December 30, 2010 | 9,380 viewsFrosty medicals smash fortunate worker’s future salary loss funds

A Supreme Court damages ruling* this month well illustrates how the clock can be stopped on loss of future earnings calculations when residual disability is assessed as “minor”.

Tuan Van Duong, 25, was deployed by his labour hire employer as an “order picker” to the Hamilton (Brisbane) cold storage warehouse of Versacold who describes itself as “Your leading global provider of logistics services for temperature sensitive products”.

His role required him to “pick” crates of cold milk from storage bays and cart them to a loading dock, using a ride-on pallet jack – in reverse – at speeds near 10 kph.

In March 2007, Tuan was operating a pallet jack loaded with milk crates. Standing on the riding platform with his back angled at about 45 degrees to the direction of travel, he scanned the oncoming warehouse floor by looking over his right shoulder. He piloted the pallet jack by gripping a tiller handle with both hands.

Suddenly the tiller jerked to the right and then to the left, throwing him off balance and breaking his right arm.

Apart from a defect in the machine – which the court excluded as a possibility – the only likely cause for the jack’s erratic behaviour was debris on the floor.

The absence of evidence of debris actually being present at the time of the accident was no obstacle to a finding in favour of the plaintiff on this point. The court held that because a piece of timber dislodging from a pallet was a recognised risk of warehousing/order picking, the most likely explanation for what occurred was that a “wheel of the jack ran up against a stray fragment of wood on the floor”.

The absence of any proper “housekeeping” regime for the detection and cleaning up of debris (apart from the general instruction to jack drivers themselves to look out for and to remove obstructions) was sufficient to establish an inadequate system of work. This was especially the case, said his honour, given the limited capacity to keep a proper lookout which jack drivers could exercise, when reversing their machines across the warehouse floor.

The cold storage operator and the labour hire employer were held liable to the extent of 70% and 30%, with the court also ruling that the contract between them did not, on its construction, require the former to indemnify the latter for its 30% liability share.

With the court deciding there was no defect in the manufacture or maintenance of the pallet jack, the plaintiff failed in his claim against the equipment supplier.

The instructive value in this case is however, in the way the court interpreted medical evidence for the assessment of the plaintiff’s loss.

Tuan – who sustained a fracture of his right upper arm and associated nerve palsy – had made several unsuccessful pre-trial return to work attempts.

Although there was “not a great deal of significant difference between the views of the orthopaedic surgeons Drs Gillett and Duke”, the views of the latter were “accorded particular weight …because of his upper limbs specialty”. Dr Duke had Tuan occupationally recovered from the fracture by six months post injury and from the nerve injury, within two years at the latest.

In a further blow, the plaintiff’s occupational evidence was discounted on the basis that his honour felt his therapist had “assumed a much greater disability…. than in fact existed and endures”. Preferred by his honour was evidence of Dr Ian Low – specialist in occupational medicine – whose factual assumptions were consistent with the witness-box evidence of the plaintiff and who had assessed him six months pre-trial as being fully recovered.

Dr Low’s evidence was also good enough to subjugate that of the plaintiff’s psychologist who had diagnosed an adjustment disorder just four months earlier. The psychologist had, it should be noted, assessed Tuan’s psychological state as being “primarily referable to the plaintiff’s being out of work”. Because the court accepted he was now fully work-capable, the resulting anxiety had been made redundant for economic loss calculations.

Tuan was assessed as a credible, well-respected, highly experienced and intelligent worker. Perhaps generously on the facts, the court allowed past loss of earnings for a period of 2.5 years equating to $90,000.

Relying “substantially on Dr Duke’s assessment”, nil damages were however awarded for future loss of earning capacity even though Tuan was held to have had “some continuing minor occupational limitation”.

In addition to general damages, an additional $10,000 was assessed for the psychological injury but only against the PIPA (cold storage company) defendant. Damages for past gratuitous personal care and domestic services provided by family members were awarded, but again, not against the WCRA (labour hire employer) defendant.

Total damages were $179,000 as against the cold storage company and because of the WCRA limitations, $156,000 as against the labour hire employer.

The somewhat fortunate outcome on liability was, in the end, balanced by the ill-fated medical predictions of loss, or in this case, the lack of it.

* Tuan Van Duong v Versacold Logistics Limited & Ors [2010] QSC 466

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