WCRA: unreliability & overstating = reduction in damages

 Duck v Woolworths Ltd [2011] QDC 312

Initially liability and quantum were in issue, but ultimately quantum was only in contest and in particular, the plaintiff’s prior back and ankle injuries, together with a recurrence of his back injury post the work related incident with Woolworths.

Tellingly against the plaintiff Andrews SC, DCJ found the plaintiff’s unreliability in certain matters impacted the reliance which could be placed on his reporting of pain and its impact on his earning capacity:

[21] Medical records show that by January 2004 the plaintiff had been troubled by discomfort in his right ankle for some time and had sought physiotherapy and had been referred to a specialist. Low back problems led to x-rays in 2004. The ankle ailment was not noted in the plaintiff’s signed statement of loss and damage.8 It was denied in his amended reply. The only report of a prior back problem in that statement was a note of back strain in 1990. In these two respects the plaintiff was not reliable in giving potentially important instructions for preparation of his statement of loss and damage and his amended reply. The ankle is not shown to have caused any time away from work. Its only relevance is as to the plaintiff’s reliability. By the time of trial it was obvious to the plaintiff that Woolworths knew of this aspect of the plaintiff’s past medical history. He gave evidence that he had sprained his ankle three times.

[25] The evidence does not satisfy me to the requisite standard that the 24.89 unpaid days the plaintiff spent away from work were all caused by problems related to his lisfranc injury. For reasons which follow, I am not persuaded that the plaintiff was reliable about the extent that the disability disabled him from working. For the part played by the symptoms of the lisfranc injury I infer the plaintiff lost time totalling about 10 of the 20 days he gave evidence of or $1,194.

[26] While on annual leave in August 2007 the plaintiff had driven from Stanthorpe to Brisbane to pick up things for the electronic repair business he continued to run at a loss from home. It was late at night and the plaintiff was too tired to return to Stanthorpe. He telephoned his brother at the Gold Coast and went there to stay. His brother worked at a Jaycar store at Mermaid Beach. His brother told the plaintiff of a retail job available for the plaintiff at Jaycar Mermaid Beach. The plaintiff thought about it for a couple of days and accepted. That led to the plaintiff’s commencing at Jaycar on 20 or 22 August 2007. The plaintiff tendered his resignation to Woolworths by letter on 25 August 2007. The letter advised Woolworths that he had been staying at the Gold Coast during his leave “to try and help with my injury”. It is not consistent with his evidence that he drove to the coast because it was a more convenient distance to travel from Brisbane. The plaintiff wrote that he had “no other choice but to seek other employment”. The true position was that he had not sought other employment but had received an offer and thought about that offer for a couple of days before accepting it. The plaintiff’s letter was misleading.

[35] The plaintiff gave no evidence of taking time off at Jaycar because of the pain in his foot. I accept that he experienced pain. He had the advantage of a sympathetic brother there. The tight, crowded spaces behind the counter caused his foot problems with twisting. The fact that there was no evidence given of any time away for foot pain is a troubling feature. It causes me to doubt the reliability of the claims about the degree to which he was disabled by foot pain at Woolworths and the frequency of genuine disablement. One explanation for not taking time off at Jaycar because of foot pain may be the onset of back pain at Jaycar. That explanation was not offered.

[38] The early medical opinions which were given after the lisfranc injury was diagnosed suggest that the lisfranc injury did not prevent the plaintiff from performing his job at Woolworths. The level of the plaintiff’s pain is not capable of objective assessment. Woolworths cannot verify it. It is a matter peculiarly within the knowledge of the plaintiff. Because of the unreliable features to which I have referred, I am not satisfied that the plaintiff has been frank. I do not regard his evidence of difficulties at Woolworths as invented, but as overstated.

[69] The recent medical opinions are premised upon the accuracy of the plaintiff’s complaints to the specialists who gave opinions. There is no doubt that he suffers a lisfranc injury. I accept that it probably causes him pain. Each of the medical specialists to give evidence agreed that, if the plaintiff’s reporting is accurate, the plaintiff suffers ongoing pain as a result of the injury, which is exacerbated with prolonged weight-bearing or twisting on the foot while ambulating. There is an issue as to the extent to which the plaintiff’s reports that pain prevents him pursuing jobs that involve standing, twisting or squatting are accurate and the extent to which pain from the injury has interfered with his earning capacity and caused loss of past and future earnings. The plaintiff shows little or no objective signs which allow one to assess the reliability of his reports of pain save for the fact that he was taking breaks and time off work at Woolworths and at Jaycar he wore orthoses in spite of his concern for his back. He now avoids wearing orthoses as much as possible. There is no evidence that he lost any days of work at Jaycar due to his lisfranc injury. He is extremely fit and active, takes no medication, seeks no treatment and has not pursued the option of surgery.

[103] I am not satisfied by the evidence that the difficulties the plaintiff suffered at Jaycar relating to his foot were significant. His foot troubled him but I am not satisfied by his evidence that the foot was the primary cause of his dissatisfaction with work there. Problems with the rest of his body, attributed by him to the orthoses he wore, are not established to be related to the lisfranc injury. There was no evidence of time lost at Jaycar on account of the lisfranc injury. I am also concerned by a degree of unreliability in the plaintiff’s reporting of his lisfranc symptoms. Accordingly I discount the plaintiff’s evidence as to the degree of problems he experienced from his lisfranc injury in performing work at Jaycar and since.

[117] The above components of damages total $148,180.38, summarised as follows:

Component Amount

General damages $40,000.00

Interest thereon $2,400.00

Past economic loss $15,398.70

Interest thereon $4,267.20

Past lost superannuation $1,385.88

Future economic loss $54,000.00

Future lost superannuation $4,860.00

Special damages $15,886.32

Interest thereon $1,987.28

Future expenses $7,300.00

Sub-Total $147,485.38

Brisbane Barrister – David Cormack

 

 

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