Baker awarded damages after back injury

Dance v Jemeas Pty Ltd (No 2) [2019] Queensland Supreme Court 303

Justice Crow

10 December 2019

Background

Mr Dance was a 44 year old baker who sustained a lower back injury on 1 November 2016, lifting a bowl with mixture weighing approximately 45.2kg. Mr Dance sustained a disc prolapse requiring surgery. Following surgery, Mr Dance obtained alternative employment as a baker earning a higher income than that pre-injury.

Issues in dispute

The main issues in dispute at the trial were:

• An allegation that Mr Dance failed to disclose pre-existing lower back symptoms to WorkCover and treating specialists;
• Future economic loss, including the impact of the pre-existing symptoms on the assessment of Mr Dance's loss, and the extent of Mr Dance's loss in circumstances where he had returned to higher paid employment than that pre-injury;
• Future special damages: what allowance should be made for future treatment and expenses.

Judgement

The Court was impressed by Mr Dance's proactive efforts at rehabilitation, obtaining his own return to work scheme and demonstrated work ethic. The Court concluded Mr Dance was an honest and credible man who had done as much as possible to reduce his claim and damages.

The Court noted the opinion of Dr Campbell that given the pre-existing problems, Mr Dance probably would have given up work sometime between age 62 and 65 had the work injury not occurred.

The Court noted Mt Dance was stoic without taking a single hour off work following his surgery. Mr Dance provided evidence of his significant difficulties completing this work, which the Court accepted. The Court ultimately considered it appropriate to accept the claimant would be required to move from full-time to part-time employment within 2-3 years as a result of his injury.

The Court calculates future economic loss in three different ways, ultimately allowing a global award of $400,000.

There was a significant award made for future physiotherapy, remedial massage, hydrotherapy, swimming pool fees and associated travel. This was in dispute at trial as to whether it was excessive, necessary or counter-productive. However the Court awarded Mr Dance $134,533 for future special damages, with $124,827 relating to physiotherapy, massage, hydrotherapy, swimming and travel.

The Court awarded $694,186.32 in damages to Mr Dance.