June 10, 2020

PEebles v WorkCover Queensland [2020] QSC 1

 

Sam Poncini

 

In Peebles v WorkCover Queensland,[1] Justice Jackson in the Supreme Court of Queensland at Brisbane had to consider whether an employer’s failure to provide safe plant and equipment was the cause of a worker’s back condition.

 

By way of background, Daniel Peebles (the Worker) was a truck driver employed by Kurtz Transport Pty Ltd (the Employer). In 2013 he began driving a night shift from Rocklea to Chinchilla and return, via the Warrego Highway. The Worker drove a Western Star Prime Mover (the truck) which had a defective seat. The seat did not slide all the way forward. The defective seat caused a number of issues for the Worker and in May 2014 he complained to his supervisor of back pain. The Worker began using a different truck and started driving a different route. In December 2014, the Worker was getting ready for work and was putting on his socks when he sneezed and experienced the “most horrendous [back] pain”.

 

The issue for the Court was to determine the extent the defective seat in the truck caused the back condition – a herniated disc – as opposed to other factors or events – like pre-existing degeneration of the spine and/or the sneeze at home.

 

The Employer admitted that the truck’s seat was defective and this constituted a breach of the duty of care owed to the Worker.

 

But the Employer argued that the defective seat did not cause the extent of the back condition – a herniation of the lumbar disc.

 

In State Government Insurance Commission v Oakley,[2] the legal principle was established such that that when a wrongdoer is negligent, and this negligence causes an injury to a person,  and that person then suffers a worsening of that injury after a later event, the additional damage is treated to have been caused by the wrongdoer’s negligence.[3]

 

The Court in Peebles, observed that this principle is sometimes referred to as the “eggshell skull rule”, which establishes that where a wrongdoer’s negligence causes more harm to a person because of a particular pre-existing vulnerability in that person, the wrongdoer is still liable for the loss and damage that has been caused. [4] Put another way, “a wrongdoer must take their victim as they find them”.

 

The Court in Peebles framed the causation issues in this way:

 

The relevant questions conveniently resolve into whether [the Worker’s] pain and suffering and temporary disability suffered in the period following 20 May 2014 for approximately six weeks would not have occurred absent the negligence and whether [the Worker’s] subsequent injury and now permanent disability from 22 December 2014 to the present time and into the future would not have occurred absent the negligence or whether either of those harms would have occurred in any event.[5]

 

The Employer argued the Worker was suffering from back pain before he began driving the truck with the defective seat and relied on three prior complaints of back pain from 2003, 2006 and 2011.[6] The Employer argued this back pain was caused by a pre-existing degenerative condition.

 

The Court did not accept this. The Court pointed to a CT scan that did not reveal any pre-existing degenerative disease of the lumbar spine as at December 2011.[7]

The Plaintiff began driving the truck with the defective seat in 2013. The Plaintiff complained of back pain in May 2014. 

 

The Employer tried to rely on epidemiological research that supported the opinion of Dr Ballenden, an Occupational and Rehabilitation Physician, that ergonomic factors (such as driving a truck while sitting in a defective seat) were not sufficient to cause a lumbar disc herniation.[8]

 

The Court did not accept this opinion and made these findings:

 

The question of factual causation in the present case is not the general likelihood of driving conditions for a truck driver causing lumbar disc herniation as a matter of statistical association having regard to the meta-analysis of relevant studies according to the relevant confidence levels. It is whether, on the balance of probabilities, [the Worker] has proved factual causation.[9]

 

The Court accepted the evidence of Dr Paul Licina, Orthopaedic Surgeon, who said that even though the Worker had evidence of degeneration in his spine before May 2014, he still suffered a discrete injury in the form of a disc herniation as a result of driving the truck with the defective seat.[10]

 

Dr Licina expressed the opinion that the forces applied to the Worker’s spine as a result of the defective seat would not have been sufficient to injure a normal disc, but these forces could have injured an already degenerate and vulnerable disc.[11] Dr Licina gave evidence that the Worker’s back condition was caused by three contributing factors: pre-existing degeneration, a disc herniation (as a result of the defective seat in May 2014) and a worsening of the herniation (when he sneezed at home in December 2014.[12]

 

However, Dr Licina also expressed the opinion that notwithstanding the damage caused by the defective seat, the Worker may have still developed a similar condition at some stage in the future.[13]

 

Dr John Albietz, Orthopaedic Surgeon, gave evidence that the Worker had sustained a back injury as the result of the defective seat and had then suffered an aggravation of similar symptoms in December 2014 when he sneezed at home.[14] 

 

Associate Professor Michael Fearnside, Neurological Surgeon, gave evidence that there was a causal relationship between the ongoing back condition and the defective seat.[15] He expressed the opinion that it was “not certain” that the Worker would have experienced similar symptoms at some stage in the foreseeable future, irrespective of the damage caused by the defective seat.[16]

 

The Employer argued that the sneeze at home in December 2014 caused the disc to herniate.[17]

 

The Court did not accept this argument. The Court pointed to radiological evidence which revealed evidence of herniation before the sneeze in December 2014.[18]

 

The Court made these findings:

The radiological evidence … leads to the conclusion that the herniation was worse by 23 December 2014, but not that there was no pre-existing disc herniation or injury.[19]

 

The Court found that the Worker had established factual causation for the purposes of section 305D(1)(a) of the Workers Compensation and Rehabilitation Act 2003 (Qld).

 

The Court found that “but for” the Employer’s breach of duty in relation to the defective seat, it was more likely than not that the lumbar disc herniation would not have happened.

 

The Court made these findings:

 

In my view, the better inference is that the harm to [the Worker] that in fact occurred would not have occurred absent the negligence. I am not satisfied that the harm that occurred would have been suffered in any event in either May 2014 or December 2014.[20]

 

However, in line with Dr Licina’s evidence, the Court also found that there was a significant prospect that the Worker might have suffered a similar disabling back condition at some point in the future because of the degenerative condition of the spine, irrespective of the Employer’s breach of duty, and discounted the Worker’s potential award to reflect this.[21]

 

The Court made these findings:

 

In my view the probability that the event of [the Worker] suffering a similar disabling back condition to the harm that he did suffer as a result of the Employer’s negligence is that it is as likely as not that he would have done so over the period of the losses he has and will have suffered as a result of the Employer’s negligence … I do not consider it is incumbent upon the Court or the correct approach to attempt to formulate a date by which a similar condition would have been suffered. The correct approach is to consider the percentage prospect overall of the event which would reduce the damage suffered from [the Employer’s] negligence and to decrease the amount of the award of damages accordingly.[22]

 

The Court applied a 50% discount to the Worker’s award of damages for past and future economic loss to account for the likelihood that notwithstanding the Employer’s breach of duty, the Worker may still have suffered a disabling lower back condition in the future because of the degenerative condition .

 

Ultimately, the Worker was awarded damages in the sum of $764,345.12 clear of the WorkCover Queensland refund.

 

The decision can be found here.

 

[1]     [2020] QSC 106.

[2]     (1990) 10 MVR 570.

[3]     Peebles v WorkCover Queensland [2020] QSC 106 [30] referring to State Government Insurance Commission v Oakley (1990) 10 MVR 570.

[4]     Above [37] referring to Chester v Waverley Corporation (1939) 62 CLR 1, 9 and 26. See also R v Blaue (1975) 61 Cr App R 271.

[5]     Above [40].

[6]     Above [47] – [53].

[7]     Above [54].

[8]     Above [79] – [80]

[9]     Above [85].

[10]    Above [103] – [104].

[11]    Above.

[12]    Above [105].

[13]    Above [106].

[14]    Above [109] – [111].

[15]    Above [117].

[16]    Above [119].

[17]    Above [127].

[18]    Above.

[19]    Above [129].

[20]    Above [130].

[21]    Above [131].

[22]    Above [133].