Written by Peter CarterFebruary 7, 2011
The box weighed about 12.7 kg. It contained 5 reams of photocopying paper. Kathryn Dank was as close as she could get to it.
Leaning forward and over, bending forward and down at an angle, she picked the box up from the floor, turned as she lifted it to put it on her desk to the left and as she was straightening up “felt a twang in her back”.
Dank, represented by McCowans Solicitors, was last week awarded $239,613.62 for her of October 2004 disc prolapse.
The court findings accord entirely with the liability theories of Dr Geoff McDonald who was called on behalf of the plaintiff.
Giving workplace health and safety evidence for the defendant was Dr Margaret Cook, who has noted expertise in the field of carpal tunnel injuries. However his honour considered “Mr McDonald was better qualified, more experienced and better informed about the circumstances of the plaintiff’s lift and her position when she picked up the box”.
Dr Cook failed to appreciate that the lift also involved a twisting action. Her evidence was disregarded, as was the submission by Tabcorp’s counsel, that the lift was trivial. Dr Licina contended the disc prolapse occurred in a setting of pre-existing degeneration; or that her injury had healed itself and her current symptoms were the result of a later injury or something superimposed.
This was rejected.
The court accepted Dr Langley’s version that the plaintiff’s disc prolapse was caused when she lifted the box and that her symptoms are likely to persist in the future.
His honour was also impressed by the evidence of employment consultant, Wayne Johanson who swore to a number of trite observations which are often assumed by plaintiffs to be obvious but just as often, fail to be accepted by defendants or the court.
Johanson was accepted on a number of these matters including that the observation that when a person with an impairment is up against an able-bodied person, they are rarely selected for a job above and unimpaired applicant.
The plaintiff was also awarded costs – beating any offers that the defendant employer had wagered on.