Worker successfully claims compensation for neck injury with an underlying degenerative condition

27 August 2021

The County Court of Victoria found that the worker’s neck injury was causally related to his employment, however assessment of damages relevantly considered the worker’s underlying condition as a factor.

In issue

  • Whether the employer’s negligence caused the worker’s neck injury; and
  • Whether the worker's underlying conditions would have been aggravated regardless of the employer's negligence.

The background

The plaintiff worker, was employed by the defendant employer between February 2012 and June 2016. During his period of employment, he held various roles, including cleaning, food weighing and roasting food processor.

On 20 May 2016, the plaintiff and his co-worker were directed to move approximately 640 boxes, each weighing 15 to 17 kg. Shortly after completing the task, the plaintiff began to experience severe pain in his shoulders and neck. The plaintiff had to take time off until September 2016, following which he was placed on light duties before resigning due to his injuries. The plaintiff had not returned to any form of employment since ceasing work in June 2016.

The plaintiff commenced common law proceedings against the defendant for damages for pain and suffering and for pecuniary loss regarding the injuries to his shoulders and neck. The defendant accepted liability regarding the plaintiff’s shoulder injuries and subsequent psychological reaction. However, denied liability for the neck injury because of his underlying degenerative condition.

There was no dispute between the parties that the plaintiff suffered from a neck condition. Still, the defendant submitted that the neck injury was a discrete injury and was unconnected with any negligence on its part. In its submission, the defendant relied upon medical evidence and the plaintiff’s failure to make a contemporaneous complaint of neck symptoms.

The decision

The Court awarded judgment in favour of the plaintiff in the sum of $705,097.78.

The Court favoured the plaintiff’s submissions that the neck injury could have occurred in three possible ways. In the course of his employment when he injured his shoulders, during his return to work, or as a sequalae of his shoulder injuries. On the totality of the evidence, the Court was satisfied on the balance of probabilities that the plaintiff’s neck injury was a consequence of the defendant’s negligence.

Upon assessment of damages, the Court agreed with the employer that award of damages should be reduced per Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 to take into account the prospect that but for the injuries sustained as a result of its negligence, the plaintiff’s conditions might well have deteriorated in any event. In reliance upon the medical evidence, the Court found that there was more than a negligible chance that the underlying degenerative condition might have become symptomatic regardless of the defendant’s negligence.

In addition, the Court allowed a reduction in the award of damages due to the worker’s limited prospects for employment in anything other than process work. This was attributed to his age, work experience, limited English and the lack of Australian recognised qualifications.

Implications for you

This decision reinforces the Court’s preference for the Malec principles for the assessment of damages. In particular, the assessment of past and future hypothetical facts must be done on the degree of probability. However, each case will turn on its facts and the evidence presented regarding the worker’s pre-injury state.

Further, and on a practical note, the Court observed that when a worker returns to light duties, consideration must be given to all relevant circumstances as what might appear to be light work ordinarily, can be on balance a risk to the plaintiff.

Xu v Diver Foods Pty Ltd (ACN 104 048 400) [2021] VCC 824

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