Peebles v WorkCover Queensland

Case [2020] QSC 106

SUPREME COURT OF QUEENSLAND

CITATION:

Peebles v Work Cover Queensland [2020] QSC 106

PARTIES:

DANIEL JOHN PEEBLES

(Plaintiff)

v
WORK COVER QUEENSLAND

(Defendant)

FILE NO/S:

BS No 10750 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10, 11 and 12 February 2020

JUDGE:

Jackson J

ORDER:

The judgment of the Court is that:

1.   The defendant pay the plaintiff the sum of $764,345.12.

2.   The parties make written submissions on costs within 14 days.

CATCHWORDS:

TORTS– NEGLIGENCE– DAMAGE AND CAUSATION–CAUSATION– UNDER CIVIL LIABILITY LEGISLATION–GENERALLY– where the plaintiff’s claim was for a disabling back condition alleged to have occurred at work as a truck driver– where the defendant admitted a duty of care and a failure to provide safe plant and equipment– whether the admitted failure caused the plaintiffs back condition– where the defendant alleged that the plaintiff had a pre-existing condition and that the failure to provide safe plant and equipment only caused short term and transient episodic back pain– where the court found that the defendants failure to provide safe plant and equipment caused the plaintiffs condition.

TORTS– NEGLIGENCE– PROCEDURE AND EVIDENCE– EVIDENCE– WEIGHT AND CREDIBILITY OF EVIDENCE GENERALLY– where the defendant relied upon expert medical evidence as to causation– where the expert evidence was based on epidemiological studies and a guide arising from meta-analysis– where the expert evidence was relied upon as general disproof of causation in answer to evidence of clinical opinions of medical experts of specific causation.  

Evidence Act 1977 (Qld), s 39PB

Superannuation Guarantee (Administration) Act 1992 (Cth), s

19(2)

Uniform Civil Procedure Rules 1999 (Qld), r 428(2)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s270, s 305D, s305E, s306N, s 306J, s 306O

Workers’ Compensation and Rehabilitation Regulation 2003

(Qld), schedule 12

Workers’ Compensation and Rehabilitation Regulation 2014

(Qld), r 129, schedule 8, schedule 9, schedule 12

Amaca Pty Ltd v Booth (2011) 246 CLR 36, cited

Armstrong & Anor v First York Ltd [2005] 1 WLR 2751, cited

Borowski v Quayle [1966] VR 382, cited

Chester v Waverley Corporation (1939) 62 CLR 1, cited

Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, discussed

Dobler v Halverson (2007) 70 NSWLR 151, cited

Fox v Wood (1981) 148 CLR 438, applied

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270, discussed

Loveday v Renton [1990] 1 Med LR 117, cited

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, applied

Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, cited

PQ v Australian Red Cross Society [1992] 1 VR 19, cited

R v Patel (No 6) [2013] QSC 64, cited

R v Sally Clark [2003] EWCA Crim 1020, cited

Ramsay v Watson (1961) 108 CLR 642, discussed

Shortell v BICAL Construction Ltd [2008] WL 2148256, cited

Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229, cited

State Government Insurance Commission v Oakley

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AGLC
Peebles v WorkCover Queensland [2020] QSC 106
Case
[2020] QSC 106
Decision Date

CaseChat Overview and Summary

The case of Peebles v WorkCover Queensland involved the plaintiff, who was a truck driver, seeking compensation for a disabling back condition that allegedly arose from his employment. The defendant, WorkCover Queensland, admitted to a breach of duty of care and a failure to provide safe plant and equipment, but contested the extent of the plaintiff's injuries and their causation. The central legal issue before the court was whether the defendant's failure to provide safe plant and equipment caused the plaintiff's back condition, particularly in light of the defendant's assertion that the plaintiff had a pre-existing condition and that the failure only caused short-term and transient episodic back pain.

In assessing the evidence, the court considered both the radiological findings and the expert medical opinions. The CT scans and radiology reports showed significant changes in the plaintiff's spine, particularly between May and December 2014, indicating a worsening of the condition. The medical experts provided conflicting opinions on causation, with the plaintiff relying on clinical evidence of specific causation and the defendant presenting epidemiological studies to argue against it. Ultimately, the court found that the defendant's failure to provide safe plant and equipment did indeed cause the plaintiff's condition.

The court's reasoning was grounded in the principle that the harm suffered by the plaintiff would not have occurred absent the negligence. The radiological evidence, when considered alongside other medical evidence, supported the inference that the plaintiff's condition was exacerbated by the defendant's negligence. The court also acknowledged that while the exact timeline for the plaintiff's condition to manifest could not be scientifically proven, there was a significant probability that the plaintiff would have suffered a similar disabling back condition at some future time, as per the reasoning in Malec v JC Hutton Pty Ltd.

The final orders of the court mandated that the defendant pay the plaintiff the sum of $764,345.12, and required the parties to submit written submissions on costs within 14 days.

Orders

Orders of the court

The judgment of the Court is that:

1. The defendant pay the plaintiff the sum of $764,345.12.

2. The parties make written submissions on costs within 14 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant questions conveniently resolve into whether the plaintiff’s pain and suffering and temporary disability suffered in the period following 20 May 2014 for approximately six weeks would not have occurred absent the negligence and whether the plaintiff’s subsequent injury and now permanent disability from 22 December 2014 to the present time and into the future would not have occurred absent the negligence or whether either of those harms would have occurred in any event. Radiological evidence Three of the CT scans of the plaintiff’s lumber spine dated 5 December 2011, 29 May 2014 and 23 December 2014 constitute significant contemporaneous radiology and were the subject of reports by radiologists on the scans. There were also later MRI scans and X-Rays that were performed during the process of diagnosis and treatment of the plaintiff’s condition from time to time but they are less important to the question of causation. None of the images of relevant CT or MRI scans or X-Rays was tendered in evidence. However, most of the medical expert witnesses reviewed the radiological images (except Dr Ballenden) and the radiologists’ reports were tendered. The CT scan radiology report by Dr Tilse dated 5 December 2011 was as follows:“History: Right paravertebral pain. Technique: Axial and sagittal scans have been performed through the lower lumbar spine from the mid body of L2 through to the upper body of S1 for disc and bone windows. Findings: The bony spinal canal is quite adequate at all levels. There is no abnormality shown in the lumbar discs of L3-4, L4-5 or L5-S1. No abnormality of the spinal thecal sac or nerve roots at these disc levels has been shown. Summary: Normal examination.” The CT scan radiology report by Dr Albert Chong dated 29 May 2014 reported that the plaintiff’s S1 joint was lumbarised, but that no focal bone lesion was noted. In the L4/L5 disc there was a minimal loss of height and mild annular bulging. There was calcification of the posterior margin of the L5-S1 and S1/S2 discs. In the L5-S1 disc, there was moderate loss of height and moderate annular bulging with a small left paracentral herniation indenting the thecal sac and displacing the proximal portion of the left S1 nerve route. The CT scan radiology report by Dr Fergus Legh dated 23 December 2014 reported that the plaintiff had disc degeneration with significant loss of disc height and spondylosis of both L4/L5 and L5-S1 levels. At the L4/L5 level, there was significant central as well as paracentral disc protrusion with spondylosis, and there was compression of the thecal sac and some compression of the proximal L5 nerve routes on both sides, more marked on the left. There was no evidence of any L4 nerve route compression. At L5-S1 there was chronic disc degeneration with spondylosis and minor spondylitic impression on the thecal sac. There may have been minor compression of the proximal S1 nerve routes on both sides, although that was much less marked than at the L4/L5 level. No neuroforaminal narrowing or L5 nerve route compression that was observed at that level. The remaining discs were normal.

Decision

Reasons for decision

The radiological evidence, at 23 December 2014, of a L4/L5 significant central as well as paracentral disc protrusion with spondylosis, and compression of the thecal sac and some compression of the proximal L5 nerve routes on both sides and L5/S1 chronic disc degeneration with spondylosis and minor spondylotic impression on thecal sac, supported by other medical evidence, leads to the conclusion that the herniation was worse by 23 December 2014, but not that there was no pre-existing disc herniation or injury. Conclusion on factual causation These findings lead to the answers to the ultimate questions. In my view, the better inference is that the harm to the plaintiff that in fact occurred would not have occurred absent the negligence. I am not satisfied that the harm that occurred would have been suffered in any event in either May 2014 or December 2014.Contingency of future similar disabling back condition However, in my view, there was also a significant prospect that had the plaintiff not suffered the particular harms at late May 2014 and December 2014, he would have suffered from a similar disabling back condition at some time after those dates. I acknowledge that Dr Licina’s opinion of a five year horizon for that to occur is necessarily an assessment of an uncertain past or future hypothetical event, and that, as Associate Professor Fearnside explained, as the future played out the event may never have happened. But as was said in the leading case of Malec v JC Hutton Pty Ltd,[37] it is not unusual in assessing the damages to be awarded for a past hypothetical or future event, for the question of the future or hypothetical effect of an injury or degeneration not to be susceptible of scientific demonstration or proof.[37](1990) 169 CLR 638, 643. The approach required by Malec is: “But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.”[38][38]Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643 [7].

Ratio Decidendi

Legal Principle Established

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