Xu v Diver Foods Pty Ltd (ACN 104 048 400)
[2021] VCC 824
•2 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-04146
| PEI XU | Plaintiff |
| v | |
| DIVER FOODS PTY LTD (ACN 104 048 400) | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne (via ZOOM hearing) | |
DATE OF HEARING: | 30 November and 2, 3, 4 and 8 December 2020 | |
DATE OF JUDGMENT: | 2 July 2021 | |
CASE MAY BE CITED AS: | Xu v Diver Foods Pty Ltd (ACN 104 048 400) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 824 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Assessment of damages – plaintiff claimed injuries to shoulders, neck and psychological reaction in course of employment – liability admitted for shoulder injuries and psychological reaction – liability for neck injury denied – whether defendant’s negligence caused neck injury – relevance of defendant’s admission of liability for impairment benefits for the neck – relevance of pre-existing condition in shoulders and neck – whether plaintiff’s underlying conditions would have been aggravated regardless of defendant’s negligence – Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 applied – general damages – pecuniary loss damages
Legislation Cited: Occupational Health and Safety Regulations 2017 (Vic)
Cases Cited:Fox v Wood (1981) 148 CLR 438; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Morvatjou v Moradkhani [2013] NSWCA 157; Cairns v Trowelcoat Pty Ltd [2014] VSC 129; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247; Ansett Australia Ltd v Taylor [2006] VSCA 171; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Smith v Gellibrand Support Services Inc (2013) 42 VR 197
Judgment: Judgment for the plaintiff. Damages awarded.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Ms L Burke | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr J Ruskin QC with Mr T Storey | Wisewould Mahony Lawyers |
Table of Contents
Summary of findings
The hearing
The Plaintiff’s case
The Plaintiff’s evidence
Evidence-in-chief
Onset of symptoms
Cross-examination
Re-examination
Mr Ash Chehata, orthopaedic upper limb surgeon
Report dated 4 January 2019
Evidence-in-chief
Cross-examination
Re-examination
Associate Professor Bruce Love, consultant orthopaedic surgeon
Report dated 27 May 2020
Evidence-in-chief
Cross-examination
Re-examination
Further documentary evidence tendered on behalf of the Plaintiff
Reports of Dr Xiao Nan Wang, general practitioner
First report, dated 23 August 2017
Second report, dated 7 November 2018
Third report, dated 4 July 2020
Reports of Dr Jason Chou, consultant in anaesthesia and pain medicine
First report, dated 19 November 2018
Second report, dated 1 June 2020
Report of Dr Joseph Slesenger, specialist occupational physician
Report dated 9 September 2020
Report of Dr Nicholas Ingram, psychiatrist
Report dated 21 May 2020
Reports of Associate Professor Saji Damodaran, consultant psychiatrist
First report, dated 21 June 2018
Second report, dated 30 August 2018
Third report, dated 14 June 2019
Reports of Ms Chloe Kit Ying Pang, psychologist
First report, dated 22 November 2018
Second report, dated 21 December 2018
Third report, dated 28 May 2020
Physiotherapy progress notes of Sue Thomas and Michael Nicholls, physiotherapists,
Progress notes dated 19 and 27 September 2016, and part of the notes dated 4 October 2016
Imaging reports
Particulars of special damages and comparable earnings
The Defendant’s case
Clinical notes of Dr Jianhua Zhou, general practitioner
Workplace assessment report (IPAR), dated 25 August 2016
Return to Work Arrangements, dated 30 August 2016
Report of Dr Gale Curtis, orthopaedic surgeon
Report dated 23 May 2017
Reports of Professor Jacques Joubert, consultant neurologist
First report, dated 31 October 2017
Second report, dated 17 January 2018
Reports of Associate Professor Anthony Buzzard, general surgeon
First report, dated 11 March 2018
Supplementary report, dated 10 April 2018
Report of Dr Craig Mills, orthopaedic surgeon
Report dated 22 July 2020
Report of Associate Professor Peter Doherty, consultant psychiatrist
Report dated 22 July 2020
Physiotherapy notes and correspondence
Letter from Ms Sue Thomas, physiotherapist, dated 21 September 2016
Physiotherapy progress notes
General damages
What are the Plaintiff’s injuries?
Shoulder injuries
Psychological injury
Neck
Is the Defendant’s negligence responsible for the Plaintiff’s neck injury?
The Plaintiff’s submissions
The Defendant’s submissions
Findings – whether the Defendant’s negligence is responsible for the Plaintiff’s neck injury
Relevance of the Defendant’s admission about liability for the neck injury
Has the Plaintiff discharged the burden of proof on the question of liability for the neck injury?
The award of General Damages
Economic loss
Past loss
The Plaintiff’s submissions
Findings as to past loss
Fox v Wood
Future loss of earning capacity and superannuation
Vicissitudes and Malec v J C Hutton Pty Ltd considerations
The Defendant’s submissions
The Plaintiff’s submissions
Findings as to Malec v J C Hutton Pty Ltd considerations
Quantification of future economic loss
The Plaintiff’s submissions
Findings as to future loss of earnings
Future loss of superannuation
Conclusion
HER HONOUR:
1The plaintiff, Pei Xu, worked for the defendant, Diver Foods Pty Ltd. The defendant’s business was that of producing foodstuffs to be supplied to supermarkets, including cereals, packaged muesli,[1] muesli bars and other oat products.
[1]See for example exhibits 6 and 7
2The plaintiff was employed by the defendant between February 2012 and June 2016. During the period of his employment, he was moved to various positions in the production of the defendant’s goods. The plaintiff worked in the cleaning role from 23 July 2012 to approximately June 2013, in the food weighing (blending) role from approximately July 2013 to December 2014 and in the roasting food processor role from January 2015 until he ceased working with the defendant on 26 June 2016.
3On 20 May 2016, the plaintiff was directed (together with a co-worker) to move approximately 640 boxes, each weighing 15 to 17 kilograms. It took some five hours to complete the task. After completing this task, the plaintiff experienced severe pain in the shoulders and neck. He had some time off work, and when he returned to work in September 2016, he was placed on light duties. Unfortunately, the plaintiff was unable to cope with these duties. He left employment and has not worked since.
4Outside of the failed attempt to return to work in September 2016, the plaintiff has not returned to any form of employment since ceasing work in June 2016.
5The plaintiff has brought common law proceedings seeking the recovery of damages for pain and suffering and for pecuniary loss in respect of injuries to his shoulders and neck. The defendant has admitted liability in respect of the plaintiff’s shoulder injuries and consequent psychological reaction, however, has denied liability in respect of the neck injury. Accordingly, this case proceeded as an assessment of damages in respect of the shoulder injuries, with the neck injury in dispute.
6The defendant identified the issues as follows:
(a) Whether the plaintiff has satisfied the Court, on the balance of probabilities, that the defendant caused injury to the plaintiff’s neck;
(b) To what extent, if any, the injuries were the result of an underlying degenerative condition which would have left the plaintiff in the same position.
(c) What were the risks to the plaintiff’s health and economic potential had he not been exposed to the negligent workplace?
(d) In what amount should the defendant be ordered to pay the plaintiff in respect of general damages; and
(e) In what amount should the defendant be ordered to pay the plaintiff in respect of pecuniary loss damages?
Summary of findings
7For the reasons that follow, on the balance of probabilities, the Court finds:
(a) The plaintiff’s neck injury is causally related to his employment with the defendant;
(b) The plaintiff’s underlying degenerative condition is a relevant factor to be counted in the assessment of damages;
(c) There is more than a speculative chance that the plaintiff might have come to these injuries regardless of the defendant’s negligence, a matter to be taken into account together with the ordinary vicissitudes of life;
(d) The defendant is ordered to pay the plaintiff $275,000.00 in respect of general damages; and
(e) The defendant is ordered to pay the plaintiff $430,097.78 in respect of pecuniary loss damages, calculated as follows:
Past net loss of earnings: $184,542.17
Past loss of superannuation: $21,313.25
Fox v Wood:[2]$15,504.00
Future net loss of earning capacity: $186,834.61
Future loss of superannuation: $21,903.75
__________
[2](1981) 148 CLR 438
TOTAL $430,097.78
==========
8The total award of damages is $705,097.78.
The hearing
9The hearing commenced before me on 30 November 2020 and continued on 2, 3, 4 and 8 December 2020.
10Mr J B Richards QC appeared on behalf of the plaintiff with Ms L Burke of counsel. Mr J Ruskin QC appeared on behalf of the defendant with Mr T Storey of counsel.
The Plaintiff’s case
The Plaintiff’s evidence
Evidence-in-chief
11Through an interpreter, the plaintiff stated that he was born in 1960 in Shanghai, China, where he grew up. After leaving school, he studied printing and design. Before immigrating to Australia, he was employed as a teacher of print and design. He was married in approximately 1988 and has a son, born in 1990.
12In 2009, the plaintiff and his family immigrated to Australia. They first settled in South Australia, where the plaintiff found work in a mushroom plant, picking mushrooms. He worked in this job for approximately two years, before moving to Melbourne in 2011.
13In approximately February or March of 2012, the plaintiff commenced employment with the defendant. At first his job was as a cleaner, which role he undertook until mid 2013. Thereafter, he was promoted to weighing food and ingredients, and also mixing them. The weights lifted by the plaintiff varied according to what had to be mixed. Sometimes the weights were as little as 5 kilograms; sometimes they were between 22 and 25 kilograms. The plaintiff’s duties involved having to retrieve raw material from one room and then move it to the room where his work was undertaken. On a busy day, he would sometimes have to lift several hundred bags or boxes. If, for example, he had to move one hundred bags into his workroom, then he would also have to carry those bags out of the workroom. Sometimes his work involved having to crush foodstuffs before adding them into the mixing process. The machine he had to feed was quite tall and, as a consequence, he had to use his shoulders to lift above shoulder height in order to feed the materials into the machines. The heaviest materials to be lifted were the oats, and these weighed up to 25 kilograms. The plaintiff worked in the food weighing area between July 2013 and December 2014.
14In January 2015, the plaintiff worked in a roasting food processor role. In that role, the plaintiff also had to weigh the raw materials and then mix them. After mixing them, he would push the mixed products into a machine. Sometimes other raw materials had to be added. This involved simply picking up the box and pouring its contents into the machine. Some of the oat products involved roasting the oats and then mixing them with fruits.
15The machines were high, requiring the plaintiff to lift the product above shoulder height. The heaviest bag he would have to lift was 25 kilograms. On busy days, this could involve lifting several hundred bags or several hundred boxes. The lightest items weighed approximately 8 kilograms.
16The plaintiff stated that the work was physically demanding, requiring a lot of force to lift the product up to shoulder height, before tipping it into the machine. The pace of the work was quite fast. If he did not maintain the pace, the machine would not achieve the required weight and would stop.
Onset of symptoms
17In the first half of 2016, the plaintiff began developing pain in both his shoulders and in his neck. In particular, on Friday, 20 May 2016, the plaintiff and a co-worker were directed to move a large quantity of boxes. This was not part of his normal duties. On that particular day, the plaintiff was asked to go to the loading area and help unload a container of raw material. The boxes were very big and heavy. The plaintiff had to work at a very fast pace. The boxes had to be stacked onto a pallet to the height of the plaintiff. Both he and his co-worker moved approximately four hundred boxes. Each of the particular boxes of product weighed approximately 16 or 17 kilograms. It took the plaintiff and his co-worker close to five hours to complete the task. When he arrived home that night, the plaintiff’s pain in his shoulders and neck worsened.
18The following Monday and Tuesday, the plaintiff returned to work. Although previously the plaintiff had experienced pain in his shoulders and neck while working for the defendant, the pain subsided after rest. On this occasion however, the pain did not subside.
19On Wednesday, 25 May 2016, the plaintiff attended his general practitioner, Dr Jianhua Zhou, complaining of pain in the shoulders and neck. Dr Zhou prescribed medication and issued a certificate. The plaintiff was issued with a referral for an ultrasound. I note that Dr Zhou’s clinical records show that the plaintiff complained of “both shoulder pain for 3 months”.[3]
[3]Exhibit 3
20After having the ultrasound, the plaintiff returned to see Dr Zhou, who prescribed further medication and referred him to a physiotherapist. I note that Dr Zhou’s clinical records confirm that the plaintiff was referred to Mr Vincent Chan.[4] The plaintiff could not, however, tolerate the physiotherapy.
[4]Exhibit 3. The evidence is unclear as to whether Mr Chan is a physiotherapist
21The plaintiff ceased work for the defendant on 26 June 2016.
22In the period between 20 May 2016 and his last day of work on 26 June 2016, the plaintiff’s pain increased to the point it was “really, really severe”.[5]
[5]Transcript (“T”) 32
23After temporarily leaving his employment, the plaintiff again saw Dr Zhou, who referred him for further physiotherapy. At around this time, Dr Zhou told the plaintiff that he would have to find another general practitioner as she did not do WorkCover cases and could not provide him with any further certificates. I note that Dr Zhou’s clinical records confirm this.[6] I should add that no adverse inference is to be drawn from Dr Zhou’s decision to decline further treatment of the plaintiff for work-related injuries.
[6]Exhibit 3
24In September 2016, the plaintiff attempted a return to work on light duties, part time. His job was in quality control, where he was required to use both of his hands and shoulders to tap on sealed bags of product to ensure they were airtight. He undertook this work approximately two or three hours a day but found the task aggravated his shoulder and neck pain. Although appearing to be a simple task, it involved constant use of the hands and arms to pat the bags to ensure no air had leaked from them. To do this the plaintiff’s tilted his head forward. After a while his neck became stiff. The pain in his shoulders was also aggravated. Because of the pain in his neck and shoulders, the plaintiff could only manage this job for a few days. Thereafter, the plaintiff finally ceased work for the defendant.
25The plaintiff attended Dr Jia Li, general practitioner, at Yap Surgery in Box Hill, who referred him to physiotherapist, Sue Thomas.
26On 14 September 2016, the plaintiff was also referred to Mr Chehata, orthopaedic upper limb surgeon, who recommended that the plaintiff have injections into his shoulders. The plaintiff had an injection into his left shoulder in May 2017. At the time he saw Mr Chehata, the plaintiff’s pain in his neck and shoulders was quite bad. The plaintiff rated his shoulder pain at this time as “seven or eight out of ten”[7] and the neck pain as “five or six out of ten”.[8]
[7]T35
[8]T35
27As the months passed, the pain in the plaintiff’s shoulders worsened, as did the pain in his neck.
28Despite having the injection into his left shoulder in May 2017, the pain continued to increase.
29In June 2017, the plaintiff was sent for a CT scan of his neck because by this time the level of pain had increased to “at least six [out of ten]”.[9] From that time to the date of hearing, according to the plaintiff, the pain in his shoulders has remained the same, especially when there is a change in the weather or at night time. The pain is ever present, sometimes a little better, sometimes a little worse.
[9]T36
30The plaintiff testified that he has to be careful with movement. If he accidentally moves into a particular position, the pain can increase to nine out of ten.[10] At this point the pain is unbearable and he feels as if his shoulder is being torn apart. If he tries to use his hands for any length of time, this aggravates his shoulder pain.
[10]T36
31As at the date of hearing, the plaintiff testified that his neck pain was five or six out of ten.[11] The level of pain fluctuates; sometimes it is better; sometimes it is worse. Again, the plaintiff must be careful, for if he suddenly turns his neck, the pain can increase to seven or eight out of ten.
[11]T36-37
32Several times a month, the plaintiff’s shoulder pain could increase to nine out of ten.
33It is the plaintiff’s belief that given the level of pain in his shoulders and neck and the constant nature of that pain ever since 2016, he cannot undertake any form of employment. As the plaintiff put it:
“Because of the injury, there is just the pain there, and also the medico-legal doctor as well as my own doctor all said that I don’t have any ability to work”.[12]
[12]T38
34The loss of the ability to work has had a big impact on the plaintiff. He was previously happy to go to work. Since sustaining the injury, he finds he is frequently in a bad mood and often quarrels with his wife. He is not happy. He feels anxious and concerned about the future for himself and for his family:
“I felt I was a useless person, a burden towards my wife. And I felt rather frustrated.”[13]
[13]T38
35As a consequence, the plaintiff was referred to Ms Chloe Pang, psychologist, for treatment, which has continued to the present time.
36As to his current emotional state, the plaintiff stated:
“I have lost confidence, I don’t know when I can become a normal person again. I just feel anxious. … To be frank, at the moment I’m extremely unhappy. Because I often quarrel with my wife. I know that my temper is bad but somehow I just cannot control myself.
…
… it is a major sort of impact because I am indifferent, I am not interested in anything. I don’t like to socialise. Most of my time I stay at home. I feel that I’m a failure, I am a useless person.”[14]
[14]T38-39
37Prior to sustaining his injuries, the plaintiff enjoyed many recreational pursuits. He was quite a happy person. During his leisure time, he liked to travel; he enjoyed barbecues; he enjoyed photography. He would go to the Great Ocean Road, Phillip Island and the Mornington Peninsula to take photographs of the scenery. He enjoyed gardening at the home that he and his wife bought in Knoxfield in 2015. Sometimes, he helped his wife with housework. He also undertook tasks as a handyman at home. The plaintiff enjoyed going to the seaside, where he would fish or catch crabs. He enjoyed going to the park with his family and he also played badminton with his friends. He used to play table tennis, although this pastime ceased whilst he was working because the pressure of work made him tired.
38As a consequence of his injuries, the plaintiff no longer plays badminton because he cannot use his shoulder and hands. Nor can he go fishing or catch crabs. He can no longer enjoy photography, because he finds it difficult to lift and hold the camera. He does not go on road trips because if he sits in a particular position for too long, his neck becomes painful. He does not do any gardening and leaves it all to his wife. Sometimes they engage a gardener. The loss of his ability to do the gardening is felt profoundly by the plaintiff. Gardening brought him a lot of joy and happiness, not only for himself but also for those who used the garden or visited it. This loss adds to the plaintiff’s feelings of uselessness. He feels he relies on his wife to do everything:
“I’m a burden. So my front garden – they’re about 300 square. To do it properly, previously it required me to spend more than one hour, and nowadays all these tasks are done by my wife and my son, which I feel very sorry for them.”[15]
[15]T40
39The injuries have also negatively impacted upon the plaintiff’s capacity to enjoy intimacy with his wife.[16]
[16]T40
40Turning to the plaintiff’s current treatment regime, the plaintiff started seeing a pain specialist, Dr Jason Chou, in 2018. He has continued to see him ever since.
41The plaintiff takes prescribed medication, including gabapentin, an antidepressant, Celebrex, and Targin. The plaintiff takes medication for sleep because –
“… when the sleeping is disturbed by pain, and when the pain is extremely severe - which I need the sleeping pills to assist me with sleeping.”[17]
[17]T41
42In 2018, the plaintiff attempted to study English but gave it up because his memory has been affected and also because sitting for prolonged periods is difficult for him.
43The plaintiff described a typical day as follows:
“… I get up rather late after breakfast I would walk around in the back garden. So, sometimes I would like stroll around in the house watching a bit of television and then watching a bit of Chinese magazines –reading a bit of Chinese magazines.
…
… even though I’m at home every day I’m still not happy due to the constant pain and I also worry a lot.”[18]
[18]T42
Cross-examination
44The plaintiff agreed that in China he had worked in a printing factory after he completed his printing and design course. In this role, he arranged the planning of the printing. The plaintiff denied any role in the physical duties at the factory, although he conceded that while still studying at university he had done work experience at the factory that involved physical labour. When employed at the factory, the plaintiff worked as part of the production management team and was not required to do any of the manual labour involved in printing. He later ran his own small advertising firm, designing print jobs for his customers to produce on their own. Again, this work did not involve manual labour.
45The plaintiff agreed that his mushroom picking work in South Australia involved manual labour. The plaintiff was seated when undertaking the work. Each picker had the use of an electronic trolley which could be manoeuvred up and down and front to back. He would sit on the trolley, which could be adjusted to cater for the height of the mushrooms. Once picked, he would put the mushrooms into a box in front of him. The plaintiff agreed that his work involved the use of his arms to reach out in order to pick the mushrooms and then place them on the trolley. His hours of work varied, but he could work up to forty hours a week picking mushrooms although sometimes it was less.[19] Sometimes overtime was offered. The pay for this work was relative to the quantity of mushrooms picked, the plaintiff agreeing that the faster he worked, the more mushrooms he could pick and the greater his pay.
[19]T51
46When questioned about the physical demands of his work with the defendant, the plaintiff agreed that in addition to lifting materials, he also moved trolleys, pushing and pulling them as required. After moving a variety of nuts and oats to the place where he had to weigh them, he then mixed the products.
47Addressing the timing and circumstances of his alleged neck injury, Mr Ruskin suggested to the plaintiff that he did not complain of neck pain to Dr Zhou when he saw her on Saturday, 28 May 2016, because no complaint of neck pain was recorded in Dr Zhou’s notes.[20] The plaintiff was adamant that he had told Dr Zhou about both his neck pain and his shoulder problems, but that the doctor did not want to know about everything at once as she was very busy.
[20]See exhibit 3
48Mr Ruskin suggested to the plaintiff that he told Mr Chehata he began developing neck pain in September 2016. Although the plaintiff could not remember saying that,[21] he denied that the neck pain had come on later than the shoulder pain:
“All I know is that the pain in the neck and the pain in the shoulder, it happened at the same time.”[22]
[21]T60
[22]T60
49The plaintiff agreed, however, that although Mr Chehata referred the plaintiff for an MRI scan of both shoulders, there was neither a referral for an x-ray nor for an MRI scan of his neck at that time.
50The plaintiff agreed that it was not until September 2017, well over a year after he stopped work, that he lodged a claim for compensation for his neck injury.[23]
[23]T85; exhibit 8 – Worker’s Claim for Impairment Benefits; exhibit 9 – Worker’s Injury Claim Form. Note also exhibit 2 – Worker’s Injury Claim Form dated 28 June 2016 that makes no mention of injury to the neck.
51I should note here that the Worker’s Injury Claim Form submitted by the plaintiff on 11 September 2017[24] specified a neck injury resulting from “frequent heavy lifting … pushing + pulling in the course of my employment”.[25] The tasks undertaken by the plaintiff at the time of injury were listed as “normal duties”.[26] No specific date of injury was given, other than “over the course of my employment”.[27] As to why there was a delay in the reporting of the condition, the plaintiff recorded that the “injury was diagnosed subsequent to … my accepted shoulder injury”.[28] The plaintiff’s previous claim relating to the shoulder was specified as a related injury/condition.[29] At the time of this Claim Form, the plaintiff stated he was “not certified to work by my doctor”.[30]
[24]Exhibit 9
[25] Exhibit 9, page 1
[26] Exhibit 9, page 1
[27] Exhibit 9, page 1
[28] Exhibit 9, page 1
[29] Exhibit 9, page 1
[30] Exhibit 9, page 2
52Returning to the cross-examination, Mr Ruskin suggested to the plaintiff that he told Associate Professor Buzzard that he had never had any pain in his shoulders prior to May 2016.[31] The plaintiff denied the suggestion, explaining:
“I didn’t say in such a way. I said I have never seen any doctor for the shoulder problem [before May 2016].”[32]
[31]See exhibit 12A, Associate Professor Buzzard’s first report, page 2
[32]T68
53The plaintiff also denied telling Associate Professor Buzzard that he had not experienced any trouble with his neck prior to September 2016.[33] He also denied telling Associate Professor Buzzard that he had not had any accident or injury to his neck prior to September 2016. He stated it was not true to say that he did not have any neck pain prior to September 2016.
[33]See exhibit 12A, Associate Professor Buzzard’s first report, page 2
54I note that with the plaintiff’s consent, Associate Professor Buzzard recorded the consultation using his dictaphone.[34] That recording was not played during the plaintiff’s cross-examination. I am unclear whether Associate Professor Buzzard recorded the actual words of the plaintiff or whether he merely summarised and paraphrased what he was told.
[34]Exhibit 12A, page 1
55Mr Ruskin questioned the plaintiff about representations he allegedly made to Professor Joubert, consultant neurologist. The plaintiff denied failing to tell Professor Joubert anything about neck pain following the physically strenuous work moving the boxes. To the contrary, the plaintiff stated that it was not possible that he did not complain about the neck pain.[35] He agreed that he told Professor Joubert that he tried to go back to work but that it was impossible to continue because of pain in his shoulder. When it was again put to the plaintiff that he “did not mention one word about any neck pain” to Professor Joubert, the plaintiff responded:
“Well, it is not possible that I didn’t tell him that. I should have told him, I would have told him that.”[36]
[35]T74
[36]T74
56Questioned about the return to work plan, the plaintiff agreed that the idea was for him to return to work for perhaps two or three hours every second or third day to start with, and then see how he went. The plaintiff agreed that the first job he was allocated was in quality control where he would sit at the end of a conveyor belt and make sure that the product on the line was of good quality. He added:
“This job looks light, however it requires you to constantly use both of your hands and arms to pat on the product to see whether there’s any air inside. So therefore it requires your hands constantly patting on the product.
…
… you have to constantly pat all the product that comes through … the conveyor belt.”[37]
[37]T77
57The plaintiff agreed that he was also using a paddle or a stick to check some of the products.
58The second job allocated to the plaintiff was a temperature testing job. The third job was bagging quality control. This involved checking bags of cereal known as ‘Carman’s Crunchy Clusters’.[38] The inner bag containing the cereal had a net weight of 500 grams.[39] The plaintiff was required to pat down the bags to ensure they were airtight. He denied that he was not required to pat every bag. He stated:
“… you need to pat every one of them because the quality check to see if there’s any leaking air.”[40]
(sic)
[38]Exhibit 6, box of Carman’s Crunchy Clusters; exhibit 7
[39]Exhibit 7
[40]T80
59Also, occasionally, if product inside the bag was stuck together, he had to pat it to determine whether the clumps could be separated. If they could not be separated, he had to remove the bag from the conveyor line:
“It looks very light but actually the pace of the line is very quickly, you have to quickly pick it up and open it up.”[41]
(sic)
[41]T80
60The plaintiff agreed that he was moved between the three jobs. He denied having the liberty to take as many breaks as he chose:
“Once you are at a particular job, you have to work the same as other people, you cannot just leave.
…
… Because once I’m at my position, I have to do my job properly. Other people have got their own sort of work and responsibility.”[42]
[42]T81
61The plaintiff denied giving up without really trying to do the job:
“So after trying, my shoulders and my neck cannot sustain – cannot persist any longer because of the pain.
…
… Since I sustain[ed] the injury, my hands are very weak.”[43]
[43]T81
62The plaintiff denied the suggestion that after the litigation was concluded, he would try to return to the workforce.
63Addressing the question of the loss of hobbies, the plaintiff denied that he could return to photography, even with a small camera:
“Because like previously I enjoyed photography. Since I sustained the injury, when you take photograph[s] you need to lift up your arm, and it is not for (indistinct) which causes pain, so therefore - and also since the injury I am no longer in the mood in this activity because when you go out you are in pain and you wouldn’t enjoy the experience.
…
… I have tried. I cannot consistent[ly] … lift up my arms, I couldn’t do that. I have tried.
…
… it’s because of the injury, because of the weakness of the hand, I couldn’t. Because the hands are weak, my neck is constantly sore, so therefore I couldn’t try.
…
… you need to lift up your arm, so that causes pain and soreness.”[44]
(sic)
[44]T82
Re-examination
64When re-examined, the plaintiff elaborated on the physical movements involved during his return to work duties of quality control. He maintained that he was required to press down on every bag. Doing so caused him pain in the neck and in his shoulders because he constantly stuck his neck out to observe the packaging and the products contained therein as they moved along the line. He stated this job was not suitable given the injuries he was carrying. The plaintiff stated that the combination of constantly looking forward and lifting his arms while executing these duties caused a lot of pain, and he felt he could not raise his head.
65The plaintiff stated that at the time he stopped work on that light work line, the level of pain in his shoulders was at about eight out of ten and the pain in his neck was at about six to seven out of ten “and I cannot lift up my head”.[45] He believed he could not sustain that work any longer.
[45]T87
66The plaintiff insisted that he could not engage in any form of employment, even light duties, because of his constant pain. He added that he could not sleep properly at night and that this has a flow-on effect to his daytime abilities:
“It effects (sic) my overall psychological ability. And also, all the doctors and all the examination reports says (sic) I do not have any functional ability. Therefore, I cannot go back to do any light duties – to do any job, including light duty.”[46]
[46]T87
67The plaintiff testified that engaging in physical activity involving constant movement would increase his pain levels.
Mr Ash Chehata, orthopaedic upper limb surgeon
Report dated 4 January 2019[47]
[47]Exhibit E
68Mr Ash Chehata initially assessed the plaintiff on 24 October 2016 on referral from Dr Cheung. Mr Chehata was provided with the plaintiff’s clinical notes of 25 May 2016 which included x-rays and ultrasounds performed that day:
“The x-rays confirmed some mild osteoarthritis in the glenohumeral joints, coupled with a 1.7 rotator cuff tear, subcromical (sic) bursitis, and impingement on the right, coupled with a partial thickness tear on the left, with a similar impingement and bursitis picture.”[48]
[48] Exhibit E, page 1
69The plaintiff reported that he had had bilateral shoulder pain whilst working for the defendant. Having tried to work for a few days in September 2016 before ceasing again from severe neck and shoulder problems “related to cervicogenic and bilateral shoulder pain”,[49] the plaintiff had not been attending work due to the severity of his symptoms since May 2016. The plaintiff’s range of movement was severely limited, “only able to forward flex and abduct both to 90 degrees”.[50]
[49] Exhibit E, page 2
[50] Exhibit E, page 2
70Mr Chehata arranged MRI scans, and due to the severity of the plaintiff’s pain, proposed conservative management. Local anaesthetic and cortisone injections into the subacromial space of both shoulders was sought, along with ultrasound. The MRI scans of both shoulders –
“… confirmed widespread tendinosis, AC joint arthritis, as well as intra articular long head of biceps pathology, likely to be the explanation of his severe pain as well as infraspinatus and subscapularis tendinosis.”[51]
[51]Exhibit E, page 2
71Mr Chehata reviewed the plaintiff on 3 February 2017, 27 April 2017, 8 June 2017 and for the final time on 20 July 2017. Although the plaintiff had found “steady and temporary improvement with gentle remedial massage and hands on treatment” as at February of 2017, Mr Chehata’s report highlighted continuing symptoms in April 2017. Ultrasound-guided injections of anaesthetic and cortisone into the subacromial space and glenohumeral joint of the left shoulder were done on 24 May 2017.
72At review on 8 June 2017, the cortisone injection was reported to have only temporarily improved pain levels for the plaintiff, who had experienced a “significant loss of range of movement” and had “ongoing right and left shoulder pain … [and] also neck symptoms”.[52]
[52]Exhibit E, page 2
73Mr Chehata recorded that by the review on 20 July 2017, the plaintiff was not finding allied health intervention or the cortisone injections very useful and was “almost completely reliant on his wife to perform normal activities of daily living”. Mr Chehata noted that the condition was “compromising his entire way of living, due to the ongoing severe pain”.[53]
[53]Exhibit E, pages 2, 4
74Mr Chehata diagnosed the plaintiff as having “sustained progressive degenerative change at the glenohumeral joint coupled with subacromial impingement and bursitis in both the right and left shoulders”.[54]
[54] Exhibit E, page 3
75Mr Chehata offered a guarded prognosis, given the plaintiff’s age and the progressive changes in both shoulders, noting that the plaintiff had experienced a “lack of progression” with the treatment offered so far.
76Mr Chehata thought it likely that the plaintiff “may require decompressions and bilateral shoulder arthroscopy, and a decompression surgery,” and possibly a shoulder replacement, depending on the progress of the glenohumeral joint and significant osteophytes.[55]
[55]Exhibit E, page 3
77Mr Chehata thought it unlikely that the plaintiff would return to his pre-injury or, indeed, any form of employment involving repetitive pushing, pulling, lifting, or overhead activities.
78Mr Chehata considered the plaintiff’s impairment to be permanent.[56]
[56]Exhibit E, page 3
Evidence-in-chief
79Mr Chehata confirmed that his area of speciality within orthopaedic surgery is that of the upper limb, including the shoulder, elbow and wrist, but in particular, the shoulder. Mr Chehata confirmed that his report[57] accurately set out the history that he had obtained from the plaintiff, as well as recording the findings he made on examination and the opinion he expressed.
[57]Exhibit E
80Elaborating on the initial findings when the plaintiff first presented, Mr Chehata testified that the plaintiff presented with x‑rays and ultrasound showing an inflamed shoulder. His impression from the ultrasound was that the tendons were completely torn and that there was surrounding arthritis, as there was no lubricant in the shoulder. The cartilage was broken, so the plaintiff’s glenohumeral joint had begun to deteriorate.[58]
[58]T99
81Mr Chehata confirmed the history he was given was that the plaintiff had been off work since May 2016 due to the severity of his symptoms and that although he returned to work in September 2016 for a few days, he began to develop severe neck pain and shoulder symptoms, all related to cervicogenic and bilateral shoulder pain.[59]
[59]T100
82Addressing what he meant by “cervicogenic pain”, Mr Chehata testified:
“… when I examined him not only was he getting bilateral shoulder pain, there was referred or radiating pain across the trapezius, the muscles across the shoulder that radiate … from the shoulder and basically a[re] coming up. …. Most people and lay people don’t really distinguish between neck symptoms, which are very specific, but that … overlap between the neck is as it’s coming across onto the shoulder and the shoulder as it’s coming up into the neck, this interval is what we call in general … [the] cervicogenic area because you get that overlap of both shoulder coming up or neck coming down and most people develop this sort of muscle spasm. So, most people for example if they do have some minor shoulder injury or even severe shoulder injury, minor neck symptoms or severe neck symptoms, the overlap in that interface here between shoulder and neck is where the majority of a lot of the symptoms – and it’s where remedial massage and various other allied health will put a lot of attention into that trapezial area. You know, it’s the classic one where the physios will give you a ball, a tennis ball, a wry neck … all that sort of thing.”[60]
[60]T100-101
83Mr Chehata explained that it is more likely than not that there would be an issue in the neck if a person is getting bilateral shoulder symptoms at the same time. He emphasised that the neck can be a contributing component in bilateral shoulder pain.
84Mr Chehata was of the opinion that the shoulder injuries were consistent with the nature of the plaintiff’s work as a process worker over time. The repetitive twisting, turning, internal rotation and carrying and shifting weight from one side to the other correlates well with the nature of the shoulder as a socket joint.
85Mr Chehata confirmed his diagnosis of the injury that the plaintiff sustained in the course of his employment: progressive degenerative change of the glenohumeral joint, coupled with subacromial impingement and bursitis in the right upper shoulder, meaning the rubbing of the tendon on the under surface of the acromion. The tendons are hitting against the under surface of the bone, the impingement causing the pain. The repetitive movements cause inflammation, leading to the development of bursitis.
86Mr Chehata was of the opinion that the plaintiff’s description of the symptoms in his neck was consistent with his diagnosis –
“… it seemed like that there was some corroboratory, it seemed because there was both shoulders being involved, that there was a component or some component likely to be related to some pathology in the neck. … if there was a specific problem with the cervical spine and neck, I refer off.
…
… specifically for the shoulders, for me it certainly appeared that the repetitive motion as a process worker, has at least significantly contributed to the impingement. That idea of just the repetition of utilising the upper limbs, it makes a lot of sense in terms of the mechanics of why you develop impingement and bursitis.”[61]
[61]T110
87Mr Chehata explained that he had given a guarded prognosis as poor because of two factors: First, the plaintiff’s age; and, second, the progressive changes in a shoulder that are continually present.[62]
[62]T111
88On the question of the plaintiff’s future prospects for employment, Mr Chehata testified:
“I think it’s incredibly unlikely for him to gain an[y] employment, … in the open marketplace. Not speaking any English, both shoulders being painful – it’s almost inconceivable that an employer will actually employ again if both shoulders are out of action and he’s got radiating pain up into his neck.
It’s inconceivable that someone would give him any employment.”[63]
[63]T111
Cross-examination
89Mr Chehata agreed that a process worker is at a higher risk of becoming symptomatic when degenerative changes are present in the neck and shoulders. Mr Chehata agreed that because of the repetitive nature of the work, there is a “real risk that that may affect … [a process worker’s] working life in terms of the number of years they can work”,[64] although that is not necessarily the case for every process worker:[65]
MR RUSKIN:
Q:“… people who do process work, as distinct from say you or me who [do not] do it, there’s a risk, a real risk that that may affect their working life in terms of number of years they can work?---
A:Absolutely
Q:And it may be that they can’t work anyway beyond late 50s or early 60s because of this phenomenon, it may affect them to that extent?---
A:Yeah, absolutely. I think – I think that’s right, I mean, it certainly has the possibility. It doesn’t affect everyone.”[66]
[64]T114
[65]T114
[66]T114, L3-12
90Mr Chehata agreed that his primary focus in the plaintiff’s treatment was on his shoulders. He maintained his opinion that there was likely a neck component to the pain because of the presentation of bilateral shoulder issues.
91Mr Ruskin pressed Mr Chehata on whether the plaintiff’s neck pain could be associated with a degenerative condition in the neck rather than as a result of his process work. In particular, he questioned Mr Chehata about the scenario of the plaintiff returning to work performing light duties in quality control, pressing down on packets of food:
Q:“And all I would say or submit or suggest to you, is much will depend on the view you take as to how long you were doing this pressing work, how vigorous was the pressing work, before you start attributing work on the one hand, or degenerative nature of the neck on the other. It will be fact dependent, won’t it, very much so?---
A:Yeah, … I think part of it is also – we have to somehow figure out the change in biomechanics of the person when they have shoulder pain. Because if they have abnormal shoulder pain, they’re not pushing through the shoulders – that’s the assumption – then you load to the joint above and the joint below. That’s again – so if he’s got the shoulder pain and he’s trying to do his work, the assumption you can only imagine is that there is a potential for him to be pushing down. He can’t push with his shoulders, so therefore you – you know, you can imagine when you get pain, you sort of hunch – you hunch up, and that can obviously contribute to the neck pain either above or below. Because what happens with that pain – with shoulders, is that you often either get neck symptoms or in fact you get the symptoms below along the shoulder blade. So it’s not like – you know, you always get some effect. So you know, you don’t – it’s not like you can – if you’ve got pain in both shoulders, you don’t just get away with just loading the shoulders and everything above it and below it – they’re in[ter]dependent. The way the body works is for you to complete the task, the shoulders are painful – well, it’ll either go to the neck or it’ll go to the shoulder blades.
Q:And the point about this is that you may well get some pain in the neck for the very reason you’ve said. But whether the last thing – disability to the neck – is a consequence of that pain on the one hand, or the fact that it’s a degenerative neck on the other, is very difficult to say, and will depend for how long you’ve been doing the work. I’m making the distinction between pain and long lasting injury?---
A:Well, I mean – look, the pain and long lasting injury – they’re completely separate in my mind. I mean pain’s just a symptom, long last[ing] injury is a definitive diagnosis.
All I mean is I suppose – just so I’m clear – for me the concept is if you’ve got bilateral shoulder pain, you’re going to load either through the neck or the shoulder blade. The actual cause of that problem in the neck or the cause of the problem in the shoulder blade then needs to be investigated.
Q:So you’ve accepted from me the notion that it’s – and indeed it’s your own thesis – that it’s unsurprising you’ll get some pain in the neck because of your shoulders, but the question of the long lasting character of the injury to the neck, whether it - as being degenerative, is quite a different story, isn’t it?---
A:Well, I think … the pathology just needs to be defined.
Q:Yes, I understand. And the final question is, degenerative changes of the kind that we’ve talked about, you’ve probably already answered this, have - are capable of progressing naturally once they set in, depending on the work you may have done, say process work in your life compared to a situation where you’re not doing repetitive work?---
A:Absolutely.”[67]
[67]T119, L9 – T120, L4
Re-examination
92Mr Richards sought to clarify what the plaintiff’s position might be had he not engaged in the heavy lifting involved in his employment:
MR RICHARDS:
Q:“Can I ask you to assume this, can I ask you to assume that this man had, in his life in China had worked as a teacher. In two years in Australia he’d worked picking some mushrooms. He’d never had any shoulder or neck pain. He commenced work for the defendant - - -
…
For two years in South Australia he worked sitting on a stool picking mushrooms. The rate of picking them varied depending on the rate at which they grew. He might extend his hands a half or three quarters. In any event, whilst doing that work he had no symptoms in the neck or the shoulders at any stage. He came to Australia to - he came to Melbourne from South Australia at the end of 2011, and he worked in a cleaning role with the defendant company until about June 2013. Again, no symptoms in his neck or shoulders. And then between June 2013 and May 2016 his job required him to lift sometimes hundreds of weights of material, to put them into a hopper that was high above shoulder height. And the weights he might be lifting varied between eight kilograms up to 25 kilograms. And whilst doing that work in about February 2016 he developed some bilateral shoulder and neck pain in about - he said about the same time they came on. And then in May - he continued working, doing the same job. Then in May 2016 he was given a job where he worked for about five hours repetitively lifting, carrying, putting down boxes weighing 16 or 17 kilograms. And it’s the end of that, end of doing that job that he saw his doctor. And he complained to the doctor at that stage of bilateral shoulder pain. He went off work from June 2016 till September 2016. In September 2016 they put him back to work on what was thought to be a light duties job, when he still had shoulder pain, and he had to lean forward and press down. And if I might perhaps finish this while I’ve got you, to keep this in mind, he gave a history that’s recorded in September 2016 that he had pain over both shoulders, and the left cervical spine aggravated four months ago - that would be back to the May ‘16 incident when he was lifting boxes. ‘Aggravated four months ago by repetitive lifting at work. On light duties, but pain flared again last week.’ The pain flared again. The last week was the - this is on p.484, Your Honour. The pain flared again during the light duties. Now, I want to ask you, just a couple of – if you assume that, I know it’s a bit of a mouthful, if you assume that, now, given the degenerative – the extent of the degeneration you saw or what you described as mild degeneration in the x-rays, if this man had not been exposed to the heavy work that I’ve described over a period of about three years from 2013 to 2016, what do you say his chances were of making it th[r]ough to normal retiring age of 67 without significant symptoms in his neck and shoulders?---
MR CHEHATA:
A:Yes, I mean even just from that specific history, lifting and – it’s the repetitive nature, that’s why I certainly would believe that had he not been doing this job he would’ve continued – it’s very likely than not that he would not be in this situation and he’d certainly be continuing until his retirement.
MR RICHARDS:
Q:Thank you. And you were also asked some questions by Mr Ruskin trying to, if you like, isolate, take out of the picture the issue of the neck, and I had you give a note that it’s a question or a change in the biomechanics that bilateral shoulder pain will change the biomechanics of the body, I wonder if you’d expand upon that. In what way does that relate to the question of the issue that’s before the court in terms of how the neck pain and the shoulder pain relate to each other?---
MR CHEHATA:
A:Well, for me I think it’s even just as an explanation, you know, for someone in the street, when you have pain in an area or part of your body, you cannot load to it, you cannot forcefully gain strength because it’s painful. So, the body has methods to compensate to at least compensate to achieve strength so you need some form of stability because it’s the painful – if you’ve got painful shoulders and you’re trying to load through it, you won’t load through the pain. What you’ll do is you’ll load either above or below and in the shoulder region, you’ll either load through the neck, you’ll load through the trapezius muscle or you’ll load through the scapula thoracic. So, the shoulder will either load through the shoulder blade, people get shoulder blade pain or they get trapezius and neck symptoms. So, the idea is you’re just transferring it, it’s just like anywhere in your body, if you’ve got a bung knee and it’s incredibly painful, you’ll try to offload through the knee and load more either through the hip or the ankle. So, lower limb– the shoulder instead because we don’t have that obviously and because it’s below you tend to load through up into the neck or down into the shoulder blade.
MR RICHARDS:
Q:Thank you. And finally, so, that being so, in your opinion what role, if any, does the heavy work I described to you between 2013 to 2016 play in relation to this man’s ongoing symptoms of pain and dysfunction in both his neck and shoulders?---
MR CHEHATA:
A:There’s – just from that history and from the way he’s working and the mechanics of impingement and the bursitis and the long head of biceps change, it would certainly implicate the work as the primary cause. Even from the mechanical perspective, simply because of the repetition and let alone not even factoring in repetition and heavy – repetition alone doesn’t have to be heavy but when you add repetition and heavy all of a sudden, you’re not only necessarily loading through the shoulder but suddenly you’re going to be loading either up into the neck, trapezius or into the shoulder blade.”[68]
[68]T121, L19 – T125, L8
Associate Professor Bruce Love, consultant orthopaedic surgeon
Report dated 27 May 2020[69]
[69] Exhibit G
93With the aid of an interpreter, Associate Professor Bruce Love examined the plaintiff via Zoom on 27 May 2020.[70] He had to hand a “large quantity” of material with some background information.[71]
[70]Telemedicine was utilised, rather than an in-person examination, due to the restrictions in place in Victoria relating to the COVID-19 pandemic occurring at the time
[71] Exhibit G, page 1
94Associate Professor Love considered the plaintiff to be –
“… a chronic invalid due to the demonstrated pathology in the cervical spine and shoulders rendering him significantly functionally impaired.
In view of the multiple consultations that he has had, the persistence of symptoms and the failure to make significant improvement, his prognosis is poor and it is improbable that he will ever return to the work force.
I cannot conceive of any other treatment that will make a difference to him that will return him to a level of function that will allow him to be employed.”[72]
[72]Exhibit G, page 2
95Associate Professor Love’s diagnosis was of cervical spine and bilateral rotator cuff and acromioclavicular joint, degenerative changes, more severe on the right than the left. He opined that it is probable that the physical nature of the plaintiff’s work rendered the underlying degenerative pathologies to become symptomatic. He was of the view that the plaintiff’s employment is a significant contributing factor to both the bilateral shoulder condition and neck condition. Associate Professor Love’s prognosis was that there is unlikely to be any significant change in the foreseeable future. He considered it improbable that surgery would result in any meaningful improvement of function.
96In terms of future work capacity, Associate Professor Love stated:
“I believe Mr Xu’s work incapacity is absolute due to the bilateral shoulder and neck condition. These restrictions will continue into the foreseeable future.
…
Mr Xu does not have capacity to perform pre-injury duties. It is the severe restriction of shoulder movement and neck movement that is the principle (sic) factor rendering him incapable of performing preinjury duties.
…
I am of the opinion that he does not have capacity to perform alternative work due to the aforementioned restrictions.
…
Tasks that involve repetitive movement, lifting to or at above shoulder height and observational activity requiring neck motions, will preclude him from engaging in social, domestic and recreational activities as previously stated. Current incapacity will continue for the foreseeable future.”[73]
[73]Exhibit G, pages 3-4
97Associate Professor Love was aware of the plaintiff’s “short attempt” at a return to work in September 2016, and had an impression of the plaintiff’s work as involving “physical lifting tasks [which] brought about a gradual onset of symptoms in that there is no reported specific incident”.
98Associate Professor Love noted that none of the previous treatments (medication, physiotherapy, and injection into the left shoulder) had made a “meaningful difference to the long term nature of the symptoms” that the plaintiff experiences.[74]
[74] Exhibit G, page 1
99The plaintiff complained to Associate Professor Love of neck and shoulder girdle pain, including significant restrictions of movement – noted by Associate Professor Love to be 50 per cent of the normal range for the cervical spine, and active abduction of each shoulder of 90 degrees. The plaintiff reported that his pain was exacerbated in cold weather.
100The plaintiff reported that his participation in a three-month pain management program resulted in “some improvement”.[75]
[75] Exhibit G, page 2
Evidence-in-chief
101Associate Professor Love confirmed the contents of his report, exhibit G.
Cross-examination
102Associate Professor Love agreed that engaging in repetitive process work generally exposes the worker to a risk of aggravation of the natural wear and tear in the joint and tissues. He agreed that engaging in moderate process work that involves constant movement of the arms, shoulders and back is the kind of work that carries with it a real risk of aggravation of degenerative changes, leading to disability.[76] Once degenerative changes have been aggravated, they may very well progress:
[76]T130
MR RUSKIN:
Q:“Now, I want to ask you questions generally about process workers who do moderate to heavy process work. You would’ve seen over your years both as a treater and as a medicolegal examiner, process workers who describe doing repetitive work over the years, is that correct?---
A:Yes.
Q:That’s well within your - - - ?---
A:Yes. Yes. Yes.
Q:And you will frequently have seen persons doing repetitive work of that kind being disabled with respect to shoulder or neck or something of those parts of the body from the repetitive nature of work itself?---
A:Yes.
Q:And what happens there is that kind of work exposes you at least to a risk that you’ll aggravate the natural wear and tear in the joints and tissues - - -?---
A:Yes.
Q:And effect (sic) you in that respect?---
A:Yes, I agree with that.
Q:And therefore, any process worker doing moderate work has a risk and it will depend perhaps on the individual but has a real risk that they may become disabled from doing their work in their late 50’s or early 60’s as an example just by the nature of the work itself?---
A:Yes. Although I think that should be qualified. It may depend to some degree on the precise nature of that work.
Q:Sure. I’m really talking not about probability or certainty, I’m talking about a risk factor dependant on the type of work you’re doing, if you’re doing moderate process work where you’re constantly moving your arms or your shoulders or you[r] back, that is the kind of work that carries with it a real risk that you may aggravate degenerative changes and become disabled?---
A:Yes, that’s correct.
Q:And once you get those degenerative changes and aggravate them, they may have a life of their own, they may naturally progress, may they not?---
A:They will – they may very well progress, yes.
Q:Now, in this case we see from the radiology degenerative changes, some of which are mild but some of which are moderately severe?---
A:Yes.
Q:And that kind of degenerative change does not surprise you in any worker who’s doing moderately repetitive process type work; correct?---
A:It doesn’t – that does not surprise me.
Q:And therefore the kind of disability that such a process worker might have in terms of levels of pain and disability, again those consequences are not surprising, are they?---
A:No.”[77]
[77]T129-120
103Associate Professor Love also agreed that if the neck and shoulder pain commenced contemporaneously, it is reasonable to conclude that the neck problem and the shoulder problem are associated with the physical activities complained of. If, on the other hand, the neck symptoms came on at a different time, it would lead to a reasonable enquiry as to whether the neck pain is associated with work or whether it is pain associated with degeneration.[78] Associate Professor Love agreed that in these circumstances, the shoulder pain may be work related while the neck pain is not. Factors to be considered when determining whether the neck pain is work related are the nature of the work undertaken, the period for which it was undertaken and the physical demands inherent in it.[79]
[78]T131
[79]T132
104Mr Ruskin posed a hypothetical situation based on the plaintiff’s return to work:
MR RUSKIN:
Q:“… [I]f the position is that the shoulder pain is experienced say in May and you stop work, and then you go back to work in which you say that you are bending down – assuming you’ve had no neck pain, this is an assumption. You’re given return to work, and you’re bending down and you’re pressing with your hands on an object, that’s what you have to do. You’ve done it on a couple of occasions maybe for half an hour, maybe for an hour; and you then have neck pain. A real question that needs to be answered in that situation would be as follows – how hard was the work you were doing in that return to work – that would be a reasonable question to ask, wouldn’t it?---
A:Yes.
Q:And then the question would be if you then complain of disabling neck pain, depending on the role of that return to work, it may be or may not be related to that return to work duty on the one hand, or degeneration on the other?---
A:Yes, one or the other.
Q:And it will be really a question of saying it’s possible it’s related to the work, but it’s also equally possible that what we have here is a degenerative neck of the kind that we’ve seen on the X-ray here, or the radiology here. Correct?---
A:Yes, that’s possible.”[80]
[80]T132
Re-examination
105After counsel put to Associate Professor Love a summary of the plaintiff’s work history and the physical demands inherent therein, Associate Professor Love testified:
“I believe the probability of … [the plaintiff] reaching retirement age would have been significantly enhanced had he not been given that type of work activity. … .”[81]
[81]T135
106Associate Professor Love testified that based on the descriptions given and the history taken from the plaintiff, it is a significant probability that work has induced the symptoms described, both in the plaintiff’s shoulders and in his neck:
“I can accept that the neck may have a slightly less relationship than the shoulders but I believe both conditions can be considered to have been aggravated by the nature of that employment.”[82]
[82]T135
107I then asked these questions:
HER HONOUR:
Q:“Associate Professor Love, just see if I understand your evidence. To put it succinctly, on the balance of probabilities you are satisfied that the shoulder problems are work related because of the nature of his work?---
A:Yes.
Q:But given the answer to some of the questions that Mr Ruskin asked you, on the assumption that the shoulder symptoms arose first and the neck symptoms arose at some time later, it’s equally probable that it is work related and not work related so far as the neck is concerned. I just want to understand is that your final position?---
A:Well, I guess having - - -
Q:If I accept that as the fact?---
A:Yes, having listened to the discussion I would accept that the probability of the neck being related to employment is marginally less than the probability of the shoulders being related to employment but I believe that there is a probability which I can’t define in arithmetic terms but there is a probability that the neck is work related.
Q:So, if I accept, again, just – I’m not saying this will be my final finding of fact, but if I accept that the neck symptoms came on later than the shoulder symptoms, is it equally probable that the neck is related to work as not related to work. In other words, is it more likely than not, are you able to say that or is it equally – is it a 50/50?---
A:I’d say more likely than not.
Q:Work related?---
A:Yes.
Q:Or degenerative?---
A:Yes.
Q:But some component of degenerative?---
A:Yes. Oh, yes.”[83]
[83]T136, L5 – T137, L2
Further documentary evidence tendered on behalf of the Plaintiff
Reports of Dr Xiao Nan Wang, general practitioner[84]
First report, dated 23 August 2017[85]
[84] Exhibits C1, C2 and C3
[85]Exhibit C1
108Dr Wang first saw the plaintiff for treatment on 23 October 2016 in respect of:
“1.Right shoulder chronic pain and dysfunction with injury of muscle tendinous and joint:
2.Left shoulder chronic pain and dysfunction with injury of muscle tendinous and joint.”[86]
[86]Exhibit C1, page 1. Note that there is also reference to “neck condition”
109Dr Wang’s history of the plaintiff recorded that he had worked full time with the defendant for five years and that his normal duty involved frequent removal of boxes noted as weighing 16 kilograms. At the initial presentation, the plaintiff reported pain in both shoulders with limited movement. Dr Wang considered that the shoulder symptoms were related to the plaintiff’s work duties on 20 May 2016. He had previously been referred for physiotherapy treatment.
110On review on 28 October 2016, the plaintiff again presented with pain in both shoulders. On examination, movement was limited. The plaintiff also complained of neck pain when bending the neck for prolonged periods. His neck was found to be stiff on examination, a matter recorded in a WorkCover medical certificate issued on the same day.
111Thereafter, the treatment for the plaintiff was focussed on his shoulders.
112On 29 June 2017, the plaintiff again presented with neck pain and shoulder pain. He reported that the neck pain had commenced at the same time as he had developed the shoulder injury and that the pain in his neck was worsening to the point where he was unable to move his head.
113Dr Wang organised a CT scan of the cervical spine which demonstrated:
“Disc degenerative change is seen at C5/6 with disc space narrowing and osteophytes. There is a mild and broadbased posterior disc osteophyte complex only mildly encroaching on the spinal canal but there is bilateral uncovertebral joint osteophyte. There is moderately severe narrowing of the right neural exit foramen at this level with relatively mild narrowing on the left.
At C6/7, a small central disc protrusion is suggested but without significant spinal canal encroachment.
… .”[87]
[87]Exhibit C1, page 2; exhibit K3
114Dr Wang opined that in the absence of other possible causative factors, work with the defendant was implicated in the plaintiff’s shoulder injury.
115Regarding the neck pain, and accepting the plaintiff’s account that it commenced at the same time as the shoulder injury, Dr Wang opined that the plaintiff’s cervical spine abnormalities are significant and can cause clinical symptoms. He opined that the cervical spine lesions were not caused by the event of 20 May 2016, however, that incident may have aggravated a pre-existing lesion which became symptomatic.
116Dr Wang referred to an assessment made by Dr Gale Curtis, orthopaedic surgeon, on 23 May 2017. I shall refer to Dr Curtis’ opinion later in these Reasons for Judgment.
117Dr Wang diagnosed the plaintiff as having right shoulder chronic pain and dysfunction, with injury of muscle tendons and joint:
“Multiple muscle tendinosis with partial tears on tendons of the long head of biceps, infraspinatus, and Supraspinatus, Subacromial subdeltoid bursitis and Acromioclavicular joint osteoarthritis changes.”[88]
[88]Exhibit C1, page 3
118Dr Wang also diagnosed left shoulder chronic pain and dysfunction “with injury of muscle tendinous and joint:
Multiple muscle tendinosis on tendons of the long head of biceps, infraspinatus, and Supraspinatus with partial tears on tendons of infraspinatus, and Supraspinatus. Subacromial subdeltoid bursitis and Acromioclavicular joint osteoarthritis changes.”[89]
[89]Exhibit C1, page 3
119As for the neck, Dr Wang diagnosed chronic neck pain and stiffness, with cervical spinal degenerative changes at C5-C6 and C6-C7.
120Dr Wang noted the plaintiff’s treatment as including NSAIDs or COX-2 inhibitors such as Celebrex, and analgesia such as Panadol. He also noted that the plaintiff had had treatment modalities such as physiotherapy, hydrotherapy, osteopathy and acupuncture. In addition, the plaintiff was using self-care with heat packs, massage and exercise. He had received multidisciplinary pain management through a formal rehabilitation program.
121Dr Wang was uncertain of the prognosis for the shoulders, noting that it may take a very long time for recovery. The diagnosis of cervical spine lesions was not clear. At that time, there had been no MRI scan to assist in making a clear diagnosis of the neck condition.
122Dr Wang found the plaintiff to be “obviously” permanently unfit for pre-injury duties, and also incapacitated for light, part-time work duties for up to twelve months as he was “unable to move shoulders repetitively,” with his neck pain and stiffness also affecting work capacity. He also considered that plaintiff’s lack of English language proficiency impacted upon his ability to find alternative work.[90]
Second report, dated 7 November 2018[91]
[90]Exhibit C1, page 4
[91]Exhibit C2
123As at the date of this report, the plaintiff had had corticosteroids injected into both shoulders. He was taking Celebrex, 200 milligrams; gabapentin, 100 milligrams; Targin, 2.5 milligrams and 1.25 milligrams; Lexapro, 10 milligrams, and temazepam, 10 milligrams. He was receiving pain management treatment and psychosocial therapy from a psychologist and a psychiatrist. A formal rehabilitation program had been recommended by a multidisciplinary team but had not yet commenced.
124Addressing prognosis and work capacity, Dr Wang opined:
“The prognosis of … [the plaintiff’s] shoulder is uncertain. It has been two years post the event of work injury on 20/05/2016. The shoulder pathologic[al] changes are still significant if comparing the shoulder MRI scan of 2018 and [2016].
The shoulder pain and dysfunction are still ongoing. The orthopaedic surgeon has … considered no indication of intervention procedure neither arthroscopy nor open surgery. May be intra-articular cortisone injection again?
Pain management with medications ongoing. …
… [The plaintiff’s] cervical spinal lesion with chronic neck pain [has] significantly impacted his recovery progress and work capacity … .
In addition, the mental condition, Major depressive disorder of moderate severity with anxiety disorder, is also significantly … [affecting the plaintiff’s] progress of … rehabilitation. Ongoing psychosocial therapy including psychologist counselling, psychiatrist regular review and medication therapy should be continuing.
In terms of work capacity, obviously, … [the plaintiff] is unfit for his pre-injury normal duty. He is also … [incapacitated] for any light duty at the time being, because he is unable to move shoulders repetitively at the current employer. [The plaintiff] … received a high education in China, but his level of English is low which is significantly … [affecting] the opportunity of obtaining a suitable, no labour, job. He did try to learn English, however, he was unable to … concentr[at]e for study due to the above mentioned reasons.
In my opinion, … [the plaintiff] will never return to his pre-injury duties. He is also unfitting for any duty at the time being. It is uncertain when … [the plaintiff] could return to a suitable duty in the future. At least, he will [be] unfit for any duty physically and mentally in [the] next 12 months. According to his medical conditions, education, work experiences in Australia, his age and English level, … [the plaintiff] may be unable to find suitable jobs in [the] next 2-3 years.”[92]
Third report, dated 4 July 2020[93]
[92]Exhibit C2, pages 8-9
[93]Exhibit C3
125After referring to the assessments and treatments that the plaintiff had undergone since the previous report, Dr Wang maintained his opinion that in the absence of other possible causative factors, work with the defendant was a significant contributing factor to his injuries.
126Regarding prognosis, Dr Wang was of the opinion that this was uncertain given the shoulder pain and dysfunction had persisted for some four years. The various treatment modalities had been of little assistance.
127Dr Wang opined that the prognosis of the plaintiff’s cervical spine lesion was also uncertain. The plaintiff’s chronic neck pain had significantly negatively impacted upon his recovery, progress and work capacity.
128In addition, Dr Wang opined that the prognosis of the plaintiff’s mental condition, diagnosed as a Major Depressive Disorder of Moderate Severity with Anxiety Disorder, was not clear. He advised that psychosocial therapy, including psychological counselling and psychiatric treatment with medication, should continue.
129On the question of the plaintiff’s work capacity, Dr Wang opined that the plaintiff was permanently unfit for normal pre-injury duties. He considered that the plaintiff was incapable of performing any duties involving pushing, pulling or lifting heavy objects involving repetitive shoulder movements, bending of the neck, twisting of the head, or stooping of the back repetitively; nor could the plaintiff do work involving prolonged sitting, standing or walking.
130Dr Wang considered the plaintiff’s mental condition to also be a factor affecting his ability to work:
“… The moderate severe depressed mood, anxious and sleep disorders with the antidepressant and analgesia are significantly impact[ing] his work capacity, he is unable to concentrate to do anything for longer [periods].”[94]
[94]Exhibit C3, page 12
131Dr Wang considered that given the plaintiff’s physical and mental condition, he may be unable to find any suitable employment in the next three to five years. In fact, he may never be able to enter the workforce again without special therapy.
132In Dr Wang’s opinion, the plaintiff is permanently disabled. Dr Wang also considered the plaintiff’s social, domestic and recreational activities to be all profoundly affected for the foreseeable future.
Reports of Dr Jason Chou, consultant in anaesthesia and pain medicine[95]
First report, dated 19 November 2018[96]
[95]Exhibits D1 and D2, JCB 82-87
[96]Exhibit D1
133Dr Chou first saw the plaintiff on 17 July 2018 upon referral from Dr Wang. Following this, there were a further three consultations with the plaintiff, the last being on 16 November 2018.
134After taking a history from the plaintiff regarding the incident in May 2016 when moving boxes for the defendant, Dr Chou opined that the repetitive nature of the plaintiff’s work in moving the boxes was the reason he developed his chronic pain condition. He did not consider this condition to be an aggravation or recurrence of a pre-existing injury or disease.
135When reporting his diagnosis, Dr Chou noted the results of investigations:
“MRI right shoulder 28 October 2016 - Split tear of the long head of biceps. Subscapularis, infraspinatus and supraspinatus tendonosis.
MRI left shoulder 28 October 2016 – Subscapularis, infraspinatus and supraspinatus tendonosis.
CT cervical spine 29 June 2016 - Disc degenerative changes at C5-C6 with disc space narrowing and osteophytes. Mild broad-based posterior disc osteophyte complex, only mildly encroaching on the spinal canal but there were bilateral uncovertebral joint osteophytes. Moderately severe narrowing of the right neural exit foramen at this level with relatively mild narrowing on the left.”[97]
[97]Exhibit D1, page 2
136I note that there appears to be a typographical error about the date of the CT scan. Exhibit K3 appears to be the report of that CT scan and is dated 29 June 2017, not 2016.
137Dr Chou considered that the plaintiff did not have a capacity to return to pre-injury duties given his bilateral chronic shoulder pain that limited his range of movement, and his ongoing pain symptoms. He considered the plaintiff’s chronic pain condition to be long term and that the plaintiff would need regular and ongoing assessment to determine whether his pain condition and function improves to an extent that he is able to return to work in any capacity.
138Dr Chou believed that the plaintiff needed ongoing medical and allied health input to assist him with his pain condition and rehabilitation. He considered the prognosis to be guarded, however, he thought that if the plaintiff responded to conservative management, including rehabilitation and titration of medications, this prognosis may change in the future. Dr Chou noted that the plaintiff had been compliant with his pain management plan.
Second report, dated 1 June 2020[98]
[98]Exhibit D2
139In this updated report, Dr Chou noted that the plaintiff’s pain had not improved since the date of injury and any attempts to return to work led to a flare up of his pain symptoms. He was of the view that there was a nexus between the plaintiff’s employment and his chronic pain condition.
140Dr Chou maintained his opinion that the plaintiff’s chronic pain condition was not an aggravation or recurrence of a pre-existing injury or disease. He opined that the plaintiff’s chronic pain condition is consistent with his mechanism of injury.
141As at the date of this report, Dr Chou had seen the plaintiff a total of eleven times. In addition, the plaintiff had also been seen by the multidisciplinary team and had enrolled in a pain management program with the assistance of a Mandarin interpreter. Outpatient follow-up appointments involved titration of pain medications, conservative treatment and ongoing involvement with the pain management program.
142When Dr Chou last saw the plaintiff on 10 March 2020, he recorded that the plaintiff was symptomatically similar and that the plaintiff reported the pain to be worse with cold weather. The plaintiff reported his mood to be low. He was on stable doses of analgesia medications, including celecoxib, Targin and gabapentin. Dr Chou was of the view that the plaintiff required ongoing medical and allied health follow up for his chronic pain condition.
143In terms of prognosis, Dr Chou offered a guarded prognosis:
387The defendant submits that the award of damages should be reduced in accordance with the principles enunciated in Malec v J C Hutton Pty Ltd. The plaintiff denies that the Malec principles have any application in the present circumstances.
388In Malec, the High Court explained:
“When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle; Davies v. Taylor; McIntosh v. Williams. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”[449]
[449](Supra) at 642-643 (citations omitted)
389In Seltsam Pty Ltd v Ghaleb,[450] Ipp JA observed:
[450][2005] NSWCA 208
“[103] Therefore, according to Malec:
‘(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.’
[104] What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the “disentangling” evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
[105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
[106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
[107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A preexisting condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
[108] As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
[109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p511).”[451]
[451](ibid) at paragraphs [103]-[109]; approved in Smith v Gellibrand Support Services Inc (2013) 42 VR 197 at paragraphs [71]-[73]
390Ordinarily, and unless no allowance has been made for the vicissitudes of life, the Court is not required to specify in percentage terms the discount applied by reference to the principles set out in Malec.[452] Instead, that discount is subsumed in the allowance made for vicissitudes.
The Defendant’s submissions[453]
[452]Supra
[453]Exhibit 16, paragraphs [42]-[56]
391The defendant submits that the award of damages should be reduced to take account of the prospect that but for the injuries sustained as a result of the defendant’s negligence, the plaintiff’s conditions might well have deteriorated in any event, shortening his working life and also causing him pain and suffering consequences. The defendant relies on concessions made by Associate Professor Love and Mr Chehata in their evidence before me and on the opinions expressed in the reports of Dr Gale Curtis,[454] Dr Craig Mills[455] and Professor Joubert to assert that there was a real chance that the plaintiff would develop these problems in any event if he engaged in process work.[456]
[454]Exhibit 10
[455]Exhibit 13
[456]Exhibit 11A
392It is not in controversy that although the plaintiff has qualifications obtained in China that enabled him to work in the planning and design phase of the printing industry in China, in Australia he has only ever worked in manual labouring jobs or in process work. His English is poor, he has little if any computer skills and he has no other trade or academic qualifications enabling him to work in any form of employment other than in moderate repetitive process-type work.
393The defendant points out:
“This is not a case in which, but for the defendant’s employment, the plaintiff had determined to be engaged in light sedentary work, or office-based employment. He gave no evidence about light work.”[457]
[457]Exhibit 16, paragraph 44
394It is true that the evidence is silent about what work the plaintiff would have undertaken had he not been exposed to the negligent workplace. This leaves the Court in the position of having to make a judgment call about the plaintiff’s realistic prospects for employment in the open market taking account of factors such as his age, education, general health (physical and mental), work experience, and trade or academic qualifications.
395I have referred to Mr Chehata’s evidence regarding the increased risk that process workers face of a reduction in working life, although Mr Chehata qualified that by saying that this risk does not necessarily apply to every process worker.
396I have also referred to Associate Professor Love’s evidence to the effect that moderate work involving constant movement of arms and shoulders or the back carries with it a real risk that a person may aggravate degenerative changes and become disabled.
397The evidence of Dr Gale Curtis will be recalled:
“His condition appears to be premature ageing of each rotator cuff though it is not unusual in a man of his age, degenerative changes are generally considered to be constitutional.
In his case I suspect these have been aggravated by the nature of work he has been doing.
…
I would rate his injury of May 2016 as being part-contributory but I am uncertain of the underlying pathology here.”[458]
[458]Exhibit 10, page 4
398As mentioned earlier, Dr Mills opined:
“He has a degenerative condition of the neck, which is a common degenerative finding that in lifting occupations does frequently suffer exacerbations and aggravations and it is likely in combination with bilateral shoulder pathology that it has been exacerbated. In terms of his bilateral acromioclavicular osteoarthritis, once again this is constitutional, however the inferior osteophytes are producing impingement and with the repetitive activity under load it is likely he has produced rotator cuff tendinopathy.
…
It is likely at some stage he would have suffered rotator cuff tendinopathy such that he has over time, and require for successful improvement surgical intervention.”[459]
[459]Exhibit 13, pages 6 and 7
399Professor Joubert opined that there was evidence of cervical spondylosis, which he considered to be unrelated to the shoulder condition.
400The defendant contends that on the basis of the uncontested evidence to which I have just referred, there is a sound evidentiary basis to support a reduction in the award of damages in accordance with Malec.
The Plaintiff’s submissions[460]
[460]Exhibit S, paragraphs 115-118
401On the other hand, the plaintiff submits that it is not open to reduce the award of damages because there is insufficient evidence to found an inference that the plaintiff would have suffered the damage alleged in any event. The plaintiff contends that any such reduction would be based on mere speculation or conjecture about the nature of plaintiff’s alternative employment, the physical demands inherent therein and whether such employment would necessarily involve negligence on the part of the employer, thereby causing injury, loss and damage. The plaintiff advances three points:
(a) the defendant’s contention relies on the assumption that the plaintiff would have worked elsewhere in unskilled manual labour involving repetitive use of his upper limbs;
(b) the defendant has failed to identify the nature of the alternative, repetitive type of work that the plaintiff could have undertaken that might have produced similar damage; and
(c) if the plaintiff had engaged in alternative manual jobs, he would have had a level of protection from injury by reason of various occupational health and safety regulations in operation from time to time that required employers to eliminate or mitigate the risk of harm caused by manual handling as far as is reasonably practicable.[461]
[461]Exhibit S, paragraphs 115-118
402In the alternative, the plaintiff submits that if any allowance is to be made in accordance with Malec, the reduction ought be modest.[462]
Findings as to Malec v J C Hutton Pty Ltd considerations
[462]T249
403With respect, I agree with the defendant that the evidence before the Court compels the Court to take account of the Malec principles. The medical evidence notes the presence of underlying degenerative pathology in both of the plaintiff’s shoulders unconnected with the defendant’s negligence. There is more than a negligible chance that the underlying pathology might have become symptomatic regardless of the defendant’s negligence.
404I also agree that the plaintiff has limited prospects for employment in anything other than process work. This is because of his age, his work experience, his limited command of English, and the lack of academic or trade qualifications recognised in Australia. In Australia, he has only ever worked in jobs involving manual labour. Although in China he worked in the design and planning stages of printing, there is no evidence that he has sought or qualified for any such form of employment here. Nor is there evidence that he intended to give up all forms of manual work and instead opt for a more sedentary form of employment.
405As to the submission that a level of protection from injury in alternative work would have been afforded by the various occupational health and safety regulations in place from time to time, with respect, I do not agree that legislative or regulative controls guarantee that a workplace will be free from the risk of injury or harm to workers. Whilst legislative controls aim to eliminate such risks, they also recognise that, unfortunately, a standard of perfection is not always possible and is not required. The regulations cited by the plaintiff demonstrate that this is so.[463] For example, as the plaintiff notes, the Occupational Health and Safety Regulations 2007 and the Occupational Health and Safety Regulations 2017 both:
“(b) oblige employers, so far as [is] reasonably practicable, to either eliminate any risk of a musculoskeletal disorder associated with hazardous manual handling; or alternatively, reduce the risk of musculoskeletal disorder: regulation 3.1.1 (2007) and regulation 27 (2017).”[464]
(Emphasis added)
[463]Exhibit S, paragraph 115 (iii)
[464]Exhibit S, paragraph 115 (iii)(b)
406The Regulations do not impose upon an employer the unqualified burden of eliminating the risk of all harm at all costs. All that is required in order to comply with the Regulations cited above is what is reasonably practicable to do in all the circumstances.
407Although the existence of legislative controls applicable to process work is a factor to take into account, I do not consider those controls would have afforded the absolute form of protection from harm as suggested by the plaintiff.
408I have earlier mentioned the plaintiff’s limited prospects for employment outside of moderate repetitive process work and noted the uncontested medical evidence regarding the plaintiff’s underlying constitutional factors. I note that although not inevitable that but for the defendant’s negligence the plaintiff would have suffered loss and damage, there is more than a speculative chance that he might have done so. In these circumstances, I shall count this chance as part of the discount to be made for vicissitudes.
Quantification of future economic loss
The Plaintiff’s submissions
409The plaintiff seeks the amount of $233,975.00 to represent future net loss of earnings. The figure is based on the average combined incomes of “JC” and “JT” for the financial year ended 30 June 2020 (JC $53,485 gross and JT $57,252 gross). The plaintiff calculates the net weekly loss is $875.00 (excluding superannuation). The multiplier from 30 November 2020 until retirement at age sixty-seven (17 February 2027) is 267.4, resulting in the amount claimed of $233,975.00.[465]
[465]Exhibit S, paragraph 123. Also note the plaintiff submits that as the future loss cannot be rounded to the nearest year, the multiplier needs to be calculated by hand using the deferred value of $1 per week under 6 per cent discount per annum. The multiplier has been calculated the same way in the Cumpston Sarjeant report, exhibit Q (tendered as an aide memoire). A table showing how the plaintiff has arrived at the multiplier of 267.4 is set out in exhibit S, footnote 286.
410On the other hand, the defendant submits that the plaintiff is entitled to a weekly net figure of $765.00 plus $87.00 for superannuation, being a total of $852.00 per week.[466] Applying various discounts to account for vicissitudes, the defendant proposes three alternative scenarios:
(i) if the plaintiff would have otherwise retired at age sixty-two, $38,876.00;
(ii) if he would have retired at age sixty-five, $126,914.00; and
(iii) if he would have retired at age sixty-seven, $168,824.00.[467]
[466]Exhibit 16, paragraph 68
[467]The defendant has set out the calculations in exhibit 16, paragraphs 70-71
411The defendant submits that I should not be satisfied that but for the injury, the plaintiff would otherwise have worked to age sixty-seven. The defendant contends that because the plaintiff suffered from constitutional issues referred to earlier, there is a real chance that he would not have been able to work to that age.[468]
[468]Exhibit 16, paragraph 69
Findings as to future loss of earnings
412The plaintiff testified that but for the injury, he would have worked to age sixty-seven.[469] He stated that he “was very happy to go to work”.[470] When cross-examining the plaintiff, counsel did not challenge these assertions. Rather, it is the defendant’s case that based on the medical evidence, other health issues may have overtaken and foiled any such plan to work until age sixty-seven.
[469]T23
[470]T38
413I am satisfied that but for the injury, the plaintiff intended to work until age sixty-seven; however, I am also satisfied that there is a chance that other unrelated health issues might have thwarted that plan. In addition, it is common ground that the ordinary vicissitudes of life must be taken into account to reduce the amount to be awarded.
414The table set out earlier showing the result of averaging the incomes of “JC” and “JT” for the financial years ended 30 June 2016 to 2020 demonstrates that their incomes increased each year between 2016 and 2019, but reduced slightly in 2020. I consider the plaintiff’s election to rely on the 2020 average was fair and reasonable. In my judgment, future net loss of earnings should be based on the combined average net incomes of JC and JT for the financial year ended 30 June 2020, namely $44,355.00, or $852.98 (excluding superannuation) per week.
415Turning to the discount to be applied to encompass both vicissitudes and the Malec principles, I do not consider the rate of 10 per cent as proposed by the plaintiff to be adequate. As mentioned, the plaintiff denied any discount should be applied for Malec, but I have found it appropriate to do so. Accepting, as I do, that but for the injury, the plaintiff intended to work to age sixty-seven but also that there was a chance other health issues would have prevented him from doing so, together with all the other ordinary vicissitudes of life, I consider it appropriate to apply an overall discount of 17.5 per cent (seventeen and one half per cent).
416The parties agree that multipliers constitute an aid to assessing future loss of earnings but that I should make my own assessment using the multipliers as a guide.[471] The plaintiff submits that to age sixty-seven I should use the multiplier of 267.4. On the other hand, the defendant submits that to that age I should use the multiplier of 264.2. I shall use 265.5 as the multiplier.
[471]Exhibit Q, Cumpston Sarjeant report, was tendered as an aide memoire
417I have found that the appropriate net weekly amount for future loss of earnings is $852.98. Applying the multiplier of 265.5, this results in a loss of $226,466.19. After reducing this amount by 17.5 per cent for vicissitudes, the figure that I consider best represents future loss of income (excluding superannuation) is $186,834.61.
Future loss of superannuation
418The plaintiff claims $30,557.00 by way of future loss of superannuation.[472] On the other hand, the defendant has assessed the future loss of superannuation as “approximately $87” per week.[473] Using the combined average gross income of “JC” and “JT” for the financial year ended 30 June 2020 as a guide, and noting that it is expected that compulsory contribution to superannuation will increase, I consider it fair and reasonable to allow $100.00 per week for superannuation. Using the multipliers as a guide, I shall again apply the multiplier of 265.5.[474] That results in an overall loss of future superannuation in the amount of $26,550 before discount. Applying the discount of 17.5 per cent to cover vicissitudes and Malec, this figure is reduced to $21,903.75.
[472]Exhibit S, paragraph 128 and the table of calculations contained therein
[473]Exhibit 16, paragraph 68
[474]In exhibit S, paragraph 128, the plaintiff has set out a table applying multipliers for each year noting proposed increases of superannuation. I have adopted a broader approach.
Conclusion
419The Court is satisfied on the balance of probabilities that:
(a) the plaintiff’s neck injury is causally related to his employment with the defendant;
(b) the plaintiff’s underlying degenerative condition is a relevant factor to be counted in the assessment of damages;
(c) there is more than a speculative chance that the plaintiff might have come to his injuries regardless of the defendant’s negligence, a matter to be taken into account, together with the ordinary vicissitudes of life;
(d) the defendant is ordered to pay the plaintiff $275,000.00 in respect of general damages; and
(e) the defendant is ordered to pay the plaintiff $430,097.78 in respect of pecuniary loss damages, calculated as follows:
Past net loss of earnings: $184,542.18
Past loss of superannuation: $21,313.25
Fox v Wood: $15,504.00
Future net loss of earning capacity: $186,834.61
Future loss of superannuation: $21,903.75
__________
TOTAL $430,097.78
==========
420The total award of damages is $705,097.78.
421I shall hear the parties on the question of costs.
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