Alister v Uva Salon Pty Ltd

[2023] VCC 23

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CI-21-01834

KEELY ALISTER	Plaintiff
v
UVA SALON PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE ENGLISH
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 9, 10, 11, 12, 30, 31 August 2022 & 1 September 2022
DATE OF JUDGMENT:	25 January 2023
CASE MAY BE CITED AS:	Alister v UVA Salon Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 23

REASONS FOR JUDGMENT
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Subject:PERSONAL INJURY

Catchwords: Workplace injury - Negligence – breach of Occupational Health and Safety Regulations 2017

Cases Cited:SMYBB Pty Ltd v Young [2022] VSCA 115; Munday v St Vincent’s Hospital [2021] VSCA 170; Wodonga Regional Health Services v Hopgood [2012] VSCA 326; Duma v Mader International Pty Ltd [2013] VSCA 23; Naxakis v Western General Hospital [1999] HCA 22; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Cotton On Group Services Pty Ltd v Monica Golowka [2022] VSCA 279;

Judgment:                  Plaintiff’s claim fails – judgment for the defendant

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr John Simpson	Shine Lawyers
For the Defendant	Ms Fiona Ryan SC with Ms Kathy Karadimas	TG Legal & Technology

HER HONOUR:

Introduction

1. Keely Alister is a 25 year old woman who claims damages against her employer for a repetitive strain type injury to her right wrist sustained in the course of her employment as a hairdresser at UVA Salon Pty Ltd (“UVA Salon”), particularly in the three months prior to October 2017 and when she returned to work post injury during October 2017 until November 2019.[1]

   [1]        The return-to-work period is not defined in the Further Amended Statement of Claim. The oral evidence  

   included evidence about the period immediately after 4 October 2017 when Ms Alister reported her

   injury and then returned to work on light duties. Although the plaintiff’s submissions at paragraph 3 refer to the “post injury return to work period (2/5/2018 until November 2019)” the evidence was not limited to that period and Ms Alister had a certificate for capacity for suitable employment for the period 13 October 2017 to 3 November 2017.  

2. She sues UVA for negligence in common law and for breach of the Occupational Health and Safety Regulations 2017 (Vic) (“Regulations”) to recover damages for pain and suffering.

3. Ms Alister’s right wrist injury include de Quervain’s tenosynovitis, for which she has had surgery twice; right ganglion cyst, for which she has had surgery; as well as neuropathic wrist pain and scarring.

4. She claims the defendant, her employer, owed her a duty of care and failed to provide a safe system of work both pre-injury and following her attempts to return to work after the injury. She claims the defendant was negligent and breached the Regulations for not taking reasonable steps to avoid her sustaining her injury which was a foreseeable risk.

5. The defendant accepts Ms Alister’s work duties as a hairdresser contributed to her right wrist injury.[2] However, the defendant denies any breach of its duty of care in negligence or breach of the Regulations. Further, the defendant submits if there is a breach of its duty of care, in negligence or pursuant to the Regulations, the plaintiff is not able to prove causation because there is no evidence to link the breach of care to the plaintiff’s injury.

   [2]        Transcript (“T”) 468

6. The following issues are to be determined in this case:

   ·     Did the defendant exercise reasonable care to provide a safe workplace for Ms Alister pre-injury and following her return to work?

   · If the defendant breached its duty of care, was the defendant’s negligence or breach of the Regulations a cause of Ms Alister’s wrist injury?

   ·     If so, in what sum should the court assess Ms Alister’s pain and suffering damages?

   Legal principles relevant to liability

   Negligence

7. An employer has a duty to take reasonable care to ensure the safety of its employees.  An employer should take reasonable to care to devise, implement and enforce a safe system of work and avoid exposing employees to the risks of injury.

8. The duty to avoid harm only applies to risks that are reasonably foreseeable, so if a risk was reasonably foreseeable, the question is did the employer fail to act in a way a reasonable employer would act in response to the risk of injury?

9. A risk is reasonably foreseeable if it is not far-fetched or fanciful. This is an objective test of whether a reasonably careful employer would have foreseen the risk of injury. In this case this was not in dispute.

10. Ms Alister argues that the risk of her injuring her wrist with a repetitive strain injury was reasonably foreseeable in the hairdressing industry.  She claims the defendant failed to provide a safe system of work and failed to adequately instruct and train her so as to avoid a repetitive strain injury.

    Causation

11. If the defendant has breached its duty of care and was negligent for failing to take positive steps to avoid the injury, then the issue turns to causation.

12. Ms Alister must prove, on the balance of probabilities, that the defendant’s negligence was a cause of her injury.

13. The claim for breach of statutory duty also requires Ms Alister to prove the causal connection between the breach and the damage.[3]

    [3]         SMYBB Pty Ltd v Young [2022] VSCA 115

14. The principles of causation were considered by the Court of Appeal in Munday v St Vincent’s Hospital.[4] The Court of Appeal quoted Maxwell P in Wodonga Regional Health Services v Hopgood,[5] that when a plaintiff alleges a negligent omission:

    “The causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts, premised upon the defendant’s having exercised reasonable care and, specifically upon there having been no such omission.”[6]

    [4][2021] VSCA 170

    [5] [2012] VSCA 326

    [6]        Wodonga Regional Health Service v Hopgood [2012] VSCA 326 at [31], cited in

    Munday v St Vincent’s Hospital [2021] VSCA 170 at [22]

15. In that context, his Honour explained, the plaintiff’s counterfactual hypothesis must identify:

    “(a)   what the defendant would have done had reasonable care been

    exercised; and

    (b)how the taking of that action would have averted the loss or damage   

    which the plaintiff in fact suffered.”[7]

    [7]        Wodonga Regional Health Service v Hopgood [2012] VSCA 326 at [31]

1. In Duma v Mader International Pty Ltd,[8] Tate JA stated:

   “… on the issue of causation, it was incumbent upon the appellant to show that the lack of availability of alternative tools, or the failure to adopt a different system of work, or the failure to carry out a risk assessment, or the lack of training, caused the appellant’s injury.”[9]

   [8][2013] VSCA 23

   [9]         Duma v Mader International Pty Ltd [2013] VSCA 23 at [55]

2. In the recent decision of Cotton On Group Services Pty Ltd v Monica Golowka[10] the Court of Appeal at [68] stated:

   “In a case involving an asserted breach of duty by an employer in its failure to implement a safe system of work it is insufficient for a plaintiff to make out a case by establishing only a departure from the reasonable response of an employer to an identified risk. It must also be proved that a reasonably practicable alternative system of work which would have reduced or avoided the risk of injury was available to the employer and should have been utilised.”

   [10] [2022] VSCA 279

   This proceeding

3. The plaintiff Ms Alister gave evidence and called former UVA Salon employees, Mr Daniel Sculli, Ms Matilda Williams and Ms Hollie Baeumler. Mr Joseph Semaan, Director of UVA Salon, gave evidence for the defendant as well as Ms Marie Uva, Director and Manager of UVA Salon, and Ms Keely Patrick, a current UVA employee. No medical witnesses were called however medical material was tendered, including the certificates for capacity, clinical records, medical reports from the plaintiff’s treating doctors, namely Mr Tham, Dr Tomlinson, Dr Weekes, Dr Lee and Dr Mazhar, as well as radiology records and medico legal reports.  

4. In support of her claim there was an unsafe system of work, the plaintiff’s evidence detailed a number of work practises over a period of time rather than one specific incident. The plaintiff worked at UVA salon from 2013.The substance of her claim relates to the three months prior to October 2017 and her return to work following the injury. Her evidence about the workplace practises spanned over this employment period, including alleged deficits in her training about safe work practises as an apprentice.  

   Ms Alister’s evidence

   Apprenticeship

5. Whilst at school Ms Alister commenced a Certificate II in Hairdressing. In August 2013, aged 16, she moved to Melbourne to commence an apprenticeship with the Joey Scandizzo Salon in Toorak Road, South Yarra.  In November 2013, she was part of a small team selected to start a new business with Marie Uva in Greville Street, Prahran, called UVA Salon.  Her duties as a first-year apprentice included sweeping, mopping, cleaning mirrors, shampooing, and rinsing colours for clients.

6. Whilst setting up UVA salon in 2013 Ms Alister stated, “we didn’t receive any breaks because it was a new salon and Marie wanted to obviously work quite hard to do as many clients as possible”.[11]  Ms Alister stated her hours were Tuesday 10.00am or 10.15am until 7.00pm, Wednesday 12.30pm or 1.30pm until 10.00pm, Thursday 10.00am or 10.15am until 10.00pm, Fridays 10.30am until 7.00pm and Saturdays 9.00am until 5.00pm.[12]

   [11]        T64

   [12]        T65 (These hours add up to 45 and a half hours. However, I note pre injury, so pre-4 October 2017,

   Ms Alister agreed her hours were 38 hours per week, but that did not include her outside salon duties (T132). In cross examination, she later says that she was rostered between 36 and 38 hours T310)

7. Ms Alister’s evidence was that there was no employee induction process, nor any instruction or polices about workplace safety.

8. She described the work environment as:

   “It was a lot of pressure, a lot of clients, …sometimes juggling myself three clients at a basin when usually you would only have one because there was no one else there to help.”[13]

   [13]        T65

9. The 2012 academic transcript from her Certificate II, shows she completed the training module “Apply Safe Working Practices”.[14] For the academic and practical training component of her apprenticeship, she went to an academy called Headmasters, commencing in August 2013 and then the Joey Scandizzo Academy during which she completed the module, “Apply Salon Safety Procedures”.[15]

   [14]       Exhibit D33

   [15]        Exhibit D33

10. As an apprentice, in 2014 Ms Alister attended the Joey Scandizzo Academy one day a week upstairs at the Joey Scandizzo Salon, where apprentices would train and practise.[16]  Joseph Semaan taught her blow drying and styling hair. In her second year, Rachel Vitullo taught her how to colour hair.  In her third year, Joseph Semaan taught her how to cut hair.[17]

    [16]        T67

    [17]        T68

11. Ms Alister stated she received no instruction about occupational health and safety in the workplace.[18] Ms Alister did not recall any conversation or training from Mr Semaan about safety or posture, such as not to hunch, to straighten up and not bend at the waist.

    [18]        T68

12. In cross-examination, Ms Alister agreed her training at the Joey Scandizzo Academy occasionally comprised about eight hours a week.[19] Whilst she was scheduled to attend one day a week, she said it was more like three times a month. Ms Alister agreed that when Joseph Semaan trained her in cutting hair, part of the training was how to hold the scissors when cutting.  However, she did not recall him ever mentioning the importance of good posture.[20] She did not recall Mr Semaan telling her to hold her wrist straight.  Ms Alister stated she was intimidated by Mr Semaan, but agreed he was a thorough educator.

    [19]        T222

    [20]        T223-224

    Stylist and Principal stylist

13. In November 2016, Ms Alister qualified and became a stylist at UVA salon.[21] As a stylist she was responsible for clients in her column in the diary, as well as guiding the apprentices. Her daily duties included cutting hair, blow waves and styling, curling, doing “hair ups”, and shampooing clients.[22]  In cross-examination, Ms Alister agreed that, as a stylist, she predominantly did cutting and styling, which she estimated to be 80 per cent of the working time, but that she would also do other things.[23]  She agreed that by May 2017 she was rarely doing colour.[24]

    [21]        Exhibit P1

    [22]        T69

    [23]        T227-228

    [24]        T229

14. In January 2017, Ms Alister was appointed a principal stylist. By this stage, UVA Salon had about 20 staff, with about 30 “chairs” for servicing clients.[25]

    [25]        T70

15. As principal stylist, Ms Alister described being busier with a leadership role to train and demonstrate to junior staff, as well as cutting and styling a more difficult clientele, namely those clients with thicker, longer hair.[26]  

    [26]        T71

16. When she was a principal stylist, Ms Alister estimated that on a daily basis she shampooed 50-60 per cent of her clients “as the apprentices were too busy doing other services”.[27]

    [27]        T302

17. Ms Alister’s case was that she had a very intense workload during August, September and October 2017 which led to the injury of her right wrist.

18. By July 2017, Ms Alister was working a 36-hour week spread over four days comprising of Wednesdays from around 10.00am until 9.00pm or 9.30pm, Thursdays 10.00am until 9.00pm, Fridays 10.00am until 6.00pm or 6.30pm, and Saturdays 9.00am until 5.00pm.  She had asked to cut back her hours and dropped Tuesdays, but had to work two long days, namely Wednesdays and Thursdays.  She stated, “I really wanted to it to drop like a few more hours. However, I was told that was not allowed”.[28]

    [28]        T72

    Breaks

19. On  Wednesdays or Thursdays, Ms Alister’s hours were 10.00am until 9.00pm. Her clients would start at 10.30am and be booked every 45 minutes, with the last client at 8.15pm. Although one appointment would be blocked out for a 45-minute lunch break, Ms Alister stated:

    “… it was not very easy to achieve your break as there would be a lot of excess work outside of those appointment blocks as well in regards to clients sometimes taking longer, clients running late, especially coming back from a colourist late…you would have to, what we would call, catch up and your break was always used as your buffer. So they would eat into your break to catch up through your day.”[29]

    [29]        T73

20. Ms Alister stated there was “no such thing” as a morning or afternoon break.[30] The 45-minute lunch break was usually scheduled at 12.30pm and could not be taken later than 3.00pm. There was a lunchroom in the salon, which had a fridge and a microwave, where Ms Alister and other staff would spend their lunch break. Ms Alister agreed she would have a drink between clients,[31] that staff kept their water bottles in the “colour” room and that was where she would have a drink.

    [30]       T74

    [31]        T306

    45-minute appointments

21. Ms Alister’s evidence was that the 45-minute appointment times were more accurately about 30 minutes, by the time the client consultation and hair wash had taken place, which left less time for the cutting and blow wave service.[32]

    [32]       T82

22. Inconsistencies in the scheduling meant 45 minutes was allocated for a style or blow wave, and 45 minutes was allowed for a cut, which also included a style and blow wave. A cut included a consultation, wash, cut and style all within 45 minutes.[33]

    [33]       T83

23. Ms Alister described this was how her lunch break became her “buffer”, as it was her own responsibility to “catch up”, whether that meant staying late or using the lunch break.[34]

    [34]        T83

    Daily workload and work records

24. Ms Alister was taken to the defendant’s records,[35] which detailed the daily services provided under her name for clients between 1 August 2017 and 7 October 2017.[36]

    [35]        These records were produced pursuant to Discovery

    [36]        Exhibit P2

25. Ms Alister was examined on these records.

26. Based on these records, she confirmed that she provided all the services detailed.[37]

    [37]        T77, Line (“L”) 16

27. On the third day of the hearing, the defendant discovered further documents in its possession detailing the services provided for each “client” for the same days, as distinct from the records provided under Ms Alister’s name. These records included the names of staff at UVA Salon, other than Ms Alister, who had provided services,  mainly colours or foils, for the clients. Through these records the defendant sought to establish that Ms Alister did not provide the number of daily services on the days she had been examined about.

28. After objection from Ms Alister’s counsel to the late discovery of these documents, further examination-in-chief was allowed to cover this new material. As a principal stylist, Ms Alister mainly provided cuts and blow dries. However, when it came to services such as colours or foils, she was 80 per cent sure she completed those services as well.[38]

    [38]        T237

1. A significant part of the evidence during the hearing was spent on these records. Rather than detail the evidence of every date, I will consider four representative dates with reference to Ms Alister’s evidence in chief, cross examination, and re-examination regarding the two different sets of records.

   1 August 2017

2. Records under Ms Alister’s name for 1 August 2017 indicate Ms Alister performed 13 services. To explain the breakdown of clients and the figures therein, Ms Alister stated:

   “… it says I attended to six clients that day. However, it does say I had three colour clients – sorry, I performed three colour services, four cutting services, four foil services as well as two styling services. So it equals 13 services that day, plus the one treatment.”[39]

   She confirmed in respect of each breakdown sheet provided by the defendant:

   “Yes, so that’s the total number of services that you have performed during the day.”[40]

   [39]        T81

   [40]        T81

3. The defendant tendered the client records as exhibits D1–D32. Exhibit D1 detailed that on 1 August 2017, Jason completed a permanent colour for a client, Alisa Kerr. Ms Alister stated she could have completed the colour and “it could go under somebody else’s name”.[41]

   [41]        T216

4. In cross-examination, Ms Alister explained she gave her evidence with reference to the defendant’s record under her name from 1 August 2017 which states that she completed 13 services.[42] However, she was aware that other staff may have completed tasks such as foils and colours that were also recorded under her name. She could not remember the exact number of services from any particular date.[43] In re-examination, she was asked about the accuracy of service numbers representing her workload. She acknowledged someone else could have completed services, just as she may have done more services that were not included.[44]

   [42]        Exhibit P2

   [43]         T233

   [44]        T365

5. When asked about her workload, given the figures provided by the defendant during August 2017, Ms Alister stated, “I would say they were extremely stressful, extremely busy, very I would say, high pressure days.”[45]  This was because there were more services than the working timeframe allowed of 45-minute appointments. In cross-examination, she stated from the sheet she was shown that “the amount of services equals more hours than I have worked in regard to the 45 minute blocks”.[46]  

   [45]        T82

   [46]        T238

6. In cross-examination, she also agreed that if she did not do 13 services on 1 August 2017 it would have been easier to take her lunch break.[47]  The defendant’s case was that rather than doing 13 services, Ms Alister did “seven” services on 1 August 2017.[48]  She agreed seven services would be a medium demand day, and her evidence was that 10-12 services per day was high and 5-6 services was low.[49]

   [47]        T238

   [48]        T259. The reference to seven services was not disputed in later cross examination. The defendant is  

   likely to have calculated seven services as follows: Exhibit P2 for 1 August 2017 refers to Ms Alister

   providing services to the following clients: Alisa Kerr, Maria Pranjic, Alice Barlow, Sharen Buxton, Katie Logan and Catherine Wilson. The records of appointments for Alisa Kerr (Exhibit D1), Maria Pranjic (Exhibit D2), Alice Barlow (Exhibit D3) and Sharen Buxton (Exhibit D4) reveal on 1 August 2017, Ms Alister performed only one service for each of these four clients. The bundle of records of appointments for Katie Logan and Catherine Wilson were not provided or tendered and as such by reference to Exhibit P2, Ms Alister performed two services for Katie Logan and one service for Catherine Wilson on this day.

   [49]        T260

   5 August 2017

1. With reference to the figures from 5 August 2017, Ms Alister stated, “On that day I completed five colour services, nine hair cutting services, four foil services and one styling service”.[50] She agreed this totalled 19 services,[51] and described feeling “exhausted”, she would be feeling “very tired physically and mentally it is a big day, and stressful” and “a lot of pressure”.[52]  She stated she probably would not have had a lunch break, or had eaten her lunch quickly to return to clients.

   [50]        T84

   [51]        T84

   [52]        T85

2. When asked about the effect of 19 services on her wrist and hand she stated, “… it was putting a lot of pressure on my wrist. It’s a very big workload I would say”.[53]

   [53]         T85

3. In cross-examination, Ms Alister confirmed she did not remember every client individually or specifically remember doing all those services, and agreed she might be wrong.[54] She stated 80 per cent of her time was cutting and styling.  However, she did have colour clients.[55]  She was then taken to the individual client records for 5 August 2017, and the defendant’s case was rather than doing 19 services, she in fact did “no more than ten” services.[56] She stated that “10-plus services is an extremely high, or high demand day where I would be feeling in pain and a lot of pressure”.[57]

   [54]        T231

   [55]        T267

   [56]        T269

   [57]        T270

4. When it was put in cross-examination to Ms Alister that a high demand day would never be as high as 19, 20 or 23 services, she remained equivocal, that “it could be”, and when it was put she never did 23 services in a day she stated, “I don’t remember the exact number”.[58] She maintained it was possible she did in fact perform 19 services in one day, and that the sheet (the defendant’s client record) could have included services she performed but under other staff members names.[59]  When asked if she did 19 services at 45 minutes each, she stated:

   [58]        T296

   [59]        T297

   “Yes, that’s my point as in, we would be expected to do more than what was required in the 45 minutes than one block. So even though there’s more services, you’re correct in the fact that it doesn’t equal to the hours because we were expected to do more.”[60]

   [60]        T299

   16 September 2017

5. On 16 September 2017, the defendant’s records referred to Ms Alister providing 20 services, comprising six colour services, five hair cutting services, seven foil services and two styling services.[61] She described these days as:

   “…very exhausting, so tiring, quite painful … especially like in my wrist in particular, it would be just a lot of pressure on my wrist. It’s a lot of very physical tasks and again, not a lot of – no real breathing room in the sense of being able to rest.”[62]

   [61]        Exhibit P2

   [62]        T87

6. In cross-examination, she confirmed she did not have a memory of doing 20 services on 16 September 2017,[63] nor could she remember how many services she did on each date.[64]  It was put that the defendant’s evidence was rather than doing 20 services she in fact did 11 services.[65]

   [63]        T273

   [64]        T233

   [65]        T280

   21 September 2017

7. On 21 September 2017, the services under Ms Alister’s name totalled 23.[66] She again described the effect: “I would be, yeah, very exhausted, feeling very pressured. Yeah, very tiring. Yeah, you would be in pain after a day like that.”[67] She noted on days like this there would be very little time for breaks because the time in the day did not allow for all the services.  Ms Alister gave similar evidence regarding the services provided based on the figures provided for September and October 2017.

   [66]        Exhibit P2

   [67]        T87

8. In cross-examination, Ms Alister confirmed that her evidence about performing 23 services was not based on her memory but on the defendant’s record.[68]

   [68]        T288

9. When it was put to Ms Alister that other staff members completed the colour/foils services, she agreed it was possible, but she was also unsure/unclear, and had difficulties understanding the records put to her.[69]

   [69]        Exhibits D1-D32, T285-287

   Manual handling tasks

10. Ms Alister stated that her tasks included shampooing, cutting, blow drying and styling. Her tools of trade included scissors, cutting comb, wide tooth comb, sectioning clips, different sized round brushes, hair dryer, cutting mat and products.

    Shampooing

11. She described shampooing a client as requiring her to use her fingers and palms in circular repetitive motions applying a medium pressure to wash the hair and repeating this process two or three times.[70]  She was right hand dominant and washing the client’s hair requires using both hands. She estimated a shampoo would take three to five minutes, and then applying the conditioner and massaging would take another three to five minutes.  She would then apply a towel and apply pressure to soak up excess water.

    [70]        T95

12. In the two months prior to 17 October 2017, she struggled with the force and pressure required, “I found those movements in particular very painful on my wrist”.[71] She described her wrist as shaky and unstable afterwards.

    [71]        T97

    Cutting

13. The cutting process involved using her right hand with a cutting comb to comb out tangles, which is an up and down motion of her wrist and using a sectioning comb in a pinching position between her thumb and index finger, multiple times within a hair cutting service.[72]

    [72]        T98

14. The scissors were held in her right hand with her thumb in the bottom finger hole and her other fingers resting across the top.  Cutting takes 20-30 minutes, and the scissors are at all times controlled by the thumb using an up and down motion. Ms Alister found cutting painful, particularly on the inner side at the base of the thumb, the up and down motions, “would send quite a strong pain shooting into the base of my wrist on the inner side”.[73]

    [73]        T100

15. The hairdressing scissors she used were produced in court and tendered, and Ms Alister demonstrated holding the scissors and different scissor motions such as point cutting.[74]

    [74]        Exhibit P3

    Drying

16. Drying required grasping the hairdryer in her right hand, drying the hair with her right hand, with her wrist and arm moving in a back and forth, up and down motion. She stated she found blow drying “in particular very painful. Because it was the back-and-forth movement for my wrist …”.[75]  Her wrist would click a lot, maybe 20-30 times.

    [75]        T101

17. Ms Alister’s hairdryer was also produced and tendered, and she demonstrated how she would hold the hairdryer and the position of her fingers, noting her grip strength was very important when using the hairdryer.[76] She described the vibration sensation as like pins and needles down the side of her wrist.  Every service using the hairdryer would be about 20-30 minutes.  Ms Alister’s blow-drying brush was also produced and tendered.[77]

    [76]        Exhibit P4

    [77]        Exhibit P5

    Styling

18. When a client’s hair was completely dry, to style a client’s hair, Ms Alister would brush it and use a curling wand in her right hand holding it up and down in a similar motion to a hair dryer which involves lots of back and forth and up and down motions to guide the hair in different direction. This would take 15-20 minutes.[78] She described her right wrist as very sore after this task.

    [78]        T103

    Saturdays

19. On Saturdays, Ms Alister worked from 9.00am to 5.00pm with no scheduled break. She stated her wrist would be in extreme pain after a Saturday, especially between August and October 2017. She described her wrist as shaking, clicking any time it moved, being in a lot of pain, a very strong burning pain at the base of her thumb and feeling very unstable across the front of her wrist.[79]

    [79]        T110

    Additional ‘out of salon’ work

20. During August to October 2017, Ms Alister was also asked to do work outside of her salon hours.

21. She did an event for David Jones, looking after one of their ambassadors, which included blow drying and styling the ambassador’s hair.[80]

    [80]        T110

22. Ms Alister also did a photo shoot for Jagged which involved doing hair for two models at a yoga studio in South Yarra.[81]

    [81]       T111

23. She also did an event for the NGV Gala, at UVA salon, but outside of work hours, styling an influencer’s hair for the red carpet in the event. This took one to two hours.[82]

    [82]       T111-112

24. She also did a photo shoot for Dolce Firme and was at Bec Judd’s house for a day from 8.30am until 4.00pm.[83]

    [83]       T112

25. One morning, she also attended a hotel room outside of salon hours to do a “style and hair up” for a personality appearing on a morning talk show,[84] which took about an hour.

    [84]        T112

26. Ms Alister provided these services at Ms Marie Uva’s request. Over a two month period she estimated she probably did an extra three to five hours work per week.[85] In cross-examination, it was put to her this “out of salon work” amounted to just over one hour a week over nine weeks.  She responded, “it could be more, it could be less.  Every week it could be different”.[86]

    [85]        T113

    [86]        T311

27. Ms Alister agreed in cross-examination that she told Ms Uva she was interested in doing this work, and that she was required to ‘post’ about the salon on social media.

28. During this period from August to October 2017, Ms Alister described the work culture at UVA Salon as toxic and negative. She felt the stress and pressure from Ms Uva, which she explained as the format of doing as many clients as possible and the pressure to perform and do as many extra things to be on social media, to promote the salon.[87]

    [87]        T113

    The “Yes” policy

29. Ms Alister described the salon’s “Yes” policy, which meant if a staff member asked for help, the person asked had to say yes, as saying ‘no’ spread negativity. This meant that even if the person who was asked was busy, they must say yes, they must find a way to help.[88] It interrupted the time she had for her own clients.

    [88]       T114-115

30. In terms of its impact on her work load she stated:

    “I found it extremely hard because if – I already found it a bit of a challenge to manage an entire column and my own services, so when questions like – sorry, when I would get stopped in a situation like that, it was particularly pressing because it would add more things onto my day and therefore making me more stressed about timing and more stressed about catching up, more stressed about missing my lunch break, so on, and finishing late, so on.”[89]

    [89]        T358-359

31. She found it “pressing” when she was on the receiving end of the ‘Yes’ policy as it added more things to her day.

Management issues

1. Ms Uva was Ms Alister’s boss and director of the salon. She was present 95 per cent of the time during salon opening hours. In her absence, Ms Alister would report to Mr Daniel Sculli, a senior team leader. Ms Alister stated that she would often talk to Mr Sculli when she was feeling discomfort or pain and would confide in him a lot.[90] Ms Alister described feeling ignored and intimidated by Ms Uva, particularly when she raised issues such as being in pain from her wrist or that she needed a break.[91]

   [90]        T116-117

   [91]        T117

2. In cross-examination, Ms Alister agreed that she and Ms Uva had had a very close relationship, “That’s why it hurt me so deeply when I was injured, that I didn’t feel respected, I didn’t feel heard, I was intimidated”.[92] She described Ms Uva as “ignoring” her at the time of her injury, and that she felt very hurt by Ms Uva when she put her WorkCover claim in on 17 October 2017. Ms Alister described being very determined to return to work, and although she was close to Ms Uva, she did not feel supported through her injury.[93]  She agreed Ms Uva took her to the Logies on the Gold Coast in 2018.

   [92]        T313-314

   [93]        T316

3. Ms Alister stated her relationship with Ms Uva became hostile towards the end of her time at Uva Salon, which was in November 2019.  She was being ignored and her clients were given to other staff. She was asked to the Christmas party but stated the bosses and directors did not talk to her and she did not feel welcome.[94]

   [94]        T321

   Worker’s compensation claim

4. By 4 October 2017, Ms Alister described experiencing extreme pain in her wrist. She was having trouble sleeping, she was having difficulty holding her tools at work and would often drop her hairdryer because the pain was so intense in her wrist.  She was also experiencing pins and needles in the base of her thumb and in a part of her wrist which was clicking and extremely unstable.

5. On 4 October 2017, she reported to Ms Uva that she could not continue her job with this injury.

6. On 9 October 2017, she saw Dr Atif Mazhar and explained the pain she was experiencing.  Dr Mazhar completed a workers injury claim form.[95]

   [95]        Exhibit P6

7. Dr Mazhar suggested Ms Alister have a few days off and return to work on light duties to see if her symptoms improved.

   Return to work

8. On 10 October 2017, Ms Alister had a right wrist ultrasound, and on 12 October 2017 she had a right wrist x-ray. Both results were normal.  Her general practitioner referred her to a hand therapist, Ms Jane Street.

1. On 18 October 2017, Dr Mazhar noted Ms Alister was “Already back to work on light duties, happy to continue”. In cross examination, when asked whether this accords with what was happening at about that time, Ms Alister said that she believes so.[96]

   [96]        T300

2. Part of Ms Alister’s claim in negligence includes the mis-management of her return work.[97] She was supposed to return to work on modified or light duties. She stated that she was definitely not on light duties as she was doing haircuts and blow waves, as well as unpacking stock boxes and carrying stock boxes.[98] This evidence appears to relate to after 17 October 2017. Ms Alister stated she damaged her wrist further.[99] She did not detail what the further damage entailed.

   [97]        T698

   [98]        T122

   [99]        T 122

3. Although Ms Alister was supposed to be on reception duties at work, her wrist kept flaring up and she was pressured to continue to cut hair and service clients.[100] When shown the record from 20 October 2017 Ms Alister stated she was 95% sure she provided the cutting and styling services. She was also sure she provided colour, foils and styling services on 21 October 2017.[101]

   [100]      T124

   [101]      T 174-175

4. From November 2017 to August 2018, Ms Alister saw hand therapist, Ms Street, once or twice a week.  Ms Street made a splint for Ms Alister to stabilise her wrist and thumb with a brace. She wore multiple braces on her wrist, on and off, for three years.  

5. In December 2017, Ms Alister saw Mr Steven Tham, hand surgeon. He recommended a cortisone steroid injection, which Ms Alister had in the lower part of thumb inside her wrist.  Ms Alister did not get any pain relief from this injection.[102]

   [102]      T130-131

6. On 23 February 2018, Ms Alister attended a worksite assessment meeting at the salon with Ms Uva and AMS Consulting (“AMS”), the occupational rehabilitation consultants.  The report stated she had been absent from work since November 2017. The report was planning for her return-to-work post-surgery. In the report, AMS noted that UVA Salon and AMS “explore scheduling longer appointments to allow for reduced time pressure and rest breaks”.[103]

   [103]      Exhibit P11 and T139

7. On 27 March 2018, Ms Alister had surgery, a de Quervain’s release, at The Valley Private Hospital by Mr Tham. She was in a cast and sling for 2 and a half weeks following and took pain relief including Tramadol, Nurofen and Panadol.

8. She returned to work on 2 May 2018. Although on modified duties Ms Alister was performing services such as cutting, styling and colour services.[104] The AMS report titrated her weekly work hours starting at four hours increased to six, then nine and then 16 hours. The hours performed by Ms Alister appeared compliant with the work hours prescribed, but the work records confirmed Ms Alister was performing styling, cuts, colours and foils[105] when the AMS report noted modified duties of ‘no upper limb use.’[106] She did concede it was unclear if she did the colours and foils but said there was a 70-80 per cent chance she did.[107] This period appears non-compliant with the return to work plan. On 30 May 2018 she was cleared for pre-injury work.

   [104]      T182-183

   [105]      T182

   [106]      Exhibit P12

   [107]      T183

9. Ms Alister’s evidence was that she did not  get longer rest breaks.[108] Ms Alister said she would be extremely pressured to service clients:

   “I felt like it was not completely respected. I would express how I was feeling with regards to pain, I would be ignored. I would be extremely pressured to do services for clients. For example, it was agreed that I could do some colouring and foils and it would be then – they would then put in haircuts and things like that because the book was open.”[109]

   [108]      T141

   [109]      T143

10. In cross-examination, Ms Alister denied she was allowed an extra 15 minutes for client appointments after she was injured. She stated:

    “Occasionally I would be given maybe one hour appointment in a day but I did not get to receive hour-long appointments for all of my clients when I was on a return to work plan.” ^[110]

    [110]      T342-343

11. Ms Alister denied that she had been offered a role as an educator by Ms Uva, and that she was told it would not be fair to other staff when she was not doing enough hours and because of her WorkCover claim.[111] Ms Alister’s evidence was that every time she came back to the salon as a receptionist:

    “…I was pressured and intimidated into doing clients, so I absolutely did not feel comfortable coming back as a receptionist when I was in pain, because I felt that it wasn’t respected, my boundaries weren’t respected.”[112]

    [111]      T347

    [112]      T348

12. On 28 May 2018, Dr Mazhar cleared Ms Alister for pre-injury employment.[113]  She disagreed that her employer made sure her duties were compliant with restrictions imposed by the doctor, and stated she was cleared for pre-injury duties but not pre-injury hours. The idea was to have longer appointment times and breaks between clients.[114] In fact the certificate for capacity dated 28 May 2018[115] clears Ms Alister for pre-injury employment both duties and hours.

    [113]       Exhibit P24

    [114]      T326

    [115]      Exhibit P24

13. By 6 June 2018, she continued on pre-injury duties and hours.  In June and July 2018, Ms Alister reported that she was struggling to keep up with her clients and she was not able to cut back her work. She felt she was doing too many clients and getting sore at work as she was doing too much.

14. Ms Alister reported being given full lists of clients for a day despite being told she would be on light duties. On one Saturday she saw 11 clients back-to-back with no break. Ms Street’s clinical notes record Ms Alister’s frustration at her employer’s lack of understanding towards her needs.[116] Ms Alister asked for a short break between clients to rest or treat her wrist.  However, this was not granted.[117]

    [116]       Exhibit P14

    [117]      T128

15. Ms Street’s records note Ms Alister told her, “…it was sore on Saturday after no breaks and 11 clients back to back…”[118]

    [118]      T127 and Exhibit P14

16. In cross-examination, it was put that Ms Uva offered her different roles at the salon, such as receptionist. Ms Alister agreed she told Ms Uva that she did not want to be a receptionist. However, she was very upset about potentially not being able to be a hairdresser.[119]  

    [119]      T325

17. Ms Alister’s evidence was that whenever she would show up to be a receptionist, it was still expected she would perform hairdressing duties:[120]

    “That’s where the complication happened with the return to work plans. That’s why we had to sit down countless times with the consulting company to try and get a plan together that was respected by both sides.”[121]

    [120]      T326

    [121]      T326

18. On 5 October 2018, Ms Alister had a further surgery by Mr Tham, for a right dorsal wrist ganglion.  Following this she was in a half plaster cast for six weeks.

1. In February 2019, she was working four hours a day, twice a week. When she was working four hours, two days a week, she believed she was doing five clients at 40-minute appointments.[122] Five clients in four hours is a potential non-compliance with the return to work plan as 40 minutes per client is less than the standard time for a service.

   [122]      T343

2. On 11 November 2019, Ms Alister sent an email to Ms Uva and Mr Joseph Semaan as she was struggling with her workload, and experiencing a lot of pain, and feeling unheard at work.[123] She attached an updated certificate of capacity and advised that on medical advice she was having two weeks off. She did not return to work after this date.

   [123]      Exhibit P13 and T204

3. On 26 November 2019, Ms Alister had her third surgery at The Avenue Hospital, a further de Quervain’s re-release, by hand surgeon, Jill Tomlinson.

4. Following surgery, she was in a plaster cast for 48 hours and then a wrist splint with a sling.  She also had intense hand therapy. Ms Tomlinson recommended Ms Alister not return to hairdressing duties indefinitely.

   Pain management and impact of injury

5. In May 2019, Ms Alister saw Dr Gavin Weekes, a pain management specialist. She indicated she did not feel any relief from his treatments.[124] She also saw Dr Daniel Lee who, after seven different consultations, recommended a ketamine infusion. On 23 October 2019, Ms Alister had the ketamine infusion over seven days as an inpatient.[125]

   [124]       T187

   [125]         T188

6. On 19 May 2020, Ms Alister had a further cortisone injection to her extensor carpi ulnaris tendon. Like the previous cortisone injection, this offered Ms Alister no pain relief.[126]

   [126]       T192-193

7. Ms Alister has taken the prescription pain management medication Tramadol. She experienced bad dreams, sweating and night terrors.  She also took Endone after her first surgery, but found it extremely addictive, so was very cautious. She was also prescribed Lyrica, which she had a very bad reaction to. Codeine was also prescribed, which she took on an as needs basis.  She was also prescribed Prednisolone. However, she experienced quite a lot of side-effects. She also had the same experience with Endep. Her pain specialist recommended Cymbalta for pain management.

8. Her current medication regime comprises 200 milligrams of Sertraline for anxiety and depression, as well as Nurofen and Panadol.[127]

   [127]       T196-197

9. Her current treatment includes hand exercises and resistance exercises recommended by her hand therapist, which she does two to three times a week for 15 to 20 minutes.  She also uses a wax pot and a heat pack to warm up her muscles before she completes her exercises.

10. Her evidence detailed the negative impact of her wrist injury and the loss of her preferred career. This included the continued pain she has suffered and how the injury has impacted, on her experience of the birth and the arrival of her first child, the financial impact of not working in the salon, feeling depressed and anxious and feeling that she cannot get out of bed.

    Daniel Sculli

11. Mr Sculli was a hairdresser with over 20 years’ experience who was employed at UVA Salon from December 2013 to October 2019.  Mr Sculli did not recall receiving any occupational health and safety training when he joined the salon.  He was not aware of the salon having any documented procedures regarding safe work practice.[128]  From October 2018, Mr Sculli was a principal stylist.  He described the salon as very, very busy with 45 minutes scheduled for an appointment, “… sometimes I would consider it to be like a sweat shop…”.[129]

    [128]       T403

    [129]      T372

12. He described the work environment as “toxic”.[130]  He denied rest breaks were possible owing to the “domino” effect of clients waiting.[131]  In his view, the 45-minute appointment time was not sufficient. The salon had no documented procedures regarding rostered rest breaks:

    “At times sometimes you may not get a lunch break … for some reason sometimes you might have gotten half a lunch break, it just- again, it just depends on the day and how it kind of run, and if you got help or if you didn’t …”[132]

    [130]       T379

    [131]       T381

    [132]      T373

13. Mr Sculli stated there were no rostered rest breaks between August 2016 and October 2019.[133] A rest break between clients would not be possible, because “you’ve already got a domino effect of clients waiting for you, if you’ve got four clients in the salon at once, you can’t really have a rest”.[134]

    [133]      T380-381

    [134]      T381

14. Mr Sculli estimated a busy day would be 15-16 services, and a medium day 8-10 services.  He stated, there were very few slow days, “every day would pretty much be a consistently, go, go, go”.[135] He stated Ms Alister always had high volume days. If staff could have a break they could go to the two back rooms, the lunchroom and the colour room.

    [135]      T384

15. When it was put to Mr Sculli that regular breaks were provided to all staff including Ms Alister, and that staff could take breaks in between clients where possible, he responded, “that’s a flat out lie”.[136]

    [136]      T409

16. In cross-examination, he clarified that as a smoker he did take breaks, and as a senior staff member he was allowed to, but juniors were not.[137]

    [137]      T413-414

17. In terms of the 45 minutes allocated for appointments he stated, “it wasn’t sufficient enough…there wasn’t really enough of the time to complete the service”, whether it was a new client, or a client with “very, very long hair”.[138]

    [138]      T386

18. Between October 2016 to October 2017, Mr Sculli stated Ms Alister “would mention her wrist is sore and then she would struggle to do everything that’s needed”.[139]  In cross-examination, he clarified this was before she had seen a doctor.[140]

    [139]      T385

    [140]      T415-416

19. As to 2019, he stated “she would always be in pain; it would always be sore, it would always be an issue”.[141]

    [141]      T385

20. In 2019, Mr Sculli became a Senior Team Leader. In that role he stated if staff had an issue or a problem, they would come to him before going to Ms Uva and see if he could solve it.  For example, Ms Matilda Williams reported to him she was stressed.

    Matilda Williams

21. Ms Williams was an apprentice at Uva Salon between October 2016 and December 2018.  She described UVA salon as a very “anxious workplace… long hours, limited breaks, very stressful”.[142]  She confirmed a 45-minute lunch break was scheduled every day except Saturday. Lunch breaks were taken at the small lunchroom at the back.

    [142]      T423

22. Ms Williams stated there were no morning or afternoon breaks rostered for apprentices.  She did observe Ms Alister take breaks in between clients during the day, “if she wasn’t run off her feet, yes”.[143]

    [143]      T435

    Hollie Baeumler

23. The plaintiff called Ms Baeumler, who was an apprentice at UVA Salon between July 2014 and April 2016 and is currently the Creative Director and Manager at a salon, Vision Blonde. She stated that there was no induction when she commenced work  and she was not provided with any health and safety instruction or training at UVA Salon.[144]

    [144]      T453

24. During cross examination, she agreed that it was rare for a principal stylist to shampoo a client’s hair,[145] and described it as “once in a blue moon”.[146]

    [145]      T463

    [146]       T464

25. She referred to a “toxic” environment, stating the culture was not “great” and that she felt mistreated and bullied.[147]

    Defendant’s evidence

    [147]      T454-455

    Joseph Semaan

26. Mr Semaan is a qualified hairdresser and has worked at Joey Scandizzo Salon since 2006.

27. With Ms Uva and Mr Joey Scandizzo, they set up UVA Salon in 2013.

28. All hairdressing apprentices must be registered with a Registered Training Organisation (“RTO”). Originally their apprentices trained with Headmasters Academy, and then they set up the Joey Scandizzo Academy as an RTO located above the Joey Scandizzo Salon to train staff.  Mr Semaan works as an educator, and three days a week with clients in the salon.

29. As part of the apprenticeship system, the apprentices attended training at the Academy one day a week. Mr Semaan would train apprentices, including Ms Alister, in cutting, which included correctly handling tools, posture for a strong upright stance, not to hunch, how to utilise a stool at the right height and how to use the scissors and grip and changing grip depending on the type of cutting.[148]  In cross-examination, he also described teaching apprentices the tips and tricks of performing a service in an efficient manner without compromising quality, to complete a service in 45 minutes or less, to alleviate stress.[149] He was not training the apprentices about dealing with fatigue or pain but about practical hairdressing skills.

    [148]       T477-478

    [149]      T528

30. In cross-examination, Mr Semaan confirmed he did not have Ms Alister’s induction records about occupational health and safety training from when she started her apprenticeship.[150]

    [150]        T528-529

31. When asked about a written occupational health and safety policy, Mr Semaan conceded there was no written policy but that the salon was governed by government occupational health and safety laws and encouraged staff, if they had an issue of any kind, to report directly to management, namely Ms Uva at UVA Salon. Mr Semaan also confirmed there was no occupational health and safety representative or committee at UVA Salon.[151] Mr Semaan’s evidence was that although there were no written occupational health and safety policies, staff “knew” they could take any issues to management.[152]

    [151]       T586-587

    [152]       T546

32. Mr Semaan’s evidence was that he did not think risk of injury as a hairdresser could not be eliminated completely, given the physical nature of hairdressing, but certainly measures could be put in place to alleviate the risk.[153]

    [153]      T480

33. He stated that 45-minute appointments are industry standard, and 45-minute lunch breaks are scheduled into the appointment book so one of the 45 minute blocks is marked out as a lunch break. Staff could also take breaks between clients.  When cross-examined about the backing up of clients if a 45-minute appointment ran overtime, Mr Semaan stated:

    “So there's no doubt that things don't always run exactly to schedule. However, the reason why we have apprentices, receptionists, they are support staff for us. So when something doesn't run exactly to schedule, I could talk to the receptionist and ask them to notify my next client to come 10 minutes later because I am running a bit behind, or I might get an apprentice to step in and complete my blow dry after I have cut that client's hair to pick up some of the slack and help me out with my time management. So that's the reason we have the support staff there, because we understand that things don't always run to schedule and so if someone does fall behind, rather than creating that domino effect that you just mentioned, we would have someone there to help the person who needed to then catch up so that they didn't run behind for their next appointment.”[154]

    [154]      T524

34. Mr Semaan did not agree that the 45-minute appointments were a rigid and narrow window to provide a service, or stressful and fatigue inducing, and stated 45 minutes was industry standard and he was able to provide the service in that time period.[155]

    [155]      T573

35. He stated:

    “People who are experienced and good at managing their column can manage their time and they use the support staff around them to ensure that they can work the 45-minute increments effectively.”[156]

    [156]      T574

36. Mr Semaan was examined on the exhibited UVA Salon client records,[157] and his evidence was that Ms Alister did not perform all the services listed under her name in the employee break down sheets.[158] As a senior stylist, Ms Alister’s primary role was to cut and blow dry, and when taken through these records he confirmed Ms Alister would do the cut and blow dry but that often another staff member would perform the colour service.

    [157]      Exhibits D1–D32

    [158]      Exhibit P2

37. He described the “Yes” policy as a policy to encourage positive language amongst the team to help out, where they can, other colleagues who might ask for help.  He said the “Yes” policy was about promoting positive language, rather than saying “no”, it was about encouraging an ethos of, “I can help organise that”.[159]

    [159]      T592

    Workcover claim and certificates of capacity

38. Mr Semaan “handled” Ms Alister’s Workcover claim in that he liaised with the insurer and Ms Alister emailed her certificates to him whilst Ms Uva  met with Ms Alister and the workplace consultant. He agreed he was, in effect, the return-to-work co-ordinator although he was not present in the salon. He agreed, “I can't personally manage what's happening there on the ground at that particular moment”.[160]

    [160]      T545

39. Ms Alister’s certificates of capacity issued by Dr Mazhar indicate from 12 to 19 October 2017,[161] eight certificates[162] from 9 November 2017 to 1 May 2018, and one certificate for 31 July 2018 to 21 August 2018  indicate that she has “no capacity for employment”. An example of the complicated nature of the documentation is reflected by the fact that the AMS report (the return to work consultants) dated 19 July 2018[163] refers to Mr Tham’s certificate that she had capacity for work with restrictions for period from 17 July 2018 to 14 August 2018, whereas the AMS report dated 3 August 2018[164] refers to a new certificate by Dr Mazhar dated 31 July 2018[165] which states Ms Alister has no capacity for work from 31 July 2018 to 21 August 2018.

    [161]       Exhibit P8 and Exhibit P24

    [162]Save the certificate of capacity dated 18 October 2017 for the period 13 October 2017 to 3 November 2017( Exhibit P8 and Exhibit P24) which stated Ms Alister was fit for suitable employment.

    [163]      Exhibit P19

    [164]      Exhibit P19

    [165]      Exhibit P24

40. In cross-examination, Mr Semaan stated it was possible Ms Alister’s name could be on the employee breakdown sheets for some of those dates when she had no capacity for work:

    “…that client's colour service may well have been put under Keely's name even though she wasn't actually physically there working.”[166]

    [166]      T532

41. Mr Semaan was taken to the employee breakdown sheet for 20 October 2017,[167] which shows Ms Alister performing services of two cuts, one styling, two colour and two foils. The certificate for capacity stated Ms Alister “had” capacity for suitable employment from 13 October 2017 to 3 November 2017.[168] The restriction in the certificate states: “Cannot reach above shoulder” and “Cannot use injured hand/arm”.  Mr Semaan was of the view that it was likely Ms Alister was at work on reduced hours, and he agreed, “If she was cutting and/or blow drying hair then she would have been using her hands”.[169]

    [167]      Exhibit P9

    [168]      Exhibit P8 and Exhibit P24

    [169]      T535

42. He agreed this might have been, potentially, an oversight.[170]

    [170]      T 535

43. Mr Semaan stated in terms of Ms Alister returning to work:

    “We were directed by the return-to-work plan. So we were told that she could perform pre-injury duties initially on restricted hours, as I have previously mentioned, and then eventually she was certified for a return to work for pre-injuries duties …”[171]

    [171]      T541

44. On 11 November 2019, Ms Alister sent an email to Ms Uva and Mr Semaan advising she had to leave work because her pain was unmanageable.[172]

    [172]      Exhibit P13

45. Mr Semaan denied there was improper management of Ms Alister’s return to work and stated:

    “We were following the guidance that we were given by Keely's represented medical practitioners and the return-to-work consultant and we followed those practices and as soon as Keely told us that she needed two weeks off completely because she wasn't able to finish her clients, then she took the two weeks off that she needed and we complied with that, absolutely.”[173]

    [173]      T545

46. Although the salon did not have a written occupational health and safety policy, Mr Semaan stated all matters concerning pain, fatigue, stress management or other issues were to be reported to Ms Uva.

47. He stated:

    “… through the way that we communicated with our staff on a regular basis, that if there was an issue of any kind, that they needed to talk about, that they should approach management to discuss that either directly.”[174]

    [174]      T546

48. During the return to work period, Ms Alister had three sets of surgery, in March and October 2018 and November 2019, as well as a ketamine infusion in October 2019.

49. There were occasions when Ms Alister was certified as fit for pre-injury duties only for her to return to work and still experience symptoms in her right wrist.

50. Mr Semaan agreed a deterioration had occurred in Ms Alister’s “functional tolerance” when she returned to 45-minute appointments.[175]  She was not able to handle her pre-injury duties and so relapsed with symptoms.[176]  

    [175]      T577

    [176]T580

51. Mr Semaan stated that following her WorkCover claim, when Ms Alister returned to work she did not complain to him or Ms Uva about UVA Salon not adhering to the WorkCover plan. When she was certified as having no capacity for hairdressing work, Ms Uva also offered her other work such as receptionist work.

    Marie Uva

    Breaks

52. Ms Uva worked in the salon and had the chair in front of Ms Alister.  She stated that Ms Alister had a daily 45-minute scheduled break and was able to take breaks between clients, “whether it was water, eat, phone”.[177] Ms Alister was “highly competent” and took her breaks, “I would rarely see her not taking her breaks”.[178]  As to creating an environment of stress, fatigue and pressure on Ms Alister as a principal stylist, Ms Uva stated:

    “Keely was well aware of the 45-minute appointments and the system of work throughout her apprenticeship. If any way, in that time, she had any discrepancies with that, I'm sure that she would have brought it up with me.”[179]

    [177]      T604

    [178]       T605

    [179]      T659

53. Ms Uva’s evidence was that Ms Alister approached her to become a principal stylist and was of the view that if she was struggling with the workload, she would not have asked to be promoted.[180]

    [180]      T659-660

54. Breaks could be taken in the lunchroom or the “colour” room, and there was no restrictions on staff leaving the salon during their lunch breaks.

55. In terms of breaks, Ms Uva confirmed there was a 45-minute break in the schedule, and staff were permitted to take breaks between clients where possible.  Ms Uva stated staff members, such as Mr Sculli, would take cigarette breaks and other staff would take a water break, or check their phone, or have something to eat.[181]

    [181]       T657-659

    Duties of principal stylist

56. It was Ms Uva’s evidence Ms Alister would mainly do haircuts and blow waves, and a colour “on a rare occasion”.[182] There was a commission system so a stylist would get a commission on a client’s colour service, so for that reason the whole service went under the stylist’s name. It was rare for Ms Alister to shampoo a client, as that was one of the apprentices’ roles if they were available.

    [182]      T609

    Out of salon work

57. The out of salon celebrity work was sought after work by the stylists, but Ms Uva described it as rare, “there wasn’t even many occasions for me to do that kind of work”.[183]  Ms Uva would ask Ms Alister, “… if I wasn't able to do it, she would obviously love to do it, she enjoyed doing it, and probably would be upset if I didn't ask her to do it”.[184]

    [183]      T611

    [184]      T613

    45-minute appointments

58. Regarding the 45-minute appointments, Ms Uva’s evidence was industry standard was in fact 30 minutes, but she has always had 45-minute appointments for a cut and blow wave.  With respect to a long day comprising 12 or 13 services in a day from 10.30am until 9.00pm, Ms Uva stated “that’s what the work is... it doesn’t change” and That’s “…what they have been trained to do”.[185]  However not every client will take 45 minutes, with some clients, a competent stylist will take less time and “Keely was a very competent stylist”.[186]  She stated Ms Alister “would very rarely fall behind” with her 45-minute appointments.[187]

    [185]      T645

    [186]      T646

    [187]      T666

    “Yes” policy

1. With respect to the “Yes” policy, Ms Uva said it was part of the salon culture to say, “I will organise it for you”.[188]

   [188]       T653

   Training

2. In addition to the occupational health and safety training apprentices did at the academy, Ms Uva stated she told staff to “position the clients how you want them”. She said she would say to staff, “That client is in the chair for 45 minutes, you’re doing this job for your whole life”.[189]  The stools at the salon were gassed to go up and down and the stylist would always be at eye level when cutting, and colourists too, and positioned during a blow wave.

   [189]       T615

3. She stated occupational health and safety matters were reported directly to her, or a team leader, or potentially one of the directors of the company. She confirmed the salon did not have a written occupational health and safety policy, occupational health and safety representative or committee.  In terms of taking a break if fatigued, Ms Uva stated staff had a scheduled 45-minute break and knew they could take breaks between clients, and they did. If someone was suffering stress, fatigue or pain, Ms Uva expected they would speak to her about it.  If she could see someone “drowning”,[190] she would go and help and “there’s always someone to help”.[191] Further, if she saw an incorrect technique utilised by a staff member, she would correct it.

   [190]      T662

   [191]      T665

   WorkCover claim

4. Ms Uva stated that Ms Alister told her one Saturday she was in pain and went out the back. Ms Uva asked what she could do. She stated that Ms Alister was in tears, but wanted to continue and “shortly after…that’s when the claim started”.[192]  Ms Uva stated that Ms Alister told her about the pain in her wrist, she never told her about stress and fatigue.[193] She recalled being shown Ms Alister’s swollen wrist and also seeing her wear a brace on her wrist.

   [192]      T617

   [193]      T648

5. Ms Uva’s evidence was that she was only aware of Ms Alister’s injury when she came and spoke to her about it, “… when she told me about it in the salon, that day, when she reported it to me; that’s when I was aware of it”.[194]  She stated Ms Alister was “quite comfortable to come to me, and quite vocal about how she felt, so when she came to me and told me about her injury, that’s when I was aware of it…”.[195] She stated Ms Alister never complained about stress or fatigue and that “… there was never a complaint about that, ever, in Keely’s work history”.[196]

   [194]      T647

   [195]      T647-648

   [196]      T649

6. She described Ms Alister coming to work with her certificate for capacity, “basically letting us know what she could do in that time”.  Ms Uva attended the meetings with AMS and Ms Alister, and talked about what Ms Alister was capable of doing, how she could return to work.  She stated that Ms Alister, “was always quite eager to return to work…”, and that “so we would try to do whatever we could to make sure that she was able to be in the salon”.[197]

   [197]      T618

7. When asked what she offered Ms Alister when she was not able to do hairdressing work, Ms Uva stated:

   “Everything. I offered her a reception role, I even offered her a team leader role, we spoke about her doing an education role, she was part of the salon family. I wanted her to be there, and I was happy to even create a role for her so she could be part of the team.”[198]

   [198]      T618

8. Ms Uva said their response was, “Well, if this is not going to work let's just try and work out another role for you that you can do that you can still be part of the team”. Ms Uva’s evidence was, in terms of the other positions offered, Ms Alister “…didn’t want to know about those roles because… she just really wanted to be a hairdresser … that was what she loved to do”.[199]

   [199]      T619-620

9. Ms Uva described Ms Alister as a fantastic apprentice and employee.  She gave 100 per cent and “we had a great relationship within and without work”.[200] She stated “She was one of my best employees”.  Ms Alister was the first person to congratulate her when she became engaged, she came to the hen’s night and her wedding, “we’d text continuously”,[201] and although in 2018 Ms Alister was not working, Ms Uva invited her to be her assistant at the Logies on the Gold Coast. Ms Uva denied being an “uncaring bully” or having an intimidating management style. She denied “ignoring” Ms Alister’s wrist injury, stating she spoke to the Hairdressing Council, AMS and WorkCover, and that she and the directors dealt with the claim as they were told to.[202] Further, she stated she discussed Ms Alister’s wrist pain with her and was not hostile. There was no pressure for Ms Alister to service clients, and she offered her other roles in the salon which she declined.[203]

   [200]       T620

   [201]       T621

   [202]      T655

   [203]      T655

10. When Ms Alister was certified as incapacitated for work, Ms Uva stated she did not come to work, there was a lot of time when she was not in the salon.[204]  When she did come to the salon, Ms Uva stated they were guided by what AMS said she could do and what Ms Alister “told us what she was capable of doing”.[205]

    [204]      T633

    [205]      T634

    Keely Patrick

11. Ms Patrick is a principal stylist at UVA Salon who completed her hairdressing apprenticeship at Joey Scandizzo’s Salon.  Her evidence was that for three months she attended the Headmasters Academy and then Joey Scandizzo’s Academy.  When she started her apprenticeship, Ms Alister was also an apprentice.  Ms Patrick gave evidence that she was taught generic health and safety at Headmasters Academy, and tool handling and posture, how to sit, how to hold tools, and where to put your feet.  Mr Semaan taught her how to cut, including how to hold scissors, posture and how to move a client that benefits you.

12. When she worked with Ms Alister, Ms Patrick stated that she rarely ran over time with clients and was good at time management.  She rarely, or “probably” only a handful of times, saw Ms Alister shampooing clients.[206]

    [206]       T674

13. Ms Patrick stated UVA Salon had 45-minute lunch scheduled breaks, and in between clients she would go out the back for a drink of water or something to eat, or just to sit down.[207]

    [207]      T674-675

14. With respect to the “Yes” policy, she stated that it was designed to:

    “…alleviate stress off people, so if someone is crazy busy…you just have to say yes, even if you can’t do it, it just takes the stress off them and then you can organise it to be done.” [208]

    [208]      T676

15. Ms Patrick confirmed Ms Uva and Ms Alister were “really close”.

16. She understood that if she was in pain or had an injury she would talk to Ms Uva about it.  In cross-examination, when she was asked if she suffered stress, fatigue or pain at work, she stated, “I just think it was common knowledge that you would speak to your boss about it”.[209]

    Submissions

    [209]      T681

    Defendant

17. The defendant denied any breach of its duty of care in negligence and breach of statutory duty.  

18. With respect to the particulars of negligence in the plaintiff’s Further Amended Statement of Claim,[210] whilst many particulars were very broad, the defendant submitted with respect to paragraph 6(c) (failing to conduct a risk assessment) and 6(e) (failing to eliminate hazards) there is no evidence to support a finding. With respect to 6(f) regarding breaks, it was submitted the Court should find there was a daily scheduled 45-minute break save for Saturdays and staff were able to take breaks between clients. The 45-minute appointment blocks are “industry standard”, which was not challenged, and there was no evidence as to how the 45-minute appointment is in breach of the defendant’s duty.  

    [210]       Further Amended Statement of Claim dated 10 August 2022 and filed on 30 August 2022.

19. In terms of paragraph 6(g) (failing to respond to the plaintiff’s complaints) and 6(h) (failing to have adequate staffing levels), there has been no evidence, and in terms of 6(v) (failing to allow staff adequate time for meal breaks thereby requiring staff to work extended hours) there is no evidence that staff were required to work extended hours.  With regards to paragraph 6(w) which concerns extra hours, this is not borne out on the evidence.  The plaintiff’s evidence was she worked 36 to 38 hours a week and started slightly earlier to set up.

20. The return-to-work parts of the Statement of Claim, paragraphs 6(l) to (n), (o), (p) and (q), relate to alleged failures to the return to work period. The defendant submitted there is:

    “…no evidence that the plaintiff suffered any injury as a result of any work performed during this return-to-work period, let alone any injury as a result of the negligence of the defendant…”[211]

    [211]      T689

21. With respect to causation, the defendant submitted at common law and breach of statutory duty, the plaintiff bears the onus of establishing a causal link between the breach of duty at common law or breach of statutory duty and the claimed damage.

22. This must be done by a counterfactual hypothesis, how an alternative state of facts would have averted the injury she suffered, and there is a total absence of evidence linking the purported breach to any claimed loss or damage. The defendant relied on Wodonga Regional Health Service v Hopgood[212] and Munday v St Vincent’s Hospital[213] and submitted:

    “…[I]n circumstances where the nature of the duties of a hairdresser involves that upper limb use, the court, in our submission, simply cannot draw an inference, absent any evidence sustaining a causal link, that any alternative system, as alleged by the plaintiff, would have avoided injury, and we say any such inference would be pure speculation, and indeed evidentiary doubt cannot be overcome by resort to common sense or common knowledge, as it clearly would be in a case where a worker puts their hand in a machine that’s not guarded.”[214]

    [212] [2012] VSCA 326

    [213] [2021] VSCA 170

    [214]      T690-691

23. In terms of breach of statutory duty, the defendant submitted the evidence does not disclose any breach of statutory duty causative of injury.

24. It was submitted the defendant identified the hazard of manual handling and Mr Semaan controlled that risk with training at the Academy on cutting and blow waving techniques, including the use of scissors, how to hold the wrist and posture whilst working. The Court of Appeal in SMYBB v Young,[215] confirms the same causal connection is required to be established by the plaintiff in a breach of statutory duty case as in a negligence case.  There is a total absence of evidence to support that causal link.

    [215] [2022] VSCA 115

    Plaintiff

25. There are two separate time periods to Ms Alister’s claim in negligence.

26. Firstly, she alleges that during August 2017 to October 2017, the defendant failed to provide a safe workplace and system of work in that she was overworked with too many clients, appointment times were too short, there were insufficient breaks, the internal workplace “Yes” policy increased the workload, there was a requirement to do “out of salon” work, there was a failure to train and instruct, and the salon had no occupational health and safety policy or procedure.

27. Secondly, following her return to work between 2 May 2018 and November 2019, she was required to work in non-compliance with her certificates of incapacity, contrary to the AMS reports (the occupational rehabilitation provider), and her return-to-work restrictions were not complied with. This meant there was overuse of her right wrist when she returned to work. From 12 October 2017 the defendant was on notice about her over-use right wrist injury .[216]

    [216]       T699

28. The plaintiff was critical of Mr Semaan’s role co-ordinating Ms Alister’s claim as he did not have a hands-on role at UVA Salon and could not properly supervise her return to work.

29. Thirdly, she also claims the defendant failed to comply with the Regulations, in particular the hazardous manual handling provisions with respect to identifying the hazardous manual handling (regulation 26), controlling that risk as far as reasonably practicable (regulation 27) and failing to review and revise measures to control the risks (regulation 28). Ms Alister claims that she was required to perform repetitive hazardous manual handing duties involving awkward postures and repetitive movements with scissors and a hair dryer, and the employer failed to reduce or eliminate the risk of musculoskeletal injuries.

30. The defendant admits the nature of the duties performed by the plaintiff contributed to her injury.

31. With respect to causation, the plaintiff relies on inferences, as a matter of common sense and common experience and submits this is sufficient to establish a causal connection between the breach of the defendant’s common law duty of care and contravention of the Regulations and the plaintiff’s injury. The defendant’s negligence and breach of duty should be regarded as having caused or materially contributed to the plaintiff’s injury.

32. The defendant has a non-delegable duty of care, and Ms Uva cannot delegate the task of determining a safe system of work to her employees.

33. The plaintiff argues orthodox principles of causation apply and referred to Justice Gaudron in Naxakis v Western General Hospital & Anor,[217] where her Honour stated:

    “It has been suggested that to allow compensation for the loss of chance would alleviate problems associated with proof of causation. There is, in my view, a tendency to exaggerate the difficulties associated with proof of causation, even in medical negligence cases. For the purposes of the allocation of legal responsibility, “[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring.” And in that situation, the trier of fact – in this case, a jury – is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.”[218]

    [217][1999] HCA 22

    [218]      Naxakis v Western General Hospital & Anor [1999] HCA 22 at [31]

34. In Bennett v Minister of Community Welfare,[219] Gaudron J stated:

    “Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, call for analysis in a way that differs from that appropriate for a case based on a positive act.”[220]

    [219]      Bennett v Minister of Community Welfare (1992) 176 CLR 408

    [220]      Bennett v Minister of Community Welfare (1992) 176 CLR 408 at [12]

35. The plaintiff submitted the breach of the common law duty to provide a safe workplace, and the breach of the manual handling regulations coupled with the overuse right injury strain, justifies an inference giving rise to causation because the very point of the manual handling regulations is to protect the musculoskeletal components of a worker’s body.

36. In submissions, the plaintiff argued[221] that inferences can be drawn from the 45-minute appointment times, a failure to roster breaks other than the lunch break, a failure to manage pressure, fatigue, stress and pain under which the plaintiff worked, the failure to manage her safe return to work practices, a toxic work environment, Ms Uva being intimidating and hostile, disregard for occupational health and safety precautions and failing to have a system to report and respond to the plaintiff’s fatigue, stress and pain resulting in right wrist injury.

    [221]        Plaintiff’s submissions dated 1 September 2022 para 9(a)-(h) p. 3

37. The submission was that by these inferences, the plaintiff has established a compelling case of the defendant’s negligence and breach of duty as having materially caused or materially contributed to the plaintiff’s injury.

38. The plaintiff relied on Kennedy J’s dissenting view in Munday v St Vincent’s Hospital:[222]

    “At the very least, the trial judge should have drawn an inference that it was more probable than not, on the balance of probabilities, that the provision of training in the safe use of the slide board would have averted the injury to the thumb…the relevant inference arises naturally from common law sense given that it is not safe to place a thumb so that it might be trapped and crushed. No expert technical evidence is necessary for this conclusion.”[223]

    [222] [2021] VSCA 170

    [223]      Munday v St Vincent’s Hospital [2021] VSCA 170 at [61]-[62]

39. In closing submissions, Plaintiff’s counsel submitted:

    “It is clearly obvious that if you put a worker to – in the form of a principal stylist into a toxic work culture environment, with limited breaks, with an intimidating manager, with a return to work program that’s mismanaged. All of those factors give rise to a very appropriate inference that the manual handling or musculoskeletal disorder…is a logical consequence in the causation sense of having been materially caused or materially contributed by the breach.”[224]

    [224]        T715-716

40. The particulars of negligence relied on were the failure to provide and maintain a safe workplace and safe system of work because there was no system devised, implemented or maintained as the employer is obliged to do. Post-injury and during the return-to-work period, the defendant, on notice that the plaintiff has a repetitive strain injury, failed to ensure  she performed only appropriate return to work duties.

    Assessment of the evidence

    Negligence

    Risk and breach of duty

41. In addition to the oral evidence of the witnesses detailed above, the parties tendered materials, including the UVA Salon records, (for staff services and client appointment records), Ms Alister’s work tools, certificates of capacity, AMS reports, medical records, radiology records, medico-legal reports and an extract of question 2 from the plaintiff’s interrogatories for the examination of the defendant and the defendant’s answers to question 2. The parties provided closing submissions. I have considered all of the tendered material, the written submissions, and the transcript of the evidence and oral submissions.  I will only refer to that material to the extent necessary in these reasons.

42. Turning to the first issue in dispute.

    Did the defendant exercise reasonable care to provide a safe workplace for Ms Alister pre-injury and following her return to work?

43. Ms Alister pleads she sustained the repetitive injury in the course of her employment which was caused by the negligence of the defendant, or alternatively by the defendant’s breach of statutory duties by failing to provide a safe workplace or system of work.

44. This was not a case involving a narrow factual compass. There was no specific incident or specific omission relied on by Ms Alister as the cause of her injury.  Instead, there were a number of workplace practices relied on by her as contributing to prove the defendant’s breach of duty to provide a safe workplace and safe system of work.

45. The work of a hairdresser involves the repetitive use of the upper limbs. The risk to Ms Alister is that a hairdresser working in a salon is at risk of suffering some type of a repetitive strain injury to the hand.

46. In response to the identified risk, Ms Alister says the defendant was negligent by failing to provide a safe workplace and safe system of work, particularised from August to October 2017. Evidence was adduced concerning Ms Alister’s daily excessive number of services which resulted in her not taking lunch breaks or other breaks, servicing clients in rushed, inadequate 45-minute appointments blocks, having to do extra work because of the “Yes” policy to assist staff who ask for assistance, as well as a requirement to do extra hairdressing work out of hours, and not being properly trained in safety aspects including  posture whilst cutting or blow drying hair, in a salon without formal occupational health and safety policies and procedures.

1. In addition to the period between August to October 2017, the plaintiff’s case claims the defendant’s negligence continued during the plaintiff’s post-injury return to work between May 2018 and November 2019 and her injury was exacerbated.[225] The particulars of negligence relevant to the return-to-work period are in the Further Amended Statement of Claim at paragraph 6 (l)-(q).[226]

   [225]        Plaintiff’s submissions dated 1 September 2022 at para 6, p.2. The Further Amended Statement of

   Claim does not include reference to the specific period May 2018 to November 2019.

   [226]Although the period of Ms Alister’s return to work is from October 2017 until November 2019, the plaintiff’s closing submissions refer to the post-injury return to work period from 2 May 2018 until November 2019.

2. The plaintiff’s Further Amended Statement of Claim details the particulars of negligence and/or breach of duty.  Although the particulars in paragraph 6 range from (a) to (x),[227]  the plaintiff’s case essentially relied on evidence called in support of the above propositions. 

   [227]      Further Amended Statement of Claim dated 10 August 2022 and filed on 30 August 2022.

   Leave was granted to file the Further Amended Statement of Claim at trial on 10 August 2022.

3. Each of the work practices relied upon by Ms Alister in her claim were factually disputed by the defendant. The defendant admitted Ms Alister’s work duties as a hairdresser contributed to her right wrist injury. However, it denied any breach of its duty of care in negligence or breach of the Regulations.

   Excessive workload

   Number of daily services

4. Ms Alister’s case was that the salon scheduled a high number of daily bookings, the appointment time of 45 minutes was too short, and it did not allow adequate rest breaks. This meant there was a “domino effect”, with clients backed up so that the 45-minute lunch break was often subsumed in catching up with the next client.

5. I have already referred to the process by which records were discovered by the defendant. The defendant’s late discovery of Exhibits D1-D32 was unfair to the plaintiff and piecemeal. However, I am satisfied they are a more accurate reflection of the actual services completed by Ms Alister than the daily breakdown figures which Ms Alister gave evidence about and tendered for the period between 1 August and 7 October 2017.[228]

   [228]Exhibit P2

6. Rather than providing over 20 services a day, I am satisfied by the oral and written evidence that Ms Alister’s high demand days were more likely 10-12 services. The evidence does not support a significant part of her claim of being overworked to the extent alleged in the three months prior to October 2017 which then impacted her ability to take lunch breaks and breaks.

7. In examination-in-chief, Ms Alister relied on the daily breakdown figures discovered by the defendant.  However, given she had been a principal stylist since January 2017 and had knowledge of her daily client “column”, I find it inherently unlikely that she believed she was performing up to a total of 23 services to clients in one day. She referred to other work she may have performed on these days, such as doing colours for other stylist’s clients, which would not have appeared in the work records.  

8. Ms Alister was a charismatic, articulate and confident witness. I have noted her case was potentially forensically disadvantaged by the defendant’s late production of the client records after the major part of her evidence in chief. However, in my view, with respect to this particular part of the evidence, although when faced with the client records she made some concessions, she was equivocal at best, and disingenuous at worst, and was  reluctant to accept the inherent unlikelihood of her performing over 20 services at 45-minute intervals in one day. She was also at times inconsistent in her evidence stating in 2017 she would ‘rarely’ do colours, yet many of the additional services in dispute were for colours and she proposed that she could have been doing colour services for other stylist’s clients which would not be recorded under her name. I found her evidence that she would shampoo 50-60 per cent of her clients at odds  with other witnesses evidence, even Ms Baeumler, suggesting she would rarely do so, particularly in her role as principal stylist.

   Breaks and 45-minute appointment time

9. These two issues are integral to each other, as the plaintiff’s case is that because the 45-minute appointment time was inadequate, Ms Alister had to work extra hard to complete each service in the allocated time slot, which caused her to miss her lunch break playing catch up. As noted, I do not accept Ms Alister was performing over 20 services in a day and her evidence about missing lunch breaks was in this context.  I accept her evidence a high demand day was 10-12 services. Ms Uva’s evidence was that 12-13 services was a long day, and I prefer this evidence over Mr Sculli’s estimate of 15-16 services.

10. Ms Alister’s evidence was that the 45-minute appointment time was insufficient as the time for the initial consultation with the client, and the hair wash, was included in the 45 minutes, leaving limited time for the actual cut and blow dry.[229] Mr Sculli was of the same opinion, noting a new client consultation will take longer, as will a client with very, very long hair.[230] Mr Sculli referred to UVA Salon as a “sweat shop”.[231] The plaintiff called Ms Hollie Baeumler, a former UVA salon apprentice, and current Creative Director and Manager at a salon, Vision Blonde. Her evidence was the salon does not have a ‘minimum’ appointment time, but on average, if she had to give a number, it would be one hour.[232]

    [229]       T82-83

    [230]       T386

    [231]      T372

    [232]       T460

11. Against this, Mr Semaan and Ms Uva gave evidence that the 45-minute appointment time was industry standard (in fact, Ms Uva said the industry standard was 30 minutes), [233] and they both described the benefits of having a salon team of staff to assist if things did not go to schedule, for example to help with blow drying to finish a client.[234] Further, their evidence was that each salon they had worked in ran on 45-minute appointments times.  Whilst there was a reference to “industry standard”, the evidence on this point was limited to Ms Uva and Mr Semaan. Ms Baeumler estimated her salon had one-hour minimum appointments at Vision Blonde, “according to the client’s hair type and what the client is wanting to have done, to allow enough time to provide that service.”

    [233]       T573 and T613

    [234]       T574 and T666

12. There is no evidence that Ms Alister ever complained about the inadequacy of the 45-minute appointment times. Ms Uva’s evidence was that Mr Sculli did complain and was offered one-hour appointments, at a higher cost to his clients.[235]  I note the Joey Scandizzo Salon has had 45-minute appointments since at least 2006, as has the UVA Salon since opening in 2013. There was an absence of evidence as to what the appropriate time period for appointments should be.

    [235]      T614

13. In that context, Ms Alister’s evidence was that “it was not very easy” to take a 45-minute lunch break, and that the period was often used as a “buffer” to catch up on clients.[236] The evidence was clear that there was no scheduled break on a Saturday and Mr Semaan and Ms Uva stated this was common across the industry.

    [236]       T73

14. Mr Sculli’s evidence was “sometimes, at times you might not get a lunch break”. He stated, “If you’ve got a domino effect of clients waiting for you, if you’ve got four clients in the salon at once, you can’t really have a rest”.[237]  He also stated that it was a “flat out lie” that staff were permitted to take breaks between clients.  Yet he subsequently agreed he took smoking breaks as a senior staff member.

    [237]      T381

15. Mr Semaan’s evidence was that 45-minute appointments are “industry standard”, and 45-minute lunch breaks are scheduled into the appointment book, so one of the 45-minute blocks is marked out as a lunch break.  Staff could also take breaks between clients. Ms Patrick also confirmed the 45-minute lunch break was scheduled into the appointment book and whilst there was no written policy about the 45 minute lunch break, the practice was not in dispute.

16. Ms Uva’s evidence was that Ms Alister had a daily 45-minute scheduled break and was able to take breaks between clients, “whether it was water, eat, phone”.[238]  Ms Alister was “highly competent” and took her break, “I would rarely see her not taking her breaks”.[239]

    [238]      T604

    [239]       T605

17. Ms Patrick worked with Ms Alister and stated that she would rarely run over time with clients and was good at time management.

18. I accept the evidence supports that there was a 45-minute lunch break scheduled into each day except on Saturdays.  I also accept that the weight of the evidence supports that, where time permitted, staff including Ms Alister did take breaks between clients to check their phone or have a drink, or as in Mr Sculli’s case, a smoke.

19. Ms Alister’s evidence was that “it was not very easy” to take a break.[240]  It is unclear if this means that she did not take lunch breaks. She did not specify in her evidence how often she did not take a lunch break. Ms Alister was not asked in evidence how often she missed a lunch break or how many times a week, or to estimate on how many occasions she would work through her lunch break.  I have no doubt there were occasions when it was not possible to take a full lunch break owing to the pressure of work.  Her evidence was that she was able to take breaks between clients, to have some water or check her phone. I also accept from the evidence from Ms Uva and Ms Patrick that Ms Alister was a highly skilled stylist, part of which was reflected in her ability to manage the pressures of her “column” within the scheduled 45-minute appointments.

    [240]       T73

20. I find the evidence was not  cogent enough to establish how often the pressure of the workload prevented Ms Alister from  taking  a lunch break, or break, and whether this was a daily, weekly or monthly occurrence, particularly in the period between August and October 2017. It is axiomatic that a longer appointment time will mean less clients and more time to complete a service and there was evidence other salons run on this business model. However, this does not prove the defendant’s schedule of 45 minute appointment times was reflective of an unsafe  work practise.

    Out of salon work

21. Ms Alister stated her “out of salon” work amounted to three to five hours of extra work a week. She described five events over the 10-week period from August to October 2019.  One event with Bec Judd was eight hours, the NGV event was estimated to be one to two hours, and another engagement was one hour.  Over 10 weeks, that time is over an hour a week.  Without knowing the length of time of the other engagements, it is difficult to estimate how many hours extra per week this amounted to.

22. The evidence was clear that the “out of salon” work was coveted by salon staff, despite it being variable as to whether the work was paid or not. The evidence suggested Ms Alister wanted to do this work, and Ms Uva indicated she may have been upset if she was not offered it. There was no evidence it was compulsory.

23. Given the lack of specificity regarding how many hours the extra work took, I am not satisfied that the estimate of an additional three to five hours per week is accurate.  If it was an extra three hours a week, that is 30 hours over 10 weeks, and the other two events must have taken 19 hours combined. To get to an extra five hours a week, which is 50 hours over 10 weeks, the other two events would have taken a total of 39 hours combined. There is no evidence to support either contention.

24. In my view Ms Alister accepted this work because she wanted to do it and enjoyed it. It was not compulsory.  I do not accept the additional hours from this work is evidence of an unsafe work practice or an unsafe workplace.

    “Yes” policy

25. Mr Semaan described that the “Yes” policy was designed to create a “positive” atmosphere.  

26. When asked how the policy affected his work schedule, Mr Sculli stated:

    “If I could help, then I would and if I didn’t … it would take … a little bit of extra time to find help, so then that means the timeframe to deal with the clients would go down again.”[241]

    [241]      T380

27. Ms Alister was also of the view the “Yes” policy did not really help alleviate stress “as if everybody was asking for help, how can you say yes to everything?”[242]

    [242]      T114

28. As I understand the plaintiff’s claim, the way the “Yes” policy contributed to the unsafe workplace was by creating extra work for the staff, particularly the stylists like Ms Alister who were obliged to say yes but were already working to the 45-minute appointment regime.

29. In re-examination Ms Alister estimated she was on the receiving end of the ‘Yes policy’ “very consistently”[243] during her time at UVA salon. Her evidence was she found it “extremely hard” and it made her “stressed out about timing”.

    [243]      T358

30. I find the ‘Yes policy’ appeared to operate unfairly and onerously, particularly on the stylists like Ms Alister working to the 45 minute appointment regime, adding to the burden of their busy day.

    Lack of response to Ms Alister’s report of injury

31. Although this is a particular of negligence at paragraph 6(g) in the plaintiff’s Further Amended Statement of Claim, there was no evidence Ms Alister spoke to Ms Uva prior to her wrist injury about pressure, fatigue, stress and pain. Ms Uva denied Ms Alister spoke about any such issue, save for when she reported her wrist pain.

32. Mr Sculli stated that Ms Alister would tell him she was in pain prior to her seeking medical assistance in October 2017. There is no evidence that Mr Sculli reported this to Ms Uva.  He was not a senior team leader until 2019.

33. There is no evidence to support this aspect of the claim.

    Toxic environment in the salon

34. Ms Alister described a “toxic” work environment in the salon between August and October 2017, which she described as driven by the format of having to service as many clients as possible and the pressure to perform.  Mr Sculli also used the word “toxic” to describe the workplace.  Ms Baeumler, a former apprentice from 2014 to 2016 at UVA Salon described the work environment as very stressful at the end, “the toxicity, that sort of thing”.[244]

    [244]      T454

35. The plaintiff’s submissions describe the UVA salon as:

    “…an extremely tense, negative, stressful, pressurised and toxic workplace environment (demanding adherence to a “YES policy’) whilst supervised by an unsupportive manager whom the Plaintiff regarded as having an ‘intimidating management style’ and responded to her injury as an ‘uncaring bully.’’[245]

    [245]      Plaintiff’s submissions dated 1 September 2022 at para 4, p.2.

36. Ms Alister’s claim is that her injury was caused by overwork and lack of breaks which took a physical toll on her wrist. She uses ‘toxic’ in the context of workload, the number of clients and the pressure to perform. This is not a bullying claim and neither ‘bullying’ nor ‘toxic workplace’ are particularised in the Further Amended Statement of Claim. Evidence about the toxic workplace is entwined with evidence about Ms Uva’s personal style. However, the evidence suggests that Ms Alister and Ms Uva had a strong and positive relationship over a long period including post injury. Witnesses gave evidence about how close Ms Uva and Ms Alister were. However, the relationship faltered in 2019 and Ms Alister’s evidence was the relationship became hostile in November 2019. Whilst other witnesses gave evidence about being  affected by Ms Uva’s management style, I am not of the view the evidence supports the plaintiff’s claim that she was the victim of Ms Uva’s ‘intimidating management style’ or that she was an ‘uncaring bully’ during her employment with UVA salon and in the three months prior to October 2017. During this time Ms Alister was given the coveted celebrity work.  Workplace context and culture is extremely important; however  these aspects are not particularised  in the Further Amended Statement of Claim. In any event the evidence supports the deterioration of Ms Alister and Ms Uva’s relationship occurred towards the end of her period of employment in November 2019.

    Lack of training

37. Ms Alister completed the theory component of her apprenticeship through Headmasters Academy and then the Joey Scandizzo Academy. I accept the evidence from her academic transcript there was an equivalent to an occupational health and safety module as part of that course.

38. Further, she had practical training from Mr Semaan regarding cutting techniques and tool use, posture and sitting height. She became an expert cutter, and her swift rise up the ranks at UVA Salon is a testament to her skills.

39. Ms Patrick was also doing an apprenticeship at the same time as Ms Alister. She gave evidence about the training she received from the Academy and staff, which was not disputed. I am not satisfied by the plaintiff’s claim that there was an absence of training in the skills of hairdressing, and the requirements of good technique, which covered the physical aspects of the role.

    Return to work October 2017 - November 2019

40. There were five sources of evidence relevant to this part of the claim. They were the certificates of incapacity, clinical notes, AMS reports, employee break down sheets and the evidence of Ms Allister, Mr Semaan and Ms Uva. The evidence was complex as Ms Alister’s certificates for capacity varied throughout the two-year period, and these periods were punctuated by times she was having surgery and treatment and thus had no work capacity.  She would then return to work with titrated weekly work schedules and then have flare ups and reversions, and then also at times be declared to have pre-injury capacity.  

41. Some of the defendant’s records have services such as a colour or cut assigned to Ms Alister’s name (owing to the salon’s commission system[246]), when both Ms Alister and Mr Semaan agree she was not at work, for example on 12 and 14 October 2017. I accept that Ms Alister did not perform those services, and this is a recording error.

    [246]      T609

42. The certificates for capacity from 9 November 2017 and thereafter until 1 May 2018, stated Ms Alister had no capacity for work and “Cannot reach above the shoulder” and “cannot use injured hand/arm”.[247]

    [247]       Exhibit P8 and Exhibit P24

1. During the period from 26 February 2018 and late November 2019, AMS consulting was providing return to work reports and plans to UVA Salon. The majority of Ms Alister’s evidence about non-compliance with return-to-work plans, is by reference to the employee breakdown sheets and her evidence as to whether they accurately reflect the services she actually performed on those days.

2. There is evidence from Ms Alister that when she returned to work, on occasions she was engaged in hairdressing duties such as cutting and blow drying when the certificates stated she cannot use injured arm/hand.  She stated, “I felt extremely pressured to continue to cut hair and service clients, rather than strictly stick to reception duties ...”. [248] Her evidence for example, is that she was meant to be on reception, but then would also have some clients booked in. This is borne out in her evidence and the employee records for example from 20 October 2017 and the certificate for capacity for 13 October to 3 November 2017 stated that Ms Alister “had” capacity, but stated, “Cannot reach above shoulder” and “cannot use injured hand/arm”.[249] This also occurred when she returned to work post surgery on 2 May 2018.

   [248]       T124

   [249]       Exhibit P8

3. Not surprisingly, Ms Alister found this a difficult process to manage with her employer.  She reported this to her hand therapist, Ms Street, who recorded on 14 November 2017 in her clinical notes, “Work not co-operating with med cert from GP… Pt now off work duties”.[250] I do not accept Ms Uva’s evidence there was no pressure on Ms Alister to service clients when she returned to work.

   [250]      Exhibit P14

1. The initial AMS report details three stages of return to work, and recommends UVA Salon and AMS explore scheduling of longer appointments to allow for reduced time pressure and rest breaks.[251]  Ms Alister’s evidence was that, following surgery, she was to receive longer appointment times and more rest breaks, but stated she did not get longer breaks.[252]

   [251]       Exhibit P11

   [252]      T141

2. The clinical records from her hand therapist, Ms Street, from 19 June 2018 state, “I’m just getting sore at work as I’m doing too much … I keep asking for space in between clients but they keep adding them, it’s almost back to square one”.[253]  I note the certificate of capacity issued 28 May 2018 states that Ms Alister has “capacity for pre-injury employment” and imposes no restrictions on hours or duties, noting “would need ongoing hand therapy”.[254] Therefore in that instance the evidence does not support non-compliance.

   [253]      Exhibit P14

   [254]      Exhibit P24

3. The AMS report dated 19 July 2018 notes that on 6 July 2018, Ms Alister advised AMS and Ms Uva that she was experiencing pain symptoms.[255] Following review and as documented in the AMS report her certificate of capacity of 17 July to 14 August 2018 imposed restrictions on using her injured hand and arm with modifications, and working five hours a day five days a week.[256] The clinical notes of Ms Street dated 10 July 2018 indicate Ms Alister is frustrated that her employer is lacking understanding and “Is not managing workload - especially on long days”.[257]  The notes from 17 July 2018 state:

   “I’m just so annoyed and frustrated that my employer is throwing me a full client list and I’m not able to withstand it … Pt frustrated with employer as feels when back early to appease and is not being listened to.”[258]

   [255]      Exhibit P19

   [256]      Whilst this is referred to in the AMS report dated 19 July 2019, the certificate of capacity was not    

   tendered.

   [257]      Exhibit P14

   [258]      Exhibit P14

4. Ms Alister gave further evidence of non-compliance with the return-to-work plan as Ms Uva trying to:

   “…squeeze in as many clients as possible in that short timeframe, rather than kind of respecting the fact that if its (sic) from 5 until 9, the 45 minute blocks were gone. They would get squished up so I could do more clients.”[259]

   [259]      T129

5. Ms Alister’s evidence does not stipulate how many clients were seen in contravention of the certificate of capacity for 17 July to 14 August 2018 which stated Ms Alister could use her injured arm/hand with modifications and continue to work on normal duties for 5 hours a day 5 days a week. Whilst Ms Alister uses expressions such as a “full client list” and “squeezing in as many clients as possible” it is difficult to assess exactly what that means for the purposes of the evidence on non-compliance.

6. On 2 August 2018 Ms Street’s record notes: “Pt seen today at Dandenong by JS. S: …Just so over it and work are saying that I have to stay behind after my 5 hr shift to do an extra 1-1.5 hours of training (haircutting).”[260] The AMS report dated 19 July 2018 has Ms Alister on partial hours of 25 hours a week and modified duties.

   It is difficult to match all of Ms Alister’s evidence with the specific terms of both the AMS reports and the certificates of capacity. There are, however, some specific examples of non-compliance, detailed above, together with Ms Alister’s evidence about her employer’s refusal to respond to her  pain complaints.

   [260]      Exhibit P14

7. I am satisfied that the evidence sufficiently establishes, and Mr Semaan conceded, occasions when the plaintiff has returned to work and worked beyond the remit of the relevant certificate of capacity and return to work plan.  Ms Uva’s evidence that “We were guided by what AMS would tell us and what Keely told us she was capable of doing”,[261] is her broad response to the return-to-work period. The details suggest there were occasions when the certificates of capacity and the AMS return to work plans were at odds with Ms Alister’s employee breakdown sheets and her evidence detailing her services performed. 

   [261]      T634

8. Ms Alister’s claim, as it relates to her return to work, is put in closing submissions that her right wrist injury was “exacerbated” during the course of her attempts to return to work. Ms Alister herself said she damaged her wrist further when she returned to work on light duties in October 2017. She did not clarify the details or refer to an event when this occurred and I find there is no evidence to support this.

   Conclusion

9. The evidence of excessive workload, to the extent claimed by the plaintiff, for example 20 services in a day, was not established. With respect to the series of work practices relied on by the plaintiff to prove an unsafe work environment and system of work, the evidence lacks cogency regarding the claims of the inadequacy of the 45-minute appointment times and the lack of lunch breaks or breaks. There was specific evidence of Ms Alister receiving relevant, appropriate training during the course of her apprenticeship.

10. I am satisfied the risk of injury was foreseeable, which was not an issue in dispute. Mr Semaan’s evidence was that the risk could not be completely eliminated, but measures could be put in place to alleviate the risk. This is an industry where the duties of a hairdresser necessarily involve repetitive upper limb use.

11. One picture painted by the evidence is of a less than optimal workplace, given the absence (conceded) of written health and safety policies or procedures. This absence is surprising in a large, modern salon. The ‘Yes policy’ operated harshly on Ms Alister given that stylists carried the major burden of complying with the 45-minute appointment regime. Against this is also a picture of a busy, successful salon, attracting high profile work with celebrities. Ms Uva acknowledged the pressure of long hours and clients, “that is what the work is…it doesn’t change.” She described Ms Alister as “… a very competent stylist…who would rarely fall behind.” Whilst Mr Sculli called it a “sweatshop”, I note Ms Alister was working a 36-38 hour week, which are the normal hours of a full time employee.

12. The defendant’s duty is to provide a safe workplace and system of work. There is no evidence that Ms Alister raised any concerns with Ms Uva about the adequacy of the 45 minute appointment times or her lack of breaks or the ‘yes’ policy or having to do work with celebrities, despite the evidence of their close relationship. There is a hint of retro-fitting the evidence about these work place practices in the context of the claim, although I acknowledge the ‘Yes policy’ operated unfairly on stylists like Ms Alister.

13. Despite the operation of the ‘yes policy’, I am not persuaded the evidence is sufficient to be satisfied, on the balance of probabilities, the defendant has breached it duty to provide a safe workplace and system of work and that the workplace or system of work was unsafe. I find the defendant’s response to the risk was reasonable.

14. I find the claim of breach of duty of care by the defendant between August to October 2017 of failing to provide a safe workplace or system of work not made out.

15. The focus of the plaintiff’s claim post injury is that when she returned to work after 4 October 2017 following lodgement of her WorkCover claim, the defendant did not adhere to restrictions imposed by her treating doctors.

16. The defendant had a duty to ensure Ms Alister’s return to work duties were appropriate given her injury for which they were on notice.

17. The defendant submits there is no evidence that Ms Alister suffered any injury or aggravation as a result of her return to work and none that was as a result of any breach of duty by the defendant.[262]

    [262]      T472

18. I am satisfied by the evidence Ms Alister returned to work and worked in contravention of her return-to-work restrictions.

19. I am satisfied the defendant failed to exercise reasonable care to provide a safe workplace, by being on notice of her injury and not ensuring her duties were appropriate. There was a non-compliance with the restrictions in the return-to-work certificates and  this constituted a failure by the employer to provide a safe workplace.  However, there is no evidence that the work performed by Ms Alister when she returned to work exacerbated or worsened or caused a deterioration to her original condition.  

20. Although the plaintiff did not lead any evidence from Ms Alister’s treating doctors to the effect that her injury was exacerbated during the return-to-work period, there were certainly flare ups in her pain and Ms Alister’s return to work was not of a linear trajectory to recovery. However other than the pain she expressed she experienced when cutting hair or using the blow dryer, as she had experienced in October 2017, there is no supporting evidence to satisfy me the work injury was as a result of or made worse by the work performed during the return-to-work period as a result of the defendant’s management of her return-to-work plan.

1. The claim with respect to the return-to-work period of failing to provide a safe workplace and systems of work is made out but fails as there is no evidence it caused Ms Alister’s injury to deteriorate or be exacerbated during that period.

   Breach of manual handling regulations

2. Ms Alister’s claim is, in the alternative to negligence, the defendant has breached the statutory duties in the Occupational Health and Safety Regulations 2017.

3. Regulation 26 provides an employer must, so far as practicable, identify any hazardous handling undertaken, or to be undertaken, by an employee.[263]

   [263] Occupational Health and Safety Regulations 2017 (Vic), Regulation 26

4. The plaintiff submitted that applicable regulations which the defendant has breached were Regulation 18 (proper installation, use and maintenance of risk control measures), Regulation 19 (medical examination and health monitoring), Regulation 26 (hazard identification), Regulation 27 (control of risk), and Regulation 28 (review of risk control measures).[264] 

   [264]      Plaintiff’s submissions dated 1 September 2022, see footnote 2.

5. It was not in dispute between the parties that Ms Alister’s use of the tools of hairdressing and tasks involved hazardous manual handling.

6. The plaintiff submitted that before and after her injury the plaintiff was required to perform repetitive, sustained and awkward postures and movements with her right wrist within the busy salon.  Further, it was submitted that the plaintiff did so:

   “Without regard to adherence with occupational health and safety training, information or instructions especially concerning how to eliminate or reduce the risk of sustaining an overuse injury resulting from onset of stress, fatigue and pain whilst performing hairdressing duties.”[265]

   [265]      Plaintiff’s submissions dated 1 September 2022 at para 5, p.2

7. Regulation 27(1) as to control of risk provides:

   “(1) An employer must, so far is reasonably practicable, eliminate any risk of a musculoskeletal disorder associated with hazardous manual handling.”

8. Regulation 27 (2) provides:

   “(2) If it is not reasonably practicable to eliminate a risk of a musculoskeletal disorder associated with hazardous manual handling, the employer must reduce the risk so far as is reasonably practicable by—

   (a) altering—

   (i) the workplace layout; or

   (ii) the workplace environment, including heat, cold and vibration; or

   (iii) the systems of work which involve hazardous manual handling; or

   (b) changing the things used in the hazardous manual handling; or

   (c) using mechanical aids; or

   (d) combining any of the risk control measures referred to in paragraphs (a), (b) and (c).”

9. Further controls of risk include information, instruction or training, and control measures must take into account postures, movements, forces, duration and frequency of task and environmental conditions.

10. UVA Salon director, Mr Semaan’s evidence was the risk of injury could not be eliminated completely, given the physical nature of hairdressing, but certainly measures can be put in place to alleviate the risk.

11. His evidence was that he instructed Ms Alister during the third year of her apprenticeship, when she attended the Joey Scandizzo Academy, about posture and tool handling, including cutting techniques and how to keep her hand straight. He gave detailed evidence about what this entailed.  The evidence supports a finding that some training about safety issues and correct technique was provided, by the Academy and Mr Seeman. There was evidence from Ms Uva that she would instruct staff on good posture in the chair. There was no evidence that she ever had to speak to Ms Alister about her posture.

12. Whilst there is no direct evidence the defendant identified “any hazardous manual handling undertaken”, as required by Regulation 26, it appears the employer has identified ways of carrying out the task of hairdressing to reduce the risk. 

13. The defendant’s case is that Mr Semaan took those steps to reduce the risk by using instruction or training during Ms Alister’s training as an apprentice.

14. In terms of changing the system of work and the 45-minute appointments, Mr Semaan’s evidence was that the 45-minute appointment was industry standard, and that the 45-minute appointment system was supported by the salon team, whereby other staff could assist when required.

15. Whilst Ms Alister mainly did cutting and blow-drying, I am satisfied from her own evidence she also did shampooing and colouring on occasions. Whilst her duties were to an extent repeated, they also varied and rotated depending upon the client’s requirements. Ms Baeumler’s evidence was that as an apprentice the work was not repetitive, just busy.[266]

    [266] T 463. She stated, “…we weren’t really doing the same things over and over again.”

16. I am satisfied the defendant sought to reduce the risk through instruction and training, as well as structure of the workplace with support staff who were available to step in to assist. The evidence about training is also supported by Ms Alister’s evidence that her role as a stylist was educative in that she would guide apprentices, and as a senior stylist, she would do training and demonstrations for junior staff. This denotes there was a system at the salon of instruction and development in hairdressing skills between senior and junior staff.

17. I am not satisfied on the evidence that there has been a breach by the defendant of the manual handling regulations.

    Causation

18. If I am incorrect and there is evidence sufficient to establish a breach of the duty of care, and the defendant has failed to provide a safe workplace or system of work, I briefly consider causation. I have already referred to the applicable legal principles and the most recent decision by the Court of Appeal on point, Cotton On Group Services Pty Ltd v Monica Golowka [2022] VSCA 279.

19. In this case, the plaintiff has argued the defendant should have, for example, scheduled more breaks and had longer appointment times.

20. There is no evidence of how the proposed alternative system of work, with longer appointment times and more breaks would have reduced or avoided the risk of injury to the plaintiff. Whilst 12-13 services constituted a busy day there was no evidence as to how few services would have constituted a safer system of work.

21. As I have indicated, I am not satisfied the plaintiff did not have a regular break or, on the evidence, the 45-minute appointment times rendered an unsafe system of work.  

22. This is a case where the onus is on the plaintiff to establish a link between the breach of duty and the damage by a counterfactual hypothesis.

23. I refer again to Wodonga Regional Health Service v Hopgood,[267] where the Court of Appeal states it is necessary for the plaintiff to identify:

    “(a)      what the defendant would have done had care been exercised; and

    (b)      how the taking of that action would have averted the loss or damage which  
    

    [267] [2012] VSCA 326 at [31]

              the plaintiff in fact suffered.”

24. The defendant has submitted, and I accept, that there is an absence of evidence as to how any “putative alternative system of work contended for by the Plaintiff would have averted the loss or damage that the Plaintiff in fact suffered”.[268]

    [268]      Defendant’s submissions at paragraph 12, p.3-4.

25. The plaintiff’s submissions sought to rely on “several inferences” to establish a compelling case of the defendant’s negligence “as a matter of ‘common sense and common experience which is sufficient to establish a causal connection…”.[269]

    [269]      Plaintiff’s submissions at [7]-[9]

26. The defendant submitted that the Court cannot draw an inference absent any medical or expert evidence that an alternative system alleged by the plaintiff would have avoided injury.

27. Whilst the counterfactual hypothesis has been put by the plaintiff, even if the defendant had allowed more breaks and longer appointment times and removed the “Yes” policy, there is no evidence to identify that, if that action was taken, the plaintiff’s injury would have been prevented. An inference is a logical conclusion drawn from evidence. That more breaks and longer appointments would have averted the injury is speculative and a generalisation without inferential force. There is no medical or other evidence to determine the extent to which the lengthening of appointment times or reducing the number of clients or increasing breaks would have averted Ms Alister’s injury.

28. I dismiss the plaintiff’s claim.