Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 93

Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 93

Facts

The Plaintiff Steven Morrison was employed with the Defendant Thomas Borthwick & Sons, a meatworks, and on 10 August 2006 Morrison slipped on a mat at work and fell heavily onto his back.

Morrison suffered an aggravation to a degenerative condition as a result of the fall.

Thomas Borthwick & Sons admitted liability and the only damages which were contested related to future economic loss, future medical expenses and general damages.

Morrison had not only maintained his employment with Thomas Borthwick but also had obtained a better paying position as leading hand supervisor and trainer with the company in June 2007.

As a result of the fall Morrison had one day off work, a period of light duties and then returned to his normal duties. He suffered a further injury at work in October 2006.

Morrison had a history of back pain and had not disclosed this history to the orthopaedic surgeons regarding this event. Thomas Borthwick argued that the impact of the fall was minimal.

McMeekin J noted that Morrison’s recollection of his previous back symptoms was completely unreliable.

The non party material indicated that Morrison had suffered back pain since January 2000, notably some of the previous occasions resulting in pain had been work related with Thomas Borthwick. After the August event, Morrison suffered severe pain after lifting a box of Offal said to weigh between 13.86 kg -15.28kg in October 2006, subsequent to this event the CT scans indicated that Morrison was suffering from degenerative changes in the spine. Morrison attended his doctor regularly after this second event.

Medical evidence was given by Drs Cook, McPhee and Shaw who all eventually agreed that Morrison would have been unlikely to continue working as a labourer in the meatworks until the age of 65. It became clear that Morrison was suffering from a chronic back condition which was not related exclusively to this event.

Issues to be determined

1. The impact of the event in October 2006;
2. Would Morrison have suffered the condition in any event;
3. The calculation of lost earnings given that Morrison now has a more highly paid position than that which he had at the time of the event.

The October event.

McMeekin J examined which factors were relevant to causation, Morrison had to establish that the symptoms identified following the October 2006 event were actually related to the August 2006 event. Each of the medical experts agreed that August incident would still have had an ongoing effect at the time of the October incident and that the event was such that it did bring him one step closer to cessation of labouring work. McMeekin J considered that the October event brought the claimant one step further again to the cessation of labouring work and found that both events had contributed equally to the increase in pain and symptoms.

Vulnerability

In considering Morrison’s vulnerability McMeekin J considered the principals of Hopkins v Workcover Queensland, Watts v Rake, Purkiss v Crittenden and Malec v Hutton. It was noted that the medical evidence indicated that it was highly unlikely that Morrison would be able to continue to work in a labouring position until the age of retirement, McMeekin J considered that in light of the medical evidence and considering the preexisting degenerative condition that Morrison had that the combination of the August and October events had accelerated his demise from a labouring role by 7 years.

Future Economic Loss

McMeekin J noted that the principle is that Morrison must demonstrate not only the loss of capacity but that loss will or may be productive of financial loss. (p11) He noted that although Morrison was nearly 30% better off in his new role, he would inevitably face some vulnerability on the open labour market if he was to loose his position at Thomas Borthwick. McMeekin awarded $50,000.00 as a global award which included a discount for Morrison’s degenerative condition.

Summary

This is an interesting decision for Defendant’s not only does it provide quantification of damages which is becoming increasingly rare with so few Workers Compensation matters going to trial but it also deals with aging workers with degenerative conditions who may suffer an aggravation at work. In this case the Defendant was fortunate to find independent documentation regarding the Plaintiff’s preexisting condition which cast doubt on the credibility of the Plaintiff’s history provided to the medical experts. Morrison was awarded $84,587.09 in damages.

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