WCRA: failure to report incident & shaky credit overcome

Perkins v Woolworths Pty Ltd (ACN 000 014 675) [2017] QDC 1

Morzone QC DCJ

The plaintiff was employed as a grocery assistant responsible for replenishing perishables and working on the back dock. A walkie stacker was operated as a walk behind forklift machine used to lift and move pallets of product. When the walkie stacker became inoperable, a replacement was hired which the plaintiff used in conjunction with a steel bar to properly align pallets.

At this time the plaintiff suffered and continues to suffer from a right L4-5 disc protrusion.

The plaintiff alleged that the original walkie stacker had a side shift function allowing misaligned pallets to be corrected, while the replacement did not have such a feature, necessitating the use of the steel bar. The defendant disputed this feature and argued that with due attention the pallet would be properly aligned with the walkie stacker, eliminating the use of a steel bar.

Liability rested on whether there was a causal relationship between the use of the steel bar and the plaintiff’s injuries. The defendant argued that the injury was caused by an unrelated event. After reciting principles of causation, Morzone QC DCJ found as follows:

[24] The issue largely depends on the credibility and reliability of the plaintiff, corroborative witnesses and documents.

[38] The plaintiff’s leave records do show 11 instances of leave over the period between commencement of employment on 13 August 2011 and 1 November 2011.That is about one instance a week over that period and indicia of the plaintiff’s deteriorating work capacity consistent with his testimony.

However, the defendant relied on the following indicia of dishonesty:

  1. That no report of injury was made for four and a half months;
  2. That the plaintiff’s objective conduct is inconsistent with the claimed mechanism of injury; and
  3. The plaintiff’s explanation did not withstand examination

His Honour went on to state:

[45] Whilst evidence of complaints is often relied upon to bolster or damage a plaintiff’s credit due to consistency or inconsistency, the mere fact, or absence, of a complaint does not prove or disprove anything. There is no obligation or set way to make any complaint. There may be many reasons personal to a plaintiff about making a timely complaint to any employer or anyone else. Here, the plaintiff complained to a co-worker and a prospective employer…

[49] The plaintiff explained why he did not act on that advice to report his injury or symptoms to his superiors. Initially, he thought his symptoms were not serious, but that he’d merely “torn a muscle or pulled something” in his leg. During cross-examination he said: “I didn’t think it was serious. I thought I’d strained something.” This seems to me to be reasonable and plausible in the plaintiff’s circumstances.

His Honour found that the plaintiff’s strained relationship with his managers were also a genuine reason not to report the injury to them at [50]. As to the plaintiff’s alleged inconsistent conduct and cross examination, Morzone QC DCJ found:

[53] Whilst the plaintiff made it clear that he was injured in the course of his employment with the defendant, it seems to me that he had not turned his mind to the real seriousness of his condition or its cause, let alone, the levering task and dock work.

[60] Contrary to the defendant’s submission, in my view the plaintiff’s explanation of those matters did withstand examination, and his explanation was entirely plausible given his strained work relations, perception of injury and optimistic outlook until March 2012. It seems to me that it was only through making a workers’ compensation application that the plaintiff was forced to turn his mind to his work history and causative events.

Finding for the plaintiff, his Honour was satisfied that the plaintiff’s evidence was reliable and that it was the defendant’s negligence of allowing the plaintiff to use the steel bar in conjunction with the walkie stacker which caused his injuries.

Quantum

Morzone QC DCJ assessed damages as follows:

 

General damages

 

$34,450.00

 

Past economic loss

 

$186,900.00

 

Interest on past economic loss

 

$6,915.32

 

Past superannuation

 

$16,821.00

 

Future economic loss

 

$375,000.00

 

Future superannuation

 

$41,250.00

 

Special damages

 

$49,380.00

 

Fox v Wood

 

$6,953.00

 

Future expenses

 

$14,000.00

 

Sub-total

 

$728,669.98

 

Less WOW Care refund

 

-$78,024.60

 

TOTAL

 

$650,645.38

 

David Cormack – Brisbane Barrister & Mediator

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