The improvisation employed offcuts of steel U-shaped channel that unfortunately exposed a razor-sharp edge that was to become the reason for Mitchell Heywood’s injury.

It was against a loose piece of this unfixed channel that he had placed on a toolbox ready to install, that he accidentally bumped his elbow when descending a ladder. He severed his left ulna nerve and thrown into excruciating pain .

He commenced a damages lawsuit alleging that his employer should have used a safe commercially available product designed specifically for the task, not offcuts with razor-sharp edges. Less persuasive were the further allegations that he ought to have been instructed in a safe method to descend a ladder and not to leave sharp edges exposed, of tools and materials in use.

In its defence, WorkCover said that the only obligation on the part of the employer was to take reasonable care.

The court agreed.

“There is no obligation to safeguard an employee from all perils. It is not a duty to avoid all risks by all reasonably affordable means. A duty of care is not a general duty to protect careless people from the consequences of their own carelessness”.

In the contest of experts, it was the view of the defendant’s safety consultant that was preferred in that the method used for the Frangipani condominiums was deemed both reasonable and appropriate.

“The plaintiff always knew he was handling a sharp object. He created the hazard himself by placing an object which she knew to be dangerously sharp with the sharp edge exposed on the toolbox close to the ladder he was using. The plaintiff conceded that he knew of the problem and that it was dangerous. He knew where the sharp object was before he descended a ladder and knew it was in a position which would be close to the point at which he would eventually step off”.

In the circumstances, the court was of the view that the plaintiff had not established that the employer had breached its duty.

“It was not a difficult task, the plaintiff knew how to do the task and the injury came about through the actions of the plaintiff”.

The court fulfilled the exercise of determining the plaintiff’s theoretical loss which totalled out at$295k based on a 28% impairment of upper extremity function attested to by orthopaedic surgeon Paul Robinson.

WorkCover’s  Facebook attack – uplifting activity pics  to demonstrate “a lack of self-consciousness about scars” and “sufficient strength in his left arm” – proved successful in part.

Although the post of a photo showing Mitchell “picking up his girlfriend and swinging her around” did not faze Dr Robinson in sticking to his assessment, the court thought the picture “inconsistent with the plaintiff experiencing immediate pain when lifting and manipulating a live weight of about 60 kg”, a finding that was largely immaterial to the calculation of the theoretical damages anyway.

Heywood v Commercial Electrical Pty Ltd [2013] QSC 052 Brisbane Martin J 11/03/2013

The plaintiff had contended breach of duty and that the premises were not “reasonably fit for the purpose for which they were supplied” contrary to the statutory warranty implied by Trade Practices Act s 74(1).

The trial court ruled  the hotel had not breached its duty in tort or in contract because the needle was “unobservable to the reasonable observer”, including the cleaners and their supervisors and that any TPA statutory warranty must be read in the context of Civil Liability Act liability limitations and preclusions.

On appeal, the court found that the needle had probably “been covered by dust, hair or fluff” and that had the contract cleaners who performed the ‘departure clean’ to the standard they espoused – albeit at a cost to the hotel of just $44 - the needle would have been detected and removed.

The trial judge had clearly erred: his finding that the cleaners had done their job adequately was “unsustainable” and such conclusion was “glaringly improbable”. Rather – said the appeal judges – the room was left “in a filthy condition” as a result of which it increased the risk of harm to the guests.

“A reasonable person would have taken the precaution of properly cleaning the premises”. The requisite standard of cleanliness did not need to be extraordinary, but merely “that which a provider of services would deem necessary to provide in order and which a user of services would consider acceptable”.

Ms Wright having established that the injury had been caused as a result of such breach of duty, the appeal judges ruled the judgment below should be set aside. Damages were awarded – in the undisputed sum assessed by the trial judge – for the very significant anxiety and depression associated with a potential HIV infection.

Wright v KB Nut Holdings Pty Ltd [2013] QCA 066 Brisbane Muir JA and Margaret Wilson and Douglas JJ 2/04/2013

Thomas Ley’s claim was for pins & needles down his arm that began to occur while “slicing meat” on 4 January 2011. On 1 February 2011 – his second day back on regular duties after three weeks annual leave – he had agonising pain in the back of his neck and left shoulder.

His claim for that injury was accepted.

Orthopaedist Richard Gibberd reported on 12 December 2011 to Woolworths that he had suffered a minor aggravation on 4 January to a pre-existing degenerative condition.

The same day and 4 days before the grocery giant issued a notice of assessment at 0%, his solicitors urgently lodged a NOCD under caution that the injury may have had its onset at his employment commencement date of 17 December 2008.

His NOCD recorded the event that resulted in his neck injury as repetitive lifting, manoeuvring and carrying boxes of cryovaced ”primal meat” cuts weighing up to 25kg - often in cramped cold room conditions – over a 6 week period.

The NOCD was requisitioned by Woolworths on the basis that the injury for which he was seeking damages was different to that referred to in his application for compensation. It acknowledged an entitlement to proceed under section 237(1)(d) only and specified copious conditions upon which it was prepared to allow the claim to proceed.

Ley refused to withdraw the NOCD and sought a section 258 response only in respect of the unassessed psychological injury. He sought declaratory relief that he was entitled to proceed under section 237(1)(d) in that the neck injury had already been assessed.

Picking up where he left off in Muckermann v Skilled Group, his honour re-emphasised that an injury must not be constrained in the assessment process with a view of how it originated. Such history is relevant only in the evaluation of common law liability and damages.

“So while it may be that different events within the meaning of that term found in section 31 of the WCRA have been expressly or by implication identified when the application for compensation is compared to the notice of claim for damages, on the view I take, [it is] the same injury”.

That Dr Gibberd had assessed a discrete exacerbation injury and disagreed with the notion that the applicant had suffered an injury over a period of time because of workplace practices, was irrelevant.

“The doctor was expressing a medical opinion not a conclusion involving a mixed question of law and fact that the question of the meaning of the term “injury” poses.

To illustrate the absurdity of the position in which a claimant may find himself – what his honour described as a “parallel universe” – the grocery titan in May 2012, referred a series of questions to surgeon Brett Halliday to elicit from him an answer under WCRA section 258 (1)(a)(ii), that exposure to the work practices described was not responsible to any extent for the applicant’s condition. That answer in hand, Woollies then concluded that “there being no injury to be assessed, he was precluded from seeking damages” unless he could successfully challenge its decision in a review or appeal.

Such ruse would not succeed in the case of Mr Ley.

“The respondent would have it that the applicant may only seek damages for whatever injury he sustained on 4 January 2011…. For the reasons I have given this contention should be rejected. The applicant’s neck injury has been assessed. The nature, extent and cause of it and how it might sound in damages should be explored under parts 5 and 6 of chapter 5 of the WCRA and if it must be, at a trial.”

The artifice constructed by Woolworths in an endeavour to shrink the gateway through which the claimant was required to pass to argue for damages, was in this instance, ill-conceived. The declaration sought by the applicant was granted with costs.

Ley v Woolworths Limited [2013] QSC 059 Townsville North J 14/03/2013

They referred him to a Medical Assessment Tribunal for a decision on the nature and permanent extent of that impairment without asking for any information about its cause.

The tribunal recorded a “major depressive disorder” with 5 % impairment. Subsequently a notice of assessment issued describing it as a “secondary major depressive disorder”.

In due course, Muckermann filed his Notice of Claim Damages for the epicondylitis and a psychiatric injury “resulting from alleged bullying and harassment” to which he claimed to have been subjected following his return to work on light duties from January to May 2008.

The NOCD, which gave particulars of the offending conduct, was deemed compliant in December 2010 and a compulsory conference based on that notice was subsequently held without resolving the claim.

However in their defence to the Statement of Claim based on all NOCD detailed injuries, WorkCover’s solicitors contended the plaintiff had failed to comply with section 295 (a) in that the issued notice of assessment was in respect of a different psychiatric injury, namely one consequential upon or “secondary to” the physical injury, rather than any bullying or harassment.

WCQ in its capacity as damages insurer, contended that the MAT “must have” been acting on the premise that the injury it was assessing was one arising out of or “secondary to” the pain and suffering associated with the physical injury.

Noting that the tribunal has no role to make “findings upon events as opposed to “injury”, his honour found the argument to be too much of a stretch.

Traversing the WCRA consequences of these concepts, he noted: “While for both compensation claims and damages claims issues concerning both injury and event may have to be considered in general terms, injury is a focus of a compensation claim and event has much greater significance in the damages claim” because that is what a claimant is required to establish under section 31 and elaborate upon in the NOCD.

Noting also that the notice of assessment has a  “gateway” function beyond that of determining compensation, namely for “the regulation of access to damages”, in this case the injury – from whatever ”event”  - had been duly assessed and was properly the subject of the damages proceedings.

WCQ had no power to qualify the injury assessed by the MAT by referencing it to an event as it had purported to do by use of the ”secondary” description.

The court emphasised that the facts of the case were unusual in that WorkCover had accepted the psych injury without any application from the plaintiff and without asking for information as to its cause.

In such circumstances, WCQ’s conduct was even less commendable: That one of many objects of the WCRA is “ensuring that worker’s are treated fairly by insurers should not be forgotten.  …To set up as a defence…. that a notice of assessment ambiguously suggests another cause [for the assessed injury] finds no support in the WCRA. To do so in the circumstances applying here offends against the objects of the act. WorkCover and the plaintiff may have been at cross purposes about the plaintiff’s attribution of the cause for his ‘psyche’ injury but that was, on the view I take, of WorkCover’s making”.

The relief ordered was a declaration that the psychiatric injury claimed for, was indeed the one that had been assessed.

Muckermann v Skilled Group Limited & Anor [2013] QSC 051 Brisbane North J 6/03/2013

Vikki Silvester’s case trial was that she suffered constant headaches, neck pain extending down her arms and low back pain all of which escalated to an extreme level for three “bad” days each month.

A detailed description of the features and deficits of a “good day” and those of a “bad day”, were set forth in a written “quantum statement” tendered at the start of her testimony in the three day trial.

She required painkillers daily and could not resume employment as a reception supervisor at a Mackay medical clinic. Her husband had since the accident assumed the role of “doing pretty much everything about the house”.

The gotcha videos –shot in May and September 2011 over a number of days – depicted her socialising, shopping and moving about “reasonably quickly without any discomfort … without demonstrating any obvious indication of pain or stiffness”. There was even film of she and her husband attending an evening rodeo with no signs of apparent discomfort and no hesitation in leaping down the bleach steps when leaving.

Specialist Ulrich Dörgeloh for Suncorp, considered the surveillance footage to depict a “significantly different” presentation in terms of range of movement and pain, to that which he had observed in the clinical context.

The same view, but to a lesser extent, was taken by the plaintiff’s own specialist, John Pentis. But both doctors agreed that the symptoms could vary in intensity from day to day.

In yesterday’s judgment, the court saw need – as a result of the video – to “be cautious before acting upon the plaintiff’s account of her pain” and prompted the finding that “her presentation in court did not truly reflect the extent to which the injuries affect her”.

His Honour was nevertheless impressed with both experts and concluded there was significant symptomatology representing a 40% restriction in her future work capacity.

Past loss of income was assessed at $90,000 and for the future, $166,000.

The court also accepted that there was an average 7.5 hours per week gratuitous care provided by Vicki’s husband in respect of “heavier household tasks”, notwithstanding reservations “about the reliability of the plaintiff’s evidence”.

Past care was allowed at $23,000 and for the future, $24,000.

Vikki’s total award was $378,000. Quite likely a good day.

Silvester v Husler & Suncorp Metway Insurance Limited [2013] QSC 026 Townsville North J 20/02/2013

NSW farmer, Allan Gillogly had won from the Supreme Court an extension of the three-year injury compensation time barrier in June 2012, on the grounds that he had only lately been able to discover the corporate identity of the restaurant proprietor.

He swore that the chair on which he had been seated and which collapsed to the floor, appeared to have “previously been broken” and had been unsuccessfully repaired with glue.

After years of apparent vacillation about giving his NSW solicitor the go ahead to bring a claim, he finally consulted a Queensland lawyer on 11 January 2012, just one day before the claim period expired.

With no time at all even to begin the pre-court procedures mandated by the Personal Injuries Proceedings Act, his solicitors filed an originating application two days later (one day after the limitation period had expired), seeking an extension and for leave to start proceedings under PIPA s 43.

This strategy ultimately proved fruitless with the appeal judges deciding – despite agreeing there was an arguable case - that the accurate corporate identity of the restaurant proprietorship “was not a material fact of a decisive character” the recent discovery of which could justify the exercise of discretion to extend time in the plaintiff’s favour.

After all, the plaintiff could simply have commenced proceedings against “Weis restaurant” given that it is permissible for defendants in Queensland civil proceedings to be identified by way of firm name regardless of whether or not such name is registered.

In any event, it could not be said that the legal identity of the owner was beyond the plaintiff’s means to discover by reasonable enquiry. You could for example have instructed his solicitor to identify the proprietor “by the simple expedient of a business name search”.

All he could eat, was all Allan could get.

Weis Restaurant Toowoomba v Gillogly [2013] QCA 021 Brisbane Margaret McMurdo P and Fraser JA and Daubney J 15/02/2013

A labourer feels a twinge deep in his back after a heavy or awkward lift or pull but rather than report it, decides to takes it easy until end of his shift. Escalating pain over the next few days leads to an emergency room visit. The injury is eventually reported and diagnosed but the delay raises suspicion.

Such was the history for 45-year-old warehouse picker Richard Adam, who  despite “reservations about credit”, was believed in his account of such an injury he suffered in March 2010 when awkwardly heaving a stack of milk crates by use of a hook.

“It was late [in the day] and the onset of pain was seemingly transitory”. A sufficient explanation, according to the Supreme Court in Rockhampton, for his failure to immediately report the incident in compliance with a factory policy that workers were reminded of at a toolbox meeting just two days earlier.

Undeterred by this setback, labour hire agency Skilled Group and host employer National Foods saved their best arguments for an attack on Adam’s contention that the accident would cause him a lifetime of lost income.

They had plenty to work with in terms of Adam’s conduct both before and after the milk crate injury.

Desperate to return to work, he told GPs in September 2010 (falsely, he later claimed) that he had fully recovered to gain a medical clearance for a labourer’s job at a meatworks. Both doctors’ observed no significant disability.

Adding to the “confusing” picture, he only sought medical attention twice over 17 months and was incensed that his return to work program was for only two days rather than his customary six days per week.

Most damaging was the concealment of his four week return-to-work at the abattoir, in his superannuation disability benefit claim and the withholding of a prior 2005 New Zealand back injury from his history to forensic medical specialists.

And very “variable symptoms” – ranging from the unobservable on the one hand to highly agitated the other – added to the “odd” impression that Adam gave.

His counsel claimed these apparent inconsistencies were due to the Plaintiff’s contrarian personality, not dishonesty and His honour agreed that many of the seemingly adverse issues could be explained away and “no one of them is of itself compelling”.

But having to decide between an injury which fully resolved within a few months on the one hand and the permanent aggravation of pre-existing pathology on the other, his honour ruled that the “puzzling” evidence was more likely to be consistent with the former.

“I am satisfied there was an initial injury” but “what evidence there is points to a [full] recovery.”

Dr Cook’s orthopedic support for the plaintiff case – although supportive - was of no use to his case in that it was  ”reliant upon the history provided and … [assumed an] honest presentation” by the plaintiff.

Vanquished on his loss of income claim, the three day trial resulted in a judgment of just $16,000.

Adam v Skilled Group Limited and Anor [2013] QSC 007 Rockhampton McMeekin J published 13/02/2013

A less-regailed, but equally illustrious Redcliffe alumni was James Atkin, born there in November 1867 and who later fathered the modern law of negligence in his celebrated 1932 court ruling in the landmark “snail in the bottle” lawsuit, which has ramifications for industry and consumers up to this day.

Lord Atkin as he was later to become, articulated his famous “neighbour principle” – “treat others as you expect to be treated yourself” – in the legendary House of Lords case of Donoghue v Stevenson.

The lawsuit was the product of battler May Donoghue having become violently ill after consuming what was thought to be a snail that emerged from a bottle of ginger beer served in a Paisley (Scotland) café, on a Sunday afternoon in August 1928.

Having no legal remedy as against the cafe proprietor – her companion had placed the cafe order and thus only he had traditional standing to sue over the adulterated “ice cream floater” – she happened to consult one of the few lawyers with the requisite determination and knowledge to successfully pursue her expenses and loss of income the injury caused.

Glasgow lawyer Walter Leechman, who had earlier failures in “bottle cases” including that of a decomposed mouse, set course on a strategy against the soft drink manufacturer that would ultimately lead to the highest court of the Empire.

Providing his services on what would today be called a “no win no fee” basis, Leechman unexpectedly succeeded at trial having proved the grossly unsanitary conditions under which Stevenson’s beverages were bottled.

The Scottish Court of Appeal reversed this decision prompting, as a last resort, a petition the House of Lords in London to review the case for Leechman’s “pauper” client: “Not more than £5 in the world, does she possess,” read the papers.

Their revolutionary contention was simple – one that for modern communities goes without saying – that Stevenson owed a duty to take reasonable care in manufacturing a product that was intended for human consumption.

The orbits of Atkin, Leachman and Donoghue coincided briefly in the law courts that May of 1932 but long enough to allow the articulation of a legal principle that endures to this day. The famous passage from Lord Atkei’s judgment that was to become an essential component of life and industry for the entire common law world including the UK and Australia,  reads as follows:

“The rule that you are to ‘love your neighbour’ becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply.

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

Mrs Donoghue had succeeded by bare majority (3-2) and the case was sent back to Scotland for retrial. Controversy surrounds the existence of the snail but not the severe shock and gastroenteritis that was the cause of her financial woes.

The case – which was ultimately settled for a mere £200 – has been the subject of much legal commentary, many books and a documentary “The Paisley Snail”.

Lord Atkin’s upbringing in Redcliffe, and the egalitarian values he gained from that experience, feature throughout this writing.

Certainly a legacy – but on a different note to that of the famous Gibbs brothers.

The Supreme Court had ruled in June that he be paid $30,000 for compensatory, aggravated and exemplary damages by reason of the conduct of corrective service personnel in a forced hair extraction for the purpose of obtaining his genetic data for a police DNA database.

After refusing to supply a consensual sample, but offering no resistance other than trying to stay upright, he was pushed to the ground “driving his unprotected head face first into the hard floor”. The face-first impact caused a gash above his left eye and rendered him unconscious.

Coffey’s June judgement included exemplary damages of $12,000, which he claimed on appeal were inadequate, in that the modest allowance “failed in the purpose of exemplary damages, to sting and to deter similar conduct in the future”.

The three appeal judges unanimously agreed noting that: “The battery was a significant one, sufficient to leave the appellant unconscious; that in itself was some measure of head injury. The exercise was carried out with a signal disregard for the appellant’s safety and wellbeing. It should have been apparent that he had been injured. Even once he had been rendered unconscious, the officers did not move promptly to assist him”.

Because exemplary damages should be used to mark the Court’s “strong disapproval” of the actions constituting the battery, they found the trial judge had “erred in the exercise of his discretion” and increased the exemplary damages figure to $24,000.

Coffey’s self represented appeal also succeeded against the police sergeant who supervised the exercise and who was shown on video in a “casual and somewhat disrespectful” movement, half kicking Coffey’s legs together while he was prone and unconscious.

For this “minor battery” an award of $600 was allowed but having failed against the policeman at trial, even this small sum opens up an opportunity for Coffey to better the trial judge’s ruling his cost recovery was to be limited to only 50% of his total.

Coffey’s total judgement was increased to nearly $44,000 with any argument on costs still to come.

Coffey v State of Queensland & Ors [2012] QCA 368 Brisbane Margaret McMurdo P and Holmes and White JJA 21/12/2012

It had been fortuitous that the postman had delivered the package the day before at Martin’s new Holland Park address. He and Jennifer were unloading their furniture and white goods at their new rental.

Martin had bought the rechargeable flashlight on eBay only two days earlier. He read the instructions and plugged it into a power outlet in the garage before midday.

As they were leaving the home, Martin was confident he would be back by seven the next morning. He had seen the warning in the manual that the maximum re-charge period for the torch manual was 24 hrs.

These events were still fresh in Martin’s mind in May 2012, nearly three years later, when he would have stood in the security line to file into the now decommissioned law courts building between North Quay and George Street.

Martin and Jennifer’s journey that far had been arduous. First were the investigations. Martin suspected the torch from the start. The Queensland Fire and Rescue Service investigation could not decide either way.

But they others would swear that the torch fell short of electrical insulation rules.

Their insurers uncovered evidence from eBay International about how amateur online trader Keith Bellamy had himself bought five of the devices from another virtual merchant. Bellamy paid the upstream merchant, River Trade P/L, 99 cents for each flashlight. Martin paid Bellamy $34.99 for his.

The insurers filed a $100k claim against both traders in Brisbane’s district court, to recover what had been paid to the Cowleys.

The May trial was adjourned after its start due to the merchants’ switch in lawyers. Another listing in August was also called-off.

When the parties took their seat in the brand new QEII courts edifice at the foot of George St at the beginning of December to hear the judge finally say that the case was ready to trial, River Trade did not show up and Bellamy was there alone to present the defence his former lawyers had prepared.

Martin gave his testimony to the court remotely, by telephone. His fire experts and witnesses to verify the value of the damaged and destroyed belongings also gave evidence.

After two days of argument, everyone on Martin’s side would have been relieved to hear the judge rule that “on the balance of probabilities the fire was caused by fire being ignited by an overheating connection at the torch or at the plug pins”.

But there were legal defences to overcome. Bellamy was a self-confessed eBay addict but swore he only traded as a hobby. As an amateur seller, the statutory warranties implied by the Sale of Goods Act would not make him accountable. Bellamy was awarded victory by the judge for that part of the battle .

Nor were either merchant liable in negligence. “For there to be a duty of care there must be more than a mere relationship of vendor and purchaser”. No prior knowledge of the defect was proven.

That left the claim under the Trade Practices Act against River Trade who had imported the torches and were deemed to have manufactured them.

At last someone was found liable to compensate the losses. Adding interest of $35,000, Martin and Jennifer – or in actuality, their insurers – will get judgement against River Trade for $137,000.

Cowley & Anor v Bellamy & Anor [2012] QDC 359 Brisbane Samios DCJ 14/12/2012