Peacock v State of Queensland
[2024] QDC 179
•25 October 2024
DISTRICT COURT OF QUEENSLAND
CITATION: Peacock v State of Queensland [2024] QDC 179 PARTIES: JODI IRENE PEACOCK
(Plaintiff)
v STATE OF QUEENSLAND
(Defendant)
FILENO/S: BD 271/23 DIVISION: Civil DELIVEREDON: 25 October 2024 DELIVEREDAT: Brisbane HEARINGDATE: 19, 20 June 2024 JUDGE: Barlow KC, DCJ ORDERS: Judgment for the defendant. CATCHWORDS:
TORTS – NEGLIGENCE – GENERALLY – OTHER
MATTERS – the plaintiff, an employee of the defendant, was injured in the course of her role, causing an aggravation of a previously unknown spinal degenerative disease - whether the defendant was negligent where the plaintiff did not disclose any prior back pain – whether there was a foreseeable risk of injury – whether the plaintiff suffered any economic loss – whether the aggravation injury had resolved, causing no permanent impairment
Workers Compensation and Rehabilitation Act 2003 (Qld) s 305B, s 305C s 305D
Czatyrko v Edith Cowan University (2005) 215 ALR 349
Fox v Wood (1981) 148 CLR 438
Vozza v Tooth & Co Ltd (1964) 112 CLR 316Wyong Shire Council v Shirt (1980) 146 CLR 40
COUNSEL:
G Thomas for the plaintiff
A Marks for the defendant SOLICITORS:
Shine Lawyers for the plaintiff Crown Law for the defendant
Contents
Summary............................................................................................................................... 1
The plaintiff’s evidence........................................................................................................ 2
The defendant’s non-expert witnesses.................................................................................. 7
Donna Reidlinger.............................................................................................................. 7
David Balmer.................................................................................................................... 8
Graham Taylor................................................................................................................ 10
John Stenzel.................................................................................................................... 10
Lorina Leaunoa............................................................................................................... 11
Medical evidence................................................................................................................ 11
Dr Kate Campbell........................................................................................................... 11
Dr Greg Gillett................................................................................................................ 13
The witnesses and disputed evidence.................................................................................. 14
What happened on the day?................................................................................................ 17
The nature and causes of Ms Peacock’s pain...................................................................... 18
Was the defendant negligent?............................................................................................. 19
Conclusions on liability...................................................................................................... 21
Damages.............................................................................................................................. 21
General damages............................................................................................................. 21
Past economic loss.......................................................................................................... 21
Future economic loss...................................................................................................... 22
Past special damages....................................................................................................... 22
Future special damages................................................................................................... 22
Fox v Wood..................................................................................................................... 22
Summary of damages...................................................................................................... 22
Result.................................................................................................................................. 23
Summary
The plaintiff, Ms Peacock, was 44 years old in November 2020. She sues the defendant in its capacity as Queensland Correctional Services (QCS). Ms Peacock has been employed by QCS as a custodial corrections officer since 2001. In November 2020, she was a custodial corrections officer at the Borallon Training and Correctional Centre. As part of her employment as a corrections officer, Ms Peacock was required to hold a gun licence and, in order to maintain it, to undergo firearms assessment annually. This included a theoretical and practical assessment, the latter of which took place at a shooting range operated by the defendant.
On 23 November 2020, Ms Peacock participated in the practical side of her firearms assessment, together with other officers, over a period of approximately two hours from about noon, under the direction of two firearms instructors. There were two other female employees participating in the training. This is not contested. What happened during the training is the subject of contention between the parties, as are the liability and quantum that stem from the events.
The crucial issue is whether QCS was negligent in requiring or allowing Ms Peacock to perform what is known as a reactionary gap test, particularly after having spent about two hours in target shooting and without first being required, or given the opportunity, to stretch or to warm up for the test. The general nature of such a test is not really in contention, although the instructions actually given to Ms Peacock about it are. The test is intended to demonstrate how far an aggressor can run toward an officer before the officer can draw and fire a weapon (and therefore what distance an officer should keep from such an aggressor). To perform it, an instructor carrying a holstered gun and the other participant (the runner) stand next to each other. When another person blows a whistle, the runner runs in one direction while the instructor draws and fires a gun (in the other direction) as quickly as possible. The runner stops when the gun is fired and the onlookers note where the runner was at that moment.
Ms Peacock alleges that she was told to start by facing the instructor, to turn and run away as fast as she could on hearing the whistle and then, on hearing the gun discharge, to stop suddenly. She contends that she suffered injury to her lumbar spine as a result of pivoting to run away, running, stopping suddenly and turning to face the instructor when she heard the gun. She alleges that QCS was negligent in requiring her to undertake this activity in the circumstances and in the manner she was instructed. She says that, as a result of her injury, she suffers ongoing pain from aggravation to a pre-existing degenerative lumbar spine condition that has led to her being unable to continue in her role as a corrective services officer and to have diminished future capacity and income in her employment with QCS or elsewhere.
In her statement of claim, Ms Peacock claimed damages totalling $342,451.78. However, in closing submissions, counsel for Ms Peacock sought a total of only
$95,301.88.
QCS denies that it was negligent. It disputes many of the plaintiff’s factual assertions, particularly about what happened on the day, what has caused her injury, whether any permanent injury persists and whether she has suffered and will suffer any loss. Alternatively, it contends that any damages should be no more than $6,482.68.
For the following reasons, I find that:
(a)QCS was not negligent;
(b)in any event, the injury has resolved and has not caused any permanent disability;
(c)if I were wrong in concluding that QCS was not negligent, Ms Peacock would be entitled to damages in the sum of $7,674.68; and
(d)consequently, there should be judgment for QCS.
The plaintiff’s evidence
Ms Peacock said that she had been employed by QCS as a custodial corrections officer since 2001, apart from for a period between 2016 and 2019. Although there were no official ongoing fitness requirements, she would attend gymnasiums and boot camps six days a week and considered herself to be generally fit. She had not had back pain before, apart from one occasion in 2018, after travelling to New Zealand, for which she obtained chiropractic treatment a couple of times, which resolved the problem.
Part of the training that Ms Peacock had received was firearms training, as she was required to carry a firearm while on duty at some centres. She was required to undertake annual firearms assessment, which would be carried out at a shooting range about 30 to 45 minutes’ drive from the Borallon Centre, where she was stationed in 2020. She said that assessment included stripping and reassembling a pistol and then being tested in shooting at a target.
On 23 November 2020, Ms Peacock and two other female officers (Ms Donna Reidlinger and Ms Lorina Leaunoa) travelled together in a car to the shooting range for their annual firearms assessment. They commenced the process of assessment at about midday. The assessment officers were David Balmer and Graham Taylor, both of whom were qualified weapons instructors. (They had travelled together in a separate vehicle.)
Before undergoing the assessment, Ms Peacock and the other two officers were required to read a paper and complete a short theory test (Firearms Awareness and Safety Theory).1 They were also required to complete a medical disclosure form.2 A third form that was completed that day was a Firearms Annual Accreditation Assessment.3
On arrival at the range, they completed the paperwork referred to above and then undertook their practical assessment. The first part of the practical training was stripping and reassembling a pistol. That took about half an hour and was undertaken in a covered area. They then went onto the range to be tested in target shooting.
In order to pass the shooting assessment, an officer is required to hit the target with at least 45 out of 50 shots. Ms Peacock said that she shot 50 rounds, but she mostly shot in clusters (that is, the bullets would pass through the target very close to each other, so that individual holes were not identifiable). At the end of those rounds, the instructor could not count 45 hits, so she was required to do the test again. That round of shots, she thought, took about 35 to 40 minutes.
Exhibit 1, TB307-313.
TB297-298.
TB299-304.
In order to undertake the test again, Ms Peacock returned to the sheltered area, cleared her pistol and obtained another 50 rounds of ammunition. That took about 10 minutes. She and the instructor then returned to the range and she shot the second 50 rounds, which took about 30 minutes. Again, she clustered her shots and again the instructor was unable to count 50 hits, so she was required to undertake a third test after again clearing her pistol and obtaining more ammunition. That again took about 10 minutes, followed by about 30 more minutes undertaking the third test. On that occasion, she deliberately shot 50 different parts of the target, so that she passed the test.
After that process, Ms Peacock said, the instructors told her and her fellow officers that one of them would have to run in a reactionary gap test. She said that Ms Leaunoa had just returned from maternity leave and Ms Reidlinger refused to do the test, which led the instructors to tell her that she had to do the running. She said that she also refused, but the instructors - Mr Balmer, in particular - insisted that she do it. She said that she argued with Mr Balmer and they engaged in a heated discussion, but it resulted in her doing what they required.
Ms Peacock’s evidence about what she was told about the test and by whom was not entirely clear. She said:4
Mr Balmer and [I were] standing face to face and he said – he had his hands on his holster. He said, “I’m going to pull my weapon.” And then we were both looking at the target. He said, “You need to – when you hear – I’m going to blow a whistle. When you hear that whistle, you need to run in the opposite direction of – of the target, because Mr Balmer will shoot you. So you need to run as fast as you can to get away and prove that you can be 10 metres – 10 to 15 metres away from someone with a weapon.”
…
I did perform the test. I was still arguing right up until that whistle blew. We were still looking at the target together. I remember turning and looking at Mr Balmer …
I heard the whistle blow. I pivoted to my right, sprinted. … When I heard the gun, … I stopped.
The following exchange then took place between Ms Peacock and her counsel, Mr Thomas:5
And what happened as you stopped?---As I was running, I felt I – I had [hurt] myself, but when I stopped, I felt intense pain down my legs.
Where – when you say down your legs, where do you mean?---Right down from my buttocks down to my – the back of my knee.
So the back of your legs?---Yeah, my back of my legs.
…
Did you feel any pain in any other part of your body at the end of that test?---Yeah, my – my back was hurting and my hips – I hurt my hips. At the time, though, there was a – white hot pains in – down the backs of my leg.
So what did you do after you felt that pain?---I stopped and I turned to the left. I looked at the two female staff members and I said, “I – I think I’ve hurt myself.”
T1-19 – 20.
T1-20.
…
Where did you think you had pulled muscles?---Just in the backs of my legs.
Ms Peacock said that she and the other training officers then had to pick up the spent ammunition from the range while the instructors packed up in the covered area. After this was completed, she said, she approached the instructors and told them that she had hurt herself and needed to update her injury declaration. They told her they had already packed the forms in the car, so “Suck it up, princess.”
The form to which she was referring was the Firearms Annual Accreditation Assessment. That form appears designed to be completed at the end of an assessment session such as this. It includes sections in which the instructors were to assess her knowledge and accuracy as satisfactory or not satisfactory and, on the last page, the following:
Injury/Illness Declaration
Have you injured yourself or become ill as a result of this training No Yes
Please provide specific details of the injury/illness (When did it occur, where did it occur, how did it occur, who you reported the incident to, names of witnesses)
Assessee Signature: …………………….. Date: ……………………
Assessor Signature …………………….. Date: ……………………
Despite its obvious design, Ms Peacock said that she and the other officers being assessed were required to complete the form before the assessment commenced. That was when she did so, circling “No”, signing and dating it. That was why she said to the instructors that she needed to update the form. However, she said, she was never given the opportunity to do so.
After the exchange referred to above, Ms Peacock and the other officers returned in the car to the Borallon Centre. Ms Peacock said she asked Ms Reidlinger to drive, as she was in pain, but neither of the other officers would do so (Ms Leaunoa being ill and Ms Reidlinger refusing to do so because the car was booked out in Ms Peacock’s name). She drove back, in pain all the way. On their return, she took Ms Leaunoa to the sick bay and then, continuing to be in pain, she found Mr Taylor and Mr Balmer in the armoury and told them that she was in more pain so she believed that she had injured herself more seriously than she had previously thought. They again told her to “Suck it up, princess.” She then went to the officers’ mess and had a meal and stayed there until the end of her shift because she was in considerable pain. At the end of the shift, she drove home in considerable pain. At home, her husband had to assist her out of the car and with all personal activities.
The next day, she took sick leave. She rang the occupational heath and safety officer, who completed an injury form. She then saw her general practitioner and was prescribed pain medication. She did not buy that medication, but instead bought and used paracetamol, ibuprofen and Voltaren. She was also referred to a physiotherapist and for some scans and x-rays. When she returned to her doctor about a week later, she was informed that she had injured her hamstrings, she had some spinal damage and injury to both hips.
Ms Peacock said that she was off work until about the end of February 2021, at which time she returned part-time performing administrative duties on a return to work plan. She returned to full time work in June 2021: for a short time at Borallon and then at the women’s facility at Southern Queensland Correctional Centre. She remained there as a custodial corrections officer until she was seconded to the training academy, as a training officer, on 25 February 2023. She has remained on secondment to the academy since then. She expected the secondment to end in about January 2025, although she may be able to obtain a permanent position at the academy by then. Otherwise, she expects to return to the women’s facility as a custodial corrections officer.
Ms Peacock said that her injuries still affect her, saying:6
I am not as involved with my kids’ sport anymore. I can’t assist coaching of their teams. I can’t vacuum in – I can only do short bursts. I can’t mow my lawn. Standing and sitting hurt me – for long periods of time. So any travel that I do has to be broken into increments and when I talk about that, all of my family are in New South Wales, a four – five-hour drive from Toowoomba, so we have to plan a whole day to – for us to get there if we’re travelling down. Shopping is difficult. Carrying groceries is difficult and pushing a trolley full of groceries is difficult. Sometimes, it impacts my sleep. There’s quite a few impacts.
She undergoes ongoing treatment from time to time comprising regular massages, occasional chiropractic treatment or acupuncture. Some of those treatments assist in relieving her symptoms (I infer, temporarily).
Ms Peacock was asked if she had previously had any lower back problems. She said that, apart from one occasion in September 2018, when she had lower back pain from sitting for a long time each day, she had had no other issues with her lower back, ever.
In cross-examination, Ms Peacock said that she had reduced her hours to part time in October 2020, at that stage planning to remain part time until the end of some leave that she had arranged for January 2021. She agreed that her role as a custodial corrections officer involved searching cells, moving furniture for that purpose, restraining and controlling non-compliant prisoners and responding to potentially critical codes requiring immediate responses.
She agreed that she had undergone an annual control and restraint theory and practical assessment on 2 November 2020.7 On that day, she satisfactorily demonstrated a large number of physical control and restraint measures, including applying handcuffs and leg restraints, using a straight arm bar to take a prisoner off balance and manoeuvre to control the prisoner’s movement to the ground, punching, kicking, knee strikes and other manoeuvres. She demonstrated them all satisfactorily.
Ms Peacock was then taken to the medical disclosure form that she had completed and signed on 23 November 20208 before undertaking the firearms assessment. She agreed that she was required to complete such a form before any practical assessment and that, when she completed it on this occasion, she understood that the training may involve, among other activities, running, lifting, bending, getting down and up off the
T1-26 – 27.
The theory paper is at TB155-162 and the practical paper record is at TB163-168.
TB297-298.
ground and shotgun recoil. Ms Peacock had answered all the questions negatively, including:
(a)whether she had any medical condition, injury or disability that may preclude her from participating fully in the training; and
(b)whether she had any personal concerns regarding aggravation of a pre-existing or current medical condition or injury.
Ms Peacock agreed that, during the session on the firing range, she and the other officers walked up and down the range, moved to different positions in order to shoot at targets from different distances and in different ways and stances. They were not standing still for two hours, although they were required to stand in one place for the majority of the time.
Ms Peacock agreed that, at the end of the firing exercise, Mr Balmer and Mr Taylor told the assessees that they would do a reactionary gap test. They were told that its purpose was to demonstrate the distance that a potential offender could travel in the time it takes an officer to draw, load and fire a weapon.
Ms Peacock disagreed that she volunteered to participate in the reactionary gap test. She said she argued with Mr Balmer for a long time. She agreed that Mr Balmer instructed her how to do the test: she had to run down the range, away from the target, when she heard Mr Taylor blow his whistle and to stop when she heard Mr Balmer fire his weapon. She agreed that running and stopping was not an unusual activity for a corrections officer: when responding to a code, officers are required to jog to the location and get there fast, but not to sprint.
When asked about the pain, Ms Peacock agreed that she first felt pain when she was running and said that, when she stopped, she heard and felt a pop and then intense pain from her buttocks to the back of her knee.
It was put to Ms Peacock that she had signed the injury declaration form at the end of the training. She denied that and said that Mr Balmer and Mr Taylor told them to sign it before they completed the theory, which she did. She said that, after cleaning up on the range, she asked for it back, but Mr Balmer told her to “Suck it up, princess” and Mr Taylor said the same when she repeated the request later at Borallon.
Ms Peacock was then asked about her prior experience of lower back pain. She denied having such pain, except for a short period after a car accident years before. She was then taken to the following medical records.
First, she was shown a patient information sheet dated 29 June 2018 that she had completed for Back to Health Chiropractic.9 In that form, she had reported that she was predominantly seeking treatment for lower back pain with a pain level of 9 out of 10, she had had lower back pain for years, for which she had previously had chiropractic, massage and stretching treatments and her last chiropractic visit had been in April and May for maintenance of back pain. She agreed that all those facts were correct.
TB51-52.
Secondly, Ms Peacock was shown a record of attendance by her on a chiropractor at the same clinic on 5 October 2018,10 in which it was recorded that she had said that, since a holiday in New Zealand in the last few weeks, she had had lower back pain on and off, with pain 0 to 9/10, a lumbar spine ache and sharp pain in her posterior right hip and glute. She appeared to agree that she had described her pain to the chiropractor in those terms.
She was then taken to the clinic’s records of her treatment,11 which show that she had treatment on two occasions in October 2018 and six occasions in September and October 2020.
It was put to Ms Peacock that she did not tell either of the orthopaedic surgeons whom she saw for the purposes of this proceeding (Dr Kate Campbell and Dr Greg Gillett) that she had had any previous history of lower back pain and chiropractic treatment. She was not sure. Nor was she sure whether Dr Gillett had asked her if she had had any previous issues or problems associated with the areas that were painful when he saw her and she had denied any such history.
Finally, Ms Peacock was taken through some of the records of her visits to her general practitioner after the incident. On 1 May 2021, she told her doctor that she felt she had returned to “baseline” – that is, to how she was before the weapons training. By 27 May 2021, she had returned to work full time as a custodial corrections officer for three weeks and she told the doctor that she had had no further pain or issues for the previous two weeks. The medical records did not note any further complaint by her of lower back pain after that date and Ms Peacock agreed that she had not reported any lower back pain after that date. She also said there was no need to report any such pain to her doctor because she was having chiropractic treatment.
Ms Peacock agreed that she had returned to full time work, then voluntarily reduced her work to part time from May 2022 to February 2023, since when she has returned to full time work. She was taken to the records of her earnings in the 2017 to 2024 financial years12 and agreed that, as she works full time, she has not suffered any loss of income, apart from the initial period after the incident.
She also agreed that she wishes to obtain a permanent position as a training officer.
The defendant’s non-expert witnesses
Donna Reidlinger
Ms Reidlinger was called by the defendant. She is a custodial corrections officer at Borallon. She said she has worked on and off with Ms Peacock.
She said she remembers the firearms assessment session on the day in question. She thought it started at about 1.00pm with pulling apart the pistols, naming the parts and reassembling them, followed by firing three lots of 50 rounds at targets, from different positions.
TB55-56.
TB58-61.
TB151-154.
Ms Reidlinger said that, after the target testing, the instructors asked the officers being tested if anyone wanted to volunteer for a reactionary gap test. She said Ms Peacock volunteered. She recalled that there may have been a little banter between her and Ms Peacock about whether Ms Peacock wanted to do it, but ultimately Ms Peacock just said, “Look, I’ll do it.”
She heard the instructions given to Ms Peacock, which were, “I’ll see how fast you can run” as if she were running away for a prisoner. She was not sure what the instruction was about starting and stopping.
Ms Reidlinger said she watched the test. She saw Ms Peacock run about 10 or 15 metres and then stopping. Not long after she stopped, she said, “I think I’ve done something. I’ve hurt my leg.” After that, they picked up the spent rounds and returned to Borallon. She said Ms Peacok was advised by one of the instructors that, if she had hurt herself, she might want to put in an incident report, known as a SHE report.
Ms Reidlinger did not remember either instructor yelling at Ms Peacock before the reactionary gap test. Nor did she hear either instructor saying to Ms Peacock, “Suck it up, princess.”
Later in her evidence, Ms Reidlinger said that, in their roles as custodial corrections officers, when a “code” is sounded, they are required to run from wherever they are to the location of the problem, without any stretching or warming up. They are expected to have a level of fitness that enables them to do that.
David Balmer
David Balmer is a senior training officer with the Corrective Services Academy, before which he was a custodial corrections officer at Borallon. He has been a weapons instructor for about 13 years.
Mr Balmer could not specifically recall the assessment session on 23 November 2020, but he could recall requalifying Ms Peacock for her weapons licence. He recalled doing it with Mr Taylor and that there was another person there who had just returned from maternity leave.13
Mr Balmer described in some detail the typical weapons requalification process. Among other things, he said, after arrival at the firing range:14
We take the students through what we call a TOET, or a test of elementary training, where they will use the Glock – they’ll draw it from their holster. They will go through a series of tests to make sure they are safe when using the weapons. They will use dummy rounds in magazines to go through what we call stoppage drills, to make sure that they know how to clear a stoppage, if they’re out on the range and one of the weapons does not fire as it’s supposed to. Once we are happy that they are safe, we take their details down, we fill out the paperwork, and then we will load live rounds into several magazines of varying number of rounds.
This indicates to me that he did have some recollection of events on the relevant day.
T2-4.
He then explained the process undertaken in the live firing exercise. It is unnecessary to set that out in detail here. It suffices to say that it involves firing many rounds from various distances and in various sequences.
He then described the reactionary gap test which, he said, is “to try and give them an idea of how close someone can get before they are inside that reactionary gap for a weapon”, or “how far they need to be away from a perpetrator coming towards them.” He went on:15
So we give a demonstration where I will be five metres from the target, I have someone stand behind me, facing the other way. My other instructor will ask – ask the rest of the class to stand at intervals to see how far that person will go before they hear the gun go off. I will then say, “Yep, I’m ready.” The person that has volunteered, “Yep, I’m ready.” In this instance, Mr Taylor blew his whistle. I draw, action and fire on the target. In that time, we see how far the person can get away from me and if we reverse that, that – that’s how far they need to be away, that they can cover that distance before I could draw and fire upon that person.
Mr Balmer said that, on this occasion, he asked for a volunteer and Ms Peacock volunteered to participate in the test. He said that, if no one volunteers, he uses Mr Taylor. He explained to Ms Peacock what to do:16
I asked her to stand at my back. When Mr Taylor blew the whistle, she was to run in the opposite direction, away from me. And when the weapon fired, the people that were standing on the range would mark where she had got to when the weapon fired.
A short time later, he said he told her:17
Run away from me, past your fellow students, and when the gun goes off, you can slow down and – and we’ll mark where you got to.
Mr Balmer said that Ms Peacock did not report an injury to him at any time that day. He said the paperwork, including the Injury/Illness declaration, was completed with all the other paperwork when the officers arrived at the range. If someone were to be injured, he would return it to them to alter and he would then have to contribute to the preparation of a SHE report. Ms Peacock did not ask him for the return of her declaration, which would have been in a folder in one of the large boxes in the rear tray of his utility vehicle, which are strapped down at the end of the session. He said that, if a trainee asks for the return of the declaration at the end of a session, he would get it out and give it to the trainee.
Mr Balmer said that, at no time that day, did he yell at Ms Peacock, nor say to her, “Suck it up, princess.”
When asked, in cross-examination, if he recalled Ms Leaunoa being ill that day, he said he did not. He was tested on that recollection by reference to a previous statement that he had made, but he maintained that he did not know she was ill. Mr Thomas, appearing for Ms Peacock, tendered Mr Balmer’s statement, in which he had said that Ms Leaunoa had just returned from maternity leave and was physically unable to
T2-9.
T2-9.
T2-10.
participate in the demonstration. He did not say, though, that she was ill.18 He was not cross-examined on any other part of the statement.
Mr Balmer disagreed that participants in a reactionary gap test are told to stop when they hear the gun. He said they are told that, when the gun fires, the observers will mark where the runner was at that time. He said he never tells runners to run as fast as they can, just to run.
Mr Balmer agreed that a reactionary gap test is not a necessary element of renewing a gun licence. It is simply a demonstration that will only be carried out if there is time to do so at the end of a session.
Graham Taylor
Graham Taylor is a correctional supervisor at Borallon, holding that role since 2016. He is also a weapons instructor and has been since 2016. He accompanied Mr Balmer to the shooting range and assisted in testing the three officers that day.
Mr Taylor was referred to Ms Peacock’s Firearms Annual Accreditation Assessment. He said that would have been completed before the actual shooting. He identified his signature as the assessor.
Mr Taylor described the process undertaken on a typical day. His description was similar to that of Mr Balmer, although some of the details differed, as one would expect. One difference of note was that he said one of the rounds of testing involved walking between the 10 metre and five metre marks (I infer, while shooting at the target). He also described the reactionary gap test, consistently with Mr Balmer’s description, including that they would ask for a volunteer but, if nobody volunteered, he would usually do the running.
Mr Taylor was asked what instruction he would typically give to a participant in a reactionary gap test who was about to do the run. He said:19
So on the whistle you’ll start – commence your run and you’re running away from, obviously, down range – I’m sorry. Yeah, away from the – the way the – the weapon is going to be discharged. On the whistle, start running, and when you hear the weapon discharge, stop.
…
Yep, on the whistle, you will commence running and then when you hear the whistle – when you hear the firearm discharge, stop”. Yep, it’ll be along those lines.
Mr Taylor could not recall the assessment that he conducted of Ms Peacock on 23 November 2020, nor whether she undertook a reactionary gap test that day.
John Stenzel
Mr Stenzel is a manager, operational training, at the QCS Academy. He knows Ms Peacock as one of his senior training officers. She reports to the principal advisor,
The statement is exhibit 3. The part about which he was asked seems to me to be consistent with
Mr Balmer’s oral evidence, but Mr Thomas insisted on tendering it and, of course, Ms Marks (for the defendant) did not object.
T2-32.
who in turn reports to Mr Stenzel. Her role is to train newly employed custodial corrections officers in a 10 week course. She is one of about 30 training officers, of whom 16 are permanent positions and the balance (including Ms Peacock) are seconded temporarily.
Mr Stenzel said that QCS will shortly be advertising for more permanent positions and Ms Peacock would have a very good opportunity to obtain such an appointment because of her experience and the ability she has shown. If she does not get such a role and her secondment ends, then she would be likely to return to her role as a custodial corrections officer.
Lorina Leaunoa
Ms Leaunoa did not give evidence, not having been called by either party. However, the defendant tendered an affidavit of a lawyer within the Crown Solicitor’s office, who gave evidence that she had attempted to arrange for Ms Leaunoa (who no longer lives in Australia) to give evidence, but she was not successful in making such arrangements.
Medical evidence
Ms Peacock was seen and assessed by two orthopaedic surgeons who gave reports and oral evidence for the purpose of this proceeding: Dr Kate Campbell (who was engaged by Ms Peacock’s solicitors) and Dr Greg Gillett (engaged by QCS’s solicitors).
Dr Kate Campbell
Dr Campbell saw Ms Peacock on 1 July 2022, having reviewed her medical records and other documents. In her report, Dr Campbell said that Ms Peacock had told her that she was involved in a car accident at the age of 23, sustaining a whiplash injury that returned to normal after rehabilitation and with no ongoing issues. She had had no other injuries.
She recorded that Ms Peacock had reported sprinting about 15 metres, then pivoting to the right and stopping suddenly, at which time she felt pain in her bilateral hamstrings and heard a pop.
Dr Campbell recorded that she had seen a CT scan of Ms Peacock’s lumbar spine taken on 16 December 2020 and her findings were that it demonstrated an L5/S1 broad-based protrusion and an L4-L5 disc height loss and broad-based protrusion. She had also seen a record from Ms Peacock’s general practitioner, who had noted that an ultrasound showed low grade muscle strain.
Dr Campbell diagnosed Ms Peacock as having suffered an aggravation of lumbar degenerative disease as a consequence of the incident at the firing range. She noted that initially Ms Peacock had had a hamstring tear, but that seemed to have resolved, but she had ongoing symptoms from the aggravation of her lumbar degenerative disease. She was now able to perform her duties at work and should be able, over time, to resume her recreational activities (bush walking, gym and boot camp) provided she is mindful not to exacerbate her pain. She assessed her under chapter 15 (spine) of the AMA Guide to the Evaluation of Permanent Impairment as DRE category I with 0% whole person impairment, given that there were no significant
clinical findings, no observed muscle guarding or spasm and no documented neurological impairment. However, under chapter 18 (pain) she considered that Ms Peacock has a permanent impairment of 3%, given her ongoing symptoms and limitations.
In her report, later confirmed in her oral evidence, Dr Campbell opined that Ms Peacock was and would remain able to work as a corrections officer, albeit while having ongoing pain. She did not expect there to be any change in the symptoms as Ms Peacock ages and she will be able to work to normal retirement age. But in any event there was a risk of her lumbar spine becoming symptomatic had the incident not happened.
Dr Campbell saw Ms Peacock again on 23 May 2024. She recorded that the symptoms remained the same, with occasional flare-ups of lower back pain radiating to her lateral hips. Dr Campbell’s opinion had not changed.
Finally, Dr Campbell produced a file note,20 in which she maintained that the aggravation of Ms Peacock’s lumbar spine was likely related to the incident at the firing range. Dr Campbell said that her sudden stopping and twisting movements were highly likely to have been the cause of the aggravation of her degenerative disease. It did not make any difference if the pivoting had occurred when she started to run rather than on stopping.
In the course of cross-examination, Dr Campbell said that it was her normal practice to ask if the person being examined (I infer, with a complaint of lower back pain) had ever experienced lower back pain before the relevant incident. She agreed that Ms Peacock had not told her of any history of lower back pain, but only because, she said, she would have documented it had she been given such a history. She understood that Ms Peacock’s generative disease had been asymptomatic before the incident.
Dr Campbell was taken to the medical records of Ms Peacock’s general practitioner, which recorded that, on 1 May 2021, she had told the doctor that she had been bush walking with no symptoms and felt that she was back to baseline. Dr Campbell did not accept that that indicated that Ms Peacock’s symptoms had resolved by then. She said it would not be unusual for symptoms to fluctuate, as Ms Peacock had indeed reported to her, but she would not consider the aggravation to have resolved until the patient had not experienced symptoms for a consistent period of at least six months.
Dr Campbell also did not accept that the fact that Ms Peacock had not reported to her doctor any ongoing back pain after 27 May 2021 indicated that the aggravation of her disease had resolved. She accepted that, if someone had had ongoing significant pain that was flaring every two to three months and was continuing, it might be related to underlying degenerative changes. However, she recorded that some patients (and apparently Ms Peacock) accept that they will have ongoing pain and don’t report it, but just get on with it, adjusting their activities as needed to cope with it. Her impression was that Ms Peacock was of that nature and that, since the incident, there had been a significant change in her ability to manage her activities of daily living, both recreational and in the workplace, but she just got on with life.
Exhibit 2.
Dr Greg Gillett
Dr Gillett first saw Ms Peacock on 19 September 2022. He recorded in his report that, in general terms, Ms Peacock had told him that she was facing in one direction, had to turn and run away from Mr Balmer and stop once she heard gunfire. In that process she got pain associated with her hips and posterior thighs and trochanteric region and developed lower back symptomatology. In this respect, he also noted that Ms Peacock had described the incident in some more detail in her Worker’s Compensation claim form.21
Dr Gillett noted that Ms Peacock had denied any previous issues or problems associated with the areas that were painful, prior to the incident. He recorded that an x-ray of her lumbar spine showed a slight reduction of disc height at 4/5 and 5/1 with Schmorl’s nodes at several places. He made similar observations to Dr Campbell about the CT scan undertaken on 16 December 2020.
Dr Gillett diagnosed Ms Peacock’s injuries as a musculoligamentous strain injury involving the lumbar spine with referred symptomatology to the buttocks and proximal hips aggravating a pre-existing degeneration in the lumbar spine. He opined that her condition was linked to the incident in question, noting that she was asymptomatic before the event and had since had persistent symptomatology.
He agreed that Ms Peacock had 0% impairment of the lumbar spine, but he considered that she had a 2% whole person impairment due to her ongoing symptoms (pain) as a result of the incident, which had caused a permanent aggravation of the degenerative disc disease of the lumbar spine, although she would not have had the injury if she had not had the pre-existing disease.
Dr Gillett considered that Ms Peacock was able to work as a corrections officer until normal retirement age, with the impairment remaining as it was. He noted that there was a risk of the lumbar spine becoming symptomatic even if the incident had not occurred.
In a file note of a conversation with QCS’s lawyers on 6 June 2024 (the accuracy of which Dr Gillett confirmed), it is recorded that Dr Gillett had recently been given Ms Peacock’s chiropractic records and he was asked if they altered the opinions he had expressed in his report. Dr Gillett noted that Ms Peacock had told him that she was asymptomatic before the incident, which appeared now to be incorrect.
He was asked by counsel for QCS to assume that Ms Peacock had been asymptomatic between seeing a chiropractor in 2018 and the incident, that on 27 May 2021 she told her general practitioner that she was working normal duties and had no further lower back pain or issues after three weeks back at work, and that her doctor recorded no further complaints of lower back pain after that date. Dr Gillett expressed the view that in that case, the exacerbation of her underlying lumbar degeneration by the incident should be considered to have resolved by 27 May 2021.
The cross-examination of Dr Gillett was of limited assistance to the court. However, the last question put to him by counsel for Ms Peacock was useful. Mr Thomas asked and Dr Gillett answered:22
TB1, at 5-6.
T2-45.
And is it possible, Dr Gillett, in the context of a patient who has degenerative lumbar changes, I’ll call them, that they can experience periods where they are symptomatic on and off and have periods where they have no symptoms?---Yes.
The witnesses and disputed evidence
Ms Peacock did not strike me as a shirker or malingerer, as someone who exaggerates the extent of her disabilities, or as someone who seeks to avoid hard work. She clearly liked her job as a custodial corrections officer and she also enjoys her present position as a training officer. She appears to be a good trainer and would prefer to remain in that position if she can secure a permanent position. I agree with Dr Campbell that Ms Peacock appears to be someone who just gets on with life, whether or not she is in pain to some degree, adjusting her activities as necessary to cope with the pain. I need to assess Ms Peacock’s evidence in the light of her character as a good worker (not a shirker), having regard to both her evidence and that of the other witnesses.
Ms Peacock seemed, while giving her evidence, to be doing her best to give truthful evidence. However, it is clear to me that she has always considered herself to be strong, both physically and mentally, and always sought to do her best to maintain her physical health. In that context, she has a perception of herself and of what happens to her that leads her honestly to believe things that are not correct. This was demonstrated especially in three areas of her evidence.
First, her perception of the extent of disagreement with Mr Balmer about whether she would undertake the reactionary gap test was mistaken. She recalled having a heated argument with him, but I consider that her recollection was unconsciously exaggerated. I prefer the evidence of the other witnesses about that assertion. While she may have had some “banter” about whether she or Ms Reidlinger would do the test, eventually she agreed to do it.
Secondly, and of most concern, on several occasions Ms Peacock denied having, or having ever had, any prior or existing relevant medical problems and, both in her evidence and on other occasions directly relevant to her claim, she denied having ever previously had any back pain. The first occasion was in the medical disclosure form that she completed on the day of the firearms assessment, 23 November 2020.23 In that form, she was told that her training may involve physical exertion, including running, and she must inform the defendant of any medical condition which may impede her ability to successfully complete that component of the training. She circled “No” in response to questions whether she had any medical condition, injury or disability that may preclude her from participating in the training and whether she had any personal concerns regarding aggravation of a pre-existing or current medical condition or injury.
It seems to me that Ms Peacock, who did not allow her occasional bouts of back pain to affect her work or recreation generally, and having worked as a corrections officer for many years, probably believed that that condition was not relevant to the assessment activities that she expected to do that day. While the form indicated the possibility of running, she said she had not seen the reactionary gap test performed before. She would not have expected to have to run during the firearms assessment and she apparently had had no prior indication that she might be hurt by running. I
TB297-298.
do not, therefore, consider that her completion of this form in that manner is damaging to her credit in this proceeding.
The more important denials of back pain were in the course of her medical assessments for this proceeding. Dr Campbell reported that, when she saw her on 1 July 2022, Ms Peacock told her that, at the age of 23, she had had a car accident and sustained a whiplash injury from which she had fully recovered and had no ongoing issues and she had had no other injuries.24 Dr Gillett reported that, when he saw her on 19 September 2022, Ms Peacock denied any previous issue or problems associated with the areas that were painful before the incident in question.25
In her evidence, she also denied having previously experienced lower back pain except for a short period after a motor vehicle accident years earlier.26
Notwithstanding these denials, as I have discussed above, Ms Peacock’s allied health records27 showed that she had been complaining of and obtaining chiropractic treatment for back pain on several occasions in and since 2018 and even then she reported to a chiropractor that she had had lower back pain for years, rating up to 9 out of 10 on a pain scale. I have already discussed those records and their effects on the opinions of Dr Campbell and Dr Gillett. It is particularly notable that the last period in which she had obtained chiropractic treatment, including for tightness and pain in her lower back and hips, was in September and October 2020:28 only shortly before the incident at the firing range.
Counsel for QCS submitted that Ms Peacock’s persistent denials of having had ongoing back pain before the incident in question make her an unreliable witness. Not only should this affect the court’s view of her claim to injury and loss, but also the court should prefer the evidence of the other witnesses, where it differs from hers, about what occurred at the firing range.
The differences between these accounts of Ms Peacock’s pain over the years are concerning. They might well lead another judge to decide that she is an untruthful witness who deliberately lied to the two doctors and the court in order to support her claim that her injury and pain were solely the result of the relevant incident. However, I am not prepared to draw such a conclusion. I have discussed my perception of her character above. I consider that she has a strength of character29 that leads her to separate and diminish incidents of pain that seem to her to be unrelated to the issue with which she is directly concerned at other times. Depending on how she was actually asked about previous pain, she may well have thought that the pain she attributes to the incident is different to the pain she had previously experienced. She may well have considered that the pain she had experienced in the past (including the recent past) was, on each occasion, something ephemeral that had no relationship with the pain she experienced after the incident. This is particularly so given the apparent vagueness of the questions asked of her by the expert witnesses. Her perceptions in this respect may also have led her to answer as she did to the direct question asked of her in the course of her evidence.
TB23, [2.3].
TB35.
26 [35] above; T1-43:40-41, T1-44:11-17.
TB51-61.
TB59-61.
Or perhaps a flaw.
Dr Gillett’s evidence was that he had asked her whether she had experienced “any previous issues or problems associated with the areas that were painful, prior to the incident.” If the question was put to her in those words, it may well have led her to differentiate the current pain from the earlier incidents and to consider them to be of different natures and in different places to the pain from this particular incident. Dr Campbell did not record whether or what she had asked Ms Peacock about earlier incidents of pain, nor the exact question and answer. She simply said that it was her normal practice to ask about earlier pain and she would have recorded any such history if it had been given to her. But she did not record either the question or any answer. In particular, she did not record a negative answer. Her evidence in this regard was therefore vague. But again, any answer that Ms Peacock may have given her (if asked) is likely to have been affected, at least in part, by how she had expressed the question.
I am not, therefore, prepared to find that Ms Peacock deliberately lied to Dr Gillett or to Dr Campbell (if asked about prior pain). Rather, I shall assess her claim having regard to the evidence now before the court and the doctors’ respective opinions.
I accept Ms Reidlinger as an honest and truthful witness. In my view, it is highly likely that, if Ms Peacock had had an open and heated argument with Mr Balmer, Ms Reidlinger would have recalled witnessing it and, perhaps to a lesser extent, Mr Taylor would have also. Instead, Ms Reidlinger’s recollection was that Ms Peacock volunteered to perform the test, after some banter with Ms Reidlinger about not doing it. Mr Taylor had no recollection of the specific events of the day. I would expect both of them to have remembered an unusual event such as a heated argument over whether or not Ms Peacock should undertake the test.
Mr Taylor also struck me as an honest witness. He could not remember the particular events on this day, but he was able to describe what typically happened, including the instruction that he typically gave to a participant in a reactionary gap test. But, of course, what he would typically tell a participant is not necessarily what Mr Balmer would typically say, nor what he actually said to Ms Peacock on this occasion.
Mr Balmer also denied, when asked by the defendant’s counsel, that he had had an argument with Ms Peacock. In cross-examination, he was not tested on that denial, nor was the extent of Ms Peacock’s evidence put to him.
I assessed Mr Balmer to be a “no nonsense” person who would not take well to being questioned or challenged by someone else, particularly someone whom he was training or assessing. If Ms Peacock appeared willing to run the test but then changed her mind or told him that she would prefer not to do it, I consider it likely that he would have told her just to get on with it. Similarly, if she had later told him that she was in pain and felt she had hurt herself, I consider it not unlikely that he would have been unimpressed, especially if they had previously exchanged words about whether she would do it.
Mr Balmer’s earlier statement that was tendered by the plaintiff’s counsel was not inconsistent with his evidence on the point about which he was cross-examined, nor in most other respects. However, in his statement he said that, after the tests are completed and the used cartridges are collected:
the participants are then required to verbal issue a declaration to confirm if they have or have not injured themselves or become ill as a result of the training. …
The medical declarations are signed at the range before we leave to go back to the centre.
That evidence is inconsistent with his evidence that the injury/illness declaration is completed with the other paperwork, when the participants get to the range. But he was not tested on the inconsistency and, in his evidence, he was clear that the form would be completed before the testing and, if a participant was injured, it would be returned to the participant to be corrected. I prefer the evidence given orally, which was consistent with that of Ms Peacock, namely that the form was completed before any of the physical firearms assessment was undertaken.
What happened on the day?
The events that happened at the firing range on 23 November 2020 are mostly not contentious. There is no dispute that Mr Taylor and Mr Balmer were the instructors and assessors of the officers’ competence and knowledge, nor that Ms Peacock, Ms Reidlinger and Ms Leaunoa attended and undertook the assessment that afternoon. There is no dispute that Ms Peacock completed the Injury/Illness declaration before the firing test began. There is no dispute that Ms Peacock participated in the reactionary gap test at the end of the session. Three areas of dispute are whether Ms Peacock initially refused to undertake the test, whether she had an argument with Mr Balmer about it and whether she told Mr Balmer and Mr Taylor that she had hurt herself and was told to “suck it up, princess.”
None of these disputed issues really affects the legal issues in this proceeding. Ms Peacock’s counsel submitted that, whether she volunteered or was compelled to perform the test is irrelevant to whether the defendant breached a duty to take reasonable care to avoid exposing her to an unnecessary risk of injury. QCS’s counsel appeared to have the same view.
However, there is a dispute about what instructions Mr Balmer gave Ms Peacock as to how to undertake the test. I have set out Ms Peacock’s evidence at [15] and [16] above. I have summarised Ms Reidlinger’s evidence at [46] above and Mr Balmer’s evidence at [55] and [56] above.
I find that, when Mr Balmer first asked for volunteers, nobody initially volunteered, but Ms Peacock eventually agreed to do it. I find that she expressed reluctance to do it, but she agreed to do it instead of Ms Reidlinger. I find that she expressed to Mr Balmer some reluctance to do the test, but he told her just to get on with it. However, they did not have a shouting argument about it. Her recollection to that effect has been unconsciously exaggerated, probably due to the fact that she expressed reluctance, ended up doing it and hurt herself in the process.
I find that Mr Balmer’s instructions on what Ms Peacock had to do were not detailed. He told her that, when Mr Taylor blew the whistle, she was to run away from the targets and, when she heard him fire the gun, she was to stop. She was not told to run as fast as she could, nor to stop suddenly, but she could reasonably have interpreted his instructions in that manner.
I accept Ms Peacock’s evidence that, while she was running, she felt pain in the back of her legs, so she actually suffered an injury while running, not when she started running, nor probably when she stopped. She did not say, in her evidence, that she
pivoted, whether before or after running, nor that she only felt the pain when she stopped. In those respects, her evidence was inconsistent with her description to Dr Campbell of what had happened, but consistent with what she told Dr Gillett.
I also accept Ms Peacock’s evidence that, when she reported to Mr Balmer and Mr Taylor that she had hurt herself, Mr Balmer told her, “Suck it up, princess.” She was not given the Injury/Illness declaration to alter. That difference between her evidence and that of Mr Balmer in this respect is really irrelevant to the issues and it does not affect my view of either witness’s credit generally.
The nature and causes of Ms Peacock’s pain
It seems clear that Ms Peacock did suffer some form of injury to her hamstrings during her run. She felt immediate pain in the back of her legs and buttocks that appears to have been caused by injury to her hamstrings. It was mooted by her general practitioner that she may have torn them, however that was not confirmed by an ultrasound. The radiologist’s opinion, based on the circumstances of the injury and the ultrasound, was that a low grade muscle sprain injury could not be excluded.30 That injury appears to have resolved.
Her principal injury, as both orthopaedic surgeons agreed, was an aggravation of a previously unknown spinal degenerative disease. The presence of the disease was only discovered on review of the CT scan produced after this incident, but it appears that it had existed for some time. It may well have been the cause of her previous incidents of lower back pain.
At first, when they did not know of Ms Peacock’s earlier incidents and treatment of lower back pain, both Dr Campbell and Dr Gillett considered that her ongoing pain was a result of the incident and constituted a permanent impairment. They differed only slightly as to the degree of impairment.
However, having been told of the previous occurrences of lower back pain, they expressed different views on whether the aggravation of the degenerative condition had resolved. Dr Campbell said she would not consider it to be resolved unless the patient had no further pain for at least six months, while Dr Gillett said he considered that it had resolved by the end of May 2021, when Ms Peacock told her general practitioner that she had worked without pain for two weeks (after telling him at the beginning of May that she felt “back to baseline”). Nevertheless, both of them considered that Ms Peacock will be able to work as a corrections officer or a trainer until normal retirement age.
I prefer Dr Gillett’s view that the aggravation of the pre-existing disease was fully resolved by the end of May 2021. Indeed, it was probably resolved by 1 May 2021. The ongoing lower back pain that Ms Peacock occasionally suffers appears to be related directly to the degenerative disease rather than to the particular aggravation of it. Both doctors gave evidence that, even if the incident had not occurred, there was a risk that that condition would have become symptomatic (that is, painful) at some time. Ms Peacock’s ongoing pain since May 2021 is consistent with Dr Campbell’s evidence that ongoing pain that flares up occasionally might be related to the underlying degenerative changes. I find that that is the case. Ms Peacock has returned
TB138. Dr Campbell was therefore wrong in recording that Ms Peacock had suffered hamstring tears.
to her pre-existing state, where she would occasionally experience lower back pain and have chiropractic treatment for it. That pain was previously unexplained, but it is now obvious that the condition had existed and caused pain, at least sporadically, for several years before this incident.
The corollary of this conclusion is that Ms Peacock has suffered no permanent impairment as a result of the incident.
Was the defendant negligent?
There is no dispute that QCS owed Ms Peacock a duty of care at common law, subject to modifications to that duty under the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA).31
As QCS’s counsel submitted, an employer’s duty of care at common law is, in essence, to take measures or adopt means, reasonably open to the employer in all the circumstances, which would have protected the plaintiff from the dangers of her task without unduly impeding its accomplishment.32 More recently, it was described by the High Court in these terms:33
an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
The principles for deciding whether a person has breached such a duty of care remain, at common law, those explained by Mason J in Wyong Shire Council v Shirt:34
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
Sections 305B and 305C of the WCRA apply and modify those common law principles. Section 305B provides that a person does not breach a duty to take precautions against a risk of injury to a worker unless the risk was foreseeable (that is, it was a risk of which the person knew or ought reasonably to have known), it was not insignificant and, in the circumstances, a reasonable person in the position of the
Particularly ss 305B, 305C and, as to causation of injury, s 305D.
Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 319.
Czatyrko v Edith Cowan University (2005) 215 ALR 349, [12] (footnotes omitted).
(1980) 146 CLR 40, 47-48.
person would have taken the precautions. Under s 305C, the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done.
As to causation, under s 305D, for a breach of duty to have caused the relevant injury, the breach must have been a necessary condition of the occurrence of the injury (factual causation) and it must be appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability). For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.
In her amended statement of claim, Ms Peacock pleads that QCS was negligent, most relevantly, in:
(a)failing to enable her to stretch prior to undertaking the reactionary gap test;
(b)failing to ensure she was warmed up before undertaking the reactionary gap test;
(c)failing to “properly explain” the reactionary gap demonstration to her; and
(d)requiring her to participate in the reactionary gap test.
Counsel for Ms Peacock submitted that QCS was negligent in requiring or (if she volunteered) asking Ms Peacock to undertake the reactionary gap test at the time and in the circumstances in which it was undertaken. That is, after she had spent some hours on the range, where it was a hot day and the test was at the end of the day and required her to undertake a short, explosive exercise of running fast and stopping suddenly. He submitted that those circumstances gave rise to an obvious risk of injury that QCS could have avoided by explaining the test more clearly or not allowing her to participate in it, particularly because the test was not a necessary part of training or assessment. It was unreasonable to carry it out in all the circumstances.
QCS submitted that the risk of injury to Ms Peacock, particularly of the type she suffered, from undertaking the test was not foreseeable. She had not informed QCS of any prior problems with her back, nor otherwise in running or performing physical activities. Dr Gillett opined that, more likely than not, she would not have suffered any injury if she did not have the pre-existing degenerative condition. In QCS’s experience, nobody had previously suffered any injury from performing the test. There was no evidence that stretching or warming up was necessary or desirable before an officer participated in the test, nor of what alternative instructions should have been given to Ms Peacock about how to perform it.
It is also relevant that the very nature of the job as a correctional services officer requires an officer to be able to undertake multiple tasks, including to run in response to a code call without stretching or warming up. So the test involved a similar exercise to the normal requirements of the position, which Ms Peacock had performed without harm for over a year at the time.
I agree with QCS’s submissions. In the absence of any history of injury to participants and of any knowledge that Ms Peacock had any physical condition that might give rise to a risk of injury, there was no foreseeable risk of injury to the participant’s back in performing the test. There would have been a foreseeable risk that an unfit person (which Ms Peacock was not) may injure themselves in some relatively minor way,
such as a hamstring or calf strain, in running fast for a short time, but Ms Peacock did not fit the description of an apparently unfit person and, in all the circumstances, that risk was not significant. Furthermore, the evidence did not demonstrate that any stretching or warming up would or may have prevented any injury, especially when Ms Peacock had in fact been physically active for the previous two hours or so while undertaking the assessment.
Conclusions on liability
QCS did not, therefore, breach its duty of care. For that reason, Ms Peacock’s claim fails.
If I were wrong and QCS were found to have breached its duty of care, it is clear from both Dr Gillett’s and Dr Campbell’s evidence that the aggravation of Ms Peacock’s condition was caused by her performance of the test.
Damages
Notwithstanding my conclusion, it is necessary to consider what, if any, damages Ms Peacock would be entitled to if QCS were liable to her.
General damages
Both experts originally opined that Ms Peacock had suffered a permanent impairment due to her ongoing pain. However, those opinions were originally expressed in the absence of any knowledge of her pre-existing lower back pain. Once he became aware of that, Dr Gillett effectively retracted that opinion, finding that the aggravation injury had fully resolved by 27 May 2021, so in his view there was no permanent impairment as a result of the injury.
While Dr Campbell did not appear to alter her opinion, I have already found that I agree with Dr Gillett that the aggravation injury resolved by no later than 27 May 2021. The consequence is that I find that Ms Peacock suffered no permanent impairment. Therefore, she is not entitled to general damages.
Past economic loss
Ms Peacock returned to work in February 2021, after having taken pre-arranged annual leave for all of January. She then worked part time on reduced duties until returning to full time work in May 2021. There is no evidence that she suffered any reduction in her net annual income.
The parties agree that Ms Peacock received $8,001.21 in weekly benefits while she was unable to work for a period of 10 weeks. I would allow superannuation on that amount at 12.75%, totalling $1,020.15.
Ms Peacock’s counsel submitted that an additional global sum of $2,500 should be awarded to allow for ad hoc time away from work for treatment after she returned to work, but there was no evidence relevant to or justifying any such amount.
Therefore, I would allow $9021.36 for past economic loss, including superannuation. No interest is payable as Ms Peacock was not out of pocket for these losses.
Future economic loss
As there is no permanent injury and the aggravation injury has resolved, Ms Peacock will not suffer any future economic loss as a consequence of the incident.
Past special damages
In his final written submission and in his address, Ms Peacock’s counsel sought
$4,851.15 for Workcover expenses, including $925.10 for a medico-legal report. QCS’s counsel acknowledge the principal liability on account of medical and rehabilitation expenses of $3,926.05.
Ms Peacock also seeks a global amount of $1,000 for travel and, it appears, pharmaceutical expenses.35 QCS notes that there was no evidence about such expenses, but submits that, including the Workcover medical and rehabilitation expenses, an award of not more than $6,000 would be reasonable. That, of course, assumes an ongoing injury.
Given the short period of the injury before it resolved, apart from the expenses paid by Workcover, the only special damages would be for travel to medical appointments and pharmaceuticals for that period, on top of the Workcover refund. The medico- legal report is not a claimable loss, but would form part of the costs of the proceeding. I would allow a small amount for those items and award $4,300, including interest.
Future special damages
As the injury has resolved, there will be no future expenses related to it.
Fox v Wood36
The parties agree that an allowance of $968.12 is appropriate.
Summary of damages
Therefore, I would assess damages as follows:
(a) Past economic loss $8,001.21 (b) Past lost superannuation $1,020.15 (c) Past special damages (including Medicare refund and interest) $4,300.00
(d) Fox v Wood $968.12 (e) Total $14,289.48
In his written submission, counsel referred only to travel expenses, but in the amended statement of claim Ms Peacock claimed $500 for travel and $500 for pharmaceutical expenses. I assume that her claim covers both types of expense.
(1981) 148 CLR 438.
Result
I have concluded that QCS was not negligent. Therefore, judgment should be given for QCS, with costs. I shall hear from the parties as to whether costs should be on anything other than the standard basis.
0
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