In 2020, the plaintiff received a significant award of about $764,000 in Peebles v WorkCover Queensland  QSC 106, a decision of Justice Jackson of the Supreme Court in Brisbane.
Recently, the Court of Appeal in Peebles v WorkCover Queensland  QCA 21 increased this award to about $967,000 after reducing some of the discounting applied by Justice Jackson for the possibility that the pre-existing degeneration in the lumbar spine would have caused similar problems in any event.
The plaintiff was a 38 year old truck driver who allegedly sustained a lower back injury from driving a Western Star prime mover, with a defective seat, over a period of time.
There was no dispute that the seat was defective. The remaining liability issue was factual causation – that is the plaintiff had to demonstrate that the injury would not have occurred but for his employer’s breach of the duty of care.
The timeline is worth noting:
- In September 2011, the plaintiff commenced driving for the employer. For a period of six weeks in 2013, he drove the Western Star prime mover but did not suffer any particular injury.
- In early 2014, the plaintiff’s run was extended. During this time, he was mainly driving the Western Star prime mover and his back and legs began to ache more.
- On 19 May 2014, after performing his run, his back was sore and he had pain in his left buttock and halfway down his thigh. The plaintiff informed his shift supervisor and he was moved into a Volvo prime mover.
- The plaintiff consulted a GP at the end of May 2014 and had some time off work. Once he returned, he only drove the Western Star prime mover a couple of times, but by then the seat had been replaced.
- A CT scan on 29 May 2014, showed an L5/S1 small left paracentral herniation.
- On 22 December 2014, the plaintiff was getting ready for work when he sneezed and felt horrendous pain in his lower back and down his left leg.
- On 22 April 2015, Dr Albietz performed a microdiscectomy and rhizolysis at L5/S1, which were unsuccessful.
- On 29 October 2015, Dr Albietz performed fusion surgery at L5/S1.
The plaintiff had radiologically demonstrated pre-existing degeneration of the lumbar spine. There were some episodes of prior back pain, though Justice Jackson was not convinced these symptoms were necessarily related to the pre-existing degeneration.
The defendant relied on the opinion of Dr Gavin Ballenden, an occupational physician, in relation to there being pre-existing symptomatic degenerative disease of the lumbar spine. However, the court gave less weight to Dr Ballenden’s opinion because some of his assumed facts were unreliable, and he did not examine the CT or MRI scans for himself.
Dr Paul Licina, spinal surgeon, concluded that it was likely that the L5/S1 disc herniation, seen on the radiological studies, had occurred in May 2014. The court described this as ‘powerful evidence’ in support of the plaintiff’s allegation that he had suffered an injury in May 2014 due to the defective seat. Dr John Albietz, orthopaedic surgeon and the treating specialist, Associate Professor Fearnside, neurosurgeon, also gave evidence consistent with this, finding that the disc protrusion predated the December 2014 event (i.e. the sneeze).
Otherwise, Dr Licina thought that, had the plaintiff not sustained the work injury, it was likely he would have developed similar symptoms in the future in any event. His ‘best guess’ as to when this would have occurred was within five years.
A report had been provided by Justin Ludcke, an engineer specialising in occupational, health and safety. The court gave it little weight, commenting that it was inappropriate for an engineer to give evidence as to whether a spinal injury was caused by a defective seat.
First instance decision
Relying on the evidence of Dr Licina, Dr Albietz and Dr Fearnside, Justice Jackson found that the disc herniation sustained in May 2014 was due to the defective seat and that there would have been no injury in December 2014, due to the sneeze, without the original injury in May 2014. Therefore, the plaintiff established factual causation.
In relation to the assessment of damages, Justice Jackson concluded that it was ‘as likely as not’ that the plaintiff would have suffered a similar disabling back condition at some point over the entire period of his loss.
The parties had agreed that the plaintiff was totally incapacitated for work, though there was some disagreement regarding the extent of his lost earning capacity.
When assessing future economic loss, Justice Jackson allowed full loss at $1,200 net per week for 29 years and then applied a 50% discount for contingencies, which included the possibility of a disabling back condition arising in any event. The court then applied the same 50% discount to past economic loss, though relying on a higher weekly rate of $1,300 net per week.
Justice Jackson’s assessment of damages totalled $764,345.12 clear of the refund owing to WorkCover, with a significant future economic loss component of $486,000.
The plaintiff appealed the assessment of damages.
The Court of Appeal found that the trial judge had erred in applying a 50% discount to past economic loss. The Court of Appeal, instead, applied a 10% discount.
The Court of Appeal reasoned that the discount for future economic loss included other contingencies which might occur in the 29 year period of loss, which it was known had not occurred in the five years over which past economic loss was calculated. There was also a greater chance that a back condition would have arisen over the longer 29 year period of future loss, rather than the five-year period.
This added $139,360 to the allowance for past economic loss.
The Court of Appeal also increased the award for future economic by using $1,300 net per week, rather than the $1,200 used by the trial judge. The plaintiff had previously demonstrated a capacity to earn more than $1,200 net per week.
This added $40,500 to the allowance for future economic loss.
All up, the Court of Appeal allowed a total award of $967,052.92.
Both judgments illustrate how courts will account for the possible impact of a pre-existing condition in most cases – that is by assessing the likelihood of it arising and building this into a discount for contingencies.
The decision of the Court of Appeal highlights that the assessments for past and future economic loss are discrete, though there will be considerations that are relevant to both. In this case, the discount for contingencies applied to past economic loss had to be lower than the discount applied to future economic loss over the next three decades.