A worker crushed by a forklift has been granted leave to seek damages for pain and suffering, after the Victorian Court of Appeal found that while he retained the majority of his functions, his capacity to enjoy his hobbies was “substantially impaired”.
In March 2007, the now 67-year-old Wesfarmers Ltd timber yard worker, employed at a Bunnings store, was crushed against a steel rack when the forklift driver he was speaking to accidentally drove the vehicle forward and struck him.
The forklift then struck his body in a series of rebounding movements, causing severe chest and pelvis injuries, extensive bruising and a broken left little finger.
He was hospitalised for four weeks for surgery and rehabilitation. He returned to work on limited hours in July 2007 and returned to full-time hours later that year.
But the Court heard he experienced difficulties performing some of his duties, and required assistance moving heavy items. In 2014, he applied to reduce his hours because of his back pain and because he was old enough to receive a part pension.
The Court heard his back pain was considerable in the mornings and after work, he had difficulty getting up from being seated, and activities that required bending down or lifting, like household tasks, worsened the pain.
Judge Dyer found the worker’s pain alone didn’t justify a grant of leave, but when taking into account his age and stage in life, it was “particularly significant for him that his chosen hobbies of woodwork, sailing and, to a lesser extent, surf-ski riding, have been severely diminished or lost”.
The employer appealed, arguing Judge Dyer erred in finding the worker’s back pain resulted from the 2007 incident, and that the worker’s pain wasn’t serious because he retained a majority of his functions, didn’t complain about the back pain, and had been able to work full-time.
It submitted there was little evidence of the worker seeking treatment for his back, and he rarely complained about his injury to his doctors.
But Justices Pamela Tate, Robert Osborn and Joseph Santamaria found this was consistent with the worker being a “stoic individual who understated his injuries” and tried to adapt to his circumstances.
In upholding Judge Dyer’s decision, they said he was right to pay particular regard to the worker’s age, circumstances and personal history as a “very energetic person” when assessing him as suffering from the “loss of capacity to engage in recreational sailing and the severe limitation of his ability to engage in recreational woodwork”.
They found the worker’s constant back pain, though not very considerable, had “impacted on [his] recreational activities in a manner that has had dramatic effect on his amenity of life that can fairly be described as at least very considerable”.
They also found the medical evidence, when taken as a whole, “overwhelmingly” showed the worker’s back pain was caused by the 2007 incident.