell said that he gave quotes on jobs that were publicly posted on Service Seeking.com and estimated that he gave about 300 quotes (ts 71), later saying he could not recall exactly how many but agreeing it was approximately 160. He said he quoted on the jobs to learn quoting and to train himself in estimating. He categorically and consistently denied that he obtained or performed any work from those quotes (ts 239).
Exhibit 70 are documents from Service Seeking.com which show that between 30 November 2018 and 24 March 2019 Mr Murrell provided quotes for approximately 160 jobs. In relation to 'Andy's job' in January 2019 in Lower Chittering a review was posted to the online site with photos stating the work was of poor quality. Exhibit 70 shows that 'Andy's Job' was marked 'selected' on Mr Murrell's Service Seeking.com profile. Mr Murrell recalled seeing a review on the website from someone from Lowering Chittering, then said he could not recall it (ts 72). He said he had no recollection of doing the job. No payment for the job seems to be recorded in any of the financial documents of Mr Murrell.
Exhibit 70 also shows that a concreting job on 18 January 2019 at Eglinton was marked 'selected' on Mr Murrell's profile. Mr Murrell's evidence (ts 237, ts 238) was he did not remember Ms Jacinta Robertson, did not recall hiring a bobcat and did not know where Eglinton was. He said he was not really using methylamphetamine at about this time (ts 239).
Exhibit 70 also shows that the job 'Colin' was selected on Mr Murrell's Service Seeking.com profile on 22 January 2019. Mr Murrell did not have any recollection of undertaking work for Mr Colin Anderson or in Kalamunda. Mr Anderson, who at the time resided in Kalamunda, said after he posted a concreting job on the website, he was contacted by at least three people who came to his residence and provided quotes. One of those was a person Mr Anderson referred to as Mr Murrell who came to his house with a female whom he introduced as either his girlfriend or de facto. Mr Anderson could not recall the first name he was given. Mr Anderson said he only recalled the name Murrell because that name was provided to him by the lawyers in a pre-proofing session.
Mr Anderson described the person he referred to as Mr Murrell as a little bit slim build, dark hair, 5 foot 8, 5 foot 9, and was smaller and skinnier than Mr Anderson. In cross‑examination he agreed that he had been shown a photograph of Mr Murrell by the lawyers and the description was based on his recollection from the photograph. Mr Anderson had not seen the person previously.
Mr Anderson said the female appeared to be a bit older and have had a bit of hard life, was slim, but he could not recall the colour of her hair. He remembered her but could not articulate why. He said she seemed super bossy, appeared quite a bit older, her language was colourful, and he was a bit taken aback by her language.
Mr Anderson said the male and female turned up in a vehicle that had concreting equipment in it, a wheelbarrow, a portable cement mixer, timber and the like. There were discussions and ultimately an agreement about the driveway work to be performed. They measured up the area of the proposed concrete work and left.
A few days later he was contacted on the phone and given a price. Mr Anderson could not recall the price but engaged their services. Part of the agreement was that he had to remove all of the concrete from the driveway.
Under a month later the person Mr Anderson referred to as Mr Murrell arrived with two other men, put the formwork up and prepared the area. The person Mr Anderson referred to as Mr Murrell arranged with BGC for concrete to be delivered and Mr Anderson was told he had to go to Hazelmere and pay for the concrete. Mr Anderson did so, and the concrete truck arrived. Mr Anderson was away for about an hour. The concrete was spread and levelled, and the work completed. Mr Anderson said all three men did the work together. Mr Anderson was unable to describe the other two men, nor describe what each individual was doing.
Mr Anderson was happy with the workmanship. The three men were at his premises for five to six hours and all three left together. Mr Anderson paid cash for the work.
Mr Anderson said he had used Service Seeker.com for other services including an electrician and a plumber over a period of about 18 months and agreed that he would not be able to describe the plumber or electrician. Nor could he remember the name of all the trades people he had used or the other people who provided quotes for the driveway work.
Mr Anderson was first asked to give evidence about three weeks prior to his evidence being given when he was contacted by a lawyer. He was asked if he had advertised a job through Seeking Services.com for concreting at his house and was shown a photo of a person the lawyer identified as Mr Murrell. Mr Anderson said his identification and description of Mr Murrell came from his memory of that photo.
Mr Anderson was not shown the actual post he had made and had not seen it since he made it. When the post was read to him Mr Anderson could not explain why it referred to access being available from both the front and back. Mr Anderson said he knew that a concrete truck would be required to pour the concrete. He agreed that the concrete truck driver poured the concrete and spread it in the area that had already been dug.
It was pointed out that the post referred to the job needing to be done on 16 April 2019 at 7.45 am. Mr Anderson could not recall why he wanted it at that time. His recollection was that he wanted it reasonably quickly and not three months after the post. In evidence he said that he thought the job was 10 m by 11 m or 12 m. The post refers to the job being 5 m by 18 m.
Mr Anderson recalled that the person he referred to as Mr Murrell told him he had issues with his partner in that he had fights and arguments with her and made comments about how she was messing him around.
Mr Anderson was a witness of the highest calibre. He was straightforward, honest and doing his best to assist the court. However, the evidence establishes that Mr Anderson was shown a photograph of Mr Murrell and told the person in the photograph was Mr Murrell and then asked if it was Mr Murrell he dealt with. Mr Anderson acknowledged that his description of the person he referred to as Mr Murrell was influenced by the photograph and of being told that person was Mr Murrell.
The dangers of identification evidence are well known. Mr Anderson did not know Mr Murrell previously and only saw him when he attended to provide a quote and then when he later attended the premises for some five hours to do the work.
As a matter of law, honest and convincing witnesses can be mistaken in their identification and more than one honest and convincing witness can be mistaken. Mistakes in identification occur not infrequently, and miscarriages of justice have occurred as a result of mistaken identifications.
In this case the danger of suggestibility looms large. Mr Anderson was shown a photograph, about three years after the event, of only one person in circumstances where he agreed that another two persons had provided quotes and two other people had attended with the person he referred to as Mr Murrell to do the work. He was told that the person in the photograph was Mr Murrell.
There is also the danger of confirmation bias, that is the natural inclination to say that the person in the photograph who he had been told was Mr Murrell was the person who attended his residence because he is being asked about that person and that unconsciously leads to the believe that the solicitor would not be asking about Mr Murrell if he was not the person who attended the premises and performed the work.
There is clearly a difference between proofing and coaching a witness.
Witnesses should give their own evidence as far as practical uninfluenced by what anyone else has said whether in formal discussions or informal conversations. The line between proofing or preparation of a witness and coaching is a matter of degree and dependent on the facts: Re Equiticorp Finance Ltd; Ex parte Brock [No 2] (1992) 27 NSWLR 391. It is appropriate for solicitors to confer with a witness prior to giving their evidence. It is quite proper that the witness' mind is directed to the issues. It can be appropriate in some circumstances to discuss the witness' proposed evidence to clarify an ambiguity or uncertainty. However proofing cannot move to coaching and does so when the witness' true collection of events is supplanted by another version suggested by the interviewer or where the witness' testimony is a mere regurgitation of what they have told or the witness is otherwise influenced: Majinski v The State of Western Australia [2013] WASCA 10. Those proofing a witness must ensure proofing does not lead to a witness supplanting their true recollection of events.
Whilst the evidence stops short of establishing that coaching as distinct from proofing occurred the danger of susceptibility and confirmation bias is acute. Mr Anderson was shown only one photograph and told that was Mr Murrell and openly admits that he would not have recalled the name if it was not suggested to him.
Due to those dangers and the fact that Mr Anderson was describing events occurring over three years ago I place no weight on that part of Mr Anderson's evidence whereby he provides a description of the characteristics of the person he referred to as Mr Murrell or that the person introduced himself as Mr Murrell.
Mr Anderson's evidence is not, in those circumstances, direct identification evidence. At its highest it is circumstantial identification evidence in that it establishes no more than that a male attended his residence to provide a quote with a person identified as his partner and subsequently attended with two other persons to do the work, and that that male represented that he was a concreter and performed concreting work and had a partner with whom he on occasions had arguments with.
Mr Anderson's evidence, however, does not stand alone. Independent evidence establishes that Mr Anderson advertised for concrete services on Service Seeker.com. Mr Murrell is a concreter. Mr Murrell was a subscriber to Service Seeker.com. Service Seeker.com documentation show that Mr Murrell not only had access to Mr Anderson's advertisement but selected it. Mr Murrell's own evidence establishes that he did on occasions do smaller concrete jobs for reward. Mr Murrell on occasions was accompanied at those jobs by a female partner. The male who attended Mr Anderson's residence on both occasions had a partner with whom he on occasions argued. Mr Murrell and his partner often argued.
The combined weight of this evidence, and not Mr Anderson's description or references to the person identifying himself as Mr Murrell leads me to infer and I find as a fact that it was Mr Murrell who attended on both occasions and performed at least part of the physical work.
I reject Mr Murrell's evidence that he did not obtain work from Service Seeking.com. It was a deliberate attempt to mislead the court both as to the fact that he had the capacity to do the work and whether he did the work. This is a telling finding against Mr Murrell's creditability.
I accept the evidence of Mr Anderson. I also infer from the fact that a review was left for 'Andy's job', and the Service Seeker.com documentation shows Mr Murrell selected that job that work was performed or organised by Mr Murrell for Andy.
On 18 March 2019 Dr Tierney's notes reveal Mr Murrell said he was using methylamphetamine only on weekends (exhibit 65, exhibit 67).
Mr Murrell agreed that on 3 April 2019 he saw Dr Waller (exhibit 65) and told him he was using methylamphetamine twice a week and had used THC previously and suspected heroin and another drug had been added to his methylamphetamine.
Mr Murrell agreed that on 10 May 2019 he went to Sir Charles Gairdner Hospital emergency department (exhibit 52). He agreed he told them he smoked a substance he thought to be methylamphetamine the previous night and the effects were not like his previous experiences of methylamphetamine. He said he waited for an hour and discharged himself.
In May 2019 Mr Murrell said he did some foundation concrete work for Sun Path Plastics. It did not involve any screeding. He worked for about two days. Ms Hawkins poured the concrete, and he controlled the concrete shute channelling the concrete into the pre‑dug channels.
Mr Murrell agreed that on 20 May 2019 he called an ambulance and was taken to Armadale Hospital. He agreed that he had used bleach and prima cleaner to wash his hands. He said he was coherent to a point. He said he did not remember speaking any weird sentences. He agreed that he was agitated and fidgety. He discharged himself from the hospital (exhibit 53, exhibit 54). The notes reveal he was delusional and talking about Asian men in the room pretending to be doctors and that an observation machine was trying to poison him. He was cagey about his drug use, but others advised the staff of his methylamphetamine use.
On 18 June 2019 Dr Mpofu observes that Mr Murrell used 'ice' and had last used two weeks ago (exhibit 66, exhibit 67).
In July 2019 Mr Murrell joined the Armadale aquatic centre attending twice in that month, three times in August 2019, twice in September and once in October 2019, once in October 2020, four times in November 2020, five times in December 2020, January 2021 and February 2021, and twice in each of March and April 2021 (exhibit 2).
On 7 July 2019 Mr Murrell consulted Dr Mpofu for his back pain and was prescribed paracetamol and then on 31 July 2019 he saw Dr Mpofu for chronic back pain and to obtain a medical certificate for Centrelink and was put on a management plan (exhibit 66).
Mr Murrell said that around about July 2019 he approached Mr Drabarek of D & Z Constructions (D & Z) for work as he was on the 'bones of his arse' and Mr Drabarek sent him for a drug analysis and medical examination to see if he was fit for work. Mr Drabarek later told him that he had failed the fitness to work test.
On 2 August 2019 Mr Murrell advised the physiotherapist Ms Ryan that he was in pain every day and received treatment (exhibit 1).
On 5 August 19 Mr Murrell received $70,150 for a settlement of his disability claim.
On 6 August 2019 Dr Mpofu completed a medical assessment for Centrelink.
On 12 September 2019 Mr Murrell saw Dr Mpofu and was reviewed after a prolonged absence. Mr Murrell requested a referral for a pain specialist and advised he was awaiting insurance finalisation (exhibit 66). Mr Murrell said there was an issue over the insurance paying for it and he never saw a pain specialist.
Around the week of 19 September 2019 Mr Murrell was gainfully employed for a day by Eastside Concrete. Mr Murrell said his role was to put bolts onto tilt panels as they were lifted by using a rattle gun and he was paid $250 for the day. Mr Murrell said he had worked for that business previously and was under the impression the owner knew he had a bad back. He said he was told they did not want him to come back to that job.
On 1 October 2019 Mr Murrell underwent a comprehensive medical examination involving spirometry, audiometry and muscular skeletal assessment by the Forum Medical Group as he had applied to work at D & Z. The muscular skeletal system examination included the hands, wrists, elbows, shoulders, cervical, thoracic, lumbar spine all of which returned normal range of movements. Mr Murrell's posture was described as good. The range of motions for the neck, thoracic and lumbar spine, shoulder, elbow, wrist, fingers, thumb, hips, knees and ankles were all considered to be normal. Upper limb fitness, grip strength, push-ups, ability to sustain above the shoulder, lower limb fitness, repetitive squats, kneeling, lumbar back strength, manual handling, dynamic floor to bench lifts and dynamic floor to shoulder lifts and manual handling techniques were reported at the higher end of the range. Cardiovascular fitness was tested. A step test produced an above average result (exhibit 33).
Mr Murrell said the testing was not worth the paper it was written on and that some poor tree had died for what was written on it. He said that some of the answers (shown by different coloured pen) were made by the testing staff. He agreed that he had completed some questions incorrectly by indicating that he did not have difficulties wearing steel cap boots or have depression and anxiety when in fact he did. The latter two answers were subsequently changed by Forum staff.
The defendant says that this examination shows that Mr Murrell had a physical capacity completely at odds with what he was telling the doctors when seeking the disability support pension and seeking referrals to pain specialists and what he reported to both Dr Slinger and Dr Williams.
The defendant points out that Mr Murrell did not follow up on his appointment with the pain specialist on 14 October 2019.
The plaintiff points out that irrespective of the results of the medical assessment Mr Murrell did not obtain the employment he sought with D & Z because that assessment refers to his 2018 thoracic spine web fracture and a left foot fracture and ongoing pain management requirements and being reviewed by pain management specialists. Mr Nagawalla makes the point that any employer seeing references to those matters is, as a matter of practicality, not going to employ Mr Murrell in the concreting industry. Mr Drabarek told Mr Murrell that he failed the fitness to work test which in light of the results of that test could only be because of the reference to his previous injury.
Around 11 October 2019 Mr Murrell was gainfully employed performing 'liquid limestone' work for Ms Harris. He was paid $1,700 and a further $700 on each of 14 and 15 October 2019. Mr Murrell said this was for less than a day's work and he was assisted by Ms Hawkins who did the wheelbarrowing, and he did some sponge work with Ms Hawkins finishing the concrete. The payments were for both labour and concrete.
Around 25 November 2019 Mr Murrell was gainfully employed constructing a disability ramp for Ms Bonham. Mr Murrell said it was a small job and Ms Hawkins dug the sand and he poured the concrete with the concrete truck driver backing the truck up to the work area and operating the shute. Mr Murrell said he helped with the minor amount of very light formwork that was required and was paid $700.
Around 10 December 2019 Mr Murrell was gainfully employed doing what he described as light work using a laser to check levels for Pro Crete on a block of units. Mr Murrell said he was doing one or two days' work for Pro Crete here and there before and after Christmas and was not working every day. He said he approached Pro Crete for work and was given light work. He was paid $1,350 for two days' work including tax and superannuation on 10 December 2019, $1,450 on 20 December 2019 for two to three days' work including tax and superannuation, $900 on 23 December 2019, $1,500 on 24 January 2020, $500 on each of 3 and 6 February 2020, 27 March 2020, 3 April 2020 and 14 March 2020. Mr Murrell said the latter date was the last occasion he worked for Pro Crete. Mr Murrell said that from the time he commenced working for Pro Crete to the time he finished he did not use methylamphetamine. Mr Murrell agreed that the $900 payment from Pro Crete on 23 December was not shown on the Centrelink records, but maintained that every time he received a payment for work, he went personally to Centrelink and declared the income.
Medical records revealed that Mr Murrell attended the Sky Medical Centre in Armadale on 24 February 2020 with a blister on his cheek and neck that he had noticed at 'jujitsu' (exhibit 67).
On 3 March 2020 Mr Murrell was involved in a pushbike accident which fractured his left elbow. Mr Murrell said he did not have any cast, just a sling over his arm (exhibit 55, exhibit 56). Mr Murrell was declared totally unfit for work from 3 March 2020 to 8 May 2020. Mr Murrell said that at the time he received that certificate he had a certificate from Dr Nzi stating he was already incapacitated for work. Mr Murrell said he told the hospital that his back was hurting from his previous injury, but he did not tell them that he had a T4 web fracture. I prefer the accuracy of the medical note which reveals that under the history he referred to a T4 web fracture (ts 282, exhibit 55).
I find that Mr Murrell's total incapacity to work from 3 March 2020 to 8 May 2020 was related to the pushbike accident not the work‑related accident the subject of this action. The defendant has satisfied me that Mr Murrell was totally unfit for work on 3 March 2020 to 8 May 2020 as a result of this pushbike accident.
Medical records show that on 4 March 2020 Mr Murrell told Dr MacKinnon that he had problems retaining employment and previously only managed construction roles and had to have additional help with certain organisational tasks especially following plans on the work site (exhibit 67).
Mr Murrell says he saw Dr McKinnon on 4 March 2020 and obtained a prescription.
Mr Murrell said that on or about 5 June 2020 he withdrew $974 which was used for materials to install water pipes at a premise. He initially said he dug the trenches, then said he did not personally dig the trenches, and said Ms Hawkins dug the trenches which he said were so shallow that his dog could have dug them (ts 291). The trench was about 5 m long and only 2 inches deep.
Mr Murrell said he subscribed to an online platform known as Estimate One, a database upon which the bigger builders advertise their jobs, (ts 77) from November 2019 to October 2021. He said he was just giving estimates and learning how to put tenders together to gain experience estimating and training himself to estimate. Mr Murrell said he downloaded the documents and worked out what the material would cost and did his own practise estimate. The estimate took weeks and weeks (ts 328). Mr Murrell said he would not forward that estimate to anyone whose documents he downloaded (ts 332) and never quoted on any of the jobs. Mr Murrell said he probably did about 10 estimates later saying it was 25 - 30 estimates (ts 322). In part of his evidence, he said he would try and liaise with other estimators to see if his estimates were in the ballpark. He said he did not have the capacity to formally make a tender because the jobs were too big.
In another part of his evidence, he said he did about 10 estimates and received only feedback on one job. On two occasions he contacted builders out of the blue, gave them a figure and asked them in essence if he was in the ballpark. On one occasion he was told to sharpen his pencil, and, on another occasion, he was told he was out of the ballpark.
I understood his evidence to be that on a couple of other occasions he spoke to builders outside of the Estimate One app as to whether the estimates he provided were in the ballpark and they provide some limited feedback (ts 334).
The defendant points out that there was no documentation provided in the discovery about any documents downloaded from Estimate One. There is no evidence Mr Murrell obtained any work from the Estimate One site.
Mr Murrell said that when he saw Dr Gillett on 18 June 2020 (exhibit 38) he did not say anything about the pushbike accident or the work he performed for Pro Crete because he was never asked and added that he would not describe what he did with Pro Crete as work, it was just helping out a mate. Dr Gillett reports that Mr Murrell said he was able to do general chores around the home and reported significant pain in his left foot and intense pain in his shoulder blades. The defendant contrasts this with the results of the Forum medical assessment of 1 October 2019. Dr Gillett reports that Mr Murrell advised he was smoking 25 cones of cannabis a day.
The defendant says that in general Mr Murrell's reports of significant pain in the back should be rejected because there is not a consistent history of complaints of pain to the treating doctors and a lack of prescription medication taken for the alleged pain.
On 31 July 2020 Ms Fernandez performed a vocational assessment (exhibit 25) on Mr Murrell which is dealt with in other parts of this judgment. Ms Fernandez's note reveals Mr Murrell as saying he had a 'C' class manual licence, but Mr Murrell's evidence is that no licence was ever issued to him.
Mr Murrell agreed that on 7 August 2020 he went to the emergency department for a laceration of his finger which occurred when he was trying to gain entry into his house and put his hand on the glass which smashed (exhibit 58). He returned to the emergency department on 9 August 2020 for follow up (exhibit 59).
On 16 October 2020 Mr Murrell was involved in a motor vehicle accident. He said the ambulance arrived within about a minute of the incident and they asked if he would like to go to the hospital. He said he was never treated by a doctor at the hospital and walked home (exhibit 60, exhibit 61). The medical notes reveal he was to remain in hospital until sober and then, absent any further complaints, be discharged. The defendant has failed to discharge the evidentiary onus that this motor vehicle accident had any effect on any earning capacity of Mr Murrell. On the evidence available to me I am satisfied it had no effect.
Medical records show that on 18 November 2020 Mr Murrell attended Dr Mummert with a 1 week history of increased pain and significant tenderness of T4-T6 in context of starting CrossFit. A CT scan was ordered, and the results show signs of osteoarthritis in the facet joints. The medical notes of 24 November 2020 also refer to crossfit (exhibit 67).
On 29 January 2021 Mr Murrell visited Back In Motion physiotherapy for the first time since 9 August 2019 and reported pain fluctuating in intensity and using 'Weed' (exhibit 1).
Mr Murrell attended physiotherapy between 9 August 2019 and 29 January 2021.
Mr Murrell said that on 4 June 2021 he posted an image of himself with blood and wounds all over his face on Facebook stating that he 'got flogged yesterday. A few guys gave me a touch up'. Mr Murrell could not remember posting 'I took drugs when I should not have'. The plaintiff asks me to infer that he did so. I cannot infer that Mr Murrell posted the later remark when the post was not produced in evidence and Mr Murrell was not specifically asked if that remark was in fact on the post.
On 3 October 2021 Mr Murrell admits that he made a post on Facebook saying that 'Dianna just grabbed me by the throat and threatened to stab me'. Mr Murrell said that (a) he made the post and (b) that is what occurred.
On 2 December 2021 Mr Murrell saw Dr Silbert whose report reveals that Mr Murrell denied a return to any form of gainful employment. Mr Murrell agreed he said this (ts 358), and then a few answers later denied saying it (ts 358). Mr Murrell maintained he said he had gone through a hard patch and was struggling financially and was doing a day's work here and there (ts 359). Mr Murrell said the phrase 'gainfully employed' was not a phrase he would use. Mr Murrell's evidence that 'gainfully employed' were the doctor's words is not inherently implausible. Dr Silbert reported Mr Murrell advised he ceased cannabis use one year ago and methylamphetamines at least two years ago.
In February 2022 Mr Murrell undertook paid work at Jerky & Co via a Centrelink job placement involving four shifts sorting out meat for which he was paid $315.70. He said he was not paid for some hours and when he queried this was told he was not good for that type of work. Mr Murrell said he was offered work in the warehouse, but that involved lifting up to 25 kg and he could not do that and declined the offer.
Mr Murrell said Ms Hawkins received a $100,000 inheritance as a result of her mother's death.
Mr Murrell said that in parts of 2019, 2020 and 2021 things were so bad he was eating food out of shopping centre supermarket bins. His house was repossessed in 2020.
Mr Murrell said that since the accident he had not been fishing, camping, bushwalking, shooting, four-wheel driving, or skateboarding because of his injuries as he knew it would hurt his back although he agreed he had not tried to undertake those activities.
Mr Murrell said he currently spends his leisure time at home and has limited social interactions which mainly occur on Facebook.
Mr Murrell's current complaint was of a sore back. When giving evidence he said his back was 6 out of 10 on the pain scale and he said he often received pain on the scale of 10 on a daily basis.
Mr Murrell said he had to be careful of the type of chair he sat on and his back affected him when he was bending, lifting, vacuuming or doing housework. Mr Murrell said walking for 10 minutes would hurt his foot and most of the time shoes caused pain, so he wore sneakers. He had exercised in the pool to strengthen his body, even though he had to pay personally because workers' compensation had stopped. He was not able to do a recommended 6 to 12‑month programme because of funding.
Mr Murrell said he is currently required to take anti‑inflammatories and receives Newstart Centrelink payments having been denied disability payments.
Mr Murrell said he looked for retail jobs including at Nike, Hungry Jacks, Cross Marks, and applied for heaps of jobs at other places, but could not remember off the top of his head the other jobs he applied for.
Mr Murrell said he had not looked for work previously because he understood he was exempt from doing so as his doctor said that he was totally incapacitated for work. Mr Murrell said he did not look for work until Centrelink told him he had to. He was aware that Dr Slinger said he was fit for light duties but said that was only Dr Slinger's opinion.
Mr Murrell said the work that he had performed after 2018 did not involve lifting 25 kg or above.
Mr Murrell said he could not do forklifting work because forklifts went on uneven surfaces and that would not be good for his back. He could not do store work or work at Bunnings because that involved manual labour including heavy lifting. Accordingly, he had not sought such positions.
Mr Murrell maintains he told Dr Williams and Dr Silbert that he struck a prop with his back in the fall, and said he told all doctors the same story.
Mr Murrell said the conviction for making a falsely misleading statement to a customs officer occurred when he wrote that he did not have anything to declare in circumstances where it was first time he had been out of the country.
Findings on Mr Murrell's credibility
In assessing Mr Murrell's evidence, I take into account that many of the events described occurred years ago and it is not reasonable to expect precise evidence about those events.
I did not find Mr Murrell to be a credible witness. He was shown to be inconsistent, inaccurate and untruthful.
Mr Murrell is liable to the tax department to pay tax on the full amount of the worker's compensation payments that he has received, and accordingly I shall award a Fox v Wood component.
I calculate that component on the basis that Mr Murrell received $135,975 in weekly payments, excluding the redemption sum, calculated at the $131,721 referred to in the memorandum of agreement which was registered (whilst the defendant was not a party to that agreement it seems to me to be the most accurate guide to weekly payments made) plus the $4,250 paid after that agreement was registered (those sums being obtained from the defendant's submissions) making a total of $135,975. $31,000 was paid at $2,500 gross for 12.40 weeks ($738 tax per week equalling $9,151.20). 49.4 weeks at $2,150.00 per week ($591 tax per week equalling $29,195.40) making a combined amount of $38,340.60 for the Fox v Wood component which I allow and that amount should be added to my previous assessment.
Interest on special damages and past travelling expenses
The plaintiff also says that interest should be awarded on the sums awarded for special damages ($2,799.79) and past travelling expenses ($1,500) being $4,299.79 at 3% for 5.77 years equalling $744.29.
The defendant says this is not a matter that counsel was given leave to make submissions on.
Whilst interest was not claimed on those amounts in the plaintiff's amended particulars of damages filed on 16 May 2022, I would allow the sum now claimed by the plaintiff of $528.87.
Interest on past economic loss
The plaintiff says that interest can and should be awarded for that component of past economic loss which includes worker's compensation already paid and says there are there are numerous decisions that support this proposition. The plaintiff refers to Brown v Churchill [2006] WASCA 17 in which McLure JA referred to the period when the applicant was receiving worker's compensation payment and in recalculating the amount of interest awarded interest of 3% for a period which included the period appellant had received worker's compensation payments.
In Alvarez Cabrera v Piv's Engineering Pty Ltd [2012] WADC 62 his Honour Judge Gething acknowledged that from the date of the accident the plaintiff was in receipt of worker's compensation weekly payments and awarded interest on the past economic loss including the period where worker's compensation payment had been received.
Whilst I accept that in those cases interest was paid on the worker's compensation portion of past economic loss it is not apparent from the judgments that the issue of whether interest should be awarded for that component of past economic loss which includes worker's compensation already paid was specifically raised.
The defendant's position is that the decision of Batchelor v Burke (1981) 148 CLR 448 approved in Haines v Bendall (1991) 172 CLR 60 means that interest on past economic loss is not to be awarded to a plaintiff where weekly payments of compensation have been made. These decisions have been followed in this court: Smith v MMG Golden Grove Pty Ltd [2020] WADC 103.
I find the cases referred to by the plaintiff are distinguishable on the basis that the question of interest on the worker's compensation already paid does not seem to have been squarely raised before the court. It has been raised in this case and the authority referred to by the defendant make it clear, and I find, that interest should not be awarded on that portion of past economic loss were weekly payments of compensation have been made.
The plaintiff submits that if I find that interest is not to be awarded on that portion of the weekly payments of compensation that have been made then the amount of interest to be awarded should be calculated on the period that the plaintiff was not paid weekly payments ie: 21 May 2018 to 4 October 2018 (19.4 weeks at $1,367 net being $24,606) and from 4 October 2018 to 4 August 2022 (199 ½ weeks at $435 net being $86,782 net) and the total amount for past economic loss for a period the plaintiff was not paid weekly compensation is they say calculated at $113,301.8 ([sic] the correct figure being $111,388) by 3% by 2.68 years making $9,109.46.
To award interest in this manner fails to recognise that of past economic loss of $144,419, Mr Murrell had been paid $135,975 in weekly payments and to award interest on that amount being money already paid to the plaintiff would involve an element of 'double dipping' by the plaintiff.
The defendant says that interest should be only payable on the net difference between the amount awarded for past loss ($144,419) and the worker's compensation payments ($142,350) being $2,069 plus tax paid on those payments. ($6,150) totalling $8,219 multiplied by 3% for 5.7 years which equates to $1,405.
I accept that the defendant's method of calculating the interest on past economic loss is the appropriate method of calculating such loss.
I therefore calculate interest on past economic loss as follows. Amount awarded in judgment $144,419 less weekly compensation which the plaintiff accepts was paid of $135,975 equals $8,444 plus $6,150 (tax paid) equals $14,594 multiplied by 3% for 5.7 years equals $2,495.57.
Therefore, taking into account the Fox v Wood component and the recalculation of interest on past economic loss would mean I assess the damages awarded to Mr Murrell as follows:
General damages
$60,500.00
Past loss of earnings
$144,419.00
Loss of future earning capacity
$272,283.00
Loss of future superannuation
$34,052.00
Special damages
$2,799.79
Future medical expenses
$7,000.00
Past travelling expenses
$1,500.00
Medical expenses, travel, vocational expenses
$19,001.00
Interest on past loss of earnings
$2,495.57
Fox v Wood component
$38,346.60
Interest on special damages and travel expenses
$744.29
$583,141.25
Excluding general damages
$522,641.25
Less 5% contributory negligence:
$522,641.25 ‑ $26,132.06 =
$496,509.18
Plus general damages
$60,500.00
$557,009.18
Accordingly, the judgment for the plaintiff in the sum of $557,009.18.
Order 24A offer
It is not in dispute that the defendant served an O 24A notice on the plaintiff on 21 January 2021 offering to settle the claim for $400,000 'exclusive of compensation'.
The plaintiff accepts that the relevant question is whether the plaintiff obtained judgment on the claim in an amount not more favourable to him than the terms of the offer so as to entitle the defendant to costs on a party and party basis from the date of the offer.
The plaintiff says that the phrase 'exclusive of compensation' is so ambiguous that it should be construed against the defendant.
They say that the word 'exclusive' could be construed in the following ways:
(a)the O 24A sum should be subject to a deduction of the worker's compensation recovery; and
(b)the O 24A sum would be in addition to the worker's compensation recovery.
Further they say that there is uncertainty as to the value of the worker's compensation payments because it is not clear whether the worker's compensation recovery sum was $172,690.79 (as referred to in an agreement between the insurers Zurich and Alliance), the actual sum of weekly compensation payments made of $166,299.38 or the weekly compensation payments made and further sums that were paid to the plaintiff pursuant to the Act ($166,299.38 plus $32,193.26 plus $5,000).
The plaintiff says that this uncertainty of the value of the offer renders the offer ineffectual.
In any event they say that even if there is certainty about the offer in that 'exclusive of' means in addition to worker's compensation payments then the worker's compensation payments should be added to the sum of $400,000 to calculate the sum offered by the O 24A notice and that $129,325.14 was paid by way of weekly payments and in addition expenses of $16,767.64 were paid and sch II entitlements of $17,806.74 were paid making a total of $163,899.52.
For the purposes of this decision 1 will take the weekly payments figure at its most favourable for the plaintiff of $129,325.14 as referred to in their submissions of 8 September 2022.
The plaintiff says that further sums that have been paid in relation to the worker's compensation claim being a redemption of future weekly payments of $32,193.26 and future medical expenses of $5,000 are not to be taken into account as they are not worker's compensation payments.
In this regard the plaintiff relies on Gosper v Christopherson [1986] HCA 28; (1986) 160 CLR 423 whereby the High Court held that a lump sum redemption could only be paid if there was an agreement between the employer and the employees and a determination by the court. The court held that even if there was a determination by the court of the amount of the redemption an employer was not obliged to make a lump sum payment by way of redemption as the actual making of the payment was at the option of the employer. As there was no liability on an employer to redeem either future medical expenses or weekly payments any redemption amounts could not be considered worker's compensation payments within the scheme of the Workers' Compensation Act 1926 (NSW) (the NSW Act).
The plaintiff says the same reasoning applies in Mr Murrell's case. Therefore, the O 24A offer was $400,000 plus $163,899.52 equalling $563,899.52.
The defendant says that the words 'exclusive of compensation' clearly means exclusive of all worker's compensation payments whether they are weekly payments, lump sum redemptions of any type, expenses paid and sch II entitlements.
The defendant say that the total worker's compensation payments made were $216,351 made up of redemption of future weekly payments of $32,193.26, redemption of future medical expenses $5,000, sch II entitlements $17,806.74, weekly payments made of $142,350, medical expenses of $19,001, less 5% contributory negligence means that the total O 24A offer was $205,533 plus $400,000 being $605,533.
The defendant says as the plaintiff obtained judgement of $557,009.18 the defendant should be ordered to pay costs from the date of the offer.
An O 24A offer is made in the context of settling a common law claim and not a worker's compensation claim. I find there is no ambiguity about the word's 'exclusive of compensation'. The plain meaning of compensation when used in the context of an O 24A offer objectively considered encompasses all monies paid to or for the benefit of the plaintiff pursuant to the worker's compensation claim. That would include weekly payments, medical expenses, sch II entitlements and redemption of future weekly payments and future medical expenses. That means that the amount offered in the O 24A offer is over and above those amounts paid pursuant to the worker's compensation claim. The O 24A offer, I find, is not ambiguous. It has the required certainty about it.
Gosper v Christopherson was dealing with statutory interpretation of the NSW Act. The conclusion that as there was no liability to an employer to redeem either future medical expenses or weekly payments any redemption amount could not be considered worker's compensation payments was reached in the context of the statutory scheme being considered and upon the true construction of s 15(1) of the NSW Act.
Either way, on the plaintiff's calculations or the defendant's calculations, the O 24A offer is more than the amount recovered in the judgment.
The issue of whether redemptions of the weekly payments and medical expenses are worker's compensation payments for the purpose of the Act does not need to be considered because we are dealing with an offer made in the context of a common law claim and not a question of establishing whether payments paid are compensation within the statutory scheme laid down by the Act.
The judgment for the plaintiff is in the sum of $557,009.18 which is below both the defendant's calculation of the O 24A offer ($605,533) and the plaintiff's calculation of ($563,899.52).
The issue of whether redemptions of liability for future weekly payments of $32,193.26 and the redemption of future medical expenses of $5,000 are worker's compensation payments for the purpose of the Act does not need to be considered because even when those amounts are excluded from the calculation of compensation payments, the O 24A offer is still above the judgment sum.
It is not necessary to determine the issue however in deference to the amount of time the parties spent arguing on this particular point I observe that s 67 of the Act provides that with the consent of the worker and the employer, an order can be made under pt XI of the Act that liability for the incapacity is to be redeemed by the payment of a lump sum (s 67(1)(a)) or the worker and employer can agree to the redemption and register a memorandum of that agreement (s 67(1)(b)).
If such an order is made or a memorandum of that agreement registered, there does become a liability on the employer to pay the redemption amount (s 67(7)). In Gosper v Christopherson the court specifically found that the actual making of the lump sum payment by way of a redemption in the amount determined by the court was at the option of the employer. This is fundamentally different from the position under the Act in this State. Therefore, my view would be that monies paid by way of redemptions are payments within the Act. However, as I have said, it is not necessary for me to determine that point.
In accordance with the reasons for this judgment and subject to any further submissions by the parties the orders are as follows:
1.Judgment for the plaintiff against the defendant in the sum of $557,009.18.
2.The defendant pay the plaintiff costs agreed or taxed until 21 January 2021.
3.The plaintiff pay the defendant's costs to be agreed or taxed from 21 January 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
21 OCTOBER 2022
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