Peebles v WorkCover Queensland  QSC 106
Jackson J - Brisbane Supreme Court
Delivered on 27 May 2020
The Plaintiff was a 38 year old truck driver who alleged he sustained a lower back disc protrusion driving a truck with a faulty seat over a period of months.
The Plaintiff did not lodge an Application for Compensation in May 2014 (when the driving was performed) but attended for medical treatment and completed an incident report. The statutory claim was only pursued following a non-industrial aggravation when the Claimant was at home in December 2014 and sneezed.
The Plaintiff underwent spinal surgery thereafter and was assessed with a 20% permanent impairment.
WorkCover admitted breach prior to trial.
The primary issue for determination was causation. The Plaintiff first complained he had a sore back on 19 May 2014, underwent some radiological investigation but continued to work. On 22 December 2014 the Plaintiff was getting ready for work. He was sitting in his garage with his legs up on the couch, putting on his socks when he sneezed. He felt “horrendous pain” in his back and down his left leg. Radiological investigation after the sneeze revealed a disc protrusion which was ultimately treated surgically. The issue for determination was whether the Plaintiff's injury and disability from the sneezing event on 22 December 2014 would have occurred absent the negligence in May 2014 at work or whether it would have occurred in any event.
His Honour found:
- His Honour was not convinced that prior episodes of back pain supported the Plaintiff had pre-existing symptomatic degenerative disease of his lumbar spine;
- Dr Licina gave evidence it appeared a disc herniation occurred by 29 May 2014, which the Plaintiff attributed to driving on rough terrain with a broken seat. Dr Licina considered it was likely the disc herniation occurred at that time. His Honour considered this was powerful evidence in favour of the Plaintiff's allegation he suffered an injury in May 2014 in the form of a disc protrusion or herniation due to the seat;
- His Honour did not accept the Defendant's contention that the sneeze event represented a subsequent injury. He was satisfied the herniation was worse by December, but not that there was no pre-existing disc herniation or injury;
- However, there was also a significant prospect that had the Plaintiff not suffered the injuries in May and December 2014 he would have suffered from a similar disabling back condition at some time after those dates;
- Adopting the approach in Malec, it is not appropriate for 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 and decrease the amount of the award of damages accordingly;
- In terms of quantum, the Plaintiff's calculation of future economic loss should not be accepted;
- An appropriate discount for the Plaintiff's damages for economic loss for contingencies including the hypothetical event that he would in any event have suffered is 50%;
- On that basis His Honour discounted past and future economic loss by 50%;
- His Honour adopted a middle of the road approach in assessing claims for past and future special damages;
- His Honour found in favour of the Plaintiff and ordered the Defendant pay the Plaintiff the sum of $764,345.12.
The case confirms the test for causation – whether the harm that in fact occurred would not have occurred absent the negligence.
The case also provides useful guidance in the assessment of damages where there is a pre-existing condition. In this case, the Court found it was more likely than not the Plaintiff would have suffered a similar disabling back condition at some point in any event. Accordingly, the correct approach in this case was to discount awards for economic loss by 50% for the likelihood the Plaintiff would have suffered from a similar disabling back condition in any event.