Tindale v Mayne Nickless Ltd

SUPREME COURT OF QUEENSLAND

CITATION:	Tindale v Mayne Nickless Ltd [2002] QSC 124
PARTIES:	WAYNE GEOFFREY TINDALE (plaintiff) v MAYNE NICKLESS LTD ACN 004 073 410 (defendant)
FILE NO/S:	656 of 2000
DIVISION:	Trial
PROCEEDING:	Application for Damages
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	24 May 2002
DELIVERED AT:	Townsville
HEARING DATE:	10 May 2002
JUDGE:	Cullinane J
ORDER:	Judgment for the Plaintiff against the Defendant in the sum of $257,726.99 with costs to be assessed.
CATCHWORDS:	NEGLIGENCE – BREACH OF DUTY – BREACH OF STATUTORY DUTY – DAMAGES – where Plaintiff lifted parcel causing injury to spine – whether the Defendant liable under s. 28 of the Workplace Health and Safety Act 1995 – whether Plaintiff refused permission to leave workplace due to injuries – whether Defendant liable under s. 312 of the WorkCover Queensland Act 1996
COUNSEL:	M. Drew for the plaintiff M. O’Sullivan for the defendant
SOLICITORS:	Connolly Suthers for the plaintiff Hunt and Hunt for the defendant

1. This action was heard over some six days. The Plaintiff claims damages against the Defendant, his former employer, for negligence, breach of duty and breach of statutory duty.

1. The Plaintiff was born on 30 September 1971. He is married and he and his wife have three children. 

1. He left school at age 16 having completed Grade 10. He does not hold any trade or professional qualifications of any kind.

1. I will refer to his work history when dealing with the issue of damages.

1. The action concerns two incidents which the Plaintiff says occurred on 3 August 1998 in the course of his employment.   The first occurred on the morning of that date and the second on the late afternoon.

1. The Defendant accepts that the first incident occurred but denies the second.

1. The Plaintiff was employed as a delivery truck driver.

1. He had suffered some injuries to his back at work prior to the date that I am concerned with. These are dealt with in Exhibit 1.  He has no recollection of some of these and has obtained the details from the Defendant’s personnel file.  It is apparent, as will be mentioned later, that he already had degenerative changes in his lower spine prior to 3 August.

1. On that day which was a Monday he was required to drive a Pantechnicon and deliver various goods to various places around Townsville.  Photographs of the back of the Pantechnicon are in evidence.  It would seem clear that the floor of the Pantechnicon was uneven as a result of wear and thus did not provide a secure base upon which to stack the items.  The Plaintiff was required to deliver items to a number of different places and these items included cartons of various sizes, some clothing which was carried hanging in the back of the Pantechnicon and various other items.  The Plaintiff described the manner in which the van was loaded with those items to be delivered first at the rear of the truck and those to be delivered last…