Boyer v The Roman Catholic Archbishop of Perth Sacred Heart College - [2004] WADC 167

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BOYER -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH SACRED HEART COLLEGE [2004] WADC 167

CORAM: O'SULLIVAN DCJ

HEARD: 8-12 DECEMBER 2003

DELIVERED : 12 AUGUST 2004

FILE NO/S: CIV 1288 of 2002

BETWEEN: ROSLYN ANGELA BOYER
Plaintiff
AND
THE ROMAN CATHOLIC ARCHBISHOP OF PERTH SACRED HEART COLLEGE
Defendant

Catchwords:

Negligence - Causation and remoteness - Back injury sustained during a first aid course - Failure by defendant to ensure plaintiff did not participate if complaining of a sore back - Assessment of damages - Teacher - 38 years old - Mother - General damages, past and future economic loss

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $561,047.82

Representation:

Counsel:

Plaintiff: T N Cullity
Defendant: J G Staude

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Pynt & Partners

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

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Chappel v Hart (1998) 195 CLR 232
March v E & M H Stramare Pty Ltd (1991) 171 CLR 156

Case(s) also cited:

Nil

O'SULLIVAN DCJ: In December 1999 the plaintiff suffered an injury to her back. At that time she was working for the defendant as a drama teacher and she claims that it was caused by its negligence. Liability and quantum are both in dispute.

Background

The plaintiff is 38 years of age. She has been married for about 14 years and has one child, a daughter, aged 8. She grew up in Perth and after leaving high school studied at Murdoch University from 1984 to 1987 graduating with a Bachelor of Arts and Communications Studies. She then travelled and met her husband who was in the United States navy. After living and working overseas for some time she returned to Australia in 1993 and obtained employment as a supervisor in a fruit and vegetable store. In 1998 she attended Edith Cowan University and trained to be a drama teacher. The course involved practical studies and in that year she worked at Craigie Senior High School and at the Sacred Heart College in the final term.
In the first half of 1999 the plaintiff worked for the defendant and at other schools as a relief teacher. In terms 3 and 4 she worked full time for the defendant replacing teachers who were either on long service or maternity leave. Her duties were to teach english, drama and asian studies and her responsibility for drama increased in term 4.

The plaintiff's evidence of the physical nature of her work

The performing arts department at the school was comprised of three full‑time teachers including the plaintiff. As well as concerts and plays the department was responsible for masses, speech nights, graduation ceremonies and the like and this involved setting up equipment, stage areas and seating. At the end of each school year it was also responsible for sorting out and storing all the items used in and associated with the activities of the department.
The plaintiff gave evidence that as a member of the department she was required to engage in a considerable amount of physical activity.
The first specific work of which she spoke involved moving tubs containing costumes and other items from a loft and an under stage area in the performing arts department into a boarding house which was no longer used as such. This took place in October 1999.
The plaintiff described the tubs as being between 90 and 94 litres in capacity, with wheels on the bottom and "stackable". With the assistance of students they were all moved by hand onto the workshop floor and stacked four to six high. They were then wheeled to the boarding house and carried into the house.
Later, in early December 1999 the plaintiff was informed that the boarding house was to be used by others and so the tubs were returned to the loft area. Again, some students were used in relation to a part of this task. However, the assistance was limited and it was the plaintiff's evidence that she did a substantial amount of the work on her own.
The Plaintiff also recalled that in November 1999 there was an awards ceremony held in the concert hall and scaffolding had to be erected. The scaffolding usually supported stage lighting and this had to be taken down and the scaffolding then dismantled and re‑erected on the workshop floor for purposes of a rehearsal. It was to be used to lower the school chaplain onto the stage in the course of the ceremony.
Mr Kevin Owen, the head of the department, demonstrated how to dismantle and erect the scaffolding. This was the first time the plaintiff had seen it done. After it had been erected on the workshop floor it was decided that the area was not suitable for rehearsal and that it should be moved to the gymnasium. The plaintiff was left to attend to this herself, with the assistance of a class of students.
Later the gymnasium was required for other purposes and the plaintiff was again obliged to dismantle the scaffolding which she did with the help of three students. The scaffold parts were then moved to the stage where they were left.
It was the plaintiff's evidence that the dismantling and erecting of this scaffolding all took place on the same day, 22 November 1999 and that although she had some assistance from students she did a substantial amount of the work herself.
The plaintiff also spoke in her evidence of being required to do a great deal of physical work cleaning up at the end of the school year. This involved removing items from the stage and from under it, placing them on the workshop floor, sorting them and re‑storing them. The items included flats (tall, thin wooden boards upon which scenes can be painted) lighting equipment, shelving, props and all those things which might commonly be associated with the performing arts department of a school. Some of this work was done with the assistance of students but the plaintiff said:
"I did most of it myself because there was a lot of things that I deemed too hazardous for the children … ."

Events on 9, 10 and 13 December 1999

On 9 and 10 December 1999 and again on Monday 13 December the plaintiff was engaged in cleaning out and sorting items including textbooks and musical scores which had been kept in storage rooms of the department. On 13 December in particular, she was working in a storeroom known as K1, taking things out of a cupboard and sorting them. She was asked and said:
"Was there anything heavy about the work in the storerooms in K1? – There was quite a few plastic milk crates on the top shelf and being such a small area, I had to stand on a chair and try and lift these crates down, and the way I did it was shelf by shelf, like, I'd lean it against my chest and then get it down onto the second shelf and then get it down to the next shelf until I put it onto the chair and then on to the floor"
In the plaintiff's opinion two of the crates weighed in the order of 12 to 15 kilograms. She also said that boxes of musical scores would have weighed "over 3 kilos". Crates and boxes containing books weighed "over 10 kilos".
In the course of her evidence the plaintiff said:
"During moving the stuff out of the room and putting everything onto the stage area I felt a twinge in my lower back on the left side and Mr Owen, Mr McCarthy and the new teacher who was being interviewed, Mr Budis, who is now the current performing arts teacher, were sitting in the same room watching me and on numerous occasions I had asked for some assistance and comments were being made to me about old age and it's a woman's job and basically being laughed off …. ‑‑‑"
Later the plaintiff was asked and said:
"To perhaps be more specific, what did you say, if anything, to Mr Owen or Mr McCarthy whilst you were doing the work?‑‑‑There was one of the crates that I was trying to drag across the floor and I said, 'Could I have a hand with this, I can't lift it, it's too heavy.'
Yes?‑‑‑And that's when they just had a bit of a giggle and a laugh and made some comments and Mr Budis was like, 'Get used to it if you're going to work under me next year,' and things along those lines, so I ended up just leaving it on the floor just outside the door and then just taking the books out from there a couple at a time and throwing them onto the ‑‑‑
Did you report any injury at that time?‑‑‑No, I just said that my back was hurting and then when it came time to lift the big rubbish bag that Mr Owen was directing me what to throw out and what I could keep I said to him, 'This is way too heavy. I can't lift it. Can you guys take it out for me?' and he said, 'Paul, go and help Ros.'
Yes?‑‑‑And Paul McCarthy helped me. We couldn't lift it because it was too heavy, so we both dragged it outside the performing arts office, but I did say that my back was hurting."
Later still in cross‑examination the plaintiff repeated what she said had occurred on 13 December 1999:
"I was in the storeroom, so I would have probably where I am now to probably the corner of the room, is where the three gentlemen were sitting and about - - -
Where were they?---In the room with me.
In K1? --- In K1.
You were working at a cupboard in K1?---Yes, and I was in the cupboard and dragging things across.
What were they doing?---They were just talking about the school, general.
Were they standing, sitting, what were they doing?---Sitting with their feet on other chairs. They were just kicked back.
So they weren't doing any – involved in any work; they were simply sitting around talking, were they?---They were just sitting around talking to Mr Budis who was taking over from Kevin Owen the following year.
And you were working at this cupboard?---At this cupboard and from time to time I would say to Mr Owen, "Just let me know what you want kept and thrown away," and he would just sit there, sit forward and then point to things he wanted thrown away and when I made the comment to him that I'd hurt – that I had done something to my back, that's when comments were made ---
When was it you made that comment?---Towards the end of it, just before - - -
Was there something in particular that occurred - - -? ---The crate - - -
- - - that made you say it or was it - - -?---The crate of books that I had to move from the top shelf down and I had to go one shelf at a time and rest it against my chest to get it down, then onto the chair, then onto the floor.
A crate of books?---Yes, and when I asked for help nobody came. I was actually in the cupboard asking for help, for someone to come and give me a hand to get it down.
You asked for help and what happened?---Nobody came, so I – I couldn't put it back up on the shelf, I had to keep going. I got it down the one shelf and that's when I called out for help and nobody came and I was stuck because I couldn't actually lift it back on the shelf so I had to keep going because it wouldn't fit on the second shelf because there was all books and stuff there.
Do I understand you had a crate in your hand or your (sic) were balancing it, as it were?---I had a crate and I took as many books out of the top of it as I could and then I just balanced it on my chest down to the first shelf. Then I realised - - -
And you called out for help?---I called out for help and nobody came. So then I got it down to the next shelf. The (sic) I've managed to get it down to the third shelf, onto the chair and then onto the floor. Then I dragged it through and that's when I came out and said that something was wrong with my back and then comments were made to me about - - -
But the three men were in the room as you were struggling to get the crate down, were they?---Yes, they were watching me the whole time. They didn't see me with the crate in the room but I did call out for help.
…
And you called out and no‑one came?---No‑one came.
And you had this crate balancing on one of the shelves at the time?---On the shelf and on me while I was standing on the chair.
What did you feel in your back?---It just felt really tight and when I got it down to the chair I stood up and thought, 'Oh, my goodness.' It just didn't feel right. There wasn't a sharp pain, it was just like a straining."

The First Aid course

In early December 1999 the plaintiff said that an opportunity was given to all teachers in the school to do a first aid course. The course was conducted by Mr Andy Shearman, a physical education teacher, and it commenced on 7 December. The plaintiff participated in it. There were about eight or 10 in the class. On the first day they were shown a video and received instructions about how to deal with matters such as bites and stings and accidental poisoning.
The course resumed on 14 and 15 December. In the meantime the plaintiff had been working in the performing arts department cleaning up under the stage area and continuing to engage in the physical activities she has described.
On 14 December the plaintiff was engaged in training in CPR techniques. She worked with two other teachers, Sue Bigelow and Paul McCarthy. The exercises involved adopting or placing persons in the coma position and carrying out resuscitation techniques as well as applying bandages and splints.
At this time Sue Bigelow had a shoulder injury and the plaintiff said that she herself was feeling quite "strained and fatigued" as a result of all of the work she had had to do. She said that she and Ms Bigelow asked Mr Shearman if the CPR exercises could be done on a bench or a desk but this request was declined although he offered to bring them some pillows.
According to the plaintiff no pillows were provided despite repeated requests.
On 15 December 2004 the plaintiff was required to undergo a test on CPR techniques and on bandaging. She said:
"… it was during the CPR testing where I was given a scenario by Mr Shearman about what the victim was suffering from and then proceeded to deal with whatever scenario he gave me and it was during probably 5 minutes into that I had to roll the dummy onto its side and roll it back and resume chest compressions and breathing and it was on the breathing that I went over and I felt a pop on the left side of my back and I sat up; put my hand on my back and said, 'That didn't feel very comfortable at all,' and Mr Shearman said to me 'Just keep going. You're almost done,' so I repositioned myself as best I could and kept going and he just said to me, 'That's enough. That'll do.' "
The plaintiff said that after this incident her back felt tight and she felt nauseous and "a bit flushed in the face". She nevertheless continued with the class and she said:
"Right after that we did the bandaging and Sue Bigelow was my partner and we had to bandage up whatever scenario he gave us, whether it was arm, leg or whatever, putting them into a coma position, and they're not breathing, so we'd have to put them back and then something was wrong with the foot. Someone had to put her foot on my knee and bandage her up, but in order to get Sue into a coma position was quite difficult for me because of the fact her shoulder was in a sling so in normal circumstances that you would put somebody in a coma position would be to grab their shoulder so her good shoulder was to the floor and then I had to roll her towards me and I couldn't grab her by her shoulder. I had to actually put my hand over to the middle of her back to actually get her over and onto her waist."
The plaintiff said that she had problems doing this "so I twisted to try and get myself over".
Following that the plaintiff said she felt quite stiff and "went all sweaty and … quite sick".

Subsequent complaints

The plaintiff said that when she went home on 15 December she felt stiff and took some Panadol and went to bed. The following morning she rang Kevin Owen to say that she felt quite sore and he suggested not going to work but to meet at a nearby hotel where there was to be faculty end of year lunch. She attended the lunch at midday but after about an hour she "started to limp a little bit". Following the lunch she went to pick up her daughter from a neighbour's and after sitting down to talk to the neighbour for a while had difficulty getting up. She then went for a hairdressing appointment and after that could not get out of the chair. Her husband was called to help her up and she drove her car home but with great difficulty. She could not get out of the car and her husband took her to the Joondalup Hospital. The following day the plaintiff said that she rang the school nurse, Rosanna Hywood to say that she was in excruciating pain and was told to come in to fill out some workers' compensation forms. She did this and attended a staff lunch as well.

Investigation and treatment of the injury

Her regular general practitioner being unavailable the plaintiff attended on a Dr Croot on 18 December 1999 but I heard no evidence from him.
She first saw her own doctor, Dr Dawson on 20 December 1999. Dr Dawson said that he was not aware of any back problems before that date.
Sometime in January 2000 Mrs Boyer was referred to Mr Soni Narula, neurosurgeon. In a report dated 18 Mr Narula wrote to Dr Dawson as follows:
"Thank you for asking me to see this 33‑year‑old lady who injured her back while bending over a dummy while undertaking a first aid course. She had difficulty in straightening her back and continues to have symptoms while sitting and standing. She also had pain radiating down the left lower limb to all the toes. She was also admitted at Glengarry Hospital for rest and has subsequently started physiotherapy and hydrotherapy. Overall her symptoms are worse in the evening in her lower limbs. She denies any past history of low back injury or pain. She is on thyroxin. She has not worked since the 17th December 1999. She takes Panadeine forte for her pain.
On examination she is a pleasant lady who is relatively large and overweight for her height. Her general physical exam was unremarkable. Examination of the lumbosacral spine revealed normal curvature with tenderness at the L5/S1 in the Midline as well as over the L4/5 and L5/S1 facet joints on the left side. There was bilateral upper gluteal tenderness over the sacro‑iliac region. Her spinal movements in flexion are virtually normal although extension was limited to mid range. She had pain on stressing her facet joints. The SLR was normal with the left side only weakly positive on testing for dural tension. Neurologically she had no deficits except subjective sensory loss in the L5 dermatome.
Her radiology shows pars inter articulares defect at L5 but without any slip. Her CT scan shows the presence of a central and left paracentral disc protrusion. I could not detect any obvious nerve root compromise.
I have suggested that she continue with the hydrotherapy and physiotherapy for the next two to three weeks. Should she not find improvement I will investigate he (sic) further. Thank you for the referral."
Mr Narula reviewed the plaintiff on 8 February 2000 and found that she had only marginally improved and therefore decided to attempt a nerve root sleeve block at the L5 level. On 22 February 2000 he reported that this had been done but had not resulted in any significant relief. He stated in his letter of that date to Dr Dawson:
"This is perhaps not surprising given the fact that there is a slip at L5/S1 as well as a disc protrusion which abuts against the L5 nerve root. Currently the symptoms are also S1 in their distribution."
On 7 March 2000 Mr Narula reviewed the plaintiff again and he wrote in a report of that date:
"I reviewed Roslyn at follow up today. She had a MRI scan which shows the presence of a disc at the level of L5/S1 on the left side which has sequestrated upwards to involve the L5 nerve roots. She has not had a response following nerve root sleeve injection. The next choice would be surgery but given that she has Pars intra articulares defect I have suggested that we initially adopt a conservative attitude. Should this not be helpful I would have to offer surgery. She does have pathology at the Pars, which could result in long term development of a degenerative spondylolisthesis at this level. Fusion as a first instance is not recommended in her current state of presentation. I will follow her up in due time."

On a further review on 31 March 2000 Mr Narula reported that the plaintiff had received no benefit from treatment to date and expressed the view that she was unlikely to improve on her own. He stated:
"I have therefore suggested we look at the sequestrated fragment of disc and remove it. The pars defect is not symptomatic and therefore I shall not interfere with it. I will arrange a discectomy and root decompression in the near future."
On 9 May 2000 Mr Narula reported as follows:
"I reviewed Mrs Boyer at follow up since her surgery. She found good improvement in the immediate post‑op but has continued symptoms, mainly in the distal lower limb as well as in the buttocks, in the form of pain. She has found it difficult to sleep at night.
At surgery I did find significant granulation tissue at the site of the pars defect, which was decompressed from the nerve root. The disc bulge is only a mild one and I elected to leave it as such given that the posterior element was deficient. Since she did not have a slip, I thought it was prudent to undertake this action. However she has not had significant improvement despite surgery. The question remains whether she should have fusion at this level. In this regard I have suggested that she should first have an MRI scan. I have prescribed her Amitryptline (sic) for sleep at night. I will review her thereafter before considering further course of action."
Mr Narula next reviewed the plaintiff on 30 May 2000. He stated in a report of that date:
"I reviewed Roslyn at follow up today. Her MRI scan is to hand. This shows no compromise of the L5 nerve root. The course of the nerve is quite clear. There is however some extradural collection which may be serous (sic) but the possibility of IA durak leak needs to be kept in mind. I have explained this to her. She appears better since my last review. I have advised a wait and watch policy rather than aspirate this collection. I will repeat the MRI scan in about a month's time. Should this continue to be present and not resolved, I will have to undertake an aspiration at the risk of infection. I have suggested a conservative management unless otherwise indicated. She is undertaking a weight reduction program as well as seeing a Psychologist. We have discussed at length the options regarding further surgery which I am at the present moment not very inclined given that despite the decompression of the nerve root, she has not found a significant relief."
For some months after 30 May 2000 Mr Narula proceeded with conservative management of the plaintiff and regular reviews. However, he reported on 18 July 2000 that she had to be admitted to hospital over a weekend following an episode of severe pain and on 29 August 2000 he wrote:
"I reviewed Mrs Boyer at follow‑up today. As you are aware from my last letter she was admitted for about three weeks with pain. She is now reducing her Amitriptyline but is starting on Promit as the Amitriptyline produces hallucinations with Morphine. It also increases appetite.
She has managed so far with pain relief although there have been a few episodes. I have suggested that we continue along the same path and hopefully she will not need to be admitted and continue to lose weight.
Given the way she is going it is my view that she will end up having a fusion, as there is evidence of instability from a pure mechanical sense.
I have left an open door policy for her to call me or to see yourself and I would not hesitate to readmit her should her symptoms aggravate in the interim."
By 19 September 2000 Mr Narula had reached the view that given the persistence of her problems and difficulties in pain control there was no doubt that the plaintiff would require surgery in the form of a fusion once she had lost a certain amount of weight.
The plaintiff ultimately underwent surgery in early December 2000. Mr Narula wrote on 24 December:
"This is a brief note regarding the above said. She was admitted and operated for a decompression of the lumbosacral region with a diskectomy rhizolysis as well as interbody cage fusion and internal fixation using pedicle screws. A bone graft was also placed in the posterolateral gutters as well as in the interbody cages.
The procedure was uneventful although technically challenging given that this being the second operation with respect to rhizolysis of L5 and S1 nerve roots on the left side. Intraoperative as well as postoperative imaging was unremarkable. The cages appeared well positioned and the pedicle screws well positioned on the postop x‑rays and CT scan.
Postop she reported reduced pain left lower limbs but some symptoms of right buttock region pain. She was discharged 10 days after the surgery."
On 27 February 2001 Mr Narula reported as follows:
"I reviewed Mrs Boyer who is now almost nine weeks following her lumbosacral decompression and fusion using cages and pedicle screws along with bone graft posteriolaterally in the gutters. Roslyn has shown a very slow improvement. She is no longer in agony as she was pre‑operatively. She did have a modest slip at the time of surgery noted at the L5/S1 and this necessitated insertion of pedicle screws to stabilise.
Her wound is well healed. Her spinal curvature is normal but she is tender at the operated segments including the pyriformis area bilaterally. She is able to sit with modest comfort and walk with modest relief. She is not finding pain as before. However, she is depressed to a large degree given the time it has taken for her to recover as well as given the pain scenario.
I note that she is still on Morphine although in reduced form. I have advised Roslyn to continue wearing the brace and to start undertaking short walks. I am hopeful with time things will settle down although this remains to be seen. She will come and see me in six to eight weeks time."
Mr Narula continued to review the plaintiff on a regular basis in 2001 and found her to be only progressing slowly and her prognosis to be guarded. It was his view than that she would take a long time to recover.

Liability

There is no doubt that the plaintiff has suffered a significant injury to her lower back but the question is whether it has been caused by negligence on the part of the defendant.
By par 3A of the statement of claim the plaintiff pleads:
"The mechanism of the injury on 15 December 1999 is as follows. The Plaintiff unknowingly had asymptomatic incidental pars defects and spondylolisthesis at L5, with a forward shift of Grade 1 at L5/S1, and underlying morbid obesity. The underlying degenerative change had resulted in the weakening of the annulus. The annulus became further weakened as a result of the moving, erecting, dismantling and lifting referred to in paragraph 3. When she undertook the bending forward and kneeling in the EAR and CPR training, the L5/S1 disc ruptured internally and caused a disc protrusion, impinging on the S1 nerve root, as referred to above when the short sharp pain or pop occurred."
In answer to this plea the defendant pleads that:
"3A.If the plaintiff suffered injury as alleged in par 3A of the amended statement of claim, which is not admitted:-
(a)the plaintiff was predisposed to such injury by pre‑existing degeneration and congenital changes in her lumbar spine being bilateral pars interarticularic defects at L5/S1;
(b)the defendant had no knowledge or means of knowledge of the plaintiff's predisposition;
(c)it was not reasonably foreseeable that the plaintiff may suffer the alleged injury by carrying out first aid training or any other activities performed in the course of her work as a drama teacher;
(d)the plaintiff's predisposition to a protrusion at the L5/S1 disc rendered her so vulnerable to such injury that the activities performed on 15 December 1999 were merely the occasion, rather than the cause, of the injury."
Although a number of particulars of negligence are pleaded by the plaintiff in her statement of claim they were not all specifically addressed by her counsel. At trial the case presented was, in essence, that in the weeks and months leading up to 15 December 1999 the plaintiff was required to engage in a great deal of physical activity to which she was not accustomed and that this rendered her susceptible to the injury which she ultimately suffered. As counsel put it:
"Therefore, as I said in opening, while my learned friend … has elegantly pleaded … that the CPR incident was merely the occasion and not the cause, we would agree with that but part company with them in suggesting it was the pars defect that was the cause. What we would say is it was the sequence of unaccustomed manual handling which the plaintiff gave evidence of … "

Jeni Miller

It seems to me that much of the evidence in support of this submission came from Ms Jeni Miller, an ergonomist.
After having taken instructions from the plaintiff and examined the activities in which she said she engaged and the places in which she worked Ms Miller stated in a report dated 30 October 2003:
"15.I am of the opinion that this unaccustomed manual handling done during the last few weeks of term would have resulted in fatigue. It would have placed her at risk of injury, and the minor manual handling while kneeling and crouching during the first aid course would have been the proverbial 'straw that broke the camel's back'."
In cross‑examination Ms Miller said that no specific injury to the plaintiff as a result of any particular activity engaged in before 15 December 1999 had been reported to her. Nevertheless she said that the heavy work in which the plaintiff had engaged had had a cumulative effect. Ms Miller was asked and said:
"Are you suggesting that the activity of erecting and dismantling an aluminium scaffold in mid‑November contributed to a cumulative effect leading to a back injury? Is that what you're saying?‑‑‑When you actually put it together with all the other things that she did up until mid‑December, yes, I'm saying that the actions and postures in handling the scaffolding when you put it together with the chairs and moving the crates and clearing out under the stage, etcetera, etcetera, that all (sic) is what is leading to the fatigue and the risk of injury.
Can I ask you what residual effect would the scaffolding work have had that would have lasted for a month?‑‑‑It's not necessarily that, per se. What's happening is that you're getting a cumulative effect. So when you've got one lot of manual handling and then the next lot of manual handling followed by the next lot, the muscle fatigue, the soft tissue fatigue accumulates …"
Although it is not in her reports Ms Miller spoke in her evidence of the plaintiff having suffered "micro tears" in her muscles as a result of the physical work in which she had engaged. She also said that there was a potential for "minor little tears" in the discs of the back. When it was put to her that there was no literature to support this opinion she stated:
"The manual handling code of practice doesn't go into the sort of physiological nature of it but it does actually go through and explain why when you're looking at manual handling you don't just look at weight you need to look at all these factors that I've been talking about, like the actions, the postures, the frequency, the duration, because what happens is that they can all have a accumulative effect and can result in injury." (T184)
Towards the end of her cross‑examination Ms Miller gave evidence as follows:
"So what do you say happened here, if you're able to say?‑‑‑I would say that what has happened here is that there has been a cumulative effect from repeated manual handling that's unaccustomed, it's done over a concentrated period of time, and what has happened is there's been micro tears that have been occurring along the line and eventually something minor is done and there's a major injury.
I thought I'd directed you to the disc injury. What were the micro tears that caused the disc injury?‑‑‑What happens during manual handling, particularly if you're doing manual handling and you're also bent over or flexed, is that you get an uneven pressure in the disc. The front of it is compressed, the back of it expands, and you would have an increased pressure inside the disc itself and that is one of the risk factors in the literature that actually increase the risk of back injury, particularly low back injury because again that's the pivot point of the nervous ‑ ‑ ‑
What were you saying caused the pressure on the disc?‑‑‑If you are bending over, it actually causes an uneven pressure on the disc and it actually raises the pressure inside the disc itself. When you are bent over and you are doing manual handling, you then have got a load on the lower back and it raises the disc pressure. Actually there are studies they have done sticking needles into people's discs to prove this, and that is published in the ergonomic literature.
But you are not able to say whether in this case that anything that was done was sufficient to create pressures that would be liable to lead to a disc protrusion surely?‑‑‑What I'm saying in this case – what I'm saying is that there has been a lot of unaccustomed manual handling often in postures where there has been flexion and manual handling as well. Again while one incident in itself may have not been enough to lead to an injury, when you put the whole lot together the sum actually has led to an injury. So there has been an increased risk of injury.
Would you accept that these matters are essentially outside your area of expertise – medical matters?‑‑‑Medical matters are, but what ergonomists do is they actually look at the risk factors that are inherent in work, hopefully before they lead to an injury, because they have got some knowledge of how injuries will develop."
In my view, while the plaintiff no doubt felt considerable fatigue from time to time as a result of engaging in what Ms Miller described as "unaccustomed manual handling", I do not accept that that can be described as a cause of the injury she ultimately suffered. Nor do I accept Ms Miller's evidence that the plaintiff suffered "micro tears" in the muscles and discs of the back as a result of her exertions and that this explains the injury. Ms Miller's opinion, it seems to me, is outside the area of her expertise and is, in any event, not borne out by the evidence of other experts which I prefer.

Soni Narula

Mr Narula who operated upon the plaintiff and was the medical practitioner most responsible for her care stated in a report dated 20 March 2003:
"5.I am of the view that Mrs Boyer has an underlying pars defect at L5 resulting in a mild slip at the L5/S1 level. However, this was an asymptomatic condition. I have noted her hand written and typed Statement of Evidence dated 31.12.1999. In addition I have also noted Mrs Boyer's Proof of Evidence dated 24.02.2003. I am of the view that given the underlying degenerative change this would result in the weakening of the annulus to a degree. However, this would not become symptomatic without exertional work by the lower lumbar spine. In this regard having looked at both the above enclosed Evidences I note that she undertook a lot of work requiring physical effort in putting up and taking down scaffolding in the preceding two weeks of her injury. She does record a history of low back pain during this time and it was quite likely that the annulus at this time would have given way further and at the time of the injury when conducting the CPR in a crouched position a significant amount of pressure would have been generated while kneeling on her knees to result in a disc prolapse occurring and impinging upon the S1 nerve root. Ordinarily when seated in the CPR position one would not envisage a disc prolapse to occur on its own without some underlying predisposition."
It is to be noted that Mr Narula refers to the plaintiff having a history of low back pain during the period when she was doing the work referred to. In fact she only gave evidence of one episode of low back pain which appears to have occurred on 13 December 1999. As to this episode Mr Narula said:
"By and large, what I am trying to say is that in a disc prolapse such as that which Mrs Boyer has suffered from, usually there is a predisposing element to it. Now, the predisposing element in her instances are the presence of a pars defect, congenital, a presence of wear and tear of life. She's a mother … bending a lot.
… And the third issue of – if there has been an immediate injury preceding in a relevant time frame and one just can't ignore that and I wouldn't certainly attribute the same degree of importance to each."

Dr Hammersley

Dr Christopher Hammersley is a consultant occupational physician who saw Mrs Boyer on 20 January 2003. He took a detailed history from her, noting that there was no problem with her back between 1 and 8 December 1999, but on 10 December she said to him that she felt back pain on the left side while removing boxes of books from storage shelves. It seems from Mrs Boyer's evidence that she says that she in fact experienced this pain on 13 December and not on 10 December.
Dr Hammersley wrote in a report dated 20 January 2003:
"In my opinion the onset of pain/discomfort and stiffness on 10 December was significant and is consistent with a mechanical left low lumbar injury. In my opinion the best explanation for this onset of symptoms is the occurrence of disruption of a pre‑existing pars defect; these defects are commonly held firmly in place by a fibro‑ligamentous union, and there is good evidence that Mrs Boyer enjoyed a strong and stable low lumbar spine from her youth up until the first two weeks of December 1999."
In Dr Hammersley's view "it is impossible to argue" that the plaintiff was significantly symptomatic prior to December 1999, or was in any way limited. He stated in his report:
"The aggravation of symptoms that occurred whilst physically handling a training partner who had a shoulder injury constitutes an aggravation of the injury sustained the previous week. Her symptoms escalated rapidly after that and she developed neurological type symptoms in her left leg within four days of the leaning, lifting and twisting tasks on 14 and 15 December 1999."

Dr Marsden

Dr Andrew Marsden is an occupational physician who saw the plaintiff on 31 March 2003. He also took a detailed history from her noting that the plaintiff told him that on about 9 or 10 December 1999, she was clearing a store room and had "a twinge" of backache. In a report dated 1 April 2003 Dr Marsden wrote "she felt uncomfortable and she said it was 'a fairly fierce twinge'. She said she kept going but did mention the fact to her working colleagues."
Despite noting this history Dr Marsden was of the view that it was difficult to attribute the disc injury which the plaintiff suffered on 15 December 1999 to any previous incident of injury. He said that nothing he took in the history would suggest that "she had laid the foundation for a disc injury in anything she had done beforehand".
Dr Marsden was also of the view that the pars defects and spondylolisthesis at the L5 level were probably incidental. He said:
"In the epidemiology of the matter of back injuries, ten per cent of people with back injuries may have spondylolisthesis but it's not unreasonably represented and that's why people say that just because you see a pars defect doesn't mean to say that a person is going to have a back problem or have an unstable back or whatever but it could be damaged by particularly heavy lifting or a fall or something of that sort."
Dr Marsden wrote in his report:
"This lady has a diagnosis of probably incidental pars defects and spondylolisthesis at L5 with a forward shift of Grade 1 at L5/S1 and underlying morbid obesity. There were some degenerative change evident in the scans at L5/S1. She has a clear history of having some aching in her back associated with a week or so of moderately heavy lifting which was unaccustomed for her and I would not be convinced that she was particularly physically fit before this episode and that sort of unaccustomed heavy lifting in the days before the definitive event would be no surprise. Nonetheless, when she undertook the bending forward and kneeling undertaking expired air resuscitation training, she has in fact ruptured the L5/S1 disc internally and caused a disc protrusion. There may have been some involvement of the pars defect, as I note there has been some granulation tissue recorded by the operating surgeon in this area, but nonetheless in my opinion the direct injury event was that which occurred on 15 December 1999."

The mechanism of the injury

In my opinion although the plaintiff was clearly engaged in quite heavy physical work on a number of occasions before December 1999 it should be accepted that, as Dr Hammersley has put it, it is impossible to argue that before that date the plaintiff was "significantly symptomatic" or "in any way limited".
Dr Hammersley's views are I think supported by the evidence of other medical practitioners, and the plaintiff herself agreed in cross‑examination that she only had one episode of back pain before 15 December, and that was on 13 December.
As Dr Marsden pointed out cardio pulmonary resuscitation (CPR) and more particularly expired air resuscitation (EAR) involves heavy physical activity and puts a significant strain on the back. He said:
"… CPR to be undertaken properly and expired air resuscitation particularly, CPR your (sic) kneeling and your back is fairly straight and your arms are locked, elbows are locked, one hand on top of the other and you're bouncing and providing significant force onto a patients chest. It's got to be vigorous. They say that if you crack a few ribs while you're doing it, then the chances of the patient recovering are that much better because of the force that you (sic) employing. But expired air resuscitation, you've got to bend that much further forward and so you're kneeling and that produces tremendous strains on the anterior part of the disc as you're leaning forward, squeezing it together, opening up the back part of the disc because you are leaning right forward and the combination of those two vectors is known to produce a tremendous force along the disc, outwards and backwards and that's when it can occur. The worst thing you can do in terms of lifting, is to sit in a chair, bend forward and lift a heavy weight under the chair. If you do experiments looking at the pressures generated inside discs, that is the worst one apparently. But another bad one is be kneeling and leaning forward and applying some sort of effort and that's what she was doing.
It is against this background that the defendant's submission is that Dr Hammersley's opinion that the lifting of crates and boxes from the cupboard in the storage room K1 was a significant event leading up to the injury sustained by the plaintiff on 15 December 1999 is speculative.
In my view that submission should be accepted. While the plaintiff did say she complained of a "tightness" in her back she said that "it wasn't anything debilitating" and proceeded with the first aid course clearly considering that she would be able to accomplish the tasks required of her.
Dr Hammersley himself conceded that there were a number of possibilities as to the precise nature of any injury sustained on 13 December. He said:
"…there are two possible types of injury that could have occurred here. There could have been some avulsion on the pars defect. There could have been some change in the disc like a disc tear – could have been."
He was then asked and said:
"Could it have been‑ ‑ ‑ ?‑‑‑ All I could say is could.
‑ ‑ ‑ a muscle strain?‑‑‑Yes, it could have been."
In my view the opinion of Dr Marsden that the "direct injury event" occurred on 15 December 1999 while the plaintiff was participating in a first aid course should be accepted.

Negligence

It is alleged in a number of particulars contained in the statement of claim that the defendant was negligent in that it:
"4.10failed to prevent or stop the plaintiff continuing with the first aid techniques test when the plaintiff complained of lower back pain;
…
4.14failed to prevent the plaintiff from continuing the CPR training as soon as she complained of low back pain orally to Mr Shearman on 15 December 1999;
4.15failed to prevent the plaintiff from continuing the EAR training as soon as she complained of low back pain orally to Mr Shearman on 15 December 1999."
Dr Marsden said in evidence that if an individual complained of low back pain they should not undertake the CPR or EAR training process at all. He said:
"I've actually told companies that I have worked for that if there are people going through training programmes in expired air resuscitation or whatever if they say they have back pain, mentioned any hint of back pain, then don't do the course until they're well and strong again."
The plaintiff said that when she attended the course on December 14, 1999 she spoke to Mr Shearman as follows:
"---I was partnered up with Paul McCarthy and Sue Bigelow and we both Sue and I asked Andy Shearman if it was possible during the course of the CPR course, because I had told him that I was, with all the work that I was doing in the performing arts department, feeling quite strained and fatigued at the time. If it was possible and because of Sue with her shoulder injury, if we could do the actual CPR practices on a bench on the desk and Mr Shearman said that that wouldn't be very realistic but he offered to bring us some pillows."
The plaintiff said that no pillows were provided and she had trouble with her back during the course on 14 December. She said:
"I just felt uncomfortable and kept asking Mr Shearman about where the pillows were."
The plaintiff of course gave evidence that it was on 15 December 1999 that she actually suffered a "pop" on the left side of her back. In a passage earlier set out in these reasons she said that it was while being assessed by Mr Shearman and dealing with a dummy that she experienced the pop and commented "that didn't feel very comfortable at all."
After this the plaintiff said that although she felt nauseous and a bit flushed in the face. She continued participating in the course working with her partner Sue Bigelow doing bandaging, an exercise with which she had considerable difficulty.
It was put to the plaintiff in cross‑examination that she did not tell Mr Shearman that there was anything wrong with her back on 14 December 1999. She said:
"Yes I did. I said I'd been straining myself in the performing arts department and I had a problem with my back and would it be possible to do the CPR dummy work on a bench and just do the test on the floor because of the problems with my back and the problems with Sue Bigelow's shoulder."
The plaintiff also denied being told by Mr Shearman that if she suffered from any health problems or was experiencing any physical difficulties doing any part of the course she should inform him.
Andrew Shearman is now the executive officer of Sacred Heart College, a position he has held since the year 2000.
He was first employed by the defendant in 1991 as a physical and outdoor education teacher. Before that he had been in the army. In 1992 he became an accredited instructor with the St John's Ambulance Association and began teaching first aid courses doing up to six three day courses a year to students and staff.
Mr Shearman was asked and said:
"Is there any sort of directions given regarding personal safety or anything like that?---That comes into the general sort of explanation of the course but it's certainly reinforced all the way through the course when you talk – when you're doing the demonstration and part of the explanation of the components of the course, it's constantly referred to, hand positions, for instance – constantly reminded where hand positions should be to prevent further injury and leg positions and the position of you, yourself, how you protect yourself when rolling the casualty on their side, so that's constant throughout the course, yes."
One of the exhibits tendered in the course of Mr Shearman's evidence was entitled Three Day Senior First Aid Programme containing a description of tasks taught and key points to be made by the teacher. In dealing with the teaching of the task of preparing to roll a casualty into a position where he can be treated the document indicates that the key point to be made by the teacher is that the aid giver should kneel in a comfortable position beside the casualty in order to avoid damage to her (the aid giver's) back.
Mr Shearman was also asked and said:
"What about dealing with the risk of injury to participants generally in a course? Is there anything said or done in that regard?---Constant, constant. It's a constant reminder in the instruction that when you're putting the casualty on the side, the hands have to be in a certain position and it tells you in the manual and one hand needs to be placed upwards, palm upwards and you remind the constantly, 'if it's placed downwards, you can create further injury to your casualty.' Quite obviously in our situation where there is live casualties, if you do something wrong, they are able to alert you to the fact that 'that hurts,' or, 'you have done this the wrong way.' whereas in an unconscious casualty they don't have that capability to respond so therefore it is a constant reminder right throughout the course that it has to be done this way to prevent further injury, the way you cross over the legs to stabilise the spine, the way you need to support the head and lower the head to prevent further injury, and even for yourself when you roll a casualty on the side onto your knees, the way you do it, where you position yourself on the casualty and the way you roll the casualty onto the side."
Mr Shearman said that it was impossible to allow CPR and EAR to be done off the floor because it was necessary to realistically simulate the exercises.
He recalled the plaintiff being in his course, but did not recall her complaining of any specific problem. He said:
"I think there was a, 'Can we have a pillow,' or, 'Can we do it on the desk?' but, you know, the answer to that is that the answer is no. Had I been able to find a pillow, I could've possibly provided one but it's not a requirement. It's not something that you would do and my recollection is it wasn't a formal request. It was more a discussion."
Mr Shearman gave evidence that he did not recall any complaint by Mrs Boyer that she felt sore and had strained her back.
As to the circumstances in which Mrs Boyer said that she felt a pop in her back, Mr Shearman was asked and said:
"Isn't it the case that during one of the sequences on the dummy when you were testing Mrs Boyer she straightened up and said, 'That's not very comfortable,' and held her back, looked straight at you? ---I can honestly say I don't recall that happening at all.
Right, and that you said, 'It's okay. Just keep going'?---Once ‑‑‑
You can't recall that? ---Once again, I can't.
Then very shortly there afterwards, 'That's enough, that's okay,' or words to that effect? ---I can't remember that.
You can't remember that?---No."
Mr Shearman said that he did not discover that the plaintiff had been injured until a few days after 15 December 1999 and he said that he was surprised to learn that she had been injured in the first aid class.
Paul McCarthy, a teacher employed by the defendant who also participated in the first aid course gave evidence that he recalled the plaintiff being present and, although he had no clear memory of the event "thought that there was some movement or something that might have caused some sort of injury" to her.
I have no doubt that the plaintiff did suffer an injury while participating in the first aid course on 15 December 1999 and complained of it at the time. The fact that Mr Shearman did not recall it may be explained by a lack of appreciation on his part that the plaintiff's comment that "that's not very comfortable" was in fact a reference to the onset of painful symptoms.
I am also satisfied that prior to 15 December 1999 the plaintiff did complain of back pain to Mr Shearman. There was clearly talk of using pillows, as Mr Shearman himself recalls and I think it likely that in the context of requesting a pillow the plaintiff referred to her sore back.
In my view it is also clear from the evidence that the plaintiff was not advised by Mr Shearman that in the light of her complaints she should withdraw from the first aid course. That she was not, as she herself asserts, tends to be confirmed by the evidence of Mr Shearman who only spoke in general terms of the sort of advice given to participants on the course to protect themselves from back injury. He was unable to recall any specific conversation with the plaintiff and if he had advised her to withdraw I think it likely he would have remembered it.
In my opinion the plaintiff was permitted to engage in CPR and EAR training on 15 December 1999 when she should not have been and in that regard the defendant was in breach of its duty to the plaintiff to take reasonable care to safeguard her from harm.

Causation

In my view the injury to the plaintiff's back was caused by the negligence of the defendant. As Dr Marsden made clear, any one complaining of back pain should not undergo first aid training until they are "well and strong again". The failure of the defendant to ensure that that precaution was taken in this case caused the plaintiff to suffer an injury. In reaching this view I have been careful to bear in mind that the "but for" test is not the exclusive test of causation (March v E & M H Stramare Pty Ltd (1991) 171 CLR 156 at 515 per Mason CJ; 522 per Deane J, 524 per Toohey J, and 525 per Gaudron J; Bennett v Minister of Community Welfare (1992) 176 CLR 408) and clearly it is not a sufficient test in this case. In my opinion the common sense of the matter is that the failure of the defendant to take steps to ensure that the plaintiff did not participate in the first aid course when she was suffering from pain in the back resulted in the injury she ultimately sustained.
It is true that I have not made any finding that the plaintiff suffered any harm on 13 December 1999 which predisposed her to further injury on 15 December, but I do not regard that as a necessary precondition for this conclusion. The plaintiff having established a breach of duty by the defendant and damage which immediately eventuated, an evidentiary onus fell upon the defendant to displace the inference of causation which thereupon arose. (Chappel v Hart (1998) 195 CLR 232 at 278 per Kirby J; 239 per Gaudron J; 257 per Gummow J.) I am satisfied that that onus has not been discharged.
It is also clear that the reason why, as Dr Marsden said, a person complaining of back pain should not participate in CPR and EAR training is precisely because they might suffer an injury to the back of the kind sustained by the plaintiff. It follows that I am satisfied that the injury was reasonably foreseeable.

Contributory negligence

Although the defendant pleads that any injury suffered by the plaintiff was caused or contributed to by her failure to take any or any reasonable care for her own safety the conduct of the plaintiff in proceeding with the first aid course was a matter which attracted little attention in counsel's submissions.
In my opinion there is no basis for a finding against her. While she was suffering from a painful back there is, I find, nothing to suggest that she was or should have been aware of the dangers of participating in the EAR and CPR exercises in those circumstances. The stiffness and "tightness" of the back which she was experiencing caused her to bring the matter to the attention of the instructor but she was nevertheless permitted to continue to participate in the course and not advised to withdraw. In my view she should not be regarded as in any way responsible for her own misfortune.

Quantum

The plaintiff has clearly suffered and will continue to suffer significant pain and discomfort and she is greatly restricted in her domestic and leisure activities. Any form of employment is at present beyond her. Surgery has not resulted in much improvement of her condition and she has suffered from depression and has had to overcome an addiction to opiate based medications. There is some prospect that with appropriate pain control and counselling the plaintiff's capacity to enjoy life will be improved but the overall impact of her injury upon the quality of it has been severe and her prognosis is guarded.
In his closing submission counsel for the plaintiff made something of the lost opportunity for the plaintiff to engage in the GURD project and I would include some consideration of that in the award for non‑pecuniary loss.
In my opinion an appropriate sum for general damages would be $30,000.

Future economic loss

It is appropriate to take as a starting point for this aspect of the assessment the calculations set out in the plaintiff's schedule of damages which are based upon the Western Australian Catholic Schools (Enterprise Bargaining) Agreement No 1 of 1998. Using those figures the total future earning capacity of the plaintiff comes to $465,753.
I would discount that amount by 10 per cent to allow for the normal vicissitudes of life including unemployment and 30 per cent for retained earning capacity.
Finally, I would also apply a further discount of 20 per cent to allow for the prospects of early retirement and the risk of injury in the future. It is true that the plaintiff was asymptomatic before the events of mid‑December 1999, notwithstanding the pars defect and spondylolisthesis, and that there was evidence that those conditions do not inevitably lead to back problems, but there was also evidence of the plaintiff's underlying morbid obesity and having regard to this, and the wear and tear of everyday life, I consider this approach to be reasonable.
In the result the sum to be awarded for future economic loss is $186,301.20.

Past economic loss

I allow the sum of $165,515.20.

Past gratuitous services

I allow the sum of $62,340 inclusive of the claim for cleaning services plus interest on that amount at the rate of 6 per cent per annum from 15 December 1999 until judgment.

Future services

I would allow $25,000.

Loss of past superannuation contribution

The sum of $10,848.41 is allowed.

Loss of future superannuation

I would allow the sum of $14,712.22.

Future travelling expenses

I allow $2,500.

Future medical expenses

I allow the following amounts:
Exercise programme  $2,515.00
GP consultations  $2,533.00
Mr Narula$1,012.00
Psychological counselling  $15,660.00
Psychiatric consultant  $6,400.00
ABC plasters  $2,245.00
Dorsal column stimulator  $21,000.00
$51,366.00

Special damages

The sum of $3,797.93 has been agreed.

Conclusion

The plaintiff's claim should succeed. I have assessed damages in the sum of $561,047.82 made up as follows:
Non‑pecuniary loss  $30,000.00
Future economic loss  $186,301.20
Past economic loss  $165,515.20
Past gratuitous services  $62,340.00
Interest on past gratuitous services  $8,666.86
Future gratuitous services  $25,000.00
Loss of past superannuation  $10,848.41
Future superannuation  $14,712.22
Future travel expenses  $2,500.00
Future medical expenses  $51,366.00
Special damages  $3,797.93
$561,047.82