Beasley v Pilbara Mining Alliance Pty Ltd

[2019] WADC 56

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BEASLEY -v- PILBARA MINING ALLIANCE PTY LTD [2019] WADC 56

CORAM:   GILLAN DCJ

HEARD:   21-23 FEBRUARY; 26 FEBRUARY; 30-31 JULY; 1‑3 AUGUST; 26 SEPTEMBER 2018

DELIVERED          :   18 APRIL 2019

FILE NO/S:   CIV 1475 of 2015

BETWEEN:   KAREN ANNETTE BEASLEY

Plaintiff

AND

PILBARA MINING ALLIANCE PTY LTD

Defendant

Catchwords:

Personal injury - Negligence and breach of statutory duty - Workplace injury - Degree of impairment - Calculation of damages

Legislation:

Civil Liability Act 2002 (WA)
Mines Safety and Inspection Act 1974 (WA)
Mines Safety and Inspection Regulations 1995 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Plaintiff's claim dismissed
Judgment for the defendant

Representation:

Counsel:

Plaintiff	:	Mr R Singh
Defendant	:	Mr C Rimmer

Solicitors:

Plaintiff	:	Chapmans
Defendant	:	Spark Helmore Lawyers

Case(s) referred to in decision(s):

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424

Armitage v Tenix Defence Pty Ltd [2008] WADC 150

Divjakoski v Boral Window Systems [2011] WASCA 134

Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540

Kerr v Minister for Health [2009] WASCA 32

Kondis v State Transport Authority (1984) 154 CLR 672

Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486

Njegovan v Nayshon Pty Ltd [2014] WADC 111

Purkess v Crittenden (1965) 114 CLR 164

Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 492

Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330

Todorovic v Waller (1981) HCA 72

Watts v Rake (1960) 108 CLR 158

Woollahra Municipal Council v Jeffries [1981] 1 NSWLR 377

GILLAN DCJ:

1. On 17 August 2012, Mrs Beasley was employed by the defendant as a haul truck driver at Cloudbreak Mine site in the Pilbara.

2. On 17 August 2012, Mrs Beasley suffered an injury to her neck while operating a haul truck (the 2012 injury).  I will describe the nature of the 2012 injury and the circumstances in which it occurred in more detail below.

3. After the 2012 injury, Mrs Beasley received workers' compensation payments and participated in a graduated return to work programme.

4. Mrs Beasley was off work for a period of time, then had a period of light duties and relapse before, on or after 7 December 2012, returning to work in her pre‑accident duties.  There is a significant dispute about the circumstances in which Mrs Beasley returned to work and whether she was fit to do so at the time.

5. On 30 March 2013, Mrs Beasley was still employed by the defendant.  That day Mrs Beasley suffered an injury to her neck and arm whilst she was again operating a haul truck (the March 2013 injury).  The nature of the March 2013 injury will be discussed below.

6. After the March 2013 injury, Mrs Beasley again received workers' compensation payments and was started on a graduated return to work programme.

7. Eventually Mrs Beasley proved to be unable to return to work.  In June 2015 Mrs Beasley's employment with the defendant ceased.

8. In summary Mrs Beasley claims that:

   1.She was unfit to return to work after the 2012 injury and her fitness was not properly assessed.  Nevertheless she was directed to return to work by the defendant.  She remained unfit to undertake her duties after that direction and undertaking those duties caused the March 2013 injury.

   2.In making the direction to return to work the defendant was in breach of various duties it owed to her as her employer (the common law duty claim), in breach of the terms of her employment contract (the employment contract claim) and pursuant to the Mines Safety and Inspection Act 1994 (WA) (MSI Act) and its regulations (the statutory duty claim).

   3.She is now totally unable to return to work at all by reason of the March 2013 injury.

9. The defendant denies that Mrs Beasley was not properly assessed or that it directed Mrs Beasley to return to work and participate in duties that she was unable to do, and said that the return to work programme had been approved by various medical practitioners.

10. At issue in this matter are both liability for the March 2013 injury and the quantum of any loss.

Liability

The defendant

1. During the course of the hearing the defendant was often referred to as 'FMG' (short for Fortescue Metals Group) and even though the exact relationship between the defendant and FMG has not been explained to me, it was common ground that the defendant was the plaintiff's employer and the appropriate defendant to these proceedings.

2. I will refer to the defendant as the defendant or FMG during the course of these reasons where those descriptions reflect the reference in the evidence as given.

The pleaded issues

1. In respect to the alleged employment law duties[1] and common law duties[2] the plaintiff pleaded a standard set of duties owed by the defendant.  As a consequence of the breaches pleaded and how the plaintiff ran her case at trial only two of those pleaded heads of duty are relevant.  They are that the defendant had a duty to not expose the plaintiff to hazard and/or danger in the course of her employment and a further duty to implement work systems to ensure its compliance with the duty not to expose to hazard or danger.[3]

   [1] Substituted statement of claim dated 22 February 2018 at par 4.

   [2] Substituted statement of claim dated 22 February 2018 at par 7.

   [3] Substituted statement of claim dated 22 February 2018 at par 7.

2. I say this because the plaintiff's case at trial was not that the workplace was or that the systems of work were in a general sense unsafe, that there was a failure to warn, or that the haul trucks the plaintiff was driving were in either case unsafe or unmaintained.  There was also no suggestion that the plaintiff had not been adequately trained in driving the haul truck or was inadequately supervised in her occupation of driving.

3. The relevant pleaded breaches of the employment law duty[4] and the common law duty[5] were that the defendant:

   1.through its employee Mr John Kirwan, directed the plaintiff to perform her full pre‑accident duties from on or about 7 or 8 December 2012 despite the fact that at the time, the plaintiff was not symptom free, had not finished her return to work programme, and was without any certification by medical practitioner independent of the defendant;

   2.failed to adequately assess the plaintiff's fitness for work before allowing her to operate the haul truck between on or about 17 August 2012 and 30 March 2013;

   3.failed to ensure between on or about 7 December 2012 and 30 March 2013 the plaintiff could safely operate the haul truck without risk of injury and/or further injury;

   4.failed to assess the risks and/or adequately the risks involved in the plaintiff operating the haul truck between 7 December 2012 and 30 March 2013, particularly in circumstances where it knew of the 2012 accident and the plaintiff's symptoms and where the plaintiff's fitness for work had not been adequately and independently assessed;

   5.failed to prevent the plaintiff from and/or warn the plaintiff of the risks involved in operating a haul truck, particularly in circumstances where it knew of the 2012 injury, and where the plaintiff's fitness for work had not been adequately assessed, thereby exposing the plaintiff to foreseeable risk of injury; and

   6.failed to put systems in place to ensure that it did or avoided doing those things specified in [15(1)] – [15(5)] above during the relevant period, particularly by directing the plaintiff to carry out tasks that were not suitable, having regard to the neck and right arm injury and where the plaintiff's fitness for work had not been adequately and independently assessed.

   [4] Substituted statement of claim dated 22 February 2018 at par 24.

   [5] Substituted statement of claim dated 22 February 2018 at par 24.

4. Those matters seem to me to fall within the description of the duty not to expose the plaintiff to hazards or dangers and to implement appropriate systems to assess the hazards or dangers and avoid them.

5. In addition, the plaintiff pleaded that Cloudbreak Mine was a mine as defined by s 4 of the MSI Act.[6]  As a consequence, the plaintiff pleaded, the defendant also owed the plaintiff a statutory duty of care pursuant to s 9 of the MSI Act and reg 4.13 and reg 6.21 of the Mines Safety and Inspections Regulations 1995 (MSI Regulations) (the statutory duty).[7]

   [6] Substituted statement of claim dated 22 February 2018 at par 6.

   [7] Substituted statement of claim dated 22 February 2018 at par 8.

6. The breach of the statutory duty was pleaded to be the same as the breaches of the common law duty and in addition, that the defendant:[8]

   1.Failed to assess the plaintiff before she recommenced work after the 2012 injury to ensure the plaintiff was competent to perform her tasks and to operate any plant during the relevant period as required by reg 4.13(b) of the MSI Regulations.

   2.Failed to prevent unsafe use of plant, as required by reg 6.21(a) of the MSI Regulations.

   3.Failed to identify hazards associated with plant and assess those risks to the plaintiff as required by reg 6.21(b) of the MSI Regulations.

   4.Failed to provide and maintain a working environment at Cloudbreak Mine that would ensure the plaintiff was not exposed to hazards during the relevant period, as required by s 9 of the MSI Act.

   [8] Substituted statement of claim dated 22 February 2018 at par 24.

7. It is further pleaded that as a consequence of the March 2013 injury the plaintiff had suffered a whole person impairment of between 15% and 25%[9] within the meaning of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act) and had taken the necessary steps to register an election so as to progress a claim.

   [9] Substituted statement of claim dated 22 February 2018 at par 34.

8. In summary, the defendant denies certain of the duties pleaded, denies that the plaintiff suffered any injury in March 2013 and says that any injury occurred in August 2012, denies the breach of the various duties, says that the plaintiff cannot progress a claim for an award of common law damages in relation to injuries suffered in August 2012, denies that the plaintiff has suffered a whole person impairment of at least 15% by reference to any March 2013 injury but says if she has, then any award of damages is limited to a capped amount.

The case at trial

1. In opening the plaintiff's counsel, Mr Singh, said that the plaintiff's case, by way of negligence, was that the way the plaintiff was managed by the defendant in the period between 17 August 2012 and 30 March 2013 led to the March 2013 injury.  If the plaintiff had been managed in accordance with her symptomology, the symptoms she was reporting, perhaps this accident would not have occurred and she would not be in this position.[10]

   [10] ts 158 – 159.

2. The plaintiff's counsel went on to say that the defendant should have continued the plaintiff on a return to work programme in accordance with the recommendations of Dr Silbert in his report dated 21 November 2012 and managed her return to work in accordance with that return to work programme.  If that had been done correctly, he said, the plaintiff would have continued to be on a return to work programme until at least the end of December or early January 2013, perhaps her symptoms may have subsided and she may have improved.

3. It is central to the resolution of this matter to determine whether on 7 December 2012 Mrs Beasley had sufficiently recovered from the 2012 injury to return to work, and, whether there is any basis for the suggestion that, if she had remained on a return to work programme, she would not have incurred the March 2013 injury.

4. In the resolution of those central matters, the following factual issues fall for determination:

   1.What were the circumstances of the 2012 injury?

   2.What role did the defendant have in the vocational rehabilitation of Mrs Beasley after the 2012 injury?

   3.Was Mrs Beasley sufficiently fully recovered from the 2012 injury to return to work as of 7 December 2012?

   4.Did the defendant direct Mrs Beasley to return to work on 7 December 2012?

   5.Did Mrs Beasley continue to be symptomatic after her return to work?

   6.What occurred on 30 March 2013?

   7.Did Mrs Beasley injure her neck and arm on 30 March 2013?

   7.If she did injure her neck and arm on 30 March 2013, what was the nature of that injury?

5. I have also kept in mind the provisions of the Civil Liability Act 2002 (WA) (CLA). Section 5A of that the CLA provides that pt 1A 'applies to any claim for damages for harm caused by the fault of a person'. Harm is defined to include personal injury. The CLA contains statutory formulations for determining a breach of the duty of care, causation and contribution of negligence but neither of the parties took particular issue with the application of those provisions in this case, so I do not intend to discuss them in detail.

The plaintiff's background and matters relating to her employment with the defendant

1. When the matter came on for trial Mrs Beasley was a 50‑year‑old woman.  She was born in Subiaco Hospital, Perth, and was educated until the end of Year 10.  She told the court that she started Year 11 at the Christian Aboriginal School in Coolgardie but did not like the way in which that boarding school was run and so left.

2. Her employment after school for a few years was at Muresk Agricultural Farm in Northam where she was working with machines, looking after plants and animals and labouring.

3. She then worked for a period of time at a station.  Mrs Beasley had, during her working life, a number of children but none of the details of that part of her life were offered as part of her evidence.

4. Later Mrs Beasley worked for the Aboriginal Health Service at Wirraka Maya Health Service in South Hedland.

5. Her role there was to screen patients, look after patients, do some field work, take blood and check observations.

6. During that time she was also training to be a nurse.

7. Mrs Beasley's evidence was that at various times she had spent a considerable period travelling around in Western Australia before she moved back to the area, South Hedland, where she felt her indigenous heritage lie.

8. When she did return to South Hedland, Mrs Beasley's daughter was working at FMG so she decided to try and get into its training programme.

9. Mrs Beasley attended and completed training through the VTech system that had been set up jointly with FMG to train indigenous people for jobs in the mining industry.  On about 7 November 2011, after completing her training, she was taken on site where she was trained and assessed for her competency in driving a haul truck.

10. Mrs Beasley was then employed from February 2012 as a fly‑in/fly‑out (FIFO) worker at Cloudbreak Mine on a shift swing.  The shifts were 8 days on/6 days off for the day shift and 7 days on/7 days off for the night shift.  She flew into Cloudbreak Mine on her FIFO swing from South Hedland and when onsite, Mrs Beasley worked 12 hour days, with shifts starting at either 6.00 am or 6.00 pm.

11. Mrs Beasley worked both night and day shift during the period that she was at Cloudbreak Mine.

12. After she was employed Mrs Beasley was offered and took a lease of an FMG house in South Hedland.

13. When Mrs Beasley would arrive at site she would be in her uniform and she would immediately take a bus to the residential camp to be allocated a room where she would take her luggage.  She would then meet the bus and go on shift.

14. At the beginning of every shift there was a pre‑start meeting at which each driver would be allocated to a haul truck.  There were different types of haul trucks, they included 4400 Terex and CAT 793C trucks.

15. Once a worker was allocated to a truck and after the site meeting, they would go onto the go line where there would be a handover of a haul truck by the previous driver coming off shift to the driver coming on shift.

16. Each of the drivers would have to do a pre‑start walk around the truck to make sure that the truck was safe to go.  The drivers would then be sent out to collect a load from a variety of locations within the mine.

17. When they arrived at a location drivers would line up in their haul trucks and await instructions to be loaded with either iron ore or waste.  When a position to be loaded was clear, they would reverse the truck they were driving into position and an excavator driver would use an excavator to fill the haul truck with iron ore or waste.

18. The location to which the haul truck driver would then take the load in the haul truck would depend on whether it was loaded with iron ore or waste.  While in the truck and awaiting loading, the driver was required to fill out a form and record information, or instructions they had received via a computer screen in the haul truck.

19. In any 12 hour shift a driver will have a smoko, or a break of 15 minutes in the first part of the shift, 1 hour lunch break for lunch (or dinner) and a further 15 ‑ 20 minute smoko break in the last part of the shift.

20. The times of each break would vary depending on when there was an appropriate gap in moving iron ore or waste but roughly the shifts were broken into three periods of no more than 4 hours.

21. The roads over which the haul trucks were travelling between loading and hauling of load were described by Mrs Beasley as sometimes being 'There's days when your road is bumpy as hell.  Some days it's smooth as'[11] and also 'smooth as a baby's bum and sometimes as rough as guts'.

    [11] ts 169.

22. When the roads were rough, a driver would call in a grader to fix the road.  At any given time there were a variable number of trucks on the road, perhaps 15 or 20, all allocated within Cloudbreak Mine to various locations.

The circumstances of the injury on 17 August 2012

1. On 17 August 2012, Mrs Beasley was driving a 4400 Terex haul truck and was working at Pit‑2.

2. At roughly 11.48 pm, Mrs Beasley drove her haul truck to Pit‑2 and, as instructed, backed the truck into a space, positioned it to receive a load and stopped.  She turned off the machine and picked up her file to start filling in the paperwork with respect to that load.

3. Something occurred in the loading of the truck that caused a sudden and substantial movement to the truck.  That movement came as a complete surprise to Mrs Beasley.

4. Mrs Beasley described a loud noise and said that the 'next minute I know the truck has gone mad.  I was chucked around the cabin'.[12]

   [12] ts 169.

5. After this had occurred and in accordance with the usual practice she then heard the excavator driver toot the horn to indicate that the tray of the truck was full.  Mrs Beasley, again in accordance with her usual practice and her instructions, then drove away to drop off the load.

6. Immediately after she had driven off, Mrs Beasley got on the radio and said to the excavator driver words to the effect that 'There was a bloody rock on there or what?'[13] to which the excavator driver replied 'no, no, there was not a rock'.  Mrs Beasley continued driving but then began to feel pain in her neck.

   [13] ts 170.

7. After she dumped her load she began to feel as if something was crawling up her back and she started to feel pain in the left side of her neck.[14]  She then radioed to her supervisor, Graham, and told him what had happened.

   [14] ts 169.

8. Mrs Beasley was taken down the gatehouse where she could receive some medical assistance.  At the gatehouse Mrs Beasley saw a registered nurse, Greg Evans (Grumps), who gave her neck a massage and tried to help her.  Mr Evans also gave her some medication in the form of Nurofen Plus and Panadol after which she was dropped back at the crib hut.

9. She reported to her supervisor the medication she had been given and was told that if she took the Nurofen Plus she would not be able to drive any further that evening.

1. Mrs Beasley elected not to take the Nurofen Plus that evening and chose to return to driving her truck, but after a while she was called back in to the crib room by the supervisor and then put off to rest for the balance of the night.

2. The account by Mrs Beasley is confirmed by the nursing notes made by Mr Evans,[15] which confirm that Mrs Beasley presented to the gatehouse complaining of neck soreness.  She reported a rock as having been dropped in the tray of the haul truck, making a loud 'bang' which consequently frightened her and caused her to tense up and strain her neck.  Mrs Beasley sought treatment at the gatehouse and was given NSAIDs (pain relief) and Voltaren gel with instructions for use of medication and reference to physio for further review.[16]

   [15] Exhibit 3/49 ‑ 57 at par 55.

   [16] Exhibit 3/49 ‑ 57 at par 55.

3. It is not any part of the plaintiff's case that the initial injury to her was caused by the negligence of the defendant so it is unnecessary for me to make any finding as to what caused the loud noise or the abrupt movement in the truck.  Further, the fact that Mrs Beasley's neck was injured by this event was not in contention during subsequent treatment or under the workers compensation regime that applied to her once she had reported the incident and the injury or at trial.

4. On 19 August 2012, in the morning following her night shift, Mrs Beasley attended on an onsite medical practitioner, Dr Bill Chapman.

5. Mrs Beasley gave a similar account of her injury to Dr Chapman.  Dr Chapman recorded in a worker's compensation first medical certificate[17] that there had been a sudden drop of something into the tray with a very loud bang, it shook the truck and frightened, startled and shook Mrs Beasley.  Mrs Beasley then drove to the windrow, then to the dump.  Mrs Beasley felt some slight pain when reversing but when driving off noted pain down the left side of her neck and to the left side of the upper back.

   [17] Exhibit 1/86 ‑ 87.

6. Dr Chapman assessed Mrs Beasley as having a soft tissue injury to the neck and required her to undertake restricted duties 2 hours driving on and then 2 hours off.  Dr Chapman also recommended to Mrs Beasley that she continue to rub in liniment, use heat packs, take Celebrex as an anti‑inflammatory, continue with the Nurofen and Panadeine and take some Diazepam to sleep that day (she being on night shift) and to relieve muscle spasm.  Dr Chapman put Mrs Beasley on restricted duties, 2 hours on and 2 hours off driving.

7. Mrs Beasley continued to work with restricted hours and attended again at the onsite doctor on 21 August 2012 where she saw Dr Richard Newton who recorded in a workers' compensation progress medical certificate[18] that Mrs Beasley had ongoing neck pain since her recent injury which had flared up by travelling over a rough surface and with the fatigue and cold when on night shift the night before.  She had not been able to sleep during the day and so continued to be fatigued.

   [18] Exhibit 1/88 ‑ 89.

8. Mrs Beasley reported to Dr Newton that she had pain at the base of her neck, like a heaviness, which felt tight and she was suffering headaches.  Dr Newton recorded that Mrs Beasley was walking in discomfort and she was tender diffusely over the lower cervical and upper thoracic spines, with a mildly reduced range of movement.

9. Dr Newton recorded his view that Mrs Beasley had suffered a muscular injury and determined that it was best if she was not on night time duties at that stage, due to fatigue and cold.

10. Dr Newton recommended that there be physiotherapy while at home and that Mrs Beasley continue with the Celebrex and Panadol, so he further restricted her to no night duty and placed some other restrictions such as no lifting anything heavier than 3 kg, to avoid repeatedly bending and lifting, to avoid prolonged sitting/walking/standing, to keep with day time duties only and no operating, i.e., driving.

11. The next day a workers' compensation claim form was completed by Mrs Beasley and her signature to that document was witnessed by Mr Kirwan as a return to work co‑ordinator.[19]  That form also recorded a consistent history with respect to the 2012 injury.

    [19] Exhibit 1/94 ‑ 95.

12. Mr John Kirwan's role in this matter will be of some importance.  I have outlined above what is pleaded about Mr Kirwan's actions and it was further asserted in opening by Mrs Beasley's counsel, that on about 7 December 2012, Mr Kirwan directed a doctor, Dr Van Reenan, at the onsite medical facility to return Mrs Beasley to her pre‑injury duties.[20]

    [20] ts 156.

13. I will return to my findings about Mr Kirwan's interaction with Mrs Beasley and his role as the return to work co‑ordinator for Mrs Beasley later in these reasons.

14. Mrs Beasley's evidence is consistent with the documentation so I have no difficulty in finding that on 17 August 2012, Mrs Beasley suffered a soft tissue or whiplash type injury to her neck at about the juncture of the lower cervical and upper thoracic spine and that the injury occurred in the circumstances which she had recounted.

Did Mrs Beasley make a recovery between 22 August 2012 and leading up to 7 December 2012?

1. On 22 August 2012, Mrs Beasley left site in accordance with the usual swing of her shift.  Mrs Beasley saw a physiotherapist in South Hedland while at home.

2. Mrs Beasley returned to site for a swing of day shift on 29 August 2012 and on two occasions during that swing attended on the doctor on site, Dr Newton.  During this swing Dr Newton increased Mrs Beasley's duties to 4 hours driving, 4 hours of light duties and 4 hours of driving.[21]

   [21] Exhibit 1/98 ‑ 99, workers' compensation progress medical certificate of Dr Richard Newton.

3. After the swing finished Mrs Beasley returned home to South Hedland and then attended on a number of medical and allied health appointments including with a general practitioner, Dr Mirza, and she underwent a CT scan.  Mrs Beasley was certified unfit for work during the period 6 September ‑ 21 September 2012 by her general practitioner[22] but was certified as being fit for return to work on restricted hours from 26 September 2012 by another of her general practitioners, Dr Khan.[23]

   [22] Exhibit 1/103 and 1/104.

   [23] Exhibit 1/107 ‑ 107A.

4. Mrs Beasley's evidence was to the effect that her neck did not improve greatly in the period between August 2012 and December 2012.

5. Under cross‑examination, Mrs Beasley did, however, concede that that was not entirely the case.

6. Having heard and seen her in evidence I am satisfied that Mrs Beasley was generally an honest person who did her best to give her evidence carefully.  However, a long period of time has passed since these events and Mrs Beasley indicated on a number of occasions during her evidence that her memory was not complete.[24]  There were occasions during Mrs Beasley's evidence when she could not remember details, for instance relating to dates when she met with Mr Kirwan in his capacity as a physiotherapist[25] and she has spent much of the time since 2013 suffering headaches and in considerable pain.  Mrs Beasley has been prescribed painkillers which had, demonstrably, affected her when she came to give her evidence[26] and she clearly gave her evidence from the perspective that she had been poorly treated by the defendant.

   [24] ts 176, 187, 206.

   [25] ts 203.

   [26] ts 273, 278.

7. Accordingly, while I do not generally doubt Mrs Beasley's honesty, I do have concerns about the reliability of her memory because of the passage of time and the medication which she has been and was taking.  I have weighed Mrs Beasley's evidence against the documentary record where the documentary record differs to Mrs Beasley's evidence and I prefer the documentary record.

8. I will deal separately, below, as to whether I can accept Mrs Beasley's evidence in respect to her dealings with Mr Kirwan.

9. The documentary records consist of various medical certificates and reports admitted to evidence.  As a result of those records I make the following findings.

10. Shortly after the injury on 17 August 2012, Mrs Beasley's symptoms developed such that on 3 September 2012 she was recorded by Dr Newton as being fatigued and down, tender, and with little improvement in the neck pain and suffering headaches.  Dr Newton suggested a trial of Endep.[27]

    [27] Exhibit 1/100 ‑ 101.

11. Mrs Beasley then had a period of time off work between 4 September 2012 and 26 September 2012 during which period her neck was very sore.

12. Mrs Beasley had a CT scan to the cervical and thoracic spine on 5 September 2012 which reported that she had no fracture or subluxation in her spine but there was then a subtle scoliosis convex right in the cervical spine as a likely result of muscle spasm, the exit neural foramina and spinal canal diameter were unremarkable, there was no disc protrusion and the PRE and paravertebral soft tissues were normal.[28]  The obvious signs of muscle spasm on the CT scan and the fact that she was not fit for work for a further three weeks after that time support my finding that as at late September 2012 Mrs Beasley was still experiencing pain and the symptoms of her then unresolved injury.

    [28] Exhibit 1/102.

13. After Mrs Beasley was cleared to return to work on about 26 September 2012 she continued to suffer symptoms particularly when driving over bumpy areas[29] and so continued on both physiotherapy and pain relief.  Mrs Beasley was on light duties until she commenced driving haul trucks again for 4 hours per shift from 29 September 2012[30] increased her driving to two spells of 3 hours of driving from 2 October 2012[31] and finally increasing to two spells of 4 hours of driving from 24 October 2012.[32]

    [29] ts 210.

    [30] Exhibit 1/110 ‑ 111.

    [31] Exhibit 1/112.

    [32] Exhibit 1/118 – 119, Dr Van Reenan's medical certificate.

14. A return to work programme was prepared on 28 October 2012.[33]  That programme was based on a doctor's medical certificate dated 24 October 2012 and it provided for Mrs Beasley to continue on two spells of operating a haul truck interspersed with 4 hours of light duties per shift until the shift ending 15 November 2012.

    [33] Exhibit 1/122 ‑ 123.

15. I do not accept Mrs Beasley's evidence that she was in severe pain and telling all of her doctors about it[34] and getting worse[35] during this entire period because on a number of occasions during that period it is recorded and I find that Mrs Beasley expressed to the doctors that she was slowly improving.[36]

    [34] ts 205.

    [35] ts 225.

    [36] Exhibit 1/108 – 109, 1/110 – 111, 1/113 – 114.

16. I find that Mrs Beasley underwent a gradual improvement until 30 October 2012 when she suffered a relapse after being required to sweep concrete near the crib room while she was meant to be on a spell of light duties between spells of driving.[37]

    [37] Exhibit 1/124 – 125.

17. At a consultation with Dr Chapman on 31 October 2012, Mrs Beasley first complained of shoulder pain as a consequence of having undertaken that sweeping and an ultrasound of the right shoulder was ordered.[38]

    [38] Exhibit 1/125.

18. I pause here to note that Mr Kirwan gave evidence that in his view Mrs Beasley should not have been sweeping at that time because sweeping is not light duties.

19. Nothing however turns on this because Mrs Beasley's left shoulder injury did improve between October and December 2012.

20. Consistently with Mrs Beasley's general improvement, on 5 November 2012 she had an X‑ray of her cervical spine which revealed no sign of fracture of the cervical spine, ordinary alignment, no significant vertebral body, facet or uncovertebral joint degeneration changes.  The disc spaces and vertebral heights were preserved and the paraspinal soft tissues were normal on plain radiography.  There were no significant arthritic changes but there was a minor tiny osteophyte along the anterior margin of C6.[39]

    [39] Exhibit 1/126.

21. On the same day Mrs Beasley had an ultrasound on her right shoulder and upper arm which did not show any defect except for the right supraspinatus tendon was tendonopathic,[40] in other words, as described by Dr Chapman in his workers' compensation progress medical certificate dated 7 November 2012, there was then a minor tear in Mrs Beasley's right shoulder.  This tear that caused Mrs Beasley pain in her shoulder but there was then no complaint by her at any time of pain radiating into her arm.

    [40] Exhibit 1/127.

22. On 7 November 2012 Dr Chapman was of the view that Mrs Beasley was fit for her duties.

23. Mrs Beasley was next reviewed by Dr Silbert, an external consultant occupational physician, on 16 November 2012.  Dr Silbert was not called to give evidence but in his report dated 21 November 2012[41] he recorded that Mrs Beasley reported to him a good but incomplete recovery of the injury to her neck but with some ongoing symptoms of pain on a daily basis with the pain and discomfort being expressed to be between a minimum of 2/10 and a maximum of 4 ‑ 5/10.

    [41] Exhibit 1/129 ‑ 137.

24. Dr Silbert also records that Mrs Beasley had reported just finishing a 12‑hour shift of driving but her driving tolerance on 16 November 2012 was approximately 4 hours and her symptoms were relieved by the cessation of driving, the use of heat pack and paracetamol medication.  Mrs Beasley is not recorded to have made any complaint of right shoulder pain at this consultation.

25. Dr Silbert examined Mrs Beasley and found there to be some discomfort through the left paravertebral musculature at the cervical thoracic junction and with pain on the extremes of forward flexion, right lateral flexion and rotation of the head to the right.  Dr Silbert recorded that Mrs Beasley's shoulders were normal as were both of her arms.  His opinion was that Mrs Beasley had suffered an acute myoligamentous trauma (a whiplash) to the cervical spine from which she had made a then incomplete recovery.  There was no evidence of any pre‑existing or underlying condition.[42]

    [42] Exhibit 1/12 ‑ 137 at point 6, page 133.

26. Dr Silbert was of the opinion that Mrs Beasley would likely continue to improve over approximately a six week period and he recommended that she:

    1.continue anti‑inflammatory medication on a regular basis for a month;

    2.continue the use of heat packs;

    3.continue daily self‑directed stretching/mobilisation exercises to the cervical spine; and

    4.continue a return to work programme with regular review and modification by her treating medical and allied health practitioners.

27. Further, with respect to Mrs Beasley's fitness to work, Dr Silbert was of the view that Mrs Beasley was fit to undertake the inherent requirements of her job as a haul truck operator including doing shift work subject to the conditions that Mrs Beasley:

    1.maintain correct posture;

    2.take regular postural breaks with a maximum period of 4 hours between postural breaks; and

    3.continue use of simple analgesic and anti‑inflammatory medicine and heat packs on an as needed basis.

28. Notwithstanding the reference to a return to work programme, Dr Silbert did not recommend reduced hours of driving, rather, he recommended postural breaks.  I am of the view that a postural break is a break from driving during which the driver should stop driving for a short while in order to move around and stretch.

29. Three weeks after Dr Silbert's review, on 7 December 2012 at Cloudbreak Mine, Dr Van Reenan saw Mrs Beasley.  Dr Van Reenan was not called to give evidence but he did prepare a workers' compensation final medical certificate[43].  Dr Van Reenan certified that he had examined Mrs Beasley, had found her to have a full range of movement and minimal discomfort and that she had wholly recovered from the effects of her injury and was fit.

    [43] Exhibit 1/139.

30. Dr Van Reenan's record is not consistent with Mrs Beasley's evidence that when she saw Dr Van Reenan on 7 December 2012 she told him 'I was a little bit – still a bit sore in my neck' and that she was complaining that she was tight and sore in her neck.[44]  To the extent that Dr Van Reenan records that Mrs Beasley was suffering minimal discomfort, I prefer the independent documentary record made by Dr Van Reenan after his examination of Mrs Beasley.

    [44] ts 227.

31. That said, I am satisfied that Mrs Beasley would not have complained of being in a lot of pain because she gave evidence that she was too afraid to say too much about her problem to the mine doctors in case she lost her job,[45] was not prepared to argue with Dr Silbert because she did not feel she could say anything[46] and that she felt marginalised in her dealings with her co‑workers who did not believe that she was suffering any difficulty.[47]

    [45] ts 200, 209.

    [46] ts 216.

    [47] ts 208.

32. I find that while Mrs Beasley's symptoms had not completely resolved as at 7 December 2012, she had in any case been certified as fit for her pre‑injury duties by Dr Silbert after examination, subject to the need to maintain her posture and take postural breaks at least 4 hourly.

33. From both the report of Dr Silbert and the workers' compensation final medical certificate prepared by Dr Van Reenan I find that Mrs Beasley was not as at either 16 November 2012 or 7 December 2012 complaining of any particular or worrying symptom or that she was suffering a lot of pain that might have suggested that her return to her pre‑injury duties was not warranted.  She was fit to return to her pre‑accident duties subject to her taking a break every 4 hours.

Did the defendant, through Mr Kirwan, direct Mrs Beasley or direct Dr Van Reenen to direct Mrs Beasley to return to work on 7 December 2012

1. Evidence touching on the alleged direction was given by both Mrs Beasley and by Mr Kirwan.  Mr Kirwan was a physiotherapist employed at the Cloudbreak Mine and that he also had the function of a return to work co‑ordinator.

2. Mrs Beasley's evidence was that she was seeing a male physiotherapist named Mark and a female physiotherapist on site up until they were retrenched shortly before 7 December 2012.[48]  She said she saw Mr Kirwan on site, as a physiotherapist on 7 December 2012 and perhaps on a couple of occasions prior to that date as well,[49] as well as after the second accident.

   [48] ts 200 – 201.

   [49] ts 201.

3. Mrs Beasley's evidence was also that she was visited at home in South Hedland by Mark and a blonde woman with respect to rehabilitation.[50]  She said when she saw Mr Kirwan as a physiotherapist he would also ask her questions as to how her neck was but she did not recall talking to him about return to work[51] until after her injury became much worse when he did call her at home to see how she was.[52]

   [50] ts 221.

   [51] ts 202.

   [52] ts 203.

4. It appeared to me that Mrs Beasley's understanding of and hence her evidence relating to the role of return to work co‑ordinator and, if or when Mr Kirwan may have been discharging that role was imperfect.

5. It is clear from the various workers' compensation documentation referred to above and from Mr Kirwan's evidence that, in accordance with the usual requirements of the WCIM Act, the defendant had in place processes to assist injured workers to return to their pre-injury duties and jobs.  A return to work co‑ordinator administered that process on behalf of the defendant.

6. As the case was opened and pleaded,[53] the specific allegation is that Mr Kirwan either directed Mrs Beasley to return to work or directed Dr Van Reenan to direct Mrs Beasley to return to work on 7 December 2012.

   [53] Substituted statement of claim dated 22 February 2018 at par 18.

7. Initially Mrs Beasley's evidence was that she saw Dr Chapman on 7 November 2012 and then she complained to him that her neck was sore. Dr Chapman reviewed her and then had her see the physiotherapist, Mr Kirwan.  After treating Mrs Beasley, Mr Kirwan asked her to sit in the waiting room while Mr Kirwan saw Dr Chapman before she returned to work[54] and that Dr Chapman then signed off on her return to her pre‑injury duties.[55]

   [54] ts 225.

   [55] ts 226.

8. A little later in her evidence Mrs Beasley was asked about seeing Dr Van Reenan on 7 December 2012 and she at first said she vaguely recalled seeing him,[56] before correcting her earlier evidence that it was Dr Van Reenan who she had seen and he had sent her straight in to see Mr Kirwan.

   [56] ts 226.

1. Mrs Beasley's evidence was then that she had some physiotherapy treatment by Mr Kirwan who also interviewed her and took some notes before returning and asking her to sit in the waiting room while Mr Kirwan saw Dr Van Reenan for 10 or so minutes.  Mrs Beasley then again saw Dr Van Reenan who said to her 'According to John Kirwan he seemed to think that you're fit enough to go back to work'.[57]  Mrs Beasley at first said that she did not say anything just took the certificate and returned to work[58] but later clarified her evidence saying she said to Dr Van Reenan 'I am a bit sore'.[59]

   [57] ts 229, 230.

   [58] ts 229.

   [59] ts 230.

2. Mr Kirwan trained as a physiotherapist in the Army before moved into private physiotherapy practice for the Department of Defence.  He commenced work on a fly‑in/fly‑out basis for FMG at the Cloudbreak Mine in May 2008.

3. Mr Kirwan worked at Cloudbreak Mine for 18 months before a break of six months and then returned as a return to work co‑ordinator with a physiotherapy function in 2010.  Mr Kirwan was fly‑in/fly‑out at Cloudbreak Mine with an 8 days on/6 days off swing.  While at Cloudbreak Mine he would work a 12 hour day from 6.00 am ‑ 6.00 pm.

4. Mr Kirwan's evidence was that he was one of two return to work co‑ordinators both of whom were fly‑in/fly‑out and that there was an overlapping day, Tuesday, when both co‑ordinators were together at Cloudbreak Mine.  For most of the relevant period the other co‑ordinator was Natalie Boehm, another physiotherapist.  During the period there were also two other physiotherapists on site both of whom, in addition to physiotherapy, could provide return to work cover when it was necessary to do so.  Ms Gledich also assisted in the role of return to work co‑ordinator.

5. Mr Kirwan gave evidence that he had read over his notes and he did see Mrs Beasley clinically at least twice in October 2012, after the injury she had suffered while sweeping.  On each occasion he saw Mrs Beasley at the medical centre in the village where workers were housed.  Mr Kirwan said in his role as return to work co‑ordinator he probably also spoke to her and her supervisor about her return to work.

6. Mr Kirwan gave evidence about his role as a return to work co‑ordinator both generally and with respect to an injured worker.  In that role he would both administer any return to work programme with respect to injured workers, but would also attend pre‑start meetings to train people in injury avoidance, for example stretching to avoid injury or taking breaks from driving by stepping out of the truck onto a platform and stretching.

7. Specifically with respect to an injured worker, Mr Kirwan's role was to discuss each return to work development phase with an injured employee and their supervisor.  For instance, when the worker would be able to return to work and the duties they could undertake when they did return to work.

8. A return to work programme would take into account any limitations on the worker by reference to any medical certificate that had issued and Mr Kirwan would monitor the employee's progress in their programme by receiving feedback from the supervisor[60] in order to find out how the worker was progressing.  He would liaise with the supervisors and the worker with respect to any restrictions the doctor may have set[61] and he would update the programme in consultation with the employee, the supervisor, medical specialists and any injury management consultant.

   [60] ts 436.

   [61] ts 427.

9. The return to work co‑ordinator role was shared with another co‑ordinator and they would have a hand over on each Tuesday at which time he would be shown a spreadsheet setting out each injured worker's capacity.  There may be 50 or so workers and so he may not see a medical certificate relating to a worker if the other co‑ordinator had seen it.[62]

   [62] ts 446.

10. Mr Kirwan's evidence was that it was entirely the role of the treating doctor to decide what an injured worker could do in terms of their capacity for work, when they could return to work and what restrictions were on them while at work.[63]

    [63] ts 428.

11. Mr Kirwan first saw Mrs Beasley in October 2012 to assist her to complete a workers' compensation form[64] with respect to the 2012 injury.  His evidence was that he was on a different swing to Mrs Beasley and that he and Mrs Beasley were only on site together for a Tuesday and Wednesday once a fortnight.[65]  At any other time, the return to work co‑ordinator with whom Mr Kirwan role shared would have attended to Mrs Beasley's programme.

    [64] Exhibit 1/91 ‑ 93.

    [65] ts 438.

12. Mr Kirwan's evidence about role sharing is consistent with the documentation, specifically the return to work programme[66] dated 28 October 2012 for the period from 24 October 2012 ‑ 20 November 2012 which states the return to work co‑ordinator is 'Leanne Gledich/John Kirwan' but which was signed by Ms Gledich.

    [66] Exhibit 1/122 – 123.

13. Mr Kirwan saw Mrs Beasley on 30 October 2012 at which time he recorded a note of his clinical involvement with her.  The note records that he performed physiotherapy and noted Mrs Beasley's complaint about pain at the juncture of the cervical and thoracic spines centrally and that she was in pain at the end of range of neck movements.  He referred her to Dr Chapman[67] but also recommended she use a heat pack for 10 minutes, do cervical and thoracic spine mobility exercises and stay active.[68]

    [67] ts 449 – 450.

    [68] Exhibit 3/49 ‑ 57 at page 52.

14. Mr Kirwan readily admitted that he may well have spoken to Dr Chapman about Mrs Beasley after that consultation but did not attend any consultation that Mrs Beasley had with Dr Chapman.  The medical certificate given by Dr Chapman dated 30 October 2012[69] refers to the need for discussions between Dr Chapman and employer with respect to Mrs Beasley.  The evidence supports the inference and I find that those discussions would be through the return to work co‑ordinator.

    [69] Exhibit 1/124.

15. It was put to Mr Kirwan in cross‑examination that he saw Mrs Beasley on 7 December 2012 for a 20 minute consultation where he manipulated her neck, tapped her on the neck, felt her neck and said to her that he could not see any spasms.  Mr Kirwan then asked Mrs Beasley to wait outside while he spoke with Dr Van Reenan before Mrs Beasley went to see Dr Van Reenen.

16. Mr Kirwan denied that had occurred.[70]  He denied that it was his role to determine Mrs Beasley's fitness for work, that being a matter for the doctor.[71]  Mr Kirwan went on to say that he may not have even been on site.

    [70] ts 458.

    [71] ts 459.

17. Mr Kirwan gave evidence over two days.  After the first day, a 2012 calendar was obtained and the calendar was put to Mr Kirwan.  Overnight Mr Kirwan had also checked his emails and attempted to check the flight systems overnight and on the second day his evidence then firmed up that he did not believe that he was on site on 7 December 2012.  Mr Kirwan was further cross‑examined on that evidence.[72]

    [72] ts 464 onwards.

18. I accept Mr Kirwan's evidence that he was not on site on 7 December 2012.  Mr Kirwan's evidence is consistent with his earlier evidence as to how his 8 days on/6 days off swing worked and is consistent with a cross‑reference to the calendar and the physiotherapy notes.[73]

    [73] Exhibit 3/49 ‑ 57.

19. The physiotherapy notes confirm that Natalie Boehm saw Mrs Beasley on Friday, 31 August 2012.  Mr Kirwan did not overlap with Ms Boehm on a Friday so he should have been off site on that day.  Mr Kirwan then saw Mrs Beasley on both Tuesday, 2 October 2012 and Tuesday, 30 October 2012.[74]

    [74] Exhibit 3/49 ‑ 57.

20. A new return to work programme[75] dated Sunday, 28 October 2012 was signed by a Ms Gledich as return to work co‑ordinator.  Ms Gledich was fulfilling the role of work co‑ordinator on a Sunday, so it is unlikely that Mr Kirwan was also on site that day.

    [75] Exhibit 1/122 – 123.

21. Accordingly, I find that Mr Kirwan's relevant swings had him on site between 21 ‑ 28 August, 4 ‑ 11 September 2012, 18 ‑ 25 September 2012, 2 ‑ 9 October, 16 ‑ 23 October, 30 October – 6 November, 13 – 20 November and then 27 November – 4 December 2012.

22. Further, it may be that Mr Kirwan had some discussions with Dr Chapman after Dr Chapman had seen Mrs Beasley on 31 October 2012 but at that time Mrs Beasley was about to go off site and she was already scheduled to see a doctor in Perth.  Dr Chapman referred Mrs Beasley for both X‑ray and ultrasound.[76]

    [76] Exhibit 1/125, 1/126 and 1/127.

23. Dr Chapman reviewed Mrs Beasley and the results of the X‑ray and ultrasound on her return on 7 November 2012 (at which time Mr Kirwan was not on site) and was then of the view that Mrs Beasley was fit for duties, although she requiring further treatment.  This was before Mrs Beasley saw Dr Silbert in Perth on 16 November 2012.

24. Having carefully reviewed all of those documents I cannot accept Mr Beasley's evidence about these matters.  I find that Mr Kirwan was not on site on 7 December 2012 and did not on that day either direct Mrs Beasley to return to work or direct Dr Van Reenen to return her to work.

Did Mrs Beasley continue to be symptomatic on her return to work after 7 December 2012?

1. Mrs Beasley's evidence was that she did improve during the period after 7 December 2012 but that on one occasion after she came off shift her neck flared up and she got headaches and could hardly move her neck.

2. Mrs Beasley's evidence was that she saw doctors for her neck injury during that time in South Hedland at Sonic and Wirraka Maya Health Service but she did not produce any documentary evidence about those consultations, she confirmed that she did not see any doctors on site during that time and there is no suggestion she requested any further time off work.

3. The only independent evidence of her seeking any medical assistance in the period after 7 December 2012 is in the nursing notes.  On 19 December 2012, Mrs Beasley sought assistance from the nurse after she had bumped her left shoulder against the door frame of the bus at the aerodrome.[77]  The note records that she had a minor bruise but wanted to report it (the bump to the left shoulder) 'unless her injury becomes worse'.  She was advised to stop driving and present for treatment if her injury presented her with problems.

   [77] Exhibit 3/49 – 57.

4. The next day Mrs Beasley again presented and the nursing note records that Mrs Beasley was then complaining of worsening pain from the impact injury with pain now radiating down the back of her arm and into her left elbow.  She could not turn right in the truck and she was given rest and ice for the rest of the shift.

5. Mrs Beasley did not give any evidence about that 19 December 2012 injury so it appears to have resolved because there was no evidence of any further complaint or any further treatment between then and 30 March 2013.

6. I find that Mrs Beasley had, as was expected by Dr Silbert, made a continued recovery following 16 November 2012 and that while she may have still had some symptoms from her soft tissue injury after 16 November 2012, those symptoms did not interrupt her work and she did not bring them to the attention of the defendant.  She was, in any event, fit for work subject to taking postural breaks.  I will come back to this later in my reasons.

What occurred on 30 March 2013 and did it cause injury to Mrs Beasley?

1. Notwithstanding denials in the pleadings, there was no real dispute at trial between the parties as to what occurred on 30 March 2013.

2. On the evening of Saturday, 30 March 2013, Mrs Beasley was driving a CAT 943F at the Daydream Dump.  Mrs Beasley drove to Daydream Dump and while waiting for the signal that there was a slot in which she could dump the load from her truck, she got out of the truck onto a deck and had a stretch.

3. Mrs Beasley then received the signal to go and dump her load of waste.  She reversed the CAT 943F into position and went to release the load by moving a lever, when she felt a pain from her right elbow into her wrist.  In evidence Mrs Beasley described the pain as being excruciating[78] and that it was about an 8/10 on the pain scale.[79]

   [78] ts 248.

   [79] ts 250.

4. Mrs Beasley reported the injury to her supervisor and a couple of hours later received nursing assistance from Mr Evans at the nursing post.  Mr Evans recorded in his nursing notes that Mrs Beasley said that when operating the tipping lever she felt a pain like a 'small electric shock'.  On examination there was no sign of swelling in the elbow but Mrs Beasley did report pain on palpation on the point of the elbow where the tendon attaches and some pain on flexion and extension against resistance.[80]

   [80] Exhibit 3/49 – 56.

5. In a workers' compensation claim form dated 15 April 2013, Mrs Beasley reported that while pulling the lever hoist in the truck she experienced a strain of the elbow which she described as 'thought it was just a slight pain in arm that would eventually go away'.[81]

   [81] Exhibit 1/162 ‑ 163.

6. It is of note that Mrs Beasley also reported in that form the previous whiplash injury she had suffered but said that this part of her body, the right arm was healthy before this occurrence and that this new injury related entirely to this occurrence.  While Mrs Beasley was not then expressing any expert medical opinion, it is nevertheless of note that she did not attribute this injury to a flare up of the whiplash injury she had suffered in August 2012.

7. On 1 April 2013, Mrs Beasley again attended on Mr Evans the nurse for a review.  She then reported that her right elbow was feeling better than it had been but was still painful.

8. Mrs Beasley saw Dr Chapman that day.  He examined her, noted her pain in the elbow and assessed her as having suffered a mixed medial/lateral epidonylitis – something like a mixture of tennis or golfers elbow.[82]

   [82] Exhibit 1/164 – 165.

9. Dr Chapman formed the view that Mrs Beasley was not to drive, was not to use her right arm and was to undertake office based duties only.

10. Dr Jansz saw Ms Beasley on 10 April 2013 and he agreed with the suggestion that she had suffered a mixed medial/lateral epidonylitis and continued her on light duties.

11. On 17 April 2013 Dr Jansz again saw Mrs Beasley.  She was still complaining of elbow pain but also of arm pain and pain in her shoulder and lower neck.  Mrs Beasley reported to him some tingling into the hand.  In Dr Jasz's view, expressed in a workers' compensation progress medical certificate of that date, Mrs Beasley's pain in her arm might be referred neck pain, although he could not exclude elbow related pathology.  He referred Mrs Beasley for an X‑ray or CT scan[83] which Mrs Beasley duly had.  I will return to that CT scan later in these reasons.

    [83] Exhibit 1/170 – 171.

12. After this date Mrs Beasley underwent a very considerable number of medical reviews with respect to the treatment of and the nature of her injury.  I do not intend to discuss that treatment and those reviews in detail, suffice to day, she was never certified as being fit to return to and did not return to her pre‑30 March 2013 duties at any stage between 30 March 2013 and trial.

13. Mrs Beasley's evidence at trial was that after the 30 March 2013 she had a lot of problems with her right arm and her neck, a lot of pulling in her muscles.  She received a needle into her neck and then had to have anti‑inflammatories and pain relief.  While she returned to work on light duties at the gate, she could not go back to her duties driving the truck.[84]  Eventually she could not work at all.  Her employment with the defendant was terminated in June 2015.

    [84] ts 267 ‑ 268.

14. Mrs Beasley's evidence was that as at the time of trial, she suffered pain, a burning pain, down her right arm.  She also had neck pain and in the bottom of her neck migraine headaches would form.  Mrs Beasley's evidence was that she had become very affected by her pain, depressed and at one stage attempted self‑harm.  I accept all of those things to be true.

15. Mrs Beasley is currently taking Valium, Endone, Lyrica and slow release Oxycodone each day in addition to some anti‑inflammatory medication and an antihistamine.

16. Suffice to say at this stage, that while I have some doubt about the immediate severity of the pain suffered on 30 March 2012 as expressed by Mrs Beasley in her evidence, I have no doubt that she did suffer an injury on 30 March 2013 when she moved a lever in the CAT 943F to dump the load of waste.

17. The nature of that injury was the subject of considerable evidence and I will turn to that question now.

What was the nature of the injury suffered by Mrs Beasley on 30 March 2013?

1. Mrs Beasley originally presented with an injury to her elbow.  Over the following few weeks, Mrs Beasley began to experience symptoms in her neck and it was first recognised by Dr Jansz on 17 April 2013 that the arm pain may be as a consequence of injury to her neck.

2. The plaintiff called two expert witnesses with respect to the nature of the injury to Mrs Beasley and the defendant called one.  It is necessary to set out the differences between those experts.

3. Dr Miles is a neurosurgeon trained in Western Australia and in Victoria and completing specialised training in spinal surgery in Seattle in the United States.  Dr Miles has been in private neurosurgical and spinal practice in Perth in the 18 years since completing that training.

4. Mrs Beasley was referred to Dr Miles in May 2013 at which time her arm pain had not resolved following the March 2013 injury.  Dr Miles subsequently reviewed Mrs Beasley on six or seven occasions.

5. Dr Miles was initially of the view that Mrs Beasley had symptoms which were suggestive of a pinched or impinged nerve in the neck[85] because the symptoms described by Mrs Beasley with pain radiating into her arm had a typical C7 injury distribution.

   [85] ts 541.

6. Dr Miles was of the view that an MRI scan[86] showed a small but definite right‑sided disk protrusion at C6/C7 which was felt by him to be pinching or compressing the origin (or the root) of the C7 nerve from the spinal cord.

   [86] Exhibit 1/185.

7. On his examination of her, Mrs Beasley was found by Dr Miles to have weakness in that her arm was consistent with impingement of the C7 nerve.  That nerve supplies specific muscles and she had a weakness in those muscles.[87]

   [87] ts 541.

8. Dr Miles considered that the impingement was as a consequence of the 30 March 2013 injury.

9. Dr Miles referred Mrs Beasley for a CT‑guided C7 nerve root sleeve injection which is a steroid injection given by a radiologist guiding the needle in using a CT he hoped would alleviate her symptoms altogether.

10. Dr Miles was of the view, based on what he was told by Mrs Beasley on 8 July 2013, that the first injection did provide some temporary relief for Mrs Beasley from her symptoms, but by July she was again suffering pain.  A second injection was given and it would not appear to have provided any real relief to Mrs Beasley.

11. Dr Miles then recommended a spinal fusion with the view to Mrs Beasley returning to work.

12. Dr Miles was referred to the CT scan performed on 5 September 2012[88] and to another CT scan performed on 18 April 2013[89] and he explained that by 18 April 2013, Mrs Beasley had developed a pathology, a bulging of the disc, that was not evident in the CT scan taken in September 2012.

    [88] Exhibit 1/102.

    [89] Exhibit 1/173.

13. Dr Miles also explained that the diagnosis of the cause of neck pain was not as simple as looking at an X‑ray or CT scan because many physiological changes do not become symptomatic.  Diagnosis involved consideration of both reported symptoms, objective findings on examination as well as consideration of any neurological scans.

14. When cross‑examined on his evidence about this it was put to Dr Miles that the CT scan of 18 April 2013 showed that the intervertebral foramen[90] was clear, the slight posterior disc bulging at C6/C7 was small and the report was there was no evidence of neural compression and this meant that there was no difference between that CT and the earlier one. Dr Miles was emphatically of the view that was incorrect.

    [90] Hole or canal through which the nerves off the spine exit the spine to the arm.

1. Dr Miles' evidence was that Mrs Beasley had a slightly unusual disc protrusion that was not pressing on the nerve in the intervertebral foramen, but was pressing on some of the nerve rootlets that join together to form the nerve that exits through the foramen.[91]  Mrs Beasley's bulge was within the spinal canal rather than between the bones of the spine and was slightly deforming one side of the spinal cord.  The bulge was compressing the very origin of the nerve (the rootlets) where they come off the spinal cord and this was the reason for Mrs Beasley's severe pain despite there being only subtle radiological findings.[92]

   [91] ts 559.

   [92] ts 559.

2. The report of the MRI scan makes clear reference to this where it says:

   There is a shallow central and right posterior disc protrusion, up to 2 mm posterior to the disc margin, indenting the thecal sac and touching the anterior cord.  This extends to the left posterolateral spinal canal but not into the foramen.

3. It was, however, the MRI findings coupled with Mrs Beasley's history of neck pain but no arm pain following the events of 17 August 2012 and a first history of arm pain following the events of March 2013 which led Dr Miles to the view that there was a nerve impingement as a consequence of the events of 30 March 2013.[93]

   [93] ts 548.

4. It was also put to Dr Miles that Mrs Beasley's description of the nature of her pain was entirely subjective[94] but he pointed out that doctors' routinely took account of a patient's assertion that they were in pain and that any patient's experience of pain would rarely correlate with the correct site of the nerve compression 'unless a patient's read a … neurosurgery anatomy textbook'.[95]

   [94] Presumably meaning that subjectively experienced pain by a patient is not sufficient proof of its existence or origin.

   [95] ts 563, 587.

5. Dr Miles confirmed in cross‑examination that this type of injury could be caused by any ordinary movement[96] and he also confirmed that the events of 31 March 2013 may have aggravated a degenerative disc process that was asymptomatic.

   [96] ts 564 – 565.

6. Mrs Beasley became more symptomatic over time and no treatment given to her such as physiotherapy or other conservative measures had helped.  While many people will improve over time, Mrs Beasley's symptoms did not improve.[97]

   [97] ts 550.

7. In Dr Miles' view the only treatment option was surgery to relieve the impingement.  The cost of that surgery would be between $22,000 ‑ $24,000.[98]

   [98] Exhibit 2/285 and ts 553.

8. Dr Miles had initially been of the view that if the surgery was successful Mrs Beasley could return to her pre‑accident role as a haul truck driver but he had changed his view by the time of trial.  Mrs Beasley would not, he thought, drive a haul truck again.

9. Dr Miles was asked for and gave his view on whether Mrs Beasley was, instead, suffering from cervical spondylosis, which was, he explained, a fancy way of saying wear and tear.[99]  He said the reason why he considered there was a new injury consisting of a disc bulge or protrusion causing a nerve impingement was because of the new symptom of the referred neck pain down the arm.

   [99] ts 556.

10. Dr Miles also agreed that a later MRI scan, which he has reviewed carefully in preparation for giving evidence, did show signs of improvement in the impingement but there were still signs of impingement.[100]  He pointed out that an MRI was taken in an environment where the patient was lying still but that once a patient got up moved around and moved their neck they could experience quite severe symptoms.

    [100] ts 572.

11. Dr Miles maintained the view that given the normal CT scan in September 2012 that there was a fresh injury in March 2013.  His evidence was the injury in August 2012 might have 'set her up for future injury, after the first injury, but didn't get arm symptoms.  And then had the second injury and then developed the arm symptoms'[101] but it was more likely that there was a fresh injury in March 2013.[102]

    [101] ts 575.

    [102] ts 576 – 578, 581 – 582, 591.

12. Dr Miles also gave his opinions that neck pain did not usually come from a pinched nerve but usually from a mechanical injury of the joint and that headaches could be caused by a number of pathologies including spasms associated with a mechanical injury to a neck joint[103] but it would be a rare patient with an impinged nerve who only complained of headaches.[104]

    [103] ts 586.

    [104] ts 588.

13. Dr Kennedy also gave evidence for the plaintiff.  Dr Kennedy is a Fellow of the American College of Sports Medicine, has practised in that area and in the last 10 years in the area of industrial medicine and medico/legal medicine.

14. Dr Kennedy first saw Mrs Beasley on 30 March 2014 and he made a report dated 9 April 2014.  By then Mrs Beasley was reporting severe neck pain and migraine headaches along with burning pain and tingling in her right hand.

15. Dr Kennedy observed tightness in the muscles of the cervical spine from C4 ‑ T1 worse on the right side along with lower cervical nerve root irritation and radiculopathy.  Mrs Beasley's condition was then unstable.

16. Dr Kennedy reassessed Mrs Beasley in February 2015 and at that time assessed her by reference to the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th ed (2001) (AMA 5) and the WorkCover WA Guides for the Evaluation of Permanent Impairment, Third Edition (2010) (the Guide), chapters 6.18, 6.23 and 6.30 in relation to her radiculopathy and activities of daily living.  I will say more about this below.

17. Dr Kennedy undertook certain tests on Mrs Beasley such as grip strength using a Jamar dynamometer, to test for triceps reflexes and brachioradialis reflex and observed that she had diminished reflexes in her right upper arm.  In addition he assessed her range of motion.

18. Dr Kennedy was also of the opinion that Mrs Beasley had suffered two separate injuries and that one had led to the other[105] but he went on to say that the problems arising from the events of 30 March 2013 were significantly different to those of August 2012.  He did therefore treat them separately for the purpose of assessment under the Guides.[106]

    [105] ts 635.

    [106] ts 637.

19. In cross‑examination, Dr Kennedy made many of the same points as Dr Miles.  Assessment of any patient was based on a combination of scans and X‑rays, patient's reports of symptoms along with clinical findings on examination.  Often a patient's symptoms and their injury may not be evident on a scan.

20. I do not accept that Dr Kennedy's assessment of Mrs Beasley was based on an incorrect premise or was not properly undertaken.

21. The defendant called Dr John Liddell, a neurosurgeon.  Dr Liddell trained at Monash University and has been a member of the Royal Australasian College of Surgeons since 1982.  He has an impressive curriculum vitae.[107]

    [107] Exhibit 8.

22. Dr Liddell first reviewed Mrs Beasley on 13 August 2013[108] at which time he had been asked by the workers' compensation insurer to review Mrs Beasley and to address a number of specific questions.[109]

    [108] ts 654.

    [109] Exhibit 9.

23. From his clinical examination of her, Dr Liddell ascertained Mrs Beasley presented with her cervical spine severely and diffusely restricted,[110] in other words a very stiff neck[111] and with a marked degree of diffuse tenderness in the midline in the cervico thoracic region and overlying her ulnar nerve.

    [110] Exhibit 3/80 – 86.

    [111] ts 655.

24. Dr Liddell initially thought that there were some signs of carpal tunnel syndrome, but his colleague Dr Silbert undertook some tests that ruled that out.  Dr Silbert's tests also ruled out there being damage to the right ulnar nerve.

25. In his report Dr Liddell expressed the view that Mrs Beasley quite likely sustained injury to her cervical spine as a consequence of the events of August 2012 and exacerbated by the events of 30 March 2013.[112]

    [112] Exhibit 3/80 – 86.

26. Dr Liddell also said that there was some evidence to implicate Mrs Beasley's C6/C7 disc as the source of her ongoing symptoms, especially her response to the nerve root block, but that the radiological changes at that level were not dramatic and the radiological changes did not appear to be sufficient to explain her upper limb symptoms.

27. Dr Liddell considered Mrs Beasley had some age related degenerative changes but further expressed the view in his report that there was no reason to believe that Mrs Beasley's degenerative (age related) changes would have become symptomatic or that she would have needed surgery.

28. From this, it would appear that Dr Liddell had no doubt that Mrs Beasley was in considerable pain and when he reviewed her and was  then complaining of and had clinical signs of the same symptoms which she is continuing to suffer.

29. Dr Liddell had been asked for an opinion as to whether the spinal fusion recommended by Dr Miles would provide relief for Mrs Beasley's symptoms.  Dr Liddell thought that it was unlikely that the surgery would provide dramatic relief, but also that he thought there were other things going on in Mrs Beasley's life, which meant she would be better treated at a multi‑modality pain clinic together with a further root nerve block and review with a psychologist with an interest in chronic pain before considering the surgery suggested by Dr Miles.

30. Those view expressed in his report were consistent with the evidence given by Dr Liddell at trial.[113]

    [113] ts 657 – 658.

31. When cross-examined as to what the 'other things' going on Mrs Beasley's life might be, Dr Liddell was unable to articulate what they might be.[114]  His evidence was that those comment arose out of subjective analysis by him as the doctor.

    [114] ts 680 – 681.

32. Dr Liddell was of the view that driving a haul truck was unlikely to be an occupation that Mrs Beasley could return to in light of her injury.

33. Dr Liddell reviewed Mrs Beasley again on 7 October 2014.  At that time she still had restricted movement through her cervical spine and was suffering badly from migraine headaches.  Dr Liddell noted that she was generally hyporeflexic but might have had some reduction of her right biceps and brachioradialis reflexes.  This is roughly consistent with what Dr Kennedy had also observed.

34. Dr Liddell reviewed an MRI scan performed in June 2014 and while he noted that it was degraded by motion, was of the view it revealed evidence of the previously noted changes at C6/C7 but not any 'definitive evidence of nerve root compromisation'.[115]  He also noted neurological symptoms, such as burning in Mrs Beasley's right middle, ring and little fingers and occasionally her thumb.

    [115] Exhibit 3/95 – 100.

35. Dr Liddell persisted in his view that the radiological changes, by which I understand him to mean, the changes at C6/C7 which were revealed by the radiological investigations, were not dramatic and did not show, for instance, ligamentous damage[116] and so, he thought, were insufficiently severe to explain her upper limb symptoms.  He was unclear as to the cause of the headaches.[117]

    [116] ts 667 – 668.

    [117] Exhibit 3/95 – 100.

36. A further review of Mrs Beasley was undertaken by Dr Liddell in November 2015.  Mrs Beasley came along with her cousin, Joan, who reported that Mrs Beasley was struggling with activities of daily living, such as making a cup of tea, and that she had then lost her FMG home and was homeless.[118]

    [118] Exhibit 3/125 – 129.

37. Mrs Beasley reported that her neck pain was then a lot worse than her arm pain and Dr Liddell noted discomfort on the right side of Mrs Beasley's neck, her shoulder blade and the right side of her chest, in her right elbow and right wrist.  She had a numb thumb and a burning pain in her palm of her right hand.  Weakness of grip in the right hand was noted by Dr Liddell.

38. Dr Liddell confirmed that by November 2015 Mrs Beasley was unable to return to her pre‑accident employment and did not appear capable of alternative duties.  He firmed up in a view that Mrs Beasley's mental health should be assessed.

39. In his evidence Dr Liddell agreed that people could have what appeared to be a relatively normal looking radiological study and can have a clinically significant abnormality but the role of the doctor in assessing the patient was to add everything up and look at the total picture including what might else be going on in their life.  Here Mrs Beasley appeared to be mainly concerned with neck pain and headaches which would not, in Dr Liddell's view, be helped by the proposed surgery.[119]

    [119] ts 670 – 671.

40. Ultimately, at trial Dr Liddell's views had not changed.  Mrs Beasley had been injured in August 2012 and that injury was exacerbated by the events of 30 March 2013 but he did not think that her principal problem was to be found in the C6/C7 root nerve compression.

41. Having reviewed the evidence of the expert medical witnesses carefully it seems to me that by reason of their clinical evaluation of Mrs Beasley each of them were left in no doubt that she had been injured and was suffering considerable pain as a consequence of injury.

42. The difference between Dr Miles, on whom Dr Kennedy had placed considerable reliance in reaching his assessment of impairment, and Dr Liddell was that:

    1.Dr Miles considered that:

    (a)there was sufficient in the radiological findings regarding the disc protrusions at the C6/C7 junction pressing on the  anterior right cord at C6/C7 adjacent to the right C7 ventral root entry zone to explain all of Mrs Beasley's symptoms as emanating from compression of the nerve rootlets or nerve origin; and

    (b)on balance, the injury from the event of August 2012 was a different injury to that of March 2013 although the earlier injury may have predisposed Mrs Beasley to the latter one; and

    2.Dr Liddell considered that:

    (a)the changes shown on the radiological studies were not 'definitive evidence' to explain Mrs Beasley's right upper arm problems.  He thought on balance there was something else going on to explain her ongoing pain; and

    (b)that her neck pain was attributed to the earlier injury and exacerbated by the later injury and was the principal cause of her problems resulting as it did in migraine headaches.

43. I prefer the opinion of Dr Miles for these reasons:

    1.Mrs Beasley had largely but not completely recovered from the effects of the August 2012 injury by the time that she suffered the 30 March 2013 injury.

    2.Mrs Beasley had no history of arm pain following the August 2012 injury.

    3.The CT scan made following the August 2012 injury and the CT scan following the 30 March 2013 injury show there was a change, a small disc protrusion, at C6/C7.

    4.The MRI scan of 1 May 2013 confirms that the disc protrusion was touching the spinal cord at that juncture.

    5.Dr Liddell accepted that there was evidence of changes at C6/C7, evidence of subtle nerve related symptoms, i.e., the pain in the hand and evidence of a response to the root nerve block.  Dr Liddell did indicate in his evidence that he doubted some aspects of Dr Miles report regarding the nerve root block but that was contrary to what he had said in an earlier report and Dr Liddell confirmed that did not make any enquiry of Dr Miles to clarify his concerns.

    6.Dr Liddell also confirmed in evidence that small changes could result in big impairments even though he did not think they had in this instance.

    7.Dr Liddell's view was that he was not able to be objectively convinced that Mrs Beasley was showing other neurological signs and so, given the small changes shown by the MRI, he thought that something else was going on with Mrs Beasley that explained the pain.  What that might be was not adequately explained by him in his evidence.

    8.Dr Miles, however, was able to provide a cogent explanation for what each of the medical witnesses accepted, that Mrs Beasley had been injured and was in considerable pain and which both Dr Miles and Dr Kennedy say included pain and objective findings on examination consistent with a nerve related cause.

44. I find from all of this evidence together with Ms Beasley's evidence about her headaches that Mrs Beasley suffered a further mechanical injury to her neck as well as impingement of the nerve at the C6/C7 juncture as a consequence of the operation of the lever in March 2013.  I say more about this below under the heading Causation.

What, if any, duty did the defendant owe to the plaintiff?

1. At common law an employer owes a duty to exercise reasonable care to avoid exposing its employees to the unnecessary risk of harm: Kondis v State Transport Authority (1984) 154 CLR 672, Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; Divjakoski v Boral Window Systems [2011] WASCA 134. The duty is to take reasonable care and is not a duty to prevent all potential harm: Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330.

2. That duty will include an obligation to take reasonable steps to establish, to maintain and to enforce a safe system of work: Andar Transport Pty Ltd v Brambles Ltd.

3. An application of those principles leaves me in no doubt that a common law or contractual duty expressed as a duty to exercise reasonable care not to exposing the plaintiff to a foreseeable hazard and/or danger in the course of her employment and to implement reasonable work systems to ensure that duty is complied with.

4. Further, s 9 of the MSI Act relevantly provides:

   (1)An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must —

   (a)provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer's employees are not exposed to hazards.

5. The statutory requirement speaks for itself.  The obligation to provide and maintain a working environment which does not expose the worker to hazards is not an obligation of strict liability but is an obligation of 'reasonable' practicability.

6. The word 'practicable' is defined in s 3(1) of the MSI Act as follows:

   practicable means reasonably practicable having regard, where the context permits, to -

   (a)the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

   (b)the state of knowledge about -

   (i)the injury or harm to health referred to in paragraph (a);

   (ii)the risk of that injury or harm to health occurring; and

   (iii)means of removing or mitigating the risk or mitigating the potential injury or harm to health;

   and

   (c)the availability, suitability, and cost of the means referred to in paragraph (b) (iii).

7. A 'hazard' is also defined in s 3(1) to mean (relevantly) anything that may result in injury or harm to the health of a person.

8. I adopt what was said by the Court of Appeal in Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 492 about the meaning of practicable in s 19 of the MSI Act as applicable to s 9 as follows:

   [59]We have earlier referred to the definition of 'practicable'.  It means 'reasonably practicable' having regard, where the context permits, to the severity of any potential injury and the degree of risk of it occurring; to the state of knowledge about the injury, the risk of it occurring and the means of removing or mitigating it; and to the availability, suitability and cost of the means of removing or mitigating it.

   [60]It can be accepted that the 'state of knowledge' referred to in this definition is objective.  The fact that a person who is in control of a particular 'matter' affecting safety does not know something that should have been known by a person in that position cannot answer the question whether it was reasonably practicable for that person to have done something about the matter.  However, the words 'state of knowledge about … the risk … and means of removing or mitigating the risk … ' encompass not only what is known concerning those matters, but also who might ordinarily be expected to have that knowledge.  Consequently, when considering, for the purposes of s 19(1), whether it was reasonably practicable for a deemed employer to have avoided a particular hazard, it would be a relevant consideration that the expert knowledge required to avoid the hazard fell within the province of the specialist contractor which had been engaged to do the work that gave rise to the hazard and outside that of the deemed employer.  In Morrison [22], Le Miere J said, in the context of s 22(1) of the Act, that in order to secure a conviction the prosecutor

   'must prove either that the defendant actually knew of the risk of injury or harm to health occurring or that a reasonable person in the position of the defendant [our italics] would have appreciated or foreseen the risk … of the injury or harm to health occurring … '

   It is important, also, to bear in mind that the definition of 'practicable' provided by s 3(1) requires regard to be had to the considerations there specified only 'where the context permits'.

1. The plaintiff also relied on reg 4.13 and reg 6.21 of the MSI Regulations.  Those regulations relevantly provide:

   4.13.Induction and training of employees

   (1)Each responsible person at a mine must ensure that every employee is — 

   (a)given adequate instruction and training in safety procedures and systems of work and in the tasks required of the employee;

   …

   6.21.Employer to prevent unsafe use of plant

   An employer must ensure that –

   (a)plant at the mine is used only for the purpose for which it was designed, unless the employer has determined, and a competent person has assessed, that a proposed change in use does not present an increased risk of exposure to any hazard; and

   (b)measures are provided to prevent (as far as practicable) unauthorised interference, alteration or use of plant which is capable of making the plant hazardous or a greater hazard;

   …

2. Regulations 6.21(a) and reg 6.21(b) have no application to the case at trial.

3. In my view the defendant knew that Dr Silbert's view was that Mrs Beasley was required to observe conditions when driving.  Clearly those conditions were to prevent future exacerbation of her injury or further injury.  The possibility of further injury was therefore foreseeable.  A duty was owed to take reasonably practicable steps to reduce that hazard.

4. A failure to eliminate a reasonably foreseeable risk does not establish negligence: Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [3].

5. Ultimately, the requirement is reasonableness, not more straight requirements to ensure protection: Dederer [69].

6. It is necessary to inquire at the breach stage what a reasonable person would have done to respond to the reasonably foreseeable risk: Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540 [192].

7. The question of whether a defendant has breached its duty to exercise reasonable care must be approached prospectively and not with the benefit of hindsight.

Are any of the breaches of duty pleaded made out?

1. I have reached the conclusion that none of the pleaded breaches of common law duty or the implied terms of the employment contract have, on the evidence, been made out for the following reasons.

Breach by direction by Mr Kirwan to return to full pre-accident duties notwithstanding that the plaintiff was not symptom free, had not finished her return to work programme and was without certification by a medical practitioner independent of the defendant

1. I have found that by 7 December 2012, Mrs Beasley was largely but not completely recovered from the 2012 injury.  She was at that time still suffering some discomfort and may have needed to take analgesics and use a heat pack or have some massage or physiotherapy if she was uncomfortable.

2. When he saw her on 7 November 2012, Dr Chapman considered that Mrs Beasley was fit to return to her usual duties even though she needed further treatment.

3. I pause here to note that there was no evidence about the relationship between the doctors who worked at Cloudbreak Mine and the defendant.  I do not know, for example, whether they were employed by the defendant or by FMG or whether they owned the practice and leased premises from either the defendant or FMG.  There was simply insufficient evidence from which I could make any finding about whether Dr Chapman or Dr Van Reenan were or were not employed by the defendant or FMG.

4. That said, even if I were to assume that Dr Chapman was not independent of the defendant on 16 November 2012, Dr Silbert, who was an independent and offsite consultant occupational physician, reviewed Mrs Beasley.  He was of the opinion after that review that Mrs Beasley was fit to return to work on the condition that she maintained the correct posture, had regular postural breaks with a maximum driving period of 4 hours between postural breaks and continued the use of simple analgesic and anti‑inflammatory medications and heat packs on an as required basis.  Mrs Beasley had already returned recently to 12 hours driving.

5. Mrs Beasley's evidence was that:

   1.her shifts were broken up into driving for 2 – 3 hours then a 15 – 20 minute smoko, driving for a further 2 – 3 hours then a 1 hour break for 'lunch', driving for a further 2 – 3 hours before a 15 – 20 minute smoko then driving until finish.[120]  That schedule is consistent with Dr Silbert's conditions requiring postural breaks in driving; and

   2.It was a policy that the drivers should stretch when they were waiting for instruction and Mrs Beasley knew that to be the case; and

   3.She had been stretching immediately before the second injury occurred.

   [120] ts 291.

6. Further, the underlying premise that there was an improper direction made by Dr Van Reenen at the behest of Mr Kirwan has already been rejected by me.

Breach by failure to adequately assess the plaintiff's fitness for work before allowing her to operate a haul truck between 17 August 2012 – 30 March 2013

1. As I have described above, Mrs Beasley had been regularly assessed during the period up to 7 December 2012 by both onsite doctors and her own general practitioners and had been assessed as being fit for work by Dr Chapman on 30 October 2012,[121] on 7 November 2012,[122] by Dr Silbert on 16 November 2012[123] as well as by Dr Van Reenen immediately before her return to work on 7 December 2012.[124]

   [121] Exhibit 1/124.

   [122] Exhibit 1/128.

   [123] Exhibit 1/129 ‑ 137.

   [124] Exhibit 1/139.

2. Further, even accepting that Mrs Beasley was continuing to suffer some symptoms there was no evidence that Mrs Beasley was unfit for work during the period after 7 December 2012.  Mrs Beasley did return to work and did work without any complaint relating to the 212 injury[125] until the March 2013 injury.

   [125] On 19 December 2012 Mrs Beasley did suffer an intervening injury to her shoulder when she knocked her left shoulder against the doorframe of the bus.  This resulted in some pain in her left arm for which she was given the rest of her shift off to recover.  No further complaint was made about that injury.

3. There is no substance to the contention that Mrs Beasley was not adequately assessed for her fitness for work between 17 August 2012 and 30 March 2013.

Breach by failure to ensure between 7 December 2012 and 30 March 2013 that Mrs Beasley could safely operate the haul truck without risk of injury or further injury

1. There is simply no evidence to support this plea.

2. There was no evidence that the operation of the lever in the haul truck were inherently dangerous or that the 2012 injury meant that Mrs Beasley could not safely operate it.  Moving the lever was an ordinary and usual part of the operation of the haul truck.

3. Dr Miles' evidence was that the type of impingement injury that Mrs Beasley has suffered could occur by reason of very ordinary actions such as sneezing or coughing.[126]  Nothing reasonable could be done to prevent those events.  There was no evidence from which I could conclude that it was dangerous for Mrs Beasley to operate the haul truck as long as she was taking postural breaks.

   [126] ts 564 – 565.

4. Those postural breaks were built into the work system through the provision of smoko and meal breaks, the opportunity to get out of the haul truck and stretch while waiting in line, by reason of the policy that drivers do undertake stretching and the encouragement through training, of which Mrs Beasley was aware, to take advantage of the opportunity to take postural breaks.

Breach by failure to assess the risks involved in the plaintiff operating the haul truck between 7 December 2012 and 30 March 2013, particularly where the defendant knew of the 2012 injury, the plaintiff's symptoms and that the plaintiff's fitness for work had not been adequately and independently assessed

1. For the reasons I have already given the evidence does not establish that Mrs Beasley had not been adequately or independently assessed.  Her injury could have occurred by even very ordinary actions.  There was no breach for reasons already outlined.

Breach by failure to prevent the plaintiff or warn the plaintiff of the risks involved in operating a haul truck in circumstances where the defendant knew of the neck and right arm injury and where the plaintiff's fitness for work had not been adequately assessed thereby exposing the plaintiff to foreseeable risk of injury

1. I have already set out above my reasons for finding that the March 2013 injury was a new injury.  Dr Miles commented in his evidence that the 2012 injury may have set Mrs Beasley up for later injury but he was equivocal about this and his evidence has to be weighed against his evidence that any ordinary action might have caused an injury of this type.  There is insufficient evidence from which I could conclude that the particular injury suffered by Mrs Beasley in March 2013 was caused by the 2012 injury.

2. I am unable to identify any particular known risk of injury arising out of the use of the lever against which the plaintiff should have been warned and I have already rejected the contention that Mrs Beasley had not been adequately or independently assessed.

3. At the commencement and at closing of the trial I made attempts to clarify with plaintiff's counsel what the defendant should have done differently, the plaintiff's counsel could not adequately identify any matters.  Mrs Beasley was told to take postural breaks and there is no evidence from which I could conclude that other advice could or should have been given.

Breach by failure to put in place work systems to ensure that it did or avoided the breaches above

1. The evidence was that the defendant did have in place systems, the return to work programme system, which assessed Mrs Beasley's fitness after injury, developed a return to work programme, had work practices that ensured regular breaks from driving, had a policy and disseminated that policy the drivers of haul trucks did stretch while on breaks so as to minimise the risk of injury.  This ground is not made out.

Breaches of the Mines, Safety and Inspection Act 1994 and its regulation

1. I did not have the benefit of any adequate oral or submissions from the plaintiff's counsel with respect to the allegations of breach of duty of the MSI Act and the MSI Regulations.

2. The obligations under the MSI Act and the regulations have been set out above but can be summarised as an obligation, as far as is reasonably practicable:

   1.to maintain at a mine a working environment in which that employer's employees are not exposed to hazards; and

   2.provide and maintain workplaces, plant, and systems of work of a kind that ensures the employer's employees are not exposed to hazards.

3. To the extent that breaches alleged are the same as those with respect to the common law and employment contract breaches I have already dealt with above and there is nothing in the obligations of s 9 of the MSI Act that impose any relevantly duty.

4. With respect to the additional breaches I find as follows:

   1.breach by failing to assess the plaintiff to ensure that she was competent to perform her tasks and operate any plant as required by reg 4.13(b): for reasons I have already addressed the plaintiff was adequately assessed before her return to work;

   2.breach by failing to prevent unsafe use of plant as required by reg 6.21(a): there was no evidence that Mrs Beasley used the plant, the haul truck, in an unsafe way.  The evidence was that she simply operated a lever once she had reversed the truck and there is no basis to suggest that action was inherently unsafe;

   3.breach by failing to identify hazards associated with plant and assess those risks to the plaintiff as required by reg 6.21(b): no particular hazard was ever identified to me but in any event the evidence is that hazards associated with driving were assessed and addressed by the provision of regular breaks, the encouragement of taking additional breaks when available and stretching.  This breach is not made out;

   4.failure to provide and maintain a working environment where the plaintiff was not exposed to hazards as required by s 9 of the Act: I repeat what I have said about the actions taken by the defendant to reduce the risk of injury associated with driving.  Reasonable practicable steps were taken to provide such a working environment.

Whole person impairment

1. In light of these findings it is not necessary for me to address the question of whole person impairment but in case I am wrong about liability I will do so.

2. It was common ground before me that the plaintiff is only entitled to an award of damages in relation to the events of 30 March 2013 in the event that she could establish that she has suffered a whole person impairment of at least 15%: s 93K(4) of the WCIM Act.

3. Mrs Beasley's claim for damages is to be determined in accordance with the WCIM Act: s 93I(1) pt IV div 2 subdivision 3.  For claims to which that subdivision applies damages in respect of a personal injury by accident in the course of a worker's employment can only be awarded against the worker's employer if the worker elects to retain the right to seek damages, and that election has been registered, court proceedings are commenced within the time limited by the Act and regulations and the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%: s 93K(4).

4. There is no suggestion that the preliminary matters have not been complied with, so the question for me is simply whether I am satisfied that Mrs Beasley has a permanent whole of person impairment of at least 15%.

5. The degree of permanent whole of person impairment means the degree evaluated as described in s 146A and s 146C as resulting from injury or injuries arising from a single event: s 93H of the WCIM Act.  Subject to s 146C a worker's degree of permanent whole of person impairment is to be evaluated, as a percentage, in accordance with the WorkCover Guides: s 146A(1).

6. 'Event' means,

   anything that results, whether immediately or not and whether suddenly or not, in an injury or injuries of a worker and the term includes continuous or repeated exposure to conditions that result in an injury or injuries of a worker.

7. In this case Mrs Beasley, the worker under the WCIM Act, and the defendant, the employer, do not agree about the evaluation of the worker's degree of permanent whole of person impairment so it fell to be assessed by an approved medical specialist: s 146A(2).

8. An approved medical specialist making an assessment for the purposes of pt IV div 2 subdivision 3 is required to give to each of the worker and the employer, in writing in accordance with the regulations a report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment and a certificate specifying the worker's degree of impairment: s 146H(1).

9. WorkCover WA may issue directions with respect to the evaluation of degree of impairment: s 146R(1).  These directions are the WorkCover Guides: s 5(1).  WorkCover WA is the name of the WorkCover Western Australia Authority, a body corporate that administers the WMIC Act: s 5(1), s 94 and s 100.

10. WorkCover WA has issued WorkCover Guides that govern the assessment of Mrs Beasley's impairment.

11. The assessment of Mrs Beasley's degree of impairment was a task that each of Dr Kennedy and Dr Liddell had undertaken well prior to trial and came to different conclusions about.  They gave evidence about these matters at trial.

12. It was submitted by the defendant that I am not bound by the determinations of that question made by each of Dr Kennedy and Dr Liddell, and I can determine that matter for myself: Armitage v Tenix Defence Pty Ltd [2008] WADC 150 [67] – [71] and Njegovan v Nayshon Pty Ltd [2014] WADC 111 [34].

13. That is not an entirely accurate exposition of the law.  As Martino DCJ said in Armitage v Tenix Defence Pty Ltd the Act provides in s 93K(13) that the court is not bound by an assessment that is recorded under s 93L(2) which makes it clear that the court's function is more than simply to determine whether or not the procedures for the assessment and recording of a worker's degree of impairment have been complied with.

14. Where rights may arise consequent upon the satisfaction of a court, it is ordinarily to be expected that the court will arrive at that state of mind by the normal judicial process, i.e., by the hearing of evidence and considering the competing contentions: Woollahra Municipal Council v Jeffries [1981] 1 NSWLR 377, 391 (Mahoney JA).

15. His Honour concluded that for a worker to be awarded damages in a claim to which pt IV div 2 subdivision 3 applies the court must determine that the worker's degree of permanent whole of person impairment is at least 15%.  This means my task is not to determine which of the two assessment I accept but to determine on the evidence whether Mrs Beasley's degree of that impairment, evaluated in accordance with the WorkCover Guides, is at least 15%.

16. In my view the appropriate WorkCover guide is that WorkCover (WA) Guidelines for the Evaluation Permanent Impairment, 4^th ed, December 2016.[127]  A copy of that WorkCover Guide is exhibit 14 in this matter.

    [127] There was at trial some question whether the WorkCover WA Guide to the Valuation of Permanent Impairment, 3^rd ed, published in November 2010 was the appropriate Guide (exhibit 7).  There does not appear to me that there is any substantial difference between the two guides as both rely on the application of AMA 5 but given that the assessment falls to be made as at the date of trial, the 4^th ed published in December 2016 is the relevant Guide.

17. Chapter 4 of the WorkCover Guide is the relevant chapter.  It concerns the spine.

18. The Guide is intended to work in conjunction with the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).[128]

    [128] Exhibit 3/172 – 201.

19. Chapter 4.1 of the Guide provides the spine is discussed in ch 15 of AMA 5 and requires that the evaluation of impairment of the spine is only to be done using diagnosis related estimates method of assessment (DRE).

20. The Guide further provides that DRE's are required to be differentiated according to the clinical findings that can be verified by standard medical procedures.

21. At 15.6 AMA 5 provides the criteria for rating impairment due to cervical disorders.  For cervical problems localised to the cervical or cervicothoracic region it is necessary to apply the criteria set out in table 15.5 of AMA 5.  That table has, with respect to cervical spine impairment, categories described as DRE Cervical Categories I, II, III, IV and V.

22. Further relevant definitions are provided under the heading of DRE definitions of clinical findings.  Of particular importance are the definition of what constitutes a DRE Cervical Category II at 4.18 which provides that DRE Cervical Category II is a clinical diagnosis based on the features and history of the injury and clinical features.

23. Clinical features which are consistent with DRE Cervical Category II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non‑verifiable radicular complaints), muscle guarding or spasms, or asymmetrical loss of movement.  Localised (not generalised) tenderness may be present.

24. The Guide further points out at cl 4.24 that the assessment is to be undertaken using the specific procedures and direction is s 15.2 of AMA 5.

25. Of further importance is cl 4.27 of the Guide which defines 'radiculopathy' as an impairment caused by malfunction of the spinal nerve root or nerve roots and says that in order to conclude that a radiculopathy is present, two or more of the following criteria should be found, one of which must be a major criteria.

26. Major criteria include loss or asymmetry of reflexes, muscle weaknesses that is anatomically localised to an appropriate spinal nerve root distribution, and a reproducible impairment of sensation that is anatomically located to appropriate spinal root a nerve root distribution.  Other criteria include positive nerve root tension, muscle wasting atrophy and findings on an imaging study consistent with the clinical signs.

1. At 4.28 the Guide says:

   Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non‑verifiable radicular pain), do not alone constitute radiculopathy.

2. And at 4.29 says:

   Global weakness of a limb related to pain or inhibition or other factors does not constitute weakness due to spinal nerve malfunction.

3. In this case the dispute between Dr Liddell and Dr Kennedy is whether the appropriate DRE Cervical Category is that of DRE Cervical Category II which gives a 5% ‑ 8% impairment of the whole person or DRE Cervical Category III which is a 15% ‑ 18% impairment of the whole person.

4. In order to be categorised as impairment of DRE Cervical Category II there, relevantly, needs to clinical history and examination findings compatible with specific injury such as muscle guarding or spasm observed by the physician, asymmetric loss of range of motion or non‑verifiable radicular complaints (complaints without objective findings); no alteration of structural integrity or clinically significant radiculopathy and an imaging study that demonstrated a herniated disc (at the level and on the side expected based on radiculopathy) but where there was improvement following non-operative treatment.

5. In order to be categorised as impairment of DRE Cervical Category III there, relevantly, needs to be significant signs of radiculopathy, such as:

   1.pain and/or sensory loss in a dermatomal distribution, loss of relevant reflexes, loss of muscle strength or unilateral atrophy (compared with the unaffected side measured at the same distance above or below the elbow) and the neuropathic impairment may be verified by electrodiagnostic findings; or

   2.clinically significant radiculopathy verifiable by an imaging study that demonstrated herniated disc at the level and on the side expected from objective clinical findings together with radiculopathy or with improvement of radiculopathy following surgery.

6. DRE Cervical Category II carries with it a whole person impairment of between 5% ‑ 8% while DRE Cervical Category III carries with it a whole person impairment of between 15% ‑ 18%.  Dr Liddell thought Mrs Beasley fell within DRE Category II and Dr Kennedy thought it was DRE Category III.

7. In my view Mrs Beasley could be assessed as being a DRE Cervical Category III and has at least 15% impairment of the whole person.  I reach this conclusion because Dr Miles' evidence was that the imaging study, the MRI performed in May 2013, demonstrated a herniated disc at the level and on the side expected from the objective clinical findings and that Dr Miles' findings as expressed by the above which demonstrate an objectively clinical finding of radiculopathy.

8. In terms of a major criteria of radiculopathy,[129] Dr Miles' reports and evidence and that of Dr Kennedy was that Mrs Beasley had asymmetry of reflexes in her right arm[130] and Dr Kennedy's evidence was further that she had a reproducible impairment sensation that was anatomically located to an appropriate spinal nerve root distribution.  In his report dated 8 November 2015, Dr Liddell also found Mrs Beasley to have a reproducible numbness around the both sides of her right thumb and some non-specific weakness of her grip on the right.[131]

   [129] The definition of radiculopathy in 4.27 of the Guide.

   [130] Exhibit 1/187 ‑ 188, 1/213.

   [131] Exhibit 2/125 ‑ 129.

9. Their evidence was also that she had muscle weakness which was anatomically localised to an appropriate spinal nerve root distribution.  In other words, she had a reduced grip consistent with an impingement of the C6/C7 nerve root.

10. Those matters are sufficient to result in a between 15% ‑ 18% whole body impairment.  The Guide at 4.33 ‑ 4.4.36 provides for the addition of a further percentage to the assessment of whole body impairment for interference with activities of daily living and each of Dr Kennedy and Dr Liddell agreed in their assessment that Mrs Beasley had experienced a further 2% loss of function associated with the impact on her activities at daily living.  It was common ground that I could adopt that assessment.

11. Accordingly my finding is that Mrs Beasley has suffered a whole of person impairment of at least 17% and would have qualified in respect to the recovery of damages if she had been able to establish a breach of duty.

Causation

1. Although I have found against Mrs Beasley on whether there were relevant breaches of the various duty, I will make some comments on causation.

2. Mrs Beasley's evidence, which I accept is that since the March 2013 injury she has suffered from great pain in her neck and her arm and regular migraine headaches and, as a consequence, has to take a great deal of pain medication.  Each of Drs Miles, Kennedy and Liddell all accept that Mrs Beasley is in considerable pain and suffering from headaches although they differed as to whether there was any March 2013 injury and, if there was, whether the arm pain could have been caused by it.

3. In this case there is an issue of causation whether Mrs Beasley further injured her neck, which arises out of the evidence of:

   1.Dr Miles in cross‑examination that Mrs Beasley's headaches were unlikely to have been caused by impingement of the C6/C7 nerve but, rather, were more likely as a result of joint disease or musculoligamentous injury[132] and his concession that they might be as a result of degenerative disc disease but that he could not answer the question of whether symptoms of neck pain were caused by the accident of August 2012 because he had never been interested in the treatment of Mrs Beasley's neck pain.[133]

   2.My finding that Mrs Beasley's neck pain had not completely resolved as at 7 December 2012 and her complaint that she suffered on going pain after that date.

   [132] ts 588.

   [133] ts 590.

4. That evidence might have required a consideration of whether the injury in August 2012 may have been a relevant cause of her ongoing neck pain after the March 2013 injury although the defendant did not take that point in closing and instead put its case on the basis that the March 2013 injury was not a separate injury at all – which I do not accept.

5. To the extent that there was the possibility of more than one cause of the symptoms that the plaintiff suffered after the March 2013 injury, it seems to me to be answered by an application of the principle in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.

6. The principle in Watts, as explained in Purkess by Barwick CJ, Kitto and Taylor JJ is as follows (168):

   We understand [Watts] to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre‑existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre‑existing condition, rests upon the defendant.  In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre‑existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial.  It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake was essentially concerned.  It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre‑existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity.  On the contrary it was stressed that both the pre‑existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross‑examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre‑existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be.  That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.

7. In my view once I have decided, as I have, that the March 2013 injury was a cause of the ongoing symptoms, including neck symptoms, it was for the defendant to satisfy me by substantive evidence or cross‑examination as to how the two causes could have been separated out.  I am not so satisfied and had I found that there was a breach of any of the pleaded duties I would also find that the March 2013 injury was the cause of Mrs Beasley's current incapacity.

Quantum of damages

1. Although I have found against Mrs Beasley on the issue of liability, ordinarily I would have made a provisional assessment of damages to cover the situation where, if my decision on liability is varied on appeal, the matter need not be remitted back to the District Court for assessment of damages: Kerr v Minister for Health [2009] WASCA 32 [10].

2. The plaintiff has the legal onus of proving both the loss of earning capacity and the extent to which that loss produces or might produce financial losses:  Todorovic v Waller (1981) HCA 72; Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 18 (McHugh J).

3. If there has been a loss of capacity, the damage that flows from that lost capacity must be determined having regard to the established facts of the past and the probabilities of the future: Medlin.

4. In this case, I accept that as at the date of trial Mrs Beasley had suffered a complete loss of her earning capacity.

5. Dr Miles held the view that Mrs Beasley could not return to her pre‑injury duties, regardless of whether she had the surgery he considered would improve her condition[134] but was of the view that she might retain some residual earning capacity.

   [134] Exhibit 2/332 ‑ 333

6. Dr Liddell held the view that Mrs Beasley did not appear remotely capable of presuming her pre‑accident employment, a situation that was unlikely to change significantly and that she did not appear capable of performing alternative duties which was also unlikely to change significantly.

7. So for those reasons, there is evidence on which I could make the finding that she could not return to her work and had at worst no future earning capacity and at best a reduced earning capacity.

8. The difficulty is that I have no evidence on which I can find the value of that loss of earning capacity.  Mrs Beasley did not give evidence about what she had been earning as at March 2013 and there was no evidence so show what a person with her capabilities and capacities to drive a haul truck might have been earning at the time of trial.

9. A similar position arises with respect to her claim for past and future loss of superannuation.  There was simply no evidence of how much superannuation she had been accumulating or that how that superannuation would have continued to accumulate over the period of time.

10. There was no evidence to support the claim for special damages of for instance evidence of out of pocket expenses paid by the plaintiff, no evidence of heat pack or neck braces were or that they were required or that they had been purchased or their cost.

11. While there was evidence that the plaintiff had been taken medication but there was no evidence relating to its cost.

12. There is a claim for past and future gratuitous services however the evidence in support of that claim was fairly scant.  I am more than willing to accept that the plaintiff's capacity engaged in washing, cooking and cleaning is greatly reduced but that there is simply no evidence as to her having accessed or the means to access gratuitous services.

13. With respect to future medical expenses the only evidence of the future medical expenses is that of Dr Miles that the spinal surgery would cost between $22,000 - $24,000 and the difficulty with that claim is that it is not clear that Mrs Beasley would be prepared to undertake the risk of that surgery.

14. There is no evidence at all from which anything in the nature of future care and gratuitous services aids and appliances or future travel allowances could be assessed.

15. I could assess the amount of any general damages based on the findings I have made Mrs Beasley has and continues to suffer a considerable pain and that that will continue into the future.  There is no suggestion at all that Mrs Beasley's pain has in any way been reduced or resolved in the past six years.

16. I am not inclined to assess general damages on a piecemeal basis independently of the assessment of economic loss in this matter.

17. Finally in light of my findings it is not necessary for me to consider another issue.  The defendant submits that s 93K(5) of the Act operates so that there is a cap on the amount of damages which could be awarded to Mrs Beasley because her she only has a whole person impairment of 17%.  The defendant says that the cap is currently $479,448 and that Mrs Beasley has already been paid the sum of $253,601.58 in workers' compensation payments which is deducted from that sum.

18. Given the difficulties in assessing damages it is unnecessary for me to decide this point.

19. For the reasons I have given I will dismiss the plaintiff's claim and enter judgment for the defendant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

ED
Associate to her Honour Judge Gillan

17 APRIL 2019