Welsh v Biggin Pty Ltd (No 2) - [2023] QSC 211

SUPREME COURT OF QUEENSLAND

CITATION:

Welsh v Biggin Pty Ltd (No 2) [2023] QSC 211

PARTIES:

PAUL STANLEY WELSH

(plaintiff)

v

BIGGIN PTY LTD ACN 154 574 526

(defendant)

FILE NO/S:

SC No 286 of 2021

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:
Supreme Court of Queensland at Cairns

DELIVERED ON:

20 September 2023

DELIVERED AT:

Cairns

HEARING DATES:
22, 23, 24, 25, 26 May 2023

JUDGE:

Henry J

ORDERS:

1. Judgment for the plaintiff in the amount of $824,647.48.

2. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am, 20 October 2023 (out of town parties having leave to appear by video link or telephone).

CATCHWORDS:

EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – INJURY OCCURRING IN COURSE OF EMPLOYMENT – where the plaintiff claims damages from his former employer for personal injury allegedly suffered unwitnessed in the workplace – where the plaintiff’s duties at work included the movement and storage of pallets of packages of chicken feed and chicken feeders with the use of a pallet jack and forklift – where the plaintiff alleges that in using the pallet jack to move pallets he suffered a tendon tear of the right quadriceps resulting in permanent physical impairment and an adjustment disorder with mixed anxiety and low mood – where liability and quantum are in issue – whether the injury was incurred as alleged– whether there was a breach of the defendant’s duty of care – whether any such breach caused the injury – whether the risk of injury was foreseeable and not insignificant

DAMAGES – GENERALLY – GENERAL AND SPECIAL DAMAGES – GENERALLY – where the plaintiff’s leg injury has not improved – where the plaintiff suffers chronic pain, restricted movement and other physiological and psychological issues as a result of his injury – what measure of damages for general damages, special damages and past and future economic loss is appropriate in the circumstances

Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 306L, 306N, 306O, 306P
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) ss 129, 130
Workplace Health and Safety Act 2011 (Qld) ss 19, 26A, 267, 274
Work Health and Safety Regulation 2011 (Qld) ss 35, 60, sch 19
Benic v State of New South Wales [2010] NSWSC 1039, cited
Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited
Fox v Wood (1981) 148 CLR 438, applied
Franklin v Kone Elevators Pty Ltd [2011] VSC 108, cited
Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18, cited
Kennedy v Cordia (Services) LLP [2016] 1 WLR 597, cited
Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, cited
National insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited
Redding v Lee (1983) 151 CLR 117, cited

COUNSEL:
P Mylne for the plaintiff

C Ryall for the defendant

SOLICITORS:
O’Shea Dyer Solicitors for the plaintiff

BT Lawyers for the defendant

Contents

PART A LIABILITY
What are the liability issues?
Was the injury incurred as alleged?
What happened?
8 October 2018
The manifestation of injury
The injury and its treatment
The time of injury
Sensation of injury
The causal mechanics of the injury
The supposedly prior inconsistent account to WorkCover
The supposedly significant evidence of Mr McArthur
Other Biggin evidence/arguments re reliability
Conclusion
What if any duty of care did Biggin have to take precaution against risk of such injury?
Did Biggin breach its duty of care?
Did the breach cause the injury?
Conclusion as to liability

PART B QUANTUM
General damages
Impact of injury
Physical prognosis
Mental prognosis
Assessment
Past economic loss
Past loss of superannuation
Interest on past economic loss
Past special damages
Interest on past special damages
Future economic loss
Future loss of superannuation
Future special damages
GP consultations
Haematologist testing and consultations
Psychological consultations
Future pharmaceuticals
Vehicle modification
Future Assistive Technology and Equipment
Future travel
Conclusion
Fox v Wood
WorkCover refund
Conclusion as to quantum

PART C ORDERS

Introduction

Paul Welsh claims about $1 million damages from his former employer for personal injury suffered in his workplace at Garbutt, Townsville.
His case alleges that in using a pallet jack to move laden pallets he suffered a tendon tear of the right quadriceps, resulting in permanent physical impairment and an adjustment disorder with mixed anxiety and depressed mood. His injury is alleged to be the result of the application of high force to quickly initiate the pallet jack’s movement. The risk of musculoskeletal injury from applying such high initiating force is said to have been a risk that should have been identified and eliminated or at least mitigated against in the workplace but that did not occur.
Whether Mr Welsh incurred the injury in the workplace as alleged, whether it resulted from a breach of his employer’s duty of care, whether liability should be imposed upon his employer and what quantum of damages should be awarded, are all disputed by the employer company, Biggin.
For the reasons which follow liability should be attributed to Biggin and the appropriate quantum of damages to be awarded is $824,647.48.

PART A LIABILITY

What are the liability issues?

The determinative issues as to liability are:
(a)Was the injury incurred as alleged?
(b)What if any duty of care did Biggin have to take precaution against risk of such injury?
(c)Did Biggin breach its duty of care?
(d)Did the breach cause the injury?

Was the injury incurred as alleged?

Mr Welsh’s case alleges his quadriceps tear was caused because of the significant initiating force he applied to a pallet jack when he needed to tend to moving laden pallets quickly. Biggin disputes that the injury was incurred as alleged. It contends Mr Welsh’s account of the workplace events should be rejected as unreliable and that, even if it is accepted, it was not the pulling of the pallet jack which caused the injury.
Various criticisms were made of Mr Welsh’s reliability. They will be discussed as these reasons progress; however, I note at the outset that Mr Welsh impressed me as an honest and generally reliable witness.
What happened?
Biggin’s principal, Ryan Biggin, and his wife conducted Biggin’s business, called Dine-A-Chook, in a rented warehouse in Townsville. The business sold chicken feed and chicken feeders.
The business employed Mr Welsh on a part-time basis from October 2016. His working hours increased and he became a full-time employee by about July 2017. The only other employee was Bob Robertson. Mr Robertson and Mrs Biggin did not give evidence.
Mr Welsh’s duties included customer service and sales, managing stock, packing online orders ready for despatch, putting together the component parts to build chicken feeders and warehousing tasks. Those tasks included the movement and storage around the warehouse of pallets of packages of chicken feed and chicken feeders.
The warehouse ran in a long rectangular shape to the west from the east facing street front. At the street end was front roller-door, abutting an external concrete apron and driveway. Entering the warehouse from the front roller-door there was an open passage area running down the middle of the length of the warehouse. To the left of the entry was the main retail area of Dine-A-Chook, which included some storage space. To the right of the entry was a small area of storage for Dine-A-Chook, abutting a small section used by a business from across the street. Progressing from east to west through the open passage area of the warehouse to the western end there was, to the left, a large storage area for Dine-A-Chook with a large open area on the right-hand side where the landlord Mr McArthur used to store his camper trailers. His office area was at the rear western end of the warehouse.
The need to move laden pallets of feed and feeders, which were heavy, arose from the point of their delivery outside the warehouse. After such newly arrived pallets of stock were moved and stored within the warehouse, they would be moved again from time to time about the warehouse for storage convenience and replenishment of readily accessible sales stock. It could be a fiddley process, in sometimes constrained space.
Early in Mr Welsh’s tenure the movement of the pallets was affected solely by a forklift. The forklift was owned by the landlord, Mr McArthur. It was available to the use of the business when Mr McArthur was not using it in his business of hiring out camper trailers kept at the warehouse.
The exercise of moving and storing pallets of chicken food and chicken feeders in the large storage area at the western end of the warehouse would sometimes involve manoeuvring in such a way as to avoid the camper trailers. Mr McArthur took priority in the use of the forklift, which he used to move his camper trailers in and out of the warehouse. This gave rise to the occasional need to move pallets of chicken food or feeders which were temporarily left in the open passage area and blocking the way.
In time, Mr Welsh suggested to Mr Biggin that a pallet jack be acquired to assist in the movement of the pallets inside the warehouse. A pallet jack is a device with a large fork like that seen at the front of a forklift. The fork rolls upon castors set into it. At the closed end of the fork is an inbuilt jack with a pillar extending to a handle at about stomach height. In its lowset position the fork of the jack can be wheeled into the spaces between the upper and lower levels of the wooden pallets on which stock is stored. The jack handle is then cranked to raise the fork level sufficiently to raise the laden pallet slightly off ground level and move the loaded pallet jack on its rollers to another location by pulling or pushing it. The pallet jack is steered using the jack handle.
Biggin acquired a pallet jack. It was not motorised and was thus moved by the operator pulling or pushing it.If a weighty load is upon such a pallet jack, the application of force necessary to initiate the rolling movement of the pallet from stationary is much greater than the force necessary to keep it moving once it is rolling. It is important the operator applies that initiating manual force gradually and gently, for a high application of initiating force to a stationary heavy load risks inflicting a musculoskeletal injury.
Mr Welsh was never warned of that risk. On 8 October 2018 he did exert such significant force and he consequently suffered a tear to his right quadriceps tendon.
8 October 2018
The events of 8 October 2018 are not said to have been witnessed by Mr Biggin or his wife for they were overseas at the time. Mr Biggin testified that before going away he had arranged for Bob Robertson to work from 7.30am to 2.00pm. Neither party suggested Mr Robertson witnessed any relevant aspect of the events in question.
In the afternoon of 8 October pallets of stock were delivered to the concrete loading area outside the premises of the business. The exhibited consignment notes recorded a total of 14 pallets. Five pallets held boxes of plastic products for the construction of chicken feeders. Nine pallets held about 23 or 24 cartons of dried mealworm per pallet.
With the assistance of the delivery driver, Mr Welsh used a forklift to unload the pallets from the delivery truck over a period of about 45 minutes. Ease of wheeled movement into the warehouse with a pallet jack was not practicable because of a lip running across the base of the roller door space. One of the pallets of mealworm was placed just inside the threshold in the open passage area when unloaded with the forklift and the rest were placed on the apron outside.
To unload the cartons of mealworm from the pallet which had been placed inside into a nearby shelved area it was necessary to move two partly laden pallets of chicken feed out of the way and then move them back again. For this, Mr Welsh deployed the pallet jack.
Mr Welsh testified he needed to perform those tasks quickly to avoid obstructing the access of Mr McArthur, who also used the forklift that afternoon. While Mr Welsh had used the pallet jack to move packets of chicken feed on multiple occasions in the past, he did not believe there was a time prior to this that he had been required to move them so quickly.
When played a video of Mr Biggin using the pallet jack to move a pallet laden with bags of chicken feed, Mr Welsh accepted the movement process was similar to what he had done but explained he had used maximum effort to get it moving quickly. Mr Biggin appears to use gentle accelerating force in the video. When it was put to Mr Welsh that applying maximum effort would cause a problem because it would make it hard for him to later stop the pallet jack to turn it around, he disagreed, explaining as it starts moving the application of operator force then significantly diminishes because it then rolls easily and is easily slowed by the operator’s body force.
In moving the two chicken feed pallets quickly Mr Welsh explained in each instance he placed the pallet jack in position and cranked it up. He testified to then initiate movement he used both hands and pulled backwards on the pallet jack handle, applying “as much effort as I could to move it as quick as possible”. He also described that initiating application of force as “maximum effort”. It was clear from his description that this initiating movement involved his application of immediate, not gradual, high force, to quickly set the pallet jack in initial motion. When he moved the chicken feed pallets back in place he described doing so in the same way, again using maximum force when pulling to initiate movement.
On his case it was the use of such significant initiating force that afternoon which caused the injury.
Mr Welsh testified he was delayed in further moving the pallets which had been unloaded outside to inside because he needed to wait for the forklift to become free again after Mr McArthur used it. In cross-examination, in the context of discussing temporal demands associated with Mr McArthur, Mr Welsh explained that there were also a number of other tasks he had to perform that afternoon.
There was not enough time on the afternoon of the 8^th to move the remaining pallets from outside through to their intended final position in the bulk storage area at the other end of the warehouse. Mr Welsh instead used the forklift to move them a short way inside, to secure them overnight.
The manifestation of injury
During that afternoon’s events, Mr Welsh became conscious of pain in the region of his right knee and quadricep which progressively worsened.
When Mr Welsh arrived home on 8 October and sat and rested for a while, he had significant pain, discomfort and restricted movement in his right knee.
He was still experiencing symptoms on the morning on the 9^th but the pain in his knee was not as bad as it had been at the end of the previous day and he felt that he was able to work. The pain worsened again during the 9^th.
On the 9^th he needed to move the recently arrived laden pallets back outside, first thing in the morning, because they had been left in the internal accessway and Mr McArthur had a customer arriving to pick up a trailer which he would not be able to get out. He used the forklift to shift them outside and thereafter attended to customer service and other general duties tasks. In the afternoon, Mr Welsh moved the pallets back inside, using the forklift to move them inside into a clearway area and then the pallet jack to then move them into place in the bulk storage area.
He worked again on 10 and 11 October, although experiencing pain and discomfort in his right leg.
When he went to work on the morning of 12 October he was in a lot of pain, finding it difficult to walk and bear weight on his right leg. He attended his GP, Dr Heggarty. He was advised to rest and use crutches and was referred to Orthopaedic Surgeon Dr Price.
He had not returned to work because of his injury when Biggin terminated his employment on 1 November 2018.
The injury and its treatment
An MRI scan of Mr Welsh’s right knee of 15 October 2018 revealed early degenerative disease inside the knee and the patella and medial and lateral components. There was tendinosis of the insertion of the quadriceps and on the lateral aspect there was a partial thickness tearing of the quadriceps insertion with a possible full thickness component laterally.
Mr Welsh saw Dr Price, the orthopaedic surgeon to whom he had been referred, on about 13 November 2018. He followed Dr Price’s recommended conservative treatment of weekly physiotherapy, some shockwave therapy and four sessions of hydrotherapy.
Mr Welsh’s symptoms did not improve and he was eventually operated upon by Dr Price on 22 May 2019 for repair of his quadriceps tendon insertion.
There were good reasons to have held off on operating on Mr Welsh until then. In 2007, when he was 31, he had chicken pox and developed deep vein thrombosis in his right leg. He was treated for six months with injections of Clexane and took Warfarin, after which he had no ongoing symptoms. In about 2012 or 2013, Mr Welsh developed a varicose ulcer above his right ankle. A blood test taken in this era revealed that he had Factor V Leiden deficiency, which increases the risk of thrombosis. It was necessary for the ulcer to heal before there could be surgery to repair the vein. Successful surgery on it was eventually conducted in early 2018. Mr Welsh rejected the suggestion that after the surgery he had experiencezd symptoms of pain in his right leg.
After being operated on for the injury with which this case is concerned, by Dr Price in May 2019, Mr Welsh was administered anticoagulant medication for five weeks and took pain relief. His knee was also in a brace which was removed on 9 July 2019.
On 11 July 2019 Mr Welsh experienced severe pain in his leg and the ensuing ultrasound revealed a proximal femoral deep vein thrombosis and a subsequent scan revealed a pulmonary embolism.
His treatment for the deep vein thrombosis and pulmonary embolism was administered by Dr Morris. The deep vein thrombosis was eventually dissolved and he was prescribed the anticoagulant Eliquis (apixaban) which he will be required to take for the rest of his life.
In addition to taking his anticoagulant medication Mr Welsh also takes medication for chronic pain. He has been prescribed Palexia, which he understands is an addictive opioid, so he limits its use to when his pain is very severe and otherwise endeavours to manage the pain using paracetamol, the elevation of his leg and the application of ice.
The operation did not resolve Mr Welsh’s condition and his right knee was left with a restricted range of movement and pain, the severity of which increases commensurately with the extent of demands he places upon it by walking or performing other physical tasks with his legs. He put on weight and consequently also developed pain in his right ankle and left knee.
The significant and permanent impairment of Mr Welsh’s physical capacity and its impact upon his mental health is discussed later in these reasons.
The time of injury
Mr Welsh’s case is that his injury was caused by his use of maximum force when pulling the pallet jack to initiate movement of the chicken feed pallets on the afternoon of the 8^thand was likely aggravated by his subsequent movement of the laden pallets on the 9^th.
This is disputed by Biggin which argues that, even if the injury was caused by the events of the 8^th and 9^th, it may be explained as an aggravation of pre-existing tendinopathy and also may have been caused by the comparatively low strain activity of getting in and out the forklift.
It will be recalled the post-injury MRI scan of the right knee revealed early degenerative disease and tendinosis of the insertion of the quadriceps. Dr Low, an orthopaedic surgeon who gave expert evidence for Mr Welsh, explained the degenerative changes were consistent with Mr Welsh’s age. He considered the tendinosis existed prior to the injury but that it was likely asymptomatic.

Dr Low opined the injury was a “partial thickness tear – full thickness tear” of the quadriceps tendon on the right which occurred on the 8^th and was likely aggravated by Mr Welsh’s further movement of laden pallets on the 9^th. He explained the reference to “a partial thickness tear – full thickness tear” was because the injury was initially thought by him to be a partial thickness tear, but, after all the problems which were experienced, the diagnosis became a full thickness tear.
Dr Halliday, a Consultant Orthopaedic Surgeon who provided reports exhibited by Biggin, opined in his report of 28 March 2019 that Mr Welsh had suffered a partial quadriceps tendon tear on a background of quadriceps tendinopathy. His report of 11 September 2019 simply described it as a right quadriceps tendon tear. His report of 19 February 2020 introduced an altered, more qualified description of the injury, calling it an injury to the right knee quadriceps tendon best described as an aggravation of pre-existing tendinopathy, a description repeated in his report of 19 October 2021. Dr Halliday explained his incorporation of the term “aggravation” reflected that it was potentially wrong to think of the injury as being a tear. He asserted it was difficult to determine whether the partial thickness tear detected by the MRI scans had happened in the workplace events or had already occurred gradually, as part of the degenerative process, and was merely aggravated by the work events.
The theoretical possibility that the tear detected by scan had already occurred prior to the 8^th, is unlikely. There was pre-existing tendinosis but there is no evidence Mr Welsh had previously experienced an onset of pain to his knee of the kind which he testified occurred on the afternoon of the 8^th. I accept that testimony. That acceptance, taken with the objective fact a tear was detected by the MRI scan, satisfies me on the balance of probabilities that the tear did occur on the 8^th and was possibly aggravated by Mr Welsh’s continued activity moving the laden pallets the following day. It follows I reject the opinion raised in Dr Halliday’s more recent reports that the events of the 8^th may merely have aggravated an existing injury.
That conclusion does not of itself mean the action which caused the injury on the 8^th was Mr Welsh’s use of the pallet jack. That is because, in addition to manoeuvring the pallet jack about that afternoon, he was also getting in and out of the forklift and he evidently became conscious of pain being occasioned in his knee when doing so. This raises the prospect, argued by Biggin’s counsel, that if the injury was occasioned by workplace activity that afternoon – and in my conclusion it was – it was caused by the action of getting in and out of the forklift, rather than Mr Welsh’s manner of use of the pallet jack. That argument requires consideration of Mr Welsh’s accounts of when he experienced the sensation of pain in his knee, which will leave the point uncertain, and of the likely causal mechanics of the injury, which will resolve the point in Mr Welsh’s favour.
Sensation of injury
My very strong impression arising from the whole of the evidence was that Mr Welsh became conscious he was experiencing pain in his right knee both as he was using the pallet jack and as he was using the forklift on the afternoon of the 8^th but, because he continued performing those tasks, he was in hindsight unsure which of the tasks he was performing when the sensation of pain first started to manifest. There is of course a difference between symptom and cause. A symptom of pain felt in performing two kinds of physical activity says nothing as to which of them caused it.
Biggin’s counsel set up an argument that Mr Welsh testified he had felt pain first when pulling chicken feed pallets and that such testimony was a recent invention and inconsistent with what he had told various experts. I reject that argument. Indeed it is premised upon raising Mr Welsh’s testimony on the point to a degree of clarity and precision which was not present.
My strong impression of his evidence was that he did not suggest he had a clear recollection of the point during the afternoon of the 8^th at which he was first conscious of the sensation of pain in his right knee. He was asked if he recalled experiencing any pain when he was pulling the chicken feed pallets and responded:
“Yes, I do. … in my right knee. … at the time, it was – felt minor. It wasn’t enough for me to stop doing the task.”
When asked if he recalled specifically when he started to become conscious of the pain and whether it happened straightaway or it crept up into his consciousness, the following evidence ensued:
“--- I think I felt pain straightaway, but it wasn’t severe that it’s like – it’s a – debilitating to – cannot do any more work. It wasn’t enough to stop me from continuing work.
So pain straight away from what point in the sequence? Do you recall when? --- Yeah. Around ---
---or not? --- when I was moving those pallets of feed was the first time I felt the pain.
Are you able to identify in the course of which move you felt the pain? --- No, because that process happened pretty quick.”
I did not have the impression from that or any of his other testimony that he was intending to convey or did convey any certainty of recollection on the issue. He was not more precise elsewhere in his evidence about at what point in the sequence of moving the chicken feed pallets he felt pain for the first time. Importantly, he also testified that he felt pain at times when he had to get in and out of the forklift in the afternoon of the 8^th,which was activity he engaged in before and after moving the chicken feed pallets.
Dr Low’s first report, of 26 May 2020, relevantly states:
“In the week commencing 09 October 2018, Mr Welsh, was working at the warehouse of his employment and was operating a mechanical pallet jack and forklift. He was lifting and moving produce with the machinery around in the warehouse and getting in and out of the forklift over the course of that week. He reports that because of his large size, getting in and out of the forklift did tend to cause a twisting action in his knee and as a result, he developed right knee pain. It got so bad that by 12 October 2018, he could not continue working. He did not actually fall or have any one significant incident.”
The reference to the week commencing 9 October is an obvious error (replicated elsewhere early in this case’s history) – the Monday was the 8th, not the 9^th.
Dr Low acknowledged in cross-examination that when he first spoke to Mr Welsh, he formed the view that the getting in and out of the forklift was the factor that resulted in the tear that was found, explaining, “You can only go on what the client tells you.” He went on to say that he did not get any history of other activities that could have caused it. However, that needs to be understood in light of the fact the history which was given to Dr Low was of both the activity of operating the pallet jack and the activity of operating the forklift.
In cross-examination Dr Low acknowledged, having noted in his first report that Mr Welsh had got in and out of the forklift and that had tended to cause a twisting action, that he saw that of significance, thinking it might have aggravated his tendonitis. As will be seen, he altered that thinking by the time of his later report. Mr Welsh denied in giving evidence that he felt a twisting sensation when using the forklift on the 8^th but accepted he would have told Dr Low of the twisting nature of his knee’s physical action when getting in and out of the forklift – which is consistent with the above quoted passage from Dr Low’s report. It was put to Mr Welsh that he did not tell Dr Low he had felt pain while using the pallet jack, to which he responded, “I don’t recall my exact conversation”.
It is likely that Mr Welsh, conscious of the physical demands of twisting his knees when getting in and out of the forklift, thought those demands might have been the source of the pain and said something to Dr Low conveying that impression. But Mr Welsh is no medical expert and it is also clear he did mention the activity of pulling the pallet jack. None of this contradicts his evidence that he felt pain on the afternoon of the 8^th, both in pulling the pallet jack and getting in and out of the forklift.
Dr Halliday’s reports noted Mr Welsh’s injury had developed after he had been shifting pallets with a forklift and a pallet jack and that during the physical activity Mr Welsh had felt a twist in his right knee that began to get sore. In Dr Halliday’s statement of 19 May 2023, he said:
“Mr Welsh told me that he had undertaken a lot of physical activity and developed a sore right knee at work. When I asked him he was not specific about what specific work task caused him to develop pain around the right knee. He said he did a lot of work activities. He did not describe any violent or sudden injury.”
None of this is at odds with Mr Welsh’s evidence that he felt pain in his right knee that afternoon in connection with both the pallet jack and forklift activity.
In his statement of 19 May 2023 Dr Halliday opined that if Mr Welsh had suffered a partial thickness tear in his quadriceps when moving a loaded manual pallet jack he would have expected him to have experienced pain or discomfort at that time and Mr Welsh did not describe that to him. Yet, Dr Halliday’s report of 28 March 2019 said:
“There had been a large dock delivery. He began to shift pallets with a forklift and a pallet jack. There was lots of physical activity to be undertaken. During this period he felt a twist in his right knee. It began to get sore. …”
Something similar was repeated in his following two reports. It follows Mr Welsh did describe to Dr Halliday experiencing pain at the time of his activities that afternoon. It would be unremarkable if the initial sensation of pain was not as immediately significant as the pain appears to have progressively become that afternoon, as Mr Welsh continued his workplace tasks despite the pain. It is in turn unsurprising that Mr Welsh could not in hindsight reliably recall whether he first felt the sensation of pain that afternoon when pulling on the pallet jack or when getting in or out of the forklift.
Biggin’s counsel’s submissions also highlighted what three other expert witnesses noted in their reports about what occurred, namely Dr Harding, a psychiatrist called by Biggin, and occupational therapists Mr Scalia and Ms McNamee, called respectively by Mr Welsh and Biggin. None of those witnesses had the same potential expert role in connection with the cause of the physical injury as the orthopaedic surgeons but, in any event, none of what they reported supports the argument of recent fabrication about pain in connection with the operation of the pallet jack. Also, it may be that their report content incorporated elements of what they read of other documented reporting.
Mr Scalia’s first report noted:
“On 09 October 2018, during the course of his employment as a Warehouse/Retail Manager with Dine-a Chook, Mr Welsh developed right knee pain. He reported that there were several deliveries including approximately 14 pallets of stock that he was required to move with a forklift and pallet jack. Mr Welsh reported that he had difficulty transferring on and off the forklift because of his height. Mr Welsh described that to transfer on/off the forklift, he would awkwardly twist his right leg under the steering wheel.
Mr Welsh reported that the following morning his right knee pain improved, and he returned to work undertaking a similar task to the afternoon before. Mr Welsh continued to work however his right knee pain worsened…”
Again, that passage replicated the earlier mentioned error regarding the relevant dates at the start of the week in question. Again, it mentioned the action of twisting under the forklift steering wheel. Again, it referred to activity with both the forklift and pallet jack. Again, it did not suggest the experience of pain was confined to or commenced with the forklift activity.
The outline of what occurred in the reports of Dr Harding and Ms McNamee are even less detailed. Dr Harding’s first report records:
“Mr Welsh reported that during the course of his duties in October 2018 he was having to move 15 pallets of stock into a tight space using a pallet jack. He reported his knee twisted in a funny way – it was painful but he continued. He reported that he iced his knee that night and returned to work the next day but the pain persisted.”
As can be seen, that passage did not even make reference to the operation of the forklift. In contrast, Ms McNamee’s recording of what occurred made no reference to the pallet jack:
“Mr Welsh is a 45 year old man who was working as a Warehouse Manager at the time of the alleged incident in early October 2018. He stated a large order was delivered and he was required to unload between 10 to 15 pallets of supplies from the truck using a forklift and then rearrange the warehouse to enable the supplies to be stored. This involved frequently climbing on and off the forklift. Mr Welsh stated that on the day of the alleged incident, his knee became sore towards the end of the shift, which he attributes to having to work at a fast pace and the frequency of getting off the forklift.”
The extent to which that record was based on what Ms McNamee was told by Mr Welsh as distinct from what she drew from the multitude of reports listed in the index to brief to her report, which included the above quoted report of Dr Low, is not apparent from her report nor was it explored by either counsel when she gave evidence. In any event, it takes the matter no further than the equation discussed above in relation to the passage in Dr Low’s first report.
The result is that the argument of recent invention regarding Mr Welsh’s evidence that he felt pain when pulling the chicken feed pallets was without substance. At best, the argument did no more than establish that which was already apparent, namely that Mr Welsh experienced pain in his right knee, both as he was using the pallet jack and as he was using the forklift on the afternoon of the 8^th, but in hindsight was unsure of which of the tasks he was performing when the sensation of pain first started to manifest. This heralds the importance of the likely causal mechanics of the injury.
The causal mechanics of the injury
There was a body of expert engineering evidence adduced regarding the nature of the forces in play when pulling with significant high force at a stationary laden pallet to initiate its movement. That evidence, considered in conjunction with expert medical evidence, compels the conclusion, as now discussed, that it was that action by Mr Welsh which caused his physical injury.
In considering that evidence it is important to appreciate Mr Welsh’s described application of high initiating force in pulling the laden chicken feed pallets was the only feature of Mr Welsh’s actions on the afternoon of the 8^th which was materially different from his past actions in the workplace. Getting in and out of the forklift was something he had done many times before. So was using the pallet jack to move laden pallets. But, as he explained, there had not previously been an occasion when he needed to use it to move such pallets so quickly and hence applied the maximum initiating force he described.
The likely weight of the two pallets of chicken feed which Mr Welsh had to move quickly to and fro inside the warehouse on the afternoon of the 8^th was significant. Mr Welsh estimated of those pallets that one was 50 to 60 per cent full and the other was 70 to 80 per cent full. There are 52 bags in a normal pallet of chicken feed. At 20 kg a bag that is a weight of 1,040 kg. Applying the respective means of Mr Welsh’s estimates of how full the pallets were, 55 per cent of 1,040 kg is 572 kg and 75 per cent of 1,040 kg is 780 kg. Allowing for the weight of a pallet jack, which is at least 60 kg, plus the weight of the pallet, at say another 15 kg, raises the respective load weights which Mr Welsh moved to at least 647 kg and 855 kg.
Mr Kahler, an engineer highly experienced and well credentialled in the mechanics and avoidance of workplace injury, provided reports and gave evidence for Mr Welsh. His primary report referred to Snook, SH & Ciriello, VM, The Design of Manual Handling Task, Revised Tables of Maximum Acceptable Weights and Forces, Ergonomics Vol 34, No 9, 1991 pp 1197-1213, citing inter alia that publication’s widely used tables of the maximum acceptable forces of pull for males in kilograms. The point of the tables is to identify the application of force which is within safe range for males applying their own physical force to pull loads.
Dr Carnavas, an engineer engaged as an expert witness by Biggin, appeared to accept the Snook and Ciriello tables were widely used. Notably, Appendix F of the Hazardous Manual Tasks Code of Practice discussed later in these reasons contains a reference to the Snook’s studies. Dr Carnavas acknowledged that maintaining push pull forces below the maximum force range in tables published by Snook and Ciriello has been shown to reduce the risk of low-back and musculoskeletal injuries.
Their relevant table distinguishes between initial force, the force required to get an object in motion, and sustained force, the force required to keep an object in motion. It reveals materially less force is required to keep a load in motion than is required to get it in motion. This case is concerned with the initial force; the rolling resistance of the pallet jack once in motion being lower than that required to initiate its movement.
The relevant table notes various initial acceptable kilogram force pulls for a hand height of 95 cm (about the pallet jack handle height) for multiple time intervals. The maximum acceptable range of force for initial force pulls occurring between one a minute through to one every thirty minutes ranges from about 23 to 27 kg.
Mr Kahler attended Biggin’s workplace and measured the force required to initiate movement of the pallet jack, moving a half-loaded pallet of 26 bags of chicken feed at 20 grams per bag, a load of 520 kg of feed, plus the pallet and pallet jack weights. This would be at the lower potential range of weight for the lighter of the two chicken feed pallets Mr Welsh moved using maximum initiating force.
Mr Kahler opined that the application of gentle accelerating force could be achieved with 10 kg of force or less. In other words, the application of gentle accelerating force to initiate movement is comfortably under the maximum acceptable range of force. Dr Carnavas agreed with Mr Kahler that force of about 10 kg was required to pull a pallet jack when accelerating slowly. Dr Carnavas also conducted tests upon various pallet weights but for those tests only applied low accelerating force, leaning back from the pallet jack. He did agree though that he was able to generate larger forces by increasing the acceleration of the loaded pallet jack by making a more rapid movement of hands or by lunging.
Mr Kahler’s testing applied increased levels of force to the half-loaded chicken feed pallet he used. Applying what Mr Kahler described as a moderate accelerating force to initiate movement, the force at Mr Kahler’s hands during testing ranged between 37 and 38 kg, which materially exceeds the above-mentioned acceptable range of 23 to 27 kgs.
He conducted the same test with two people applying moderate force with the load shared equally, to replicate the forces one person could experience when applying a high level of force, more akin to the maximum force applied by Mr Welsh. That exercise generated a much higher force of 56 kg, which far exceeds the above-mentioned acceptable range.

It follows that the safe appropriate accelerating force to initiate movement of the laden chicken feed pallets was a gentle force, not a moderate force and certainly not the high degree of force of the kind Mr Welsh testified to using.
Dr Carnavas opined that if handle push pull forces were generated by Mr Welsh higher than the acceptable maximums, “it would have been because of unnecessarily rapid accelerations and … this would most likely increase the risk of operator fatigue and indirectly may have increased the risk of a back injury.” This view appeared to be influenced by reasoning expressed by Dr Carnavas in his primary report that the acceptable maximum range of force recommended in ergonomic tables such as those of Snook and Ciriello are based on the onset of worker fatigue which may result in a biomechanical destabilization of the spinal posture and precipitate injury. But that is to focus on only one feature of the tables. That feature is that the above-mentioned table lists recommended forces at “one pull every” 6 seconds, 12 seconds, one minute, two minutes, 5 minutes, 30 minutes and 8 hours. It also includes some greater intervals of seconds in the context of longer distance pulls. In any event, the pattern is the same – the maximum recommended force is progressively marginally lower the more frequent the pulling. That logically confirms the potential role of fatigue. However, that aspect of the tables ought not obscure the presently relevant aspect of the tables, which is their identification of the acceptable degree of force. The table’s range of maximum acceptable force in kilograms generally begins in the latter teens, when the intervals are very short, and generally ending in the latter twenties, for long intervals. Such ranges are exceeded by moderate applications of force and substantially exceeded by high applications of force.
It is true that workers will not ordinarily be using a force measuring gauge, as Mr Kahler and Dr Carnavas did in their testing, and that, as the primary report of Dr Carnavas explained in discussing psychophysics, their choice of application of force is informed by their necessarily imprecise perception of physical exertion. However, as Mr Kahler explained, we are not here concerned with possibly only a few kilograms exceeding difference between the maximum acceptable forces and those which he measured on moderate and high applications of force. The exceeding difference for a moderate force was about 10 kilograms and, even more relevantly, the exceeding difference for a high force was nearly 30 kilograms. Anyone trained in experiencing the application of gentle accelerating force would easily perceive such force is far exceeded if attempting to apply high force.
Mr Kahler credibly explained that the dynamic of concern here was not a fatigue issue and rather an overload issue, “related to the rate of movement from zero velocity to its final velocity, which is generally around about walking speed or a little lower”. The relevant danger was the consequence not of fatigue but of excessive exertion of force and its overloading impact upon the musculoskeletal parts of the body which aid in delivering an exertion of force of the kind involved here.
A potential subject of such overload is the quadriceps tendon because it will become loaded as the knee straightens in forcefully pulling a loaded pallet. There was an unpersuasive attempt made to argue that it had not been proved that the action used by Mr Welsh involved any bending and then straightening of the legs at the knees in applying force. Mr Welsh pleaded he was required to bend his knees whilst commencing to pull the pallet jack but did not give express evidence to that effect. As I observed in the course of closing submissions it is difficult to envisage there not being some degree of straightening of slightly bent knees as an operator pulling on the pallet jack handle pulls forcefully backwards to initiate movement of a laden pallet. It would be a natural, instinctive movement in applying backwards force pulling on the pallet jack handle to set the load in motion.
Mr Biggin’s counsel placed unpersuasive emphasis on Mr Welsh’s acceptance that his movement process was “similar” to what Mr Biggin did in the video of Mr Biggin moving the pallet laden with bags of chicken feed. That was plainly not an acceptance it involved wholly identical movement. Indeed, Mr Welsh also said “it was not exactly how” he had done it. In the video, when Mr Biggin pulled backwards, there was a perceptible, though only slight, straightening of at least one of his legs but he was obviously not applying the intensity of force which this case is concerned with. It can comfortably be inferred on the balance of probabilities that Mr Welsh’s application of maximum force in pulling backwards to initiate movement of the chicken feed pallets on the afternoon of the 8^th involved the legs moving from bent towards straightening at the knees in exerting that force.
It was suggested to Mr Kahler that more than the quadriceps muscle and tendon are utilised when straining a leg during heavy pushing and pulling, since other muscles such as the hamstring and gluteal muscles are used at the same time. Mr Kahler agreed, but explained:
“[B]ecause you’re straightening the knee – the quadriceps has got four muscles in it, but there is one in particular that, you know, joins to the kneecap, the patella, and that straightens the leg. So in straightening the leg and exerting force, which you can do in both pushing and a pulling action, you can overload the quadriceps tendon – muscle and tendon.”
The point in short is that the nature of the injury which was suffered is an injury of one part of the musculoskeletal structure which will be stressed in pulling a pallet jack. The level of force applied here was excessive and one part of the body which would have thus been placed under excessive stress was injured.
Dr Halliday opined that from his viewing of the videos of Mr Biggin and Mr Kahler each using a pallet jack, such activity would not have put “high or excessive force” on the quadriceps and that it is very unlikely such activity would have caused an injury to or an issue with the quadriceps of most people. He favoured such an injury being more likely occasioned where the quadriceps is eccentrically loaded. But this was to ignore that the action occurring in the videos of the pulling of the pallet jack did not replicate that deployed by Mr Welsh as a sole operator applying high initiating force on the afternoon of the 8^th.
The expert evidence of Dr Halliday and Dr Carnavas tended not to dwell on the prospect that high force loading had been involved. Indeed, Dr Carnavas seemed to imply it would be so obviously dangerous that a worker would not attempt it, opining:
“Manual pallet jacks are most typically moved slowly and steadily by users because it is unsafe to move them quickly and it would be unexpected that any user would attempt to do so.
The Plaintiff was an experienced user of the Pallet Jack. During his period of employment with the Defendant, in addition to any instruction he received, the behavioural characteristics of the Pallet Jack would have been evident during its use.”
Dr Carnavas also opined that rapid acceleration of the pallet jack or quick movement of the pallet jack would be dangerous to staff and property as if to imply a connection between that danger and the application of significant force to initiate movement, making it less likely a worker experienced in using the pallet jack would apply such force. The connection is not apparent. It is one thing to apply significant force to set the pallet jack in motion and quite another to thereafter apply significant force, once the motion is initiated, in order to move it at unsafe speed. There is no suggestion at all that Mr Welsh’s use of significant force to initially set the pallet jack in motion had the effect of propelling it in any sustained way beyond the mere initiation of movement.
On this point Mr Kahler relevantly explained:
“You only have to accelerate it to walking speed or less than walking speed. And in that distance and timeframe is where the musculoskeletal load – overload can occur. It’s not as though you have to keep accelerating it so it’s going so fast it’s now pushing you. It’s just about getting it to the speed that you will want to manoeuvre it at. …[T]he force is generated in that initial movement – e.g., of the order of one second.”
The argument that Mr Welsh’s evidence of an application of significant initiating force was implausible because such force would propel the pallet jack at unsafe speed is unpersuasive. The danger did not lay in unsafely propelling the pallet jack load once moving, of which there no evidence. It lay in the unrecognised danger to Mr Welsh’s own musculoskeletal health of applying significant initiating force in putting it in motion.
Mr Kahler opined that the damage to the quadriceps tendon, which is involved in the straightening of the leg, is more likely associated here with musculoskeletal overload when accelerating the loaded pallets than stepping on and off the forklift. He considered:
“The musculoskeletal overload and damage to the quadriceps tendon occurred during the manoeuvring of loaded pallets with those loaded pallets being accelerated quickly”.
Dr Low was of the same opinion, reporting in his supplementary report of 11 October 2022:
“Mr Welsh was required to move the pallets around with a forklift and manually use the pallet jack as well as to move the chicken feed around. He had to lean back on the pallet jack to move it putting a lot of stress through his knees. As a result, he has suffered a partial thickness tear of the right quadriceps tendon in the right knee moving the loaded pallet jack plus stepping on and off the forklift would have contributed as well. The quads tendon is involved in the straightening of the knee and damage to the quadriceps tendon is considered more likely associated with musculoskeletal overload when accelerating the loaded pallet jack rather than when stepping on and off the forklift. This is a statement I agree with.”
He explained that ending reference to a statement he agreed with was to the opinion of Dr Kahler.
In reference to the video of the pallet jack being used by Mr Biggin, Dr Low explained that in exerting such a backward stress:
“[Y]ou’ve got to use your anti-gravity muscles. And the main anti-gravity muscle is the quadriceps. And the patellar tendon is, like, the drive shaft from the motor to the back axle. I mean, that’s where all the force is dissipated on exerting a backward stress like this. But there’s also the hamstrings, the erectus spinae muscles, which are the muscles in the back – there’s the calf muscles. All these other muscles come into play when we exert backward pressure like this against resistance. … So all those muscles work in tandem to achieve the end result, which is to move the pallet jack. So depending on the situation, yes, there could be an enormous amount of stress through the patellar tendon.”
Dr Low explained in re-examination:
“The quadriceps is the main anti-gravity muscle, and the patellar tendon is where the maximum stress is exerted. That’s where the force is transmitted to the kneecap to straighten the knee to overcome the tendency for the knee to collapse.”
Dr Low concluded, in evidence I accept:
“The Plaintiff’s partial thickness tear occurred on the first day, this being when he first experienced symptoms.
The first move which involved the Plaintiff using the pallet jack with his knees bent and using maximum effort to pull the pallet jack and move the pallets of chicken feed would have placed an enormous amount of pressure on the Plaintiff’s quadricep tendon. The quadricep tendon stops the knee from collapsing when placed under pressure. In my opinion the Plaintiff’s use of the pallet jack to move the pallets of chicken feed caused the Plaintiff’s partial thickness tear of the quadriceps tendon.
The Plaintiff’s use of the pallet jack on the second day where he was using the pallet jack to move pallets into position within the premises would in my opinion have aggravated the Plaintiff’s partial thickness tear of the quadriceps tendon on the right which had occurred the previous day.”
As highlighted earlier in these reasons, the obvious distinction between pulling the pallet jack and getting in and out of the forklift is that it was only the former which involved a markedly different approach from before in Mr Welsh’s actions towards either piece of equipment, in that he deployed maximum force. Accepting as I do that he did use such high force in initiating the pulling movement with the pallet jack, I accept the opinions of Mr Kahler and Dr Low that it was that manoeuvre, not the getting in and out of the forklift which was the causal source of the injury.
The evidence compels the conclusion that Mr Welsh’s described application of high initiating force in pulling the laden chicken feed pallets was the causal source of his injury. It may of course be that his other activity of getting in and out of the forklift, during which pain was experienced, contributed to the injury by aggravating it. However, the relatively minor physical stress of that mundane process is a much less likely causal or triggering source of the injury than the extreme physical stress of Mr Welsh’s initiating movements of the chicken feed pallets. I find on the balance of probabilities that it was the significant degree of force of those initiating movements which caused the injury. But for that feature it is unlikely that the injury would otherwise have been occasioned by Mr Welsh’s actions that afternoon.
Implicit in that finding is that I do accept Mr Welsh’s evidence that he moved the chicken feed pallets as described by him. I now continue with some further reasons why I was not dissuaded from such acceptance by the evidence and arguments of Biggin’s case about the reliability of Mr Welsh’s account of the workplace events.
The supposedly prior inconsistent account to WorkCover
It was put to Mr Welsh that on 7 October 2020, when he spoke to Kylie Johnston, a claims representative of WorkCover, he told her he was not sure how his injury happened, to which he said he could not recall which task it occurred in but that he recalled having the pain in moving pallets and climbing on and off the forklift. He rejected having told her that on the Tuesday he received some pallets and was moving them around with a forklift and pallet jack and the knee did not feel sore at the time.
Biggin exhibited a communications report record of WorkCover Queensland of 7 October 2020 which had been made by Kylie Johnston, a claims representative. In that record of her conversation with Mr Welsh the following entry appears:
“Event – not sure how the injury happened
on the Tuesday received some pallets
moving these around with a forklift and palletjack
knee didn’t feel sore at the time”
This record’s reference to the Tuesday rather than the Monday, like the other incorrect references to the 9^th rather than the 8^th, raises the possibility Mr Welsh’s memory, unrefreshed by the delivery dockets, may at first have been that the delivery occurred on the Tuesday. If so, nothing turns upon it. His account has consistently referred to his activity in moving pallets on the afternoon of the delivery and the following day.
Ms Johnston gave evidence but had no recollection at all of the conversation or the entries she had made. She explained her practice was to record by typing into the relevant computer field what was said in conversation with a claimant. She explained that at the end of the call she would check over with the person providing the information whether she had taken the note accurately by reading over the note, but that that would only occur “if I wasn’t sure of anything that I’ve written”. She accepted in cross-examination that whether or not she would read back the content of her notes she had made would depend upon her own subjective understanding as to whether she really understood what the person was saying and acknowledged that she did not read back the notes on every occasion. She asserted no memory of whether she did read the notes back in this instance.
The upshot then is that she might not have checked the accuracy of her entry with Mr Welsh and what was recorded may not be accurate. Moreover, the entry is plainly sparse, in note form. In referring to “knee didn’t feel sore at the time” it is not clear whether the time there being spoken of is the entire afternoon or the time during which the pallets were being moved around with a forklift and pallet jack or the time of some particular more specific phase within that process. In that context, much obviously depends upon the broader unnoted content of the conversation. In the absence of Ms Johnston having any memory of the conversation this evidence fell well short of proving a prior inconsistent statement or raising some other material concern as to Mr Welsh’s reliability.
The supposedly significant evidence of Mr McArthur
In cross-examination Mr Welsh rejected the suggestion Mr McArthur had not said anything to lead him to believe the accessway needed to be kept open in the afternoon. He testified Mr McArthur definitely told him to keep the accessway open and that Mr McArthur was there during the afternoon, moving trailers, and could be heard operating the forklift. He explained Mr McArthur was pulling trailers from inside to outside, not just rearranging them at the back of the warehouse.
When asked in cross-examination why he felt he had to perform the task in a hurry when he could instead have just checked to see if there was any problem with having sole use of the accessway for half an hour, Mr Welsh responded:
“No, John had priority of using that space. John also wasn’t happy around – at the back of that warehouse, where those pallets were stored outside Dine-A-Chook’s area, so we were already encroaching on his space and his ability to move his own – and do his own work. So I worked with John closely numerous times, and the understanding we had was to ensure that clearway was kept clear, especially when he was there moving trailers in and out, because he’s quite efficient in operating the forklift, towing trailers, something I’d never do, and to – to be out of his way and make his life as easy as possible is what I always endeavoured to do.”
Mr McArthur, the warehouse owner and operator of the camper-trailer business located there, was called as a witness by Biggin in an attempt to provide evidence of the events of the 8^th, contradicting the evidence of Mr Welsh that he had had to accommodate the priority of Mr McArthur’s use of the warehouse that afternoon. His evidence was obviously unreliable in aid of that attempt.
There was nothing special about the 8^th that would have planted any of the events of that day involving Mr Welsh and the movement of the delivered pallets in Mr McArthur’s memory any differently than any other day, as Mr McArthur himself acknowledged. Yet, he represented, quite unconvincingly, that having found his diary notes, he could recall what went on.
Before considering his evidence, it is telling to give it context by explaining that Mr Biggin and Mr McArthur had obviously discussed the facts of the case Mr Biggin’s side was meeting in recent times, prior to giving evidence. The fact they had such a discussion was exposed by Mr Biggin’s own testimony on a relatively innocuous issue. It was whether Mr Welsh’s exhibited plan of the premises was correct in noting of the area where Mr McArthur kept the camper trailers inside near the large storage area that, “I think there were 17/18 camper trailers kept in this area”. In cross-examination when Mr Biggin was asked how many trailers there were in the area marked on the plan, Mr Biggin responded his understanding was that there were around 13 but he then altered that to an estimate of nine. He explained his initial slip in estimating 13 resulted from him being told Mr McArthur only ever owned 13 during the running of the business at any one time. It was obvious he had spoken with McArthur recently before giving evidence.

Turning to Mr McArthur’s purported feat of memory, he claimed to have a memory of a delivery of pallets arriving on the 8^th and being unloaded at about 1.00 or 1.30 pm and them having been there at least an hour and a half before he “would have left”. He testified having refreshed his memory from his diary that he had two trailers that were returned between 8.00 and 10.00 am that day. He testified he would have washed and cleaned the trailers and used the forklift to put them back and had been completely finished with that process by midday. By the end of his evidence it was obvious he in fact had no real recollection of that day and whether there may actually have been further movement of camper trailers, including a need to use the forklift, during the afternoon.
When asked if he remembered what time he left that day, he said, “It would have been around 3 o’clock, like most days”, which is consistent with the unremarkable probability that he had no specific recollection of what else he did at the warehouse that day.
He conceded in cross-examination that there was nothing in his diary relating to the pallets at all, let alone them being delivered between 1.00pm and 1.30pm or being left there for one and a half hours, or about him leaving at 3.00pm. He was most unconvincing when, by the end of his cross-examination, it was suggested to him there was no reason for him to remember the pallets were delivered between 1.00pm and 1.30pm on 8 October. He answered, “Well, I do remember”.
It is inherently unbelievable he would have any genuine, let alone reliable recollection on the topic. The relevant copy of the single day page of his diary which was exhibited only has the times 8.00am and 10.00am, circled with some lines joining them, and then naming two people, against one of which the additional information reads, “Return KK”. It has no other record and no record at all of what he did or what tasks he may have performed. The prospect those tasks may have required him to move one or more camper trailers about inside or outside as the afternoon progressed, deploying the forklift for such a purpose, was plainly not excluded by his evidence.
He also lacked candour regarding any conversation he had with Mr Biggin in the immediate lead-up to the case. He was specifically asked whether he had been speaking with him about the detail of the case and said he had not and had only been speaking to the defendant’s solicitor. Yet, when it was suggested he in fact had been speaking to Mr Biggin about the number of trailers which he kept in the warehouse in October 2018 within the previous week – as was obvious from Mr Biggin’s evidence – he conceded that he had. His ensuing unconvincing explanation for earlier denying having spoken with Mr Biggin about the detail of the case was that he did not consider that to be a detail of the case.
A more reliable aspect of Mr McArthur’s evidence was his testimony that he would have said to Mr Welsh before leaving on the 8^th that he needed clear access the next morning. His diary page for the next day was not produced but such evidence of what he “would have” said strongly, if unwittingly, confirmed that free movement about the warehouse in the conduct of Mr McArthur’s business took priority.
Other Biggin evidence/arguments re reliability
Mr Biggin was not a witness to the events of the 8^th and 9^th but evidence was led from Mr Biggin in an apparent attempt to reduce the probability of events occurring as Mr Welsh described.
Mr Biggin testified that the forklift was most commonly used by the business for the purpose of moving pallets of chicken feed. That suggests the possibility that from time to time pallets of chicken feed were moved with the pallet jack, however, he claimed he could not recall an instance where the pallet jack was required to be used on chicken feed “while there was a forklift available”. Yet he also testified the pallet jack was acquired for ease of access about the large storage area and that it served many purposes once acquired within the warehouse. That is unsurprising. As Mr Welsh explained, there was limited manoeuvrable space, not just in the large storage area but also elsewhere such as the assembly area and retail area.
It will be recalled the configuration of pallets described by Mr Welsh near inside the front entry of the warehouse on the afternoon of the 8^th gave rise to the type of limited manoeuvrable space which favoured the use of the pallet jack rather than the forklift. Mr Biggin testified it was not common for pallets to be stacked in that area, saying:
“If there was ever pallets stacked there, that was definitely going to stretch my friendship with what was allocated to me as a rental space.”
That evidence at once acknowledged the prospect that such positioning could sometimes occur and that it may test the patience of Mr McArthur. Mr Biggin’s evidence did not dent the plausibility of Mr Welsh’s account of opting to deploy the pallet jack that afternoon. Indeed, it unwittingly supported why Mr Welsh would have felt under temporal pressure to use it quickly.
Mr Biggin’s testimony also sought to suggest the task of unloading the pallets on the 8^th would have been shorter than described by Mr Welsh. Mr Biggin testified that the process of unloading a delivery of eight pallets in the past from the back of the truck onto the apron at the front of the warehouse was quick, giving an estimate of only four minutes. That is surprisingly quick given the delivery driver inside the rear of the truck needs to move pallets forward one by one with a pallet jack for the forklift to lift and remove them. Mr Biggin testified completion of the unloading into the warehouse could take anywhere from 20 minutes to an hour, depending on what other stoppages might occur and what had to be moved about the warehouse. These appeared to be overly optimistic estimates, doubtless advanced to urge the reasoning that, even though the load on the 8^th was 14, not eight pallets, its unloading from the delivery truck into final positions in the warehouse would have been wholly completed that afternoon, long before close of business. Such reasoning is unrealistic in that it makes no allowance for the need to perform other tasks or for interruptions to the process involving the movement of obstacles or the priority given to Mr McArthur’s unfettered access through the warehouse and Mr McArthur’s use of the forklift.
Another criticism of Mr Welsh’s reliability was founded on the pleading of his case. The initial pleading of the Statement of Claim referred to moving the delivered pallets about with the forklift and pallet jack, but not to moving pallets of chicken feed which had not been delivered and were moved in consequence of the unloading and moving of the delivered load. Reference to two pallets of chicken feed being moved was made, but erroneously so, in the context of them being described as part of the delivered load, an error realised after the pleading from the content of the delivery dockets. The amended Statement of Claim then pleaded the specific need to move the two chicken feed pallets as a separate concept from the need to move the delivered pallets. Other criticisms were made of Mr Welsh’s pleading, particularly its temporal imprecision, but none of those points were particularly concerning.
It is the failure to at first plead the need to move partly heavily laden pallets of chicken feed within the warehouse on the afternoon of the 8^th that is concerning, given the central importance of the movement of those pallets in this case. In cross-examination, when pressed on this anomaly, Mr Welsh explained he could remember moving pallets of chicken feed by pallet jack to make space as he had described but had not exactly recalled whether they were already in the warehouse or had been delivered that day.
After deliberating upon the truthfulness and reliability of Mr Welsh’s account and giving careful weight to the significance of the failure to at first plead the specific need to move the partly laden pallets of chicken feed, my conclusion abides by the strong impression I had at the time of trial, witnessing the testimony unfold in court. That conclusion is that Mr Welsh’s account was honest, generally reliable and, to remove doubt, reliable as to the circumstances of his ill-fated and unwittingly unsafe use of significant force in moving the partly laden two chicken feed pallets to and fro in the warehouse on the afternoon of the 8^th.
Conclusion
Mr Welsh suffered a right quadriceps tendon tear in the workplace on the afternoon of 8 October 2018. While that injury may have been aggravated by work tasks further performed by him that afternoon and the following day, it was caused by his application of high force when initiating the movement of heavily laden pallets with the pallet jack.

What if any duty of care did Biggin have to take precaution against risk of such injury?

Did Biggin have a duty of care to take precautions against risk of injury of the kind which occurred? That risk was of musculoskeletal injury being caused to Mr Welsh by applying a high degree of force when initiating the movement of heavily laden pallets with the pallet jack.
At common law the employer owes a duty to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury in the workplace.[1] It is well established that duty includes a duty to take all reasonable steps to provide a safe system of work.[2] The self-evident purpose of such a system is to avoid exposing employees to unnecessary risk of injury in the workplace. It logically follows that a safe system of work should assess potential hazards and hazardous tasks in the workplace to identify whether, and if so how, they pose unnecessary risk of injury to employees and in turn ascertain and implement reasonable precautions to avoid exposing employees to the risk.[3]
[1]Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18, 25; Czatyrko v Edith Cowan University (2005) 214 ALR 349 at [12].
[2] Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 53.
[3]See Kennedy v Cordia (Services) LLP [2016] 1 WLR 597, 629.
To determine whether there has been a breach of those duties it is necessary to determine the scope of those duties in the case at hand, including the nature and extent of the systemic identification of risk and the nature and extent of the systemic reasonable precautions, if any, which should have been taken against it. That inquiry is necessarily informed by whether the risk of injury alleged was foreseeable, not insignificant and of a nature against which a reasonable person would have taken precautions. As much follows from s 305B(1) Workers’ Compensation and Rehabilitation Act 2003 (Qld), which provides:
“(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.”
Determination of the relevant scope of Biggins’ duty to take reasonable care, including to take all reasonable steps to provide a safe system of work and to avoid exposing Mr Welsh to unnecessary risk of injury is therefore assisted by asking: What approach would a reasonable person in the position of Biggin have taken to the management of the risk of injury from the use of the pallet jack?
Biggin acquired the pallet jack as a means, additional to using the forklift, of moving laden pallets about the warehouse. Unlike the forklift it was not motorised. Nor for that matter was it electric. It was a manually moved wheeled device, procured to move heavy loads by application of the operator’s physical force by pulling or pushing it.
It is a notorious fact, of which any reasonable employer would be aware, that workers may sustain musculoskeletal injury in performing tasks involving the application of their physical force. Given the duty of care employers owe to their workers, it is not enough for them to assume that because workers are also likely aware of that notorious fact, workers will always perform such tasks without risking musculoskeletal injury to themselves.
Employers with the faintest interest in considering how they might fulfill their duty of care to avoid such risk would find guidance in the safety Act and Regulation which they are supposed to comply with, namely the Work Health and Safety Act 2011 (Qld) and Work Health and Safety Regulation 2011 (Qld). It is to be appreciated s 267 of that Act precludes reliance on a contravention of it as conferring a right of action in civil proceedings. However, its content and, more particularly, that of the Regulation and an associated Code of Practice informs consideration of what would likely occur to the mind of a reasonable employer in meeting the employer’s duty of care.

Statutory and regulatory requirements, codes of recommended ways of managing risk and other relevant publications likely to be well known to an employer taking reasonable steps to meet its duty of care to workers are relevant in this context because they inform the approach a reasonable employer would likely have taken.[4]
[4]See for example the like reasoning of Garling J Benic v State of New South Wales [2010] NSWSC 1039, [92] and Macaulay J in Franklin v Kone Elevators Pty Ltd [2011] VSC 108, [124].
The provisions of the Work Health and Safety Act are consistent with the common law duties – see ss 19(1) and 19(3)(c). Section 19(3)(f) signals a presently relevant means of managing risk, by referring to “the provision of any information, training, instruction or supervision that is necessary to protect all persons from risk to their health and safety arising from work…”.
Biggin’s duty was also informed by the Work Health and Safety Regulation 2011 (Qld), which relevantly refers at s 35 to the employer’s obligations (which are consistent with the aforementioned common law duties) of eliminating or at least minimising risks to health and safety as far as practicable. More particularly, s 60 of the Regulation requires the employer to comply with the above obligations when managing “risks to health and safety relating to a musculoskeletal disorder associated with a hazardous manual task…”.
Schedule 19 of the Regulation relevantly defines a musculoskeletal disorder as follows:
“musculoskeletal disorder means an injury to … a musculoskeletal system, whether occurring suddenly or over time ...”
This case is concerned with such an injury.
The Regulation relevantly defines a hazardous manual task as follows:
“hazardous manual task means a task that requires a person to … push, pull, … or otherwise move … any … thing that involves one or more of the following ––
(a) repetitive or sustained force;
(b) high or sudden force; …”
(c) repetitive movement; …” (emphasis added)
This case is concerned with a high force pull.
All of this serves to confirm a reasonable employer would have apprehended, consistently with the aforementioned notorious fact, that the pallet jack was an item of plant which, if pulled or pushed with high force to move laden pallets, could potentially cause a musculoskeletal injury. This would, as a starting position, at least have prompted a reasonable employer to carry out a risk assessment to identify what manner of use of the pallet jack may pose a risk of musculoskeletal injury to the operator.
Consideration of what would likely occur to the mind of a reasonable employer in carrying out such a risk assessment, identifying the extent of the risk and in turn considering what ought practicably be done to eliminate or minimise the risk, is informed by the guidance provided to employers by a relevant Code of Practice.
Section 274 of the Work Health and Safety Act empowers the Minister to approve a Code of Practice and s 26A of the Act requires employers to either comply with such Code of Practice or “manage hazards and risks arising from the work carried out as part of the conduct of” its business “in a way … that is equivalent to or higher than the standard required under the Code”. The relevantly approved Code in this context was the Hazardous Manual Tasks Code of Practice 2011.[5]
[5]Exhibit 30.
The Code, which refers to musculoskeletal disorders as “MSDs”, explains at s 1.1 how they can occur, as follows:
“MSDs occur in two ways:
· gradual wear and tear to joints, ligaments, muscles and inter-vertebral discs caused by repeated or continuous use of the same body parts, including static body positions
· sudden damage caused by strenuous activity, or unexpected movements such as when loads being handled move or change position suddenly.
Injuries can also occur due to a combination of these mechanisms, for example, body tissue that has been weakened by cumulative damage may be vulnerable to sudden injury by lower forces.” (emphasis added)
Section 2.1 of the Code then explains that a “manual task is hazardous if it involves any of the … characteristics” described in s 2.2. Section 2.2 identifies the characteristics of hazardous manual tasks, referring to various kind of application of force. It describes force in these terms:
“Force is the amount of muscular effort required to perform a movement or task. Forceful muscular exertions overload muscles, tendons, joints and discs and are associated with most MSDs.”
Included in s 2.2 are examples of various types of force such as the sustained force of continually pushing or pulling a trolley or the high force of pushing or pulling an object that is hard to move. This case involves a forceful muscular exertion, while pulling, which evidently overloaded the tendon.
The Code’s means of providing guidance on how to manage the risk of injury associated with such tasks is summarised in the following way in s 1.4:
“This Code provides guidance on how to manage the risks associated with those manual tasks that have the potential to cause MSDs by following a systematic process that involves:
·     identifying manual tasks that are hazardous
·     if necessary, assessing the risks of MSDs associated with the hazardous manual task
·     implementing suitable risk control measures
·     reviewing the effectiveness of control measures.”
In providing guidance as to how to identify hazardous manual tasks, s 2.1 of the Code recommends consulting workers, reviewing available information, looking for trends and observing manual tasks, noting as to the latter:
“Hazardous manual tasks can also be identified by looking at how people actually work and focussing on their postures and movements.”
Mere observation of someone pulling gently backwards to initiate the movement of a pallet jack may not, to the uninformed observer, result in identification of the task as hazardous. However, the prospect of a worker applying higher force, over-exerting themselves in the performance of a manual handling task is foreseeable, and all the more so by reviewing available information about manual handling tasks.
It is not as if it is a field bereft of available information. For instance, Mr Kahler reported that manual handling tasks associated with trolley movements have received significant attention and a number of guidance documents have been published about it. He cited Snook, SH, The Designer Manual Handling Tasks, Professional Safety, May 1980; Guidelines for Design and Selection of Trolleys, WorkSafe New South Wales, September 1996; Workplace Health and Safety, Push/Pull Tasks, Manual Handling Safety Link 6, Queensland Department of Training and Industrial Relations, May 1997; Division of Workplace Health and Safety, Guide to Manual Handling in the Retail and Wholesale Industry, Queensland Department of Employment, Vocational Training, Training and Industrial Relations, 1993; Work Safe Australia, Guidance Note for Manual Handling in the Retail Industry [NOHSC: 3014 (1992)], Australian Government Publishing Service, February 1992.

I accordingly assess past economic loss (not including a loss component for superannuation) as 251 (weeks) x $1,057.50 (notional weekly net income) x .9 (ten per cent discount for contingencies) = $238,889.25.

Past loss of superannuation

Past loss of superannuation at 9.5 per cent is claimed. I will adopt it given it was the relevant employee superannuation contribution percentage, calculated as a percentage of gross income (counsels’ submissions in this context seemed premised on net income which I infer was an error), as at the time of the injury (although it has since increased incrementally). Applying 9.5 per cent of the aforementioned gross weekly income of $1,336.20 gives a weekly total of $126.94.
From the resulting total Mr Welsh seemed to concede a deduction of $11,200 which he received as his income protection insurer’s superannuation contribution for some of the interim period. The concession appears to be an error. There is no legal or evidentiary justification before me for the superannuation component of an award for past economic loss to be reduced by the amount of a payment, the making or return of which is a contractual matter, as between an insurer and insured.[7] The correct relevance of such a payment here is that in calculating interest on past economic loss the calculation should allow for the fact that Mr Welsh suffered no commercial loss of the use of the equivalent of the amount of money which was in fact available to him in substitution of his income, including superannuation, during that past period from WorkCover and his private insurer.
[7]National insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, 573, 589-590; Redding v Lee (1983) 151 CLR 117, 122, 134, 138.
I accordingly assess loss of past superannuation as 251 (weeks) x $126.94 (notional weekly superannuation) = $31,861.94.

Interest on past economic loss

The above gives rise to a total past economic loss of $238,889.25 + $20,661.94 = $259,551.19. However, for the purpose of calculating interest, as earlier foreshadowed, I would reduce the relevant total by the amount of the relevant WorkCover and private income protection insurance monies Mr Welsh had the benefit of. The evidentiary materials are vague as to that total but it appears to be $127,721.25. That gives rise to a total loss to calculate interest on of $259,551.19 - $127,721.25 = $131,829.94.
As to the rate of interest s 306N of the Act requires that it be related in an appropriate way to the period over which the loss was incurred and must not be more than the rate for 10 year Treasury bonds published by the Reserve Bank of Australia under ‘Interest rates and yields – capital market’ as at the beginning of the quarter in which the award of interest is made. That rate appears to have been 4.03 per cent.
Given the accumulation of loss would have been of broadly even progression I would halve the above rate to apply to the whole of relevant interest calculation total, as follows: 4.03% x .05 = 2.015% x $131,829.94 = $2,656.37 interest on past economic loss.

Past special damages

Mr Welsh’s quantum statement itemises an array of out-of-pocket amounts for his various medical expenses and associated expenses, totalling $57,918.76. The only component of those expenses not accepted by Mr Biggin’s counsel was $2,500 for travel expenses, which was allegedly a likely over-estimate. It is an estimate which is about $100 greater than an additional like amount for other such travel which WorkCover has paid for and does not present as an obvious over-estimate, particularly given Mr Welsh’s travails. In the absence of the aid of supporting material I will slightly moderate the estimated amount and allow $2,000 for that aspect, giving rise to a total award for past special damages of $57,418.76.

Interest on past special damages

Applying s 306N of the Act, the accumulation of this category of past monetary loss would have been of greater progression earlier in the interim period. Accordingly, I will only discount the 4.03% interest rate by 25%
The calculation of interest on past special damages is: 4.03% x .75 = 3.023% x $57,418.76 = $1,735.77.

Future economic loss

Mr Welsh is now 47. Adopting the present age pension retirement age of 67 it is reasonable, subject to discounting for contingencies, to adopt a future period of 20 years as the period during which he will be impacted by the loss of income earning potential occasioned by his injury.
It is accepted there ought be some discount of future prospective loss to allow for the contingencies of life. That discount should be relatively substantial in a case like this, bearing in mind the medical evidence of Mr Welsh’s historical health issues already discussed, particularly the prospect he would in due course have suffered the injury in question anyway.
It was put to Dr Low that the combination of conditions which Mr Welsh had at the time of the incident were likely to have caused him a problem in five to 10 years’ time, regardless of any traumatic incident or the like. Dr Low testified it is not predictable how he would have gone with any degree of certainty, explaining Mr Welsh has got what all men have got at a certain age, namely some degeneration in the knee. He observed a person could go through life and put up with it or that the problem may turn into an issue that needs attention. He explained the relevant dynamic was “trauma versus degeneration”, testifying:
“So trauma is competing with degeneration and trauma can be a single incident of trauma, such as a fall, or it can be repetitive micro trauma, which is whatever activities a person engages in. There’s that aspect and there’s the other aspect, which is degeneration. So there’s trauma versus degeneration which determines the outcome. … which may be a catastrophe or it may be mild pain that you live with for the rest of your life.”
Dr Halliday considered the tendinopathy at the insertion of the quadriceps tendon had left Mr Welsh’s tendon prone to develop a partial tear and considered it “may be” that further work or recreational activities may have led to the development of a painful insertion of his quadriceps tendon on the background of the previously asymptomatic tendinopathy. On the one hand, Dr Halliday opined that he did not consider the pre-existing degenerative disease to be of great significance and that Mr Welsh would probably have been able to continue working until a normal age of retirement. On the other hand, he went on to say:
“It may never have become symptomatic in the absence of an injury; however, given the extent of the degenerative condition, it probably would have become symptomatic in the next 10 years. It is impossible to state that with accuracy and there is underlying degenerative disease of the knee with mild chondromalacia and medial compartment chondral loss on the original MRI. These conditions would have become symptomatic over time. Again, it is impossible to predict when but his physical deconditioning has made the symptoms in both knees come on sooner than they would have, had he not become physically deconditioned.”
Of course, Mr Welsh’s physical deconditioning may reasonably be inferred to be a result of the workplace injury.
As is apparent form this brief review, significant uncertainty attends the probability of whether the injury and its effects would have eventually manifested. It was probably more likely to occur in the future to Mr Welsh than it would to a person without his pre-existing, albeit asymptomatic knee condition. The chance of him sustaining the injury in some future act of high physical exertion he perceived a need to execute cannot be ignored as minimal.
All of this, in combination with his other pre-existing health issues and the usual contingencies, even for a person in generally sound health, should prompt a significant discount for contingencies. In my conclusion that discount should be 30%.
It is uncontroversial that the weekly income figures adopted above provide a reasonable starting point in informing the extent of Mr Welsh’s future loss.
There is no doubt that Mr Welsh’s physical ability to work as before has been significantly impacted. Dr Low reported Mr Welsh has no capacity to work, “which is likely to be ongoing”. He opined, that it will be extremely difficult if not impossible for Mr Welsh to work in areas that he has trained in. Dr Halliday opined that Mr Welsh is fit for an administrative type of position, but prolonged time on his feet, repetitive lifting, pushing and carrying are all beyond his capacity because of his reliance upon a single stick intermittently for walking.
Psychiatrist Dr Caniato acknowledged that the adjustment disorder by itself will generally not cause significant impairment but emphasised he could not comment on the pain symptoms and physical limitations as they bear upon his capacity for work. In cross-examination he confirmed he did not think Mr Welsh’s psychological condition would prevent him from working in a comparable position with comparable hours as before.
Consultant Psychiatrist Dr Harding opined Mr Welsh would be capable of participating in relatively sedentary occupations and that his capacity to work would only be limited by his physical limitations. Dr Harding did consider Mr Welsh’s low mood and motivational factors were likely to be contributing to a reduced capacity for work. She opined he would cope with working 20 hours per week in suitable duties which were cleared by his treating surgeon.
Mr Welsh’s attempts to earn an income post injury were canvassed earlier. Mr Welsh explained he would not pursue trying to obtain work commercially as a drone pilot, apparently because of the likely degree of physicality of such employed roles.
Mr Welsh is receptive to part-time employment which does not involve anything too physical or needing mobility. He explained:
“I have looked at options. I don’t like administration-type – I have never liked administration, hence why I have always been an active, sort of, sales, manual labour-type roles. None of the – sales roles I have ever been in ever involved wholly and solely sales. There was always a manual labour component of those. And I’m glad this courtroom is as empty as it is; I don’t like being around a lot of people.”
He went on to explain he would prefer not to have to be around people and while accepting working from home would be an option with its greater isolation, he observed his wife was trying to get him out more and that he did not like being isolated.
It appears Mr Welsh thought doing an IT course was no longer a realistic option because the distracting problems experienced with his recuperation had already resulted in him failing to complete such a course within the relevant time. It is conceivable, given his past industry in being able to work remuneratively, that he may complete some further employment related training or qualifications but it is unlikely, given his limited previous involvement or success in further study, that they would be at a level or of a nature which would equip him for particularly remunerative sedentary work.
Occupational Therapist Mr Scalia identified many barriers in occupational functioning. Mr Scalia opined Mr Welsh was not suited to many of his previously held occupations because they involved physical work tasks that now exceed his current functional capacity. This includes working as a warehouse or retail manager or store person and any heavy manual work. Of occupations previously held involving less physical exertions such as sales assistant, accounts manager or shop assistant, Mr Scalia noted Mr Welsh is unable to manage prolonged standing and his fatigue and reduced concentration affects his negotiation and sales effectiveness in turn impacting his overall output and success in sales roles. Mr Scalia noted Mr Welsh has limited transferable skills and future work options and has very limited capacity for gainful employment. Even for sedentary positions he considered there was a reduced sitting tolerance for Mr Welsh because he had difficulty maintaining flexion whilst sitting and would have to alternate between extending either leg and alternating his posture. He opined Mr Welsh would likely be disadvantaged in an open labour market because of his history of injury, chronic pain, reduced functional capacity and ongoing symptomology.
Occupational Therapist Ms McNamee opined Mr Welsh’s current function would be limited to working on a part-time basis in roles that are sedentary in nature and provide some flexibility in his working hours due to his fluctuating symptoms. She opined Mr Welsh could reasonably work up to 20 hours per week spread across 4 to 5 work days. However, she clarified that opinion related to such work as Mr Welsh was physically capable of with drones or running his own business or other jobs of a sedentary nature, using his experience of running an online business. In cross-examination Ms McNamee agreed she had concluded Mr Welsh does not have the capacity for drone work in connection with construction sites because of the need to access a range of terrains. While she advanced the prospect of employment in drones and other fields in the future, she acknowledged she was unable to identify any areas in which drones could be used by Mr Welsh to earn an income.
Ms McNamee conceded variables included whether Mr Welsh would have a benevolent employer or could gain self-employed work, though she acknowledged Mr Welsh had been attempting to engage in self-employment over the last couple of years. To all these variables may be added the problem that Mr Welsh will struggle to compete with more youthful, less disabled competitors for employed positions.
In light of the evidence the prospect of Mr Welsh being fit to work in any form of full time paid employment is bleak. He may be able to devote more than merely part-time effort to a sedentary business of his own but there is little reason to expect significant profit in light of his past entrepreneurial forays. It is realistic to expect he will be able to work in paid part-time employment for 20 hours a week but unrealistic to think such employment will be readily secured by him. His physical impairment would preclude many areas of more commonly available part-time work. The probability is that he would eventually secure part-time work in some modest paying part-time position and some allowance should be made for that. However, the income from such a position would leave him far short of the income he could earn but for his injury.
To illustrate the point, it is well known the current national minimum wage is $23.23 per hour plus 25% loading for casuals. Part-time permanent work at that rate for 20 hours a week would generate a weekly gross income of $464.60, which is about 35% of his former gross weekly income of $1,336.20 with Biggin. The figure would be higher for casual work at such hours but the heightened uncertainty of continuity of employment inherent in casual employment leaves that less helpful in the present exercise.
Allowing that it will still be difficult for Mr Welsh to secure and maintain part-time employment in his confined areas of physical competence, he is most unlikely to have continuity of such employment throughout the next 20 years. It is more realistic to expect it to be maintained for an overall total about sixty per cent. I would reduce the aforementioned 35% of his former income earning capacity to 20%.
Accordingly, to assess the value of his future loss of income earning capacity, before discounting for contingencies, I would adopt his previous weekly income figure but reduce it by 20%. Thus, the notional gross weekly future income loss would be: $1,336.20 x .8 (20% reduction allowing for part time income) = $1,068.96. The notional net weekly future income loss would be: $1,057.50 x .8 (20% reduction allowing for part time income) = $846.
I would thus assess his future loss of weekly income, excluding loss of superannuation as follows: $846 x .7 (30% reduction for contingencies) = $592.20.
Section 306L of the Act requires a discount rate of 5% to be applied in deciding the actuarial multiplier for the present value of future loss. Applying that rate per table of the appendices to Luntz and Harder, Assessment of Damages for Personal injury and Death, 5^th edition, gives a multiplier of 648.8. His future economic loss, excluding lost superannuation, is calculated as follows: $592.20 x 648.8 = $384,219.36.

Future loss of superannuation

Mr Welsh’s counsel identified in addresses a common ground future employer superannuation rate of 11%. Applying that to the above-identified gross weekly income loss of $1,068.96 gives a weekly superannuation loss amount of $117.59. Mr Welsh’s future weekly superannuation loss is calculated as follows: $117.59 x 648.8 (multiplier) = $76,292.39.

Future special damages

Mr Welsh claims future fixed and recurring special damages for various categories.
GP consultations
Mr Welsh estimates he will need to visit his general practitioner about every three months in connection with the effects of injury. He adopts an annual cost of three GP consultations plus one consultation in connection with a mental health treatment plan. In total that cost, expressed as a weekly total, is $9.22 a week. This includes $2.93 a week for the mental health care consultation.
The inclusion of the cost of mental health plan consultation with continuing causal connection to this matter every year is a seeming over-estimate. Mr Welsh has previously declined psychiatric medication and treatment though he more recently adopted a pattern of seeing a psychologist monthly. Bearing in mind that equivocal past commitment to such care and given the probability of some improvement in Mr Welsh’s mental health post-judgment I would only allow 25% of the $2.93 weekly component of the proposed weekly total attributable to the mental health plan consultation, that is a reduction of $2.20, reducing the total weekly total allowed to $7.02.
Haematologist testing and consultations
Mr Welsh claims an amount of $7.23 a week for the cost of six monthly consultations with his haematologist and the requisite blood tests preceding such consultations. Biggin’s counsel asserts an absence of evidence as to the connection between this need and the injury but it is readily inferred from the fact of the catastrophic haematology problems encountered after an operation which was necessitated by the workplace injury in question. The better point is that Mr Welsh had some vulnerability in this context which may have manifested in the future but that will be adequately catered for by the significant contingency discount I have identified. I will allow a weekly total of $7.23.
Psychological consultations
Mr Welsh claims an amount of $45 a week for monthly psychological consultations for the rest of his life. I would apply the same 75% discount to that estimate as I did to the mental health care plan figure, for the same reasons. I will allow a weekly figure of $11.25.
Future pharmaceuticals
Mr Welsh claims material but apparently reasonable amounts for his likely ongoing need for an array of pharmaceutical relief for his injury related conditions, totalling $19 a week. The need is well established on the evidence and was not disputed. I will allow that amount.
Vehicle modification
Mr Welsh testified he would love to be able to drive but his vehicle was not compatible for the relevant modifications. He went on to explain that vehicle has since been replaced with a vehicle for his wife’s work and he does not know whether it could be modified. When asked if it was Mr Welsh’s plan, if he had the funding, to arrange to get a vehicle for him to drive, he explained it was his plan to attempt to do so.
Mr Welsh has the capacity to drive if his vehicle is modified. I assumed this capacity in my assumptions regarding his future employment and in any event that capacity, held pre-injury, ought be restored as part of his damages award. He adopts the estimates of Biggin’s expert occupational therapist to claim a non-recurring cost of $6,700 for vehicle modification. He reasonably estimates an additional amount for future modification thereafter of $12.88 per week. I will allow each of those components.
Future Assistive Technology and Equipment

For future assistive technology and equipment, Mr Welsh claims a non-recurring cost of $8,252 and recurring cost of replacement calculated weekly at $39.46 a week. These are well supported by the evidence of the occupational therapists and not disputed by Biggin. I will allow those amounts.
Future travel
Mr Welsh claims a non-recurring amount of $2,000 for future travel. It is a reasonable sum and I will allow it.
Conclusion
The above gives rise to a non-recurring amount of $6,700 (vehicle modification) + $8,252 (assistive technology and equipment) + $2,000 (future travel) = 16,952.
It further gives rise to a total weekly allowance of $7.02 (GP consultations) + $7.23 (Haematologist testing and consultations) + $11.25 (psychological consultations) + $19 (pharmaceuticals) + $12.88 (vehicle modification) + $39.46 (Future Assistive Technology and Equipment) = $96.84.
The aforementioned contingency ought apply in this exercise as it did in assessing future economic loss. I would thus assess Mr Welsh’s future weekly recurring special damages, as follows: $96.84 x .7 (30% reduction for contingencies) = $67.79
Section 306L of the Act requires a discount rate of 5% to be applied in deciding the actuarial multiplier for the present value of future loss. Applying that rate per table 4 of the appendices to Luntz and Harder, Assessment of Damages for Personal injury and Death, 5^th edition, to death, given the medium mortality rate of life expectancy, gives a multiplier of 873.4. His future recurring special damages are therefore calculated as follows: $67.79 x 873.4 = $59,207.79.
The total future special damages award is therefore calculated as $16,952 (derived from non-recurring) + $59,207.79 (derived from recurring) = $76,159.79.
Fox v Wood
It is common ground there should be a Fox v Wood[8] allowance of $11,642.
[8](1981) 148 CLR 438.
WorkCover refund
It appears to be common ground the reduction on the award to allow for the Workcover refund should be -$94,178.15.

Conclusion as to quantum

These findings reflect themselves in the following table of awarded damages:

General damages

$37,950

Past economic loss

$270,751.19

Economic loss
excluding superannuation

$238,889.25

+ Loss of superannuation

$31,861.94

Total

$270,751.19

Interest on past economic loss

$2,656.37

Past special damages

$57,418.76

Interest on past special damages

$1,735.77

Future economic loss excluding superannuation

$384,219.36

Future loss of superannuation

$76,292.39

Future special damages

$76,159.79

Fox v Wood

$11,642.00

Sub-total

$918,825.63

Less WorkCover Refund

-$94,178.15

Total award of damages

$824,647.48

PART C ORDERS

It will be necessary to hear the parties as to costs, if they are not agreed.
I order:
1. Judgment for the plaintiff in the amount of $824,647.48.
2. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am, 20 October 2023 (out of town parties having leave to appear by video link or telephone).

CITATION:	Welsh v Biggin Pty Ltd (No 2) [2023] QSC 211
PARTIES:	PAUL STANLEY WELSH (plaintiff) v BIGGIN PTY LTD ACN 154 574 526 (defendant)
FILE NO/S:	SC No 286 of 2021
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland at Cairns
DELIVERED ON:	20 September 2023
DELIVERED AT:	Cairns
HEARING DATES:	22, 23, 24, 25, 26 May 2023
JUDGE:	Henry J
ORDERS:	1. Judgment for the plaintiff in the amount of $824,647.48. 2. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am, 20 October 2023 (out of town parties having leave to appear by video link or telephone).
CATCHWORDS:	EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – INJURY OCCURRING IN COURSE OF EMPLOYMENT – where the plaintiff claims damages from his former employer for personal injury allegedly suffered unwitnessed in the workplace – where the plaintiff’s duties at work included the movement and storage of pallets of packages of chicken feed and chicken feeders with the use of a pallet jack and forklift – where the plaintiff alleges that in using the pallet jack to move pallets he suffered a tendon tear of the right quadriceps resulting in permanent physical impairment and an adjustment disorder with mixed anxiety and low mood – where liability and quantum are in issue – whether the injury was incurred as alleged– whether there was a breach of the defendant’s duty of care – whether any such breach caused the injury – whether the risk of injury was foreseeable and not insignificant DAMAGES – GENERALLY – GENERAL AND SPECIAL DAMAGES – GENERALLY – where the plaintiff’s leg injury has not improved – where the plaintiff suffers chronic pain, restricted movement and other physiological and psychological issues as a result of his injury – what measure of damages for general damages, special damages and past and future economic loss is appropriate in the circumstances Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 306L, 306N, 306O, 306P Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) ss 129, 130 Workplace Health and Safety Act 2011 (Qld) ss 19, 26A, 267, 274 Work Health and Safety Regulation 2011 (Qld) ss 35, 60, sch 19 Benic v State of New South Wales [2010] NSWSC 1039, cited Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited Fox v Wood (1981) 148 CLR 438, applied Franklin v Kone Elevators Pty Ltd [2011] VSC 108, cited Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18, cited Kennedy v Cordia (Services) LLP [2016] 1 WLR 597, cited Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, cited National insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited Redding v Lee (1983) 151 CLR 117, cited
COUNSEL:	P Mylne for the plaintiff C Ryall for the defendant
SOLICITORS:	O’Shea Dyer Solicitors for the plaintiff BT Lawyers for the defendant

General damages	$37,950
Past economic loss	$270,751.19
Economic loss excluding superannuation		$238,889.25
+ Loss of superannuation		$31,861.94
Total		$270,751.19
Interest on past economic loss	$2,656.37
Past special damages	$57,418.76
Interest on past special damages	$1,735.77
Future economic loss excluding superannuation	$384,219.36
Future loss of superannuation	$76,292.39
Future special damages	$76,159.79
Fox v Wood	$11,642.00
Sub-total	$918,825.63
Less WorkCover Refund	-$94,178.15
Total award of damages	$824,647.48