Oliver v Polar Fresh Cold Chain Services Pty Ltd
[2017] QDC 136
•25 May 2017
DISTRICT COURT OF QUEENSLAND
CITATION:
Oliver v Polar Fresh Cold Chain Services Pty Ltd [2017] QDC 136
PARTIES:
JOHN LUWATI OLIVER
(plaintiff)
v
POLAR FRESH COLD CHAIN SERVICES PTY LTD (ACN 480 780 724 90)
(defendant)
FILE NO/S:
BD 4324/15
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
25 May 2017
DELIVERED AT:
Brisbane
HEARING DATE:
02 - 05 May 2017
JUDGE:
Burnett DCJ
ORDER:
1. The matter be listed for hearing on orders on 13 June 2017.
CATCHWORDS:
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – REMOTENESS AND CAUSATION – PRE-ACCIDENT CONDITION – where the plaintiff suffered personal injury in a workplace accident – where the plaintiff’s injury was exacerbated by a pre-existing condition – whether the plaintiff is entitled to damages
COUNSEL:
The plaintiff appeared on his own behalf
C S Harding for the defendant
SOLICITORS:
Mullins Lawyers for the defendant
Introduction
The plaintiff was injured on 8 September 2013 whilst working as a warehouseman at the defendant’s warehouse in Parkinson Queensland. He had been employed by the defendant it that capacity for a little under two years prior to the accident. On the day in question he was engaged in the process of picking up crates of oranges when a crate was accidentally caused to fall upon him. Liability is not in issue. It has been admitted by the defendant. The only issue in the proceeding concerns the quantum of the plaintiff’s claim.
Factual issues
The plaintiff was self-represented. In his Amended Statement of Claim, he alleged that “at about 6.15pm the plaintiff was picking up crates of oranges in aisle 52 of the defendant’s warehouse for an order that had to be filled. At (about that time) a pallet of crates of oranges, (sic) weighing 5 to 10 kilograms fell into the plaintiff’s back, neck and left shoulder.”
The defendant denies that a “pallet of crates and oranges” fell onto the plaintiff as alleged, but says that a “crate of oranges” fell upon the plaintiff. It says that the crate of oranges fell because a forklift driver employed by the defendant accidentally extended the tines of a forklift resulting in the pallet he was carrying hitting a number of crates on a second pallet directly below the first pallet, thus dislodging a crate of oranges from the second pallet which fell onto the plaintiff.
The circumstances of the events causing injury are material and because of the conflict between the evidence of the plaintiff and that which is alleged by the defendant, it is a matter necessary to be resolved.
In his evidence the plaintiff stated:
“A:A forklift driver was putting a pallet – I don’t know whether he was putting a pallet or taking a pallet, but he was on the other side of us, and then he pushed a crate of oranges. The oranges in the – in the pallet, and – they were all in the crates, but the pallet wasn’t wrapped. The policy of the company is basically to wrap the pallet before actually you move the pallet, but it wasn’t, and the forklift driver was trying to put something, and then he pushed that on the other side where I was, and then I was buried down under the – I was buried under about 40 or 30 crates full of oranges, and then he ran, came and pulled me out from ---
Q:So you were buried under some crates of oranges?
A:Yeah, and then he ran and he came and pulled me out of that, and that time I can’t walk.”
In a Notice of Claim for Damages in the form approved under s 275 of the Worker’s Compensation and Rehabilitation Act 2013, at p 4 of 15 at para [38], the plaintiff described the circumstances of the accident as follows:
“A forklift driver on the other side was stacking pallets of what the claimant believes were crates of oranges onto other pallets also containing crates of oranges. In the process, the forklift driver knocked over a crate of oranges which fell onto the claimant’s head causing him to fall onto his hands and knees.”
The statement made by the plaintiff at para [38] was declared by the plaintiff to be true and correct and complete in every respect when made by him in the presence of his then solicitor on 3 July 2014. It should be noted that at the time that the form was completed the plaintiff was legally represented by a firm of solicitors experienced in the conduct of personal injury proceedings. Although the circumstances relevant to the completion of the form were not addressed in evidence, it is apparent from the form including, and particularly, the completion of ‘Section 5 – Amount and Calculation of Damages’ that the form itself was completed by some person with a knowledge and appreciation of the law relevant to these types of claims.
In addition to the Notice of Claim of Damages, the plaintiff also presented to various treating practitioners. One such practitioner was Sonic HealthPlus now an Allied Health Professional. On initial presentation, the clinical notes reveal the plaintiff described circumstances concerning the injury as follows:
“Almost one month since a crate of oranges fell from about 3 to 4m and hit head…”
At about the same time he was presented to Queensland X-rays on 22 October for radiological examination. Clinical notes from the referring doctor, Dr Marzena Kulawska noted relevant clinical information as including:
“Heavy crate fell on his head, ongoing pain in left arm, thorax and back.”
Similarly in a history given to Dr Dave Cormack in an assessment undertaken for an application by the plaintiff for the disability support pension, he noted under the heading “History”:
“Work accident 15/9/13: crate of oranges fell on his upper back/neck.”
When assessed by Dr David Morgan on 20 November 2014, Dr Morgan reported the plaintiff stating:
“He said that a plastic box or crate with measurements of 600mm x 300mm x 150mm, full of oranges, was stacked with other crates on an aisle. Apparently this particular crate was struck by a forklift. The crate fell onto him from a height of 3 to 4 metres and struck him over the posterior aspect of his head, his neck and his shoulders. It also struck the upper part of his back.”
Shortly following the accident, the plaintiff presented to his local GP who referred him to Donna McCook, physiotherapist. On presentation to her on 134 November 2013, she reported the history as:
“Onset of injury was 08/09/2013 from a crate slipping and dropping a pile of boxes of oranges onto his head and neck. Immediate pain to the left shoulder, neck and back.”
Ms McCook’s later email of 21 November 2013 referred to “a crate slipping and dropping a pile of boxes of oranges onto his head.”
Similarly, the plaintiff reported to Dr Tersia De Wilzem presented to her on 22 October 2013 who reported that:
“According to Mr Oliver, he was working at Polar Fresh cleaning crates of oranges, when a pallet came down and hit him on the head and back.”
From a survey of the complaints made by the plaintiff prior to trial, including his own description in the Notice of Claim prepared by him with the assistance of his lawyer, the description of the accident involved a single crate falling upon him. In her report, Dr De Wilzom referred to “a pallet” although that statement was made in the context of a complaint by the plaintiff that he was “cleaning crates of oranges.” The only witness to whom he made a complaint of crates (plural) falling upon him was that reported by Donna McCook, a physiotherapist.
The plaintiff is a Sudanese refugee and it is apparent that English is not his first language. Notwithstanding that matter, he was able to communicate quite effectively despite his accent. He appeared to have an acute appreciation of the subtleties involved in language in his exchanges with the court and similar observations were made by at least one treating practitioner. See for instance the observations of Ms McCook who made such reference in an email of 21 November 2013 (Exhibit 10).
It follows that except for the plaintiff’s evidence in court and allegation at para 4(c) of his Amended Statement of Claim and the reports recorded by Ms McCook, the plaintiff has consistently stated that the injury occurred when “a crate” of oranges fell upon him. On balance, I find that the accident happened in the manner reported by the plaintiff in his original Notice of Claim to WorkCover and as was commonly reported by him to various medical practitioners, except for Ms McCook and Dr De Wilzem. In respect of Dr De Wilzem, she referred to “a pallet” (singular) and I am satisfied that it is more probable than not that she has simply misreported the mechanism of injury stated to her by the complainant. So far as Ms McCook is concerned, she refers to “a pile of boxes” (plural). Again, I am of the view that it is more probable than not that this description follows an infelicitous use of language on her part.
Generally it is unfortunate that these witnesses were not required for cross examination on this point and accordingly I was not able to effect any detailed assessment of these matters following such inquiry.
In my view, the overwhelming weight of evidence is consistent with the reports made by the plaintiff to Dr Morgan, Core Health and by the plaintiff himself in his Notice of Claim for injury document which was prepared by him with the assistance of his solicitors. It follows I find the injury was caused to the plaintiff when a crate of oranges was dislodged from a pallet and fell upon the plaintiff from a moderate height.
Injuries
Immediately following the accident, the plaintiff was taken by private vehicle to the Mater Private Hospital where painkillers were administered and he was placed under supervision. He was subsequently sent home but did not return to work for approximately two weeks. Ultimately he returned to work, at which time he was placed on light duties which still occasioned him discomfort. In the meantime, he presented to Sonic HealthPlus, now a Medibank Health Solutions, where he was examined by Dr Cormack. Upon examination on 4 October 2013, it was noted that he had:
“…persistent/constant pain in neck since with associated paraesthesia to the left hand, also c/o upper thoracic and scapula pain, was seen at Mater Private Hospital initially – reports no imaging performed, prescribed analgesia but unsure type. Has not been attending work much since injury? … tenderness upper C spine, pain with rotation to left > R, FROM shoulders, winging of scapulars L> R, nil nuero signs elicited UL, normal sensation, power and reflexes sym. imp: ongoing neck pain after trauma 1 month ago, has been lost to F/U and suboptimal treatment, needs CT scan, contacted employer…”
Presentation about five days later revealed:
“…Current symptoms/progress: nil changes. Did not see a physio yet. Has referral from Mater Private. c/o constant 8/10 neck pain. Occasional headaches. Occasional P&N both hand (dorsum hand, travelling up to neck) took “pain killers”… seen by GP last week who prescribed Brufen”.
Subsequently upon the request of the defendant arrangements were made for the plaintiff to be presented to Dr Tersia De Wilzem of Kinetic Health for assessment and recommendations. Upon presentation the plaintiff complained principally of pain mostly in the thoracic back. It was noted that he was using ibuprofen as was necessary but otherwise he has a normal gait, a full range of movement in the neck and back and there were no signs of nerve impingement with straight leg raising and a stump test was negative. It was noted that examination of the upper back showed spasm in the trapezius muscle but otherwise he had a normal range of movement in his shoulders except abduction and flexion of the left shoulder where he could only reach 170% due to pain. The x-rays of his left shoulder and thoracic spine indicated no abnormalities but it was observed there were multi-level spondilitic changes in the thoracic spine. It was noted that he complained of a work-related condition in the thoracic back; the injury was a work-related condition of thoracic back contusion and strain. She recommended he would benefit from a multidisciplinary rehabilitation program.
His care continued under the supervision of Dr Cormack of Medibank Health Solutions. The plaintiff continued to complain of symptoms and saw a physiotherapist for ongoing treatment. Unfortunately he failed to cooperate, for instance turning up at hydrotherapy without togs, and was generally resistant to recommended physiotherapy, complaining of the discomfort that it occasioned him.
In the course of preparation for litigation he was presented to Dr David Morgan, an orthopaedic surgeon, for assessment of his injuries. After relating the relevant background and clinical history, he noted upon clinical examination in November 2014 that his gait was normal, his lumber spine had full reflexion range of 90 degrees and 20 degrees of extension and 20 degrees of both right and left lateral flexion; neurological examination of lower limbs was normal, with no measurable muscle wasting; cervical spine also had full ranges of both flexion and extension with lateral flexion and lateral rotation being unrestricted; and his left shoulder girdle had a normal profile compared with the collateral shoulder girdle and when compared with the collateral shoulder girdle there was no wasting. He viewed x-ray images which demonstrated a multi-level degenerative disc disease at C2/3, C3/4, C4/5 and C5/6 levels which observed to be both longstanding and extensive. He noted few minor degenerative changes in the lumber spine and radiographs of his left shoulder girdle were normal. He noted the plaintiff complained of a history of an assault which had occurred in 2013 and thought it is “possible that this assault is of no real significance when compared with this current claim”.
What he considered of greater importance was that the plaintiff’s antecedent radiographic examinations confirmed severe disease at multiple levels in his cervical spine which he considered extensive for a man of 40 years of age and which he considered to be “highly unlikely” to have been asymptomatic. Likewise, he considered there were some changes in the lumber spine which would suggest a constitutional degenerative process. Accordingly, he opined that from the description of the workplace accident occurring on 8 September 2013 it was probable that the plaintiff had sustained a number of orthopaedic injuries which were in the nature of aggravation injuries.
Concerning his cervical spine he opined that the forces of the injury would have served to either temporarily exacerbate or alternatively, permanently aggravate his cervical spine problems. However he considered over the intervening months these symptoms would have settled such that he had at the time of examination regained a full range of motion. Accordingly, it suggested to him there was little more than a temporary exacerbation sustained and he could find no objective evidence of orthopaedic injury that could be specifically linked to the accident.
He made similar comments in respect of the thoracolumbar vertical column, namely that there had been no major structural derangement and no real alteration in the natural history of his pre-existent degenerative processes.
In respect of the plaintiff’s left shoulder, he accepted that forces may have been applied either posteriorly or superiorly around the shoulder, which may have given rise to local bruising but that otherwise over the intervening months the plaintiff had regained a full range of motion and the radiographs remained normal. In essence, he concluded that the plaintiff’s left shoulder remained normal.
He concluded that in his view there was no quantifiable loss according to the American Medical Association publication entitled “Guides to the Evaluation of Permanent Impairment” (5th edition).
In a more recent examination of the plaintiff by Dr Morgan in June 2016, he noted that his earlier expressed reports remained unchanged and that there was unlikely to have been any long term injuries. He considered that the plaintiff did not require any ongoing orthopaedic care as a result of the subject accident and that the accident had not compromised a future domestic independence.
A matter identified at the trial in which the defendant contends the plaintiff mistakenly attributed to the defendant concerned an injury sustained by him in January 2013 when he was the subject of an assault. It was plain from his evidence that he had sustained some minor physical injury in that assault, the significance of which was principally psychological. However he also did complain of symptoms of neck pain and headaches which was so significant that he was referred by his local doctor, Dr Jain for x-ray assessments. Plainly, some weeks prior to the accident, the plaintiff was sufficiently agitated by the effects of the assault that he sought attention from Dr Jain complaining of neck and back pain significant enough for him to ask for two weeks from work. In the circumstances, I am satisfied that the plaintiff had been suffering from neck and back pain significant enough to not only consult a doctor but also to warrant a request for time from work and a reference for x-rays. Both matters are entirely consistent with the observations of Dr Morgan.
In response to both questions addressed to him by his instructing solicitors in March 2017, he affirmed that he did not consider the plaintiff’s cervical spine condition was relevantly effected by an assault suffered by the plaintiff in 2013; his view that the plaintiff’s cervical symptoms had “settled somewhat” was based in part upon the complainant’s remarks to him and observations that the plaintiff had attended a physiotherapist for a few weeks following the subject accident but after then, received no additional treatment other than the ongoing ingestion of Brufen; and finally, complaints made in May 2014 for neck pain based on his assessment that he considered it unlikely that the plaintiff had been truly asymptomatic in the region of the cervical spine prior to the accident and that he (Dr Morgan) could not find any clinical evidence that there had been any injuries sustained in the accident when he examined him.
Dr Morgan’s observations are also consistent with the records of Dr Cormack and the observations of Ms McCook.
It follows that the plaintiff sustained three principle injuries, namely:
1. Cervical spine injury
2. Lumber spine injury
3. Shoulder injury
Given the evidence of Dr Morgan, I am satisfied that the cervico/thoracic spinal injury constituted a temporary aggravation or exacerbation of a very significant degenerative condition in the plaintiff’s cervical spine which had been symptomatic since before if not at the time of the accident. However, on Dr Morgan’s assessment it left the plaintiff with a 0% impairment of whole person function. The other injury concerned the injury to the plaintiff’s left shoulder. It was sustained in the accident and symptoms relevant to it were still evident in late 2013 when the plaintiff applied for a disability support pension. As at 23 December 2013, Dr Cormack opined that the symptoms in his left shoulder had almost resolved. In any event, it would appear that the original injury the plaintiff sustained of bruising to his left shoulder has left him with no impairment although he suffered ongoing discomfort until late 2013/early 2014. It was the dominant injury sustained by the plaintiff.
ISV assessment
Given the plaintiff had sustained multiple injuries in the accident, the benchmark for assessment is the dominant injury, being the injury with the “highest range”. That is, the injury having highest maximum ISV. The injuries to the plaintiff’s cervical spine and lumber spine, being temporary aggravation injuries, fell within items 88 and 93, with ISV ranges of 0-4. The shoulder injury, item 97, had an ISV range of 0-5. It follows this is the dominant injury.
The defendant contended for an ISV assessment of 2-3 would be appropriate which equates to an award of general damages between $2,620 and $3,930. However, respectfully I do not think such an assessment makes sufficient allowance for the compounding nature of the injures in question. I assess the overall aggravated effect of the injuries at ISV 5 which equates to an award of general damages of $6550.
Economic loss
In his notice of claim for damages, the plaintiff claims for both past and future economic loss. He claims a sum of past loss in the order of $32,769 on the basis that he had been “unable to work since his injury” and at the time of the injury was earning approximately $961.54 net per week. He claimed that sum for the 32 weeks from the accident through to the date of notice. He also claimed future economic loss which was based on a net weekly income of approximately $650 per week, projected forward at $350 net loss over 35 years on the 5% tables and discounted by 15%.
The evidence supports neither claim for past or future economic loss. Immediately following the accident, the defendant engaged its full-time employed “return to work coordinator”, Mr Gary Smith, to assist the plaintiff. His role was to assist injured team members of the defendant in returning to work on their normal duties by preparing return to work plans, investigating injuries and liaising with medical practitioners and WorkCover to assist injured workers back to normal duties. That included the development of a suitable duties program for an injured worker. In respect of the plaintiff, Mr Smith prepared a list of possible suitable duties for the plaintiff which duties were available for him to undertake at the defendant’s business.
Mr Smith stated that one day in early 2014 the plaintiff came into the defendant’s premises and told him he wanted to resign. Mr Smith asked him why he wanted to resign and says the plaintiff told him that he could no longer work there because of the pain he was having from his injuries as a result of the incident. The plaintiff was paid his regular salary until such time as he resigned. Accepting the evidence of Dr Morgan, as I do, there was no basis in the plaintiff’s condition to justify the termination of his employment on account of any injuries arising from the incident in September 2013. While it is accepted that the plaintiff would have sustained some temporary aggravation of the pre-existing degenerative condition evident in his spine and that he would have suffered some discomfort in his shoulder for a short time following the accident, these symptoms would have been temporary and certainly by January 2014 would have passed. The medical evidence does not support any finding that the plaintiff would have sustained economic loss beyond early January 2014.
Given those findings and given the plaintiff was paid his full employee entitlements by WorkCover until that resignation, the plaintiff’s claims for both past and future economic loss fails. That includes his claim for past and future loss of superannuation entitlements.
Incidentals
The defendants notes that the plaintiff did not deliver a separate statement of loss and damage as is normally required but despite that, and the absence of evidence, it accepts a claim for travelling expenses in the amount of $324.80, together with out-of-pocket expenses and special damages paid by WorkCover Queensland as itemised in the payments/recoveries history report, Exhibit 11, in the amount of $5,687.82, resulting in a total award under that head of $6,012.62. I allow that sum. There is however no basis in the evidence to support any award of future out-of-pocket expenses.
Summary
In summary, I conclude:
1. The plaintiff had a significant pre-existing cervical/thoracic degenerative condition prior to the accident.
2. That condition had been aggravated about eight months before the accident, following a violent assault upon the plaintiff and symptoms from that condition were extant at the time of the accident.
3. In the accident the plaintiff sustained injury when a single crate of oranges fell upon him, striking him in the shoulder/neck region.
4. The effect of the accident was to temporarily aggravate his pre-exisitng cervicothoracic spinal degenerative condition and caused a temporary injury to his left shoulder but otherwise left him with no permanent impairment. That aggravation ought to have lasted a number of months.
5. In the premises he sustained damages which I assess at $6550 made up as follows:
Item 97 ISV $6550.00 Out-of-pocket expenses $6,012.62 Total
$12562.50
Orders
The matter be listed for hearing on orders on 13 June 2017.
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