TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where the plaintiff was employed by the defendant and worked at a work station comprised of a partitioned area containing a desk and a chair – where the defendant instructed all employees, including the plaintiff, to place a plastic mat under their chair – where the plaintiff complained to the office manager that the mat was slippery and dangerous but was told to leave the mat at her work station – where the plaintiff fell at her work station, landing on her tail bone and fracturing her sacrum – where the plaintiff claims that when she stood up at her work station the chair slid backwards so that when she went to sit down again the chair was no longer behind her and she fell to the floor – whether the defendant has breached its duty of care.
The plaintiff fell when sitting and her chair moved away from her. The injury occurred on 8 May 2007, in circumstances where the chair was on a plastic mat:
 The plaintiff’s evidence in respect of her experience with the chair was in short compass: the chair was extremely slippery and would move a considerable distance when just touched and there was nothing to stop it from sliding off the mat. In cross-examination, she conceded she could not remember what was on the upper surface of the mat, but said the chairs “moved extremely quickly”. She also said there had been near incidents and that is why complaints had been made to management. Apart from the complaint to Ms Henderson, the plaintiff told her overall supervisor, Ms Burchardt “several times” that she hated the mats. The plaintiff stated that had she not been instructed to keep the mat, she would have taken it away. She had not had any problem using the chair on the carpet prior to the mat arriving. She described the carpet as very flat and hard. It wasn’t thick. (footnotes omitted)
 The defendant called three witnesses who had experience with the use of mats similar to those used by the plaintiff. Hayden Forster, the national manager of an associated company to the defendant, gave evidence she had had a mat at her desk for “at least 10 years”. The mat had a “sort of a rippled effect” which allowed you to roll around. She had not had any mishap with chairs over the years when using the mat and was unaware of any complaint about using the mats. (footnotes omitted)
 I accept the plaintiff sustained personal injury when she, as part of her normal duties of employment, attempted to resume her seat on a chair located on the plastic mat. In so doing, the chair rapidly and suddenly moved from under her body causing her to fall to the floor. I accept this rapid movement was as a result of the mat located underneath that chair being dangerously slippery. That conclusion is supported by Ms Penhaligon’s evidence that the chair would just “flick’ out from under you. I accept that evidence.
 I accept the plaintiff’s evidence that the chair moved very quickly and suddenly on the mat, and that she had had near “misses”. I also accept that the plaintiff and Ms Penhaligon complained about the mats “extreme” slipperiness to Ms Henderson and that the plaintiff was directed to retain the mat in its position notwithstanding the concerns expressed by her and by Ms Penhaligon. The fact that they both complained to Ms Henderson was not the subject of contrary evidence from the defendant. I do not accept the defendant’s contention that the onus was on the plaintiff to call Ms Henderson. Whilst the plaintiff may have subpoenaed Ms Henderson, unless and until the fact of a complaint being made to Ms Henderson was squarely put in issue, the plaintiff was not required or obliged to call Ms Henderson in her case.
 In my view, the stance adopted by the defendant was an unreasonable stance having regard the risks associated with the continued use of the mat in circumstances where the plaintiff had expressly complained that it was “extremely slippery”. Evidence that other employees had indicated, after the event, a preference for use of the mats on the basis it rendered it easier to move a chair rather than having the chair placed directly on the carpeted floor, was of no forensic weight. Those particular employees were not called, their particular circumstances were not known, and that evidence was inconsistent with the evidence of both the plaintiff and Ms Penhaligon that they had no difficulty moving the chair across the carpet. I accept and prefer the evidence of the plaintiff and Ms Penhaligon on that matter.
 I accept the defendant breached its duty of care by:
(h) Instructing and/or requiring the plaintiff to use the chair whilst it was positioned on the said plastic mat, when it knew or ought to have known that the chair moved very easily and was slippery when used in conjunction with the plastic mat and in circumstances where the defendant knew or ought to have known that the plaintiff had to frequently get up and down from the said chair and when a reasonably prudent employer would not have done so;
(i) Failing to act on complaints that the chair was slippery when used in conjunction with the said plastic mat and when a reasonable prudent employer would have done so;
(j) Failing to remove the said plastic mat despite requests to do so and when a reasonably prudent employer would have done so.
The breach of duty on the part of the defendant also amounted to a breach of its contract of employment for the reasons outlined above.
 In the circumstances, it is unnecessary to consider the plaintiff’s claim that the defendant’s conduct also constituted a breach of its statutory duty. The recent amendments to the Workplace Health & Safety Act 1995 (Qld) would appear to have had the effect of abolishing such a claim in any event.23
 Whilst the defendant pleaded contributory negligence, it conceded at trial that the plaintiff’s conduct, should it be accepted that she suffered the injuries in the circumstances alleged by her, amounted to no more than mere inadvertence and would not justify a finding of contributory negligence.
23 Workplace Health and Safety Act 1995 (Qld) s 197 and Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 (Qld).
 The plaintiff was born on 4 January 1969. She is presently aged 41. She was aged 38 at the time of the incident.
 Dr Wallace notes the plaintiff continues to suffer from mechanical lower back pain with the pain being worse with any bending, lifting and twisting… In his opinion, the plaintiff’s employability in the open labour market has been significantly and adversely affected by her injuries. She would not be able to return to work as a hairdresser. He assesses the plaintiff as having an 8% whole person impairment due to the injury to her lumbar spine and a further 3% whole person impairment as a result of the injury to her sacrum. Her condition has reached maximum medical improvement and is unlikely to change in the foreseeable future.
 Associate Professor Steadman considered the plaintiff’s presentation on clinical examination as “somewhat theatrical” and noted she complained of pain throughout… In his opinion, there was no high level support or plausibility objectively for the severity of her presentation, although a sacral fracture undoubtedly had occurred which he best described as a musculoligamentous injury of the lumbar spine… Whilst the plaintiff is employable in the future, her ongoing difficulties relate to capacities to sit and stand. There also appears to be a continuing impact on her activities of daily living, in particular personal needs, although the situation sounds “quite dysfunctional”. He assessed the plaintiff as having a 10% whole person impairment as a consequence of the fractured sacrum.
 Dr Byth… She considered her self-esteem to be low and noticed she had reduced energy and motivation. Dr Byth’s clinical impression was of some mildly obsessive-compulsive personality traits, without personality disorder. Her emotional state was moderately depressed and mildly anxious. There were no psychotic features. He diagnosed the plaintiff as having an adjustment disorder with depressed mood. He assessed her permanent psychiatric impairment as 10%- 20% impairment and considered she would have been unlikely to have developed these ongoing depressive features but for her injuries at work in 2007. He recommended referral to a specialist psychiatrist for treatment over the next two years consisting of monthly individual consultations for supportive counselling, review of her anti-depressant medication and cognitive behaviour therapy. He estimated the total cost of the specialist treatment as being in the order of $6,000.
 Dr Chalk… In Dr Chalk’s opinion, the plaintiff had developed a chronic adjustment disorder with depressed mood in the setting of chronic pain caused by the physical injury sustained in May 2007. He considers her condition to have now stabilised and did not think further treatment is likely to materially assist her level of impairment, although she would benefit from ongoing use of anti-depressants for at least the next 12 months. Her psychological symptoms continued to impact upon her daily life in the sense of her perseverance and enjoyment for life. Dr Chalk rated her degree of permanent impairment at 5% whole person impairment. He did not consider her psychological symptoms would prevent her from working in the future.
 The plaintiff continues to complain of pain and disability as a consequence of the injuries sustained by her in the incident at her workplace on 8 May 2007. This pain and disability impacts on her ability to undertake employment as well as her ability to undertake household tasks and other daily activities. The plaintiff also complains of ongoing psychological sequelae. I accept the plaintiff’s evidence as to her continuing pain and disability and ongoing psychological sequelae. Her responses to the psychiatrists as to her ongoing relationship with her husband were understandable, particularly as she had no complaint about his treatment of her.
Future economic loss
 The plaintiff claims $500,000 under this head on the basis her employability on the open labour market has been significantly adversely affected. The defendant contends future economic loss should be assessed on a global basis, having regard to the plaintiff’s residual ability to undertake employment in the medical sales representative field and to obtain similar income in the future.
 I accept the evidence of the medical witnesses that the plaintiff does have significant restrictions on her abilities to undertake various tasks and that these restrictions will substantially affect her employability in the open labour market. Where there is a difference between Dr Wallace and Associate Professor Steadman, I prefer to accept Dr Wallace’s view as to restrictions on her future employability. However, I accept the plaintiff’s residual work capacity allows her to generate significantly more income than she is presently generating from her employment in her new partner’s business. In my view, her residual earning capacity is significantly more than the 40% contended for by the plaintiff. I assess her weekly loss at no more than $400.00 per week.
 Allowing for these matters, future economic loss should be assessed on a global basis. Allowing such loss for a further 24 years (age 65) and discounting for contingencies of 10% I award the sum of $265,644 by way of future loss of income. I also award future loss of contributions to her superannuation of 9% of that award, yielding a further $23,907.96.
 In summary, I assess the plaintiff’s damages as follows:
General damages $61,980.26
Past economic loss (including superannuation and interest) $60,632.77
Future economic loss (including superannuation) $289,551.96
Future Expenses $20,780.22
Special damages and out-of-pocket expenses (including interest) $32,063.68
Fox v Wood $9,339.44
Less WorkCover refund $54,886.97
Brisbane Barrister – David Cormack