Cicino v F and C Tassone and Sons Pty Ltd - [2016] NSWDC 191

District Court

New South Wales

Medium Neutral Citation: Cicino v F & C Tassone & Sons Pty Ltd [2016] NSWDC 191
Hearing dates: 8 August 2016 – 9 August 2016
Date of orders: 23 August 2016
Decision date: 23 August 2016
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
1. Judgment for the defendant;
2. The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

Catchwords: Torts – negligence – work injury – whether breach of duty – whether causation established – whether residual earning capacity.
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Graham v Baker (1961) 106 CLR 340
Kubovic v HMS Management Pty Ltd [2015] NSWCA 315
March v E&MH Stramare Pty Ltd (1991) 171 CLR 506
Mason v Demasi [2009] NSWCA 227
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31
Wyong Shire Council v Shirt (1980) 146 CLR 40
Category: Principal judgment
Parties: Jodie Cicino (Plaintiff)
F & C Tassone & Sons Pty Ltd (Defendant)
Representation:
Counsel:
L Goodchild (Plaintiff)
S Flett (Defendant)
Solicitors:
Brydens Law Office (Plaintiff)
Rankin Ellison Lawyers (Defendant)

File Number(s): 2015/00096042

Judgment

This is a claim for damages for personal injuries by the plaintiff against her former employer F&C Tassone & Sons Pty Ltd which owned and operated the IGA Supermarket franchise at Austral in the western suburbs of Sydney. The plaintiff asserts that she was employed as a shop assistant responsible for changing pricing at the time of an accident on 5 May 2008 when she was injured.
At the time of the accident the plaintiff was 42 years old, having been born in August 1965.

The Statement of Claim

In her Statement of Claim it is alleged by the plaintiff that from 2004 until the date of the accident she was, in the course of her employment, required to kneel and squat for very lengthy periods so as to update pricing displays on shelves of stock (paragraph 3). It is alleged the plaintiff did this work exclusively for the defendant from approximately mid-2006 until she was injured on or about 5 May 2008 (paragraph 4). In the last two years of her employment prior to the accident it is alleged that the plaintiff’s job almost exclusively concerned updating pricing information on products stacked on the defendant’s shelves (paragraph 6). It is alleged that on 5 May 2008 whilst the plaintiff was lowering herself into a kneeling position onto the floor so as to price tickets on a low shelf she sustained a serious injury to her right knee (paragraph 7).
The plaintiff pleads that her injury was caused by the negligence of the defendant. The particulars of breach pleaded are as follows:

“(a)   Failing to take any or adequate precautions for the plaintiff’s safety.
(b)    Putting the plaintiff in the position of peril in the circumstances;
(c) Failing to provide the plaintiff with a proper and safe system of work;
(d) Failing to carry out any or any adequate risk assessment of the task which the plaintiff was required to perform;
(e) Failing to train or suitably train the plaintiff so that she was able to identify risks in her work place and avoid those risks;
(f) Failing to provide the plaintiff with any or any adequate job or task rotation;
(g) Failing to provide the plaintiff with compensating rest breaks or rest allowances;
(h) Failing to provide the plaintiff with a small height adjustable stool which she could use to access shelves from waist level down;
(i) Failing to provide the plaintiff with proper and suitable knee pads so that she was not kneeling on the hard floor;
(j) Failing to install or provide the plaintiff with anti-fatigue matting which she could transport from place to place where necessary;
(k) Failing to provide the plaintiff with a price applicator tool, which would mean that she did not need to crouch or squat or kneel;
(l) Failing to instruct the plaintiff that she must use her hands when kneeling, crouching or squatting or standing from those positions;
(m)   Failing to provide the plaintiff with a proper and suitable small work table so that she could place her pricing materials on that table whilst she used her hands to assist her when kneeling, crouching or squatting or rising from those positions.”

It is alleged that the injury to the right knee has required the plaintiff to undergo five separate surgical procedures, the last of which was a total knee replacement in 2012 to her right knee. It is further alleged that the plaintiff has ongoing pain and restricted movement with the likely future requirement to undergo a prosthetic replacement to the right knee. There is also a reference to the possible future requirement to undergo left knee surgery including replacement.

The Defence of the defendant

The defendant admits that the plaintiff was injured in the course of her employment as alleged but denies that it breached its duty of care or was negligent as alleged (paragraphs 3-4). Further, the defendant denies that any injury suffered by the plaintiff was causally connected with any relevant negligence or breach of duty on the part of the defendant (paragraph 5). Contributory negligence is also pleaded (paragraph 7).
A Defence under Section 151D of the Workers Compensation Act 1987 (NSW) was also pleaded but orders were made granting the plaintiff leave to maintain the proceedings by the Court on 26 November 2015.
A failure to mitigate any damages suffered by the plaintiff is also pleaded without any particulars being provided.

The plaintiff’s oral evidence

As indicated above, the plaintiff was born in August 1965 and was 42 at the time of the accident. She left school early, at the end of Year 8 in 1980. The plaintiff was employed as a part-time shop assistant in her family owned fruit shop from 1979 to 1980. After that the plaintiff proceeded to work for two years fulltime as a cashier at Coles. She then worked for three years as a shop assistant in a fruit market.
The plaintiff married her husband Vince Cicino in 1984. Her daughter Sandra was born in 1985. In 1987 she worked part-time as a shop assistant packing eggs. Her second daughter Melissa was born in 1988. From 1988 to 1994 the plaintiff stayed at home to look after her children.
In 1991-1992 the plaintiff was employed part-time as a shop assistant as a cashier in a fruit shop. In 1994 her husband opened a panel beating business and the plaintiff was employed in the business as both a book-keeper and in assisting her husband with the panel beating repairs. This continued until 2003. In 2000-2001 she worked part-time as a shop assistant.
In 2005 the plaintiff underwent a left wrist fusion. The plaintiff continued to be employed in her husband’s panel beating business on a part-time basis from 2003 to 2008.
In about February or March 2004 the plaintiff commenced employment as a shop assistant at the IGA Austral franchise. The then owner of the business sold the business to the current defendant in about August 2004. The plaintiff gave evidence that in 2006 she commenced the process of ticketing. This involved changing the price tickets on the various products in the aisles at the supermarket. The products were displayed on various shelves and this required the plaintiff to bend, squat, crouch and kneel on the floor depending on the level of the shelf where the ticketing was required to be changed. The plaintiff used both hands for this procedure and wore an apron. She would remove the old price and then replace it with the new price together with a clip and place the old tickets in the pocket in the front of her apron. This procedure required both hands to be occupied such that they could not be used to assist in moving and kneeling down as required.
When the plaintiff first started working at the IGA at Austral she was involved in working at the checkout, in stacking products on the shelves and working in the delicatessen. She worked more than 40 hours per week fulltime. After she finished her day job she then worked at her husband’s panel beating shop undertaking book-keeping and paperwork duties including on her days off.
When the defendant became the owner of the business in about September 2004 the plaintiff’s hours of work began to drop as more members of the family owning the business began to work in the business. Two weeks after the new owner took over, the plaintiff’s hours of work dropped to 30 hours per week and continued dropping to about 18-22 hours per week up to a few weeks before the accident. In the two weeks prior to the accident on 5 May 2008 the plaintiff’s hours had dropped to 13-15 hours per week. The plaintiff also observed employees from IGA Head Office in the Austral IGA in the two weeks prior to the accident preparing sheets to re-arrange the shelving at the shop.
The IGA Supermarket at Austral had nine aisles in 2008 and each aisle was approximately 20 metres long.
The IGA at Austral is located about a half an hour drive from Liverpool in the far western suburbs of Sydney. There was one other supermarket located in the area which was also an IGA. The IGA at Austral was located about 1.3km from the plaintiff’s home and she sometimes walked to work. Otherwise she drove there with her daughter.
On 5 May 2008 the plaintiff was involved in replacing the pricing tickets in the shop. These were her only duties in the shop at the time. No knee pads, cushioned matting, a small seat or a small table were supplied to the plaintiff for the purposes of completing her duties. Also the plaintiff had received no directions in relation to completing her duties including as to how to kneel or squat and to vary her activities. On 5 May 2008 the plaintiff started work at 8am which was her normal time. Prior to this she had prepared the ticketing for the new pricing at home which involved cutting up the sheets of new prices and putting them in categories. The plaintiff was paid for this work at home as part of her hours of duty. At least two hours of work were involved at home in preparing the ticketing. The plaintiff sat at her dining room table to prepare the ticketing.
The plaintiff gave evidence that she started her ticketing duties on 5 May 2008 in Aisle 1. At about 9.15am she was undertaking her ticketing in Aisle 8 in the dog food area. The dog food was placed on a number of shelves in the aisle.
In her evidence in chief, the plaintiff said that as she was bending down towards the bottom shelf she felt her knee “give way” and then she fell forward and hit her knee on the edge of the steel shelving. She was about half way down towards the bottom shelf when her knee gave way. At the time her hands were full with the tickets and the clips.
The plaintiff gave evidence in chief that she sat on the floor in pain. She could not move her knee properly for several minutes. Eventually she got up and went to the delicatessen in the IGA and reported her injury to a shop assistant called Jessica who was the fiancée of one of the sons of the owner. The plaintiff had a cup of tea and went back to work and struggled through her duties in pain until 12 o’clock. She then went home and placed ice on her injured knee. The plaintiff gave evidence that she was in significant pain.
Prior to the accident on 5 May 2008 the plaintiff stated that she never had any problems with her right knee.
In her evidence in chief the plaintiff confirmed the accuracy of a chronology which indicated that she had an initial consultation with her general practitioner Dr Hamad at West Hoxton Medical Centre on 6 May 2008. The records of Dr Hamad have the plaintiff attending Dr Hamad’s surgery on 6 May 2008 but for other reasons unconnected to the knee injury and relating to neck and shoulder pain. It appears from Dr Hamad’s records that the plaintiff first consulted Dr Hamad in relation to her knee on 13 May 2008. Dr Hamad referred the plaintiff to Dr Sorrenti, an orthopaedic surgeon, for review.
The plaintiff gave evidence in relation to the time which she spent prior to the accident in undertaking her various duties. From 2004 to 2006 she had various duties at the IGA which included ticketing, packing and unpacking of goods. Having regard to problems she had with her left wrist she could not undertake the lifting of the boxes of goods and approached the owners of the defendant company to alter her duties. It was then that they gave her the duties of ticketing. The plaintiff estimated that she spent about one quarter of her shift kneeling on the floor changing the ticketing. About one half of the shift was spent crouching or squatting and the remainder was spent standing up or walking.
The plaintiff made some attempt to return to work after the accident but found that her knee was too painful to continue working.
On 29 May 2008 the plaintiff completed a Workers Compensation Claim Form. In the form she indicated that she worked as a permanent part-time employee with the defendant and her current gross weekly wage was $190.50. She stated that her normal working hours were Monday 8am to 4pm and Wednesday from 8am to 1pm being 13 hours per week. She described her duties as placing new weekly promotions on products.
In relation to the injury details, she described the incident as follows in the claim form: “Twisted and knocked right knee on shelf when I knelt down to put weekly promotion on”. The plaintiff indicated the time of the injury as 11.50am but gave evidence that this was incorrect and was the time she left work. She said that the time of injury was 9.15am.
At about this time, in May-June 2008, the plaintiff’s husband closed his panel beating business and sought employment.
It is not in dispute that the plaintiff undertook the following medical procedures:

A right knee arthroscopy in June 2008;

A further right knee arthroscopy in October 2008;

Dual carpal tunnel surgery in 2008;

A right knee lateral release in August 2009;

Right knee ketamine infusion surgery in August 2010;

A complete left wrist fusion in 2012;

A total right knee replacement in April 2012.

The carpal tunnel surgery and the complete left wrist fusion referred to above are unconnected to the accident and relate to an injury to the plaintiff’s left wrist which occurred in August 2002.
The plaintiff gave evidence in chief that she did not work at all from soon after the accident and was subject to ongoing pain with her right knee. Although she undertook chiropractic, physiotherapy and hydrotherapy treatment in relation to her knee little relief was obtained. At one stage the plaintiff had a pronounced limp and walked with a walking stick. After the right knee replacement the plaintiff obtained some relief but this was not substantial. The plaintiff gave evidence that she put on considerable weight and to assist in reducing her weight and to take the pressure off her knee she underwent gastric banding surgery in April 2015 which led to a substantial weight reduction.
The plaintiff gave evidence that her present condition was that she had considerable pain in her leg and right inner knee. She had a slight clunking feel to her knee. She indicated that she usually had a limp, the severity of which depended on the amount of pain she had. She complained of substantial swelling in the right knee and discomfort. The plaintiff stood so that the Court could see her knees and there appeared to be substantial swelling in the plaintiff’s right knee.
The plaintiff said that she took Panadol and Nurofen for her pain and undertook exercises at home.
The plaintiff stated in her oral evidence in chief that she had not been looking for work because she did not believe that she could cope with it. She gave evidence that she could not easily catch public transport. She also said that she had difficulties driving and used her left foot to operate the brake on the car. She said she could drive for about 20 minutes comfortably. She said she did not believe that she could get through the day in a job even with a variety of standing and working. She indicated that her condition varied and that she had some days where the condition improved. The plaintiff gave evidence that she had limited squatting capacity without considerable pain and pressure on her knee and was unable to kneel. She said that she could only get up and down from the floor with substantial difficulty. Her evidence was also that she had difficulty going upstairs and had to hold on to the rail and take one step at a time. Whilst the plaintiff gave evidence that she could walk, the distance she was able to walk was limited. She said she could only sit for about 25 minutes comfortably without her knee locking. She said she had difficulty picking something from the floor.
In relation to her left wrist the plaintiff gave evidence that she had some pain in it if she overdid the use of the wrist and could not carry a considerable weight with the left wrist but otherwise it did not prevent her from undertaking her normal activities.
The plaintiff gave evidence that her intention at the time of the accident was to stay working fulltime until the ages of 60 or 65. The plaintiff gave evidence that she enjoyed getting out and about and meeting people and would only not work until 65 if she was unable to work.
The plaintiff was asked in her evidence in chief whether she could undertake a number of different tasks which were reflected in the defendant’s earning capacity assessment report. The plaintiff gave evidence that she did not believe that she could be a fitting room attendant, a ticket seller or a retail assistant because of her difficulties in catching public transport, in driving, in sitting for lengthy periods and in bending and walking around. The plaintiff gave evidence that she caught public transport to the court hearing but with difficulty.
The plaintiff said that she would have liked to work in the clothing industry at the time of the accident. She said that if she had been offered more hours at the IGA that she would have taken the hours.
The plaintiff confirmed the accuracy of her tax returns which were Exhibit B. She gave evidence that she was paid in cash by the defendant without any details provided in relation to tax or other benefits.
The plaintiff gave evidence in chief that after she left the defendant they changed their system of ticketing so that various shop assistants were involved in the replacement ticketing process. It was thus altered so that pricing was no longer the responsibility of one shop assistant.
The plaintiff was subjected to extensive cross-examination. This cross-examination covered the areas of the plaintiff’s pre-accident earnings, the circumstances of the accident, what she had told the doctors and the expert Mr Adams in relation to what had occurred at the time of the accident, and her capacity to undertake future work.
In relation to her earnings, the plaintiff confirmed the accuracy of the earnings as summarised in Exhibit B, the plaintiff’s tax returns and notices of assessment. These confirm limited earnings by the plaintiff in working for the defendant’s IGA Austral shop business with the amount being earned never exceeding $12,285 per annum. The plaintiff confirmed that her tax return for 30 June 2008 which indicated earning $10,662 from the defendant was accurate even though she ceased work soon after the accident in May 2008.
In cross-examination the plaintiff conceded her duties also included on occasion some restocking of the shelves. In relation to the suggestion that she should be provided with a stool to sit on for the purposes of her ticketing duties, the plaintiff agreed that the use of a stool was impractical. In relation to the provision of a rubber mat which could be moved the plaintiff also agreed with counsel for the defendant that that would be impractical in completing her duties. She agreed with the suggestion that the way she did the ticketing was the only way to do it. It was put to the plaintiff that the provision of matting for her to kneel on the floor would have been impractical and would not have assisted but the plaintiff said that she did not know whether it would have assisted in the task. She agreed that as far as she could recall she never asked for the provision of matting or for knee guards to protect her knees in undertaking the ticketing tasks.

The plaintiff was cross-examined in relation to her left wrist and agreed that she had problems with the wrist in 2008. She asserted that she could undertake all tasks with her left wrist prior to the accident except heavy work. It was put to her that she could not undertake repetitive work with her left wrist and she indicated that she was able to do this using both hands. The plaintiff confirmed that she had the first operation in relation to her wrist in July 2008 with carpal tunnel surgery being undertaken to both hands at the same time. The plaintiff said that at the time of the accident she had booked in the operation for her left wrist and in the end had both wrists operated on. She agreed that she had a partial fusion of her wrist in 2005 and had a complete fusion later in 2012.
The plaintiff was cross-examined in relation to attending her GP Dr Hamad on 6 May and 9 May 2008 concerning problems in her neck and shoulders. The plaintiff could not recall attending Dr Hamad for this purpose on those dates. When it was put to the plaintiff that she only attended Dr Hamad in relation to her knee for the first time on 13 May 2008 the plaintiff did not recall the first time she attended but believed it was very soon after the accident. She also did not recall the first x-ray undertaken in relation to her knee being on 13 May 2008. The plaintiff confirmed that she had some neck pain but after the carpal tunnel surgery this subsided within a short period.
The plaintiff was subjected to extensive cross-examination in relation to her version of the circumstances of the accident. She agreed that her version given in chief was that she was kneeling down to place price tickets on the bottom shelf when she felt her right knee “give way” with the result that she fell forward and her right knee impacted heavily on a shelf. She confirmed that this was the account which she gave to Mr Neil Adams, the plaintiff’s safety management and ergonomic expert, when he attended her house for the purposes of preparing his expert report. She also agreed that this was the account which she gave to Dr Peter Conrad, one of her doctors.
The plaintiff was then cross-examined in relation to her various versions of the incident as recorded in other documents including medical reports. Medical reports and notes were admitted into evidence without any order under Section 136 of the Evidence Act 1995 (NSW) to limit their use.
First, the plaintiff was cross-examined in relation to her affidavit sworn 14 July 2015 in support of her extension of time application. The plaintiff was taken to paragraph 21 of the affidavit which read as follows:

“As I lowered myself into the position by bending my knees my right knee gave way and I fell. My right knee impacted heavily with the angled upper edge of one of the horizontal steel components of the shelving in front of me.”

The plaintiff was then taken to her Workers Compensation Claim Form which is Exhibit A. The plaintiff confirmed that it had been signed by her and she believed it to be true and correct. The plaintiff was directed to the injury details which were as follows:

“Twisted and knocked right knee on shelf when I knelt down to put weekly promotion on.”

It was put to the plaintiff that there was nothing in this account about her knee “giving way”. The plaintiff said that she did not twist her knee and that this part of the form was incorrect.
The plaintiff was then cross-examined in relation to what she told her GP Dr Hamad on 13 May 2008. It was put to the plaintiff that she told Dr Hamad that she had twisted her right knee while doing ticketing at the IGA at Austral. This was confirmed in the handwritten notes of Dr Hamad which are part of Exhibit 1. The plaintiff confirmed that she gave a history of the incident to Dr Hamad when she saw him.
It was then put to the plaintiff that when she saw her orthopaedic surgeon Dr Sorrenti in May 2008 she told him that she had squatted down and had felt something in her knee twist with pain hitting her right knee. The plaintiff did not recall this. It should be noted that the report of Dr Sorrenti dated 22 May 2008 which is part of Exhibit 1 includes the following history:

“She was squatting down on the 5 May 2008 at work and as she squatted down she felt something her knee twisted [sic] pain hitting her knee against the desk.”

It was put to the plaintiff that she never used the term “give way” in relation to her knee until she saw the expert Mr Adams and she did not initially agree with this.
The plaintiff was then cross-examined in relation to what she had told another orthopaedic surgeon Dr O’Carrigan in February 2009. It was suggested to the plaintiff that she had informed Dr O’Carrigan that she had bent down to a shelf and had twisted her right knee which then hit the shelving. The plaintiff confirmed this history. The report of Dr O’Carrigan dated 19 February 2009 which is part of Exhibit 1 includes the following history:

“She bend town [sic] to a shelf twisted her right knee and then hit her knee on some shelving. She had had no problems with the right knee prior to that.”

The plaintiff was cross-examined in relation to the history which she provided to Dr Richard Walker, an orthopaedic surgeon, in December 2009. It was suggested to the plaintiff that she had told Dr Walker that she had slipped and twisted her knee and hit a steel shelf. The plaintiff denied this and said she never slipped. However the plaintiff confirmed that she had not told Dr Walker that her knee had given way. The report of Dr Walker dated 15 December 2009 which is part of Exhibit 1 includes the following:

“She slipped and twisted her knee in May 2008 and also hit the knee on a steel shelf”.

The plaintiff was then cross-examined in relation to the history that she had provided Professor Warwick Bruce. It was suggested that she had told Professor Bruce that she had bent down, twisted her knee cap and then hit her knee cap against the shelving. The plaintiff did not recall this. The report of Professor Bruce dated 31 March 2010 which is part of Exhibit 1 includes the following:

“She bent down and twisted her kneecap and then hit her patella against some shelving.”

When it was put to the plaintiff by counsel for the defendant that in these various histories to doctors she had not made any mention of her knee giving way, she maintained that her knee had given way. However, she conceded that the knee had twisted first before it had given way. The plaintiff said that the knee had given way after it felt that it had twisted. The plaintiff confirmed that she had given the version of her knee “giving way” only after questioning from Mr Adams, the safety and ergonomics expert.
The plaintiff was taken to her consultation with Dr Matthew Giblin in March 2011. It was suggested to the plaintiff that she told Dr Giblin that she had started to squat down, had twisted her knee which had hit the shelf. She said that she did not recall what she had told Dr Giblin. The report of Dr Giblin dated 14 March 2011 which is part of Exhibit C included the following:

“On that occasion she was working as a casual shop assistant; she was starting to squat down when her knee twisted, she fell and smashed into a shelf with her right knee.”

The plaintiff was asked about her consultation with Dr Rhys Gray, orthopaedic surgeon, in July 2010. It was put to her that she had told Dr Gray that she had bent down, her right knee had twisted and it had hit a steel bench. The plaintiff could not recall giving this history to Dr Gray. The report of Dr Gray dated 20 July 2010 which is part of Exhibit 1 stated as follows:

“On bending down she felt as if the right knee twisted and her right kneecap struck a steel bench.”

It was put to the plaintiff that there was nothing in the history given to Dr Gray which said anything about her knee giving way. The plaintiff agreed that this was her interpretation of what had occurred.
The plaintiff was cross-examined about the history given to Dr Paul Miniter, orthopaedic surgeon, in a consultation in December 2012. It was suggested that the plaintiff had told Dr Miniter that she had fallen over and struck her knee on a steel bench. The plaintiff said this was a very short consultation and she did not fall. The report of Dr Miniter dated 19 December 2012 which is part of Exhibit 1 includes the following:

“Ms Cicino told me that she fell over whilst at work on 5 May 2008. As she fell down, she struck a steel bench.”

The plaintiff was cross-examined in relation to a history given to Dr Frank Machart, orthopaedic surgeon, in 2013. It was suggested that she had told Dr Machart that she squatted, twisted her right knee which then gave way and hit a metal bench. She confirmed that this was the account she had given Dr Machart and that it was accurate. She said her knee had twisted and then given way. The report of Dr Machart dated 15 August 2013 which is part of Exhibit 1 includes the following:

“She bent to a lowest shelf. She squatted and twisted. Her right knee gave way and hit a metal bench on the front.”

The plaintiff agreed that the phrase “giving way” was never used in relation to the history given to her own doctors and was only used by her after she had seen Dr Adams, the safety and ergonomic expert, when he had questioned her about what had occurred.
The plaintiff was then cross-examined in relation to her capacity for work.
The plaintiff confirmed that since her total knee replacement she had not worked and believed that she could not work. The plaintiff was cross-examined that that was not the view of her general practitioner Dr Hamad who said that she was fit for work for 13 hours. She agreed that Dr Hamad had expressed this opinion but it depended on the availability of work which was suitable to her. She agreed that a number of doctors had indicated that she had a capacity to do some work including Dr Conrad.
However the plaintiff expressed the view that she could not undertake the hours of work suggested or the jobs which had been suggested to her by the defendant’s vocational expert. The plaintiff gave evidence that her belief was based on the distance to the jobs (as she had limited capacity to drive or catch public transport) and the fact that it would involve moving around and serving customers (as she had limited capacity to sit in the one place for any period of time or carry items and she had limited capacity to squat or kneel).
On cross-examination, the plaintiff agreed that there was a shopping centre about seven minutes away from where she lived. The plaintiff also agreed that she had a capacity to drive for at least 20 minutes comfortably and had some capacity to stand for short periods of time, serve customers, answer the telephone and wheel trolleys of clothing. The plaintiff indicated that she had applied for a number of jobs including in a dress shop and in a jewellers but had been unsuccessful. The plaintiff said that she did not believe she could work on a fulltime basis as she had trouble sitting or standing for lengthy periods of time. She also believed that she would have a struggle getting to and from work.
Having viewed the plaintiff giving evidence, I formed the opinion that the plaintiff was an honest witness and was doing her best to be frank and co-operative in the witness box. In general terms I accept her evidence that her knee still gives her significant pain and restriction.

Other evidence relied upon by the plaintiff

Medical evidence

The plaintiff relied on a number of reports from Dr Matthew Giblin and Dr Peter Conrad, orthopaedic surgeons.
The history given by the plaintiff as recorded in the report of Dr Giblin dated 14 March 2011 has been referred to above. In his report dated 14 March 2011 Dr Giblin expressed the opinion that the plaintiff’s injuries were consistent with the accident and involved injury to her right knee.
In his comments on the MRI relating to the plaintiff of 15 October 2008, Dr Giblin stated: “Lateral patella shift and tilt suggests underlying patello-femoral instability.”
He expressed the opinion that the plaintiff remained unfit for work that involved climbing stairs, squatting or kneeling. He noted that the plaintiff did have some degenerative changes and that it was more likely that she had an aggravation of an underlying degenerative change as well as new injury to the meniscus in her knee.
A similar opinion as to the plaintiff’s fitness for work was expressed by Dr Giblin in his report dated 13 March 2013 which is part of Exhibit C. He confirmed following the plaintiff’s total knee replacement that she remained unfit for work that involved climbing stairs, squatting or kneeling. He noted the plaintiff would need physiotherapy and to regularly see her general practitioner.
In his report dated 21 January 2016, Dr Giblin noted that there had been no major change in the plaintiff’s condition since his earlier consultation. Dr Giblin noted that the plaintiff had had surgery to lose weight and that it had worked and to some extent it had allowed the plaintiff to mobilise for longer on the leg than she did in the past. Dr Giblin noted that the plaintiff was able to manage most aspects of her personal care but had difficulty with household duties. He expressed the opinion that the plaintiff remained unfit for work that involved squatting, climbing stairs, kneeling and walking distances or standing for long periods. He expressed the opinion that surgical intervention was not anticipated in the near future and she needed ongoing physiotherapy and consultations with her general practitioner.
The plaintiff relied on two reports from Dr Peter Conrad. The first report was dated 28 October 2014 and involved a consultation after the plaintiff had seen Mr Adams. The history recorded in relation to the accident in Dr Conrad’s report is as follows:

“She was involved in an accident on the 5th May 2008 when she was doing ticketing as part of her duties and as she bent down to put a ticket on the bottom shelf, her right knee gave way and forcibly impacted with the shelving.”

In his report dated 28 October 2014 Dr Conrad expressed the opinion that the plaintiff needed ongoing conservative treatment, including physiotherapy and monitoring for recurrent deep vein thrombosis. He expressed the opinion that she was not able to return to work as a shop assistant in the foreseeable future. He stated that her maximal employability would be in a sitting down position doing light process work or clerical work should her educational training be sufficient. He expressed the opinion that she should start at 12 to 15 hours per week and not do a lot of standing or working and which should be part of a structured rehabilitation programme. He indicated that her prognosis was guarded.
In his report dated 16 March 2016 Dr Conrad expressed the view that the plaintiff needed conservative treatment including medical supervision both for her right knee and back symptoms as well as deep vein thrombosis.
He confirmed his previous opinion that he did not believe that the plaintiff would be able to return to work as a shop assistant in the foreseeable future. He said that at most she might be able to do about 12 to 15 hours per week in a position where she is able to stand or sit at will and not do a lot of standing, walking, going up and down stairs, bending or lifting. He indicated that the plaintiff might be able to do light shop work, light cleaning work, light clerical work or process work within these parameters.

Report of Mr Neil Adams dated 23 June 2014

The plaintiff relied on a report of safety management and ergonomic expert Mr Neil Adams dated 23 June 2014. Mr Adams was not required for cross-examination in relation to his report. Mr Adams confirmed that he had met the plaintiff and interviewed her. The plaintiff stated that this was at her own house. Mr Adams said that he had viewed the supermarket in question but did not make measurements or take photographs as he did not have approval for this.
Mr Adams expressed the opinion that the nature of the duties undertaken by the plaintiff had “the potential” for the development of cumulative trauma disorder having regard to the repetitive nature of the plaintiff’s ticketing tasks.
In his report Mr Adams expressed the following opinions:

That it was “possible that cumulative trauma could have made a causal contribution to the injury to [the plaintiff’s] right knee that she ultimately sustained on 5 May 2008” (paragraph 2);

It was possible to categorise any job or set of tasks as being intrinsically high or low in potential for the development of cumulative trauma disorder. The work undertaken by the plaintiff had some potential for leading to the development of injury over time (paragraph 2);

That the plaintiff had estimated to Mr Adams that she spent approximately one-third of her time at work kneeling on the floors of the shopping aisles while undertaking changing pricing displays (paragraph 3.1.5). This should be contrasted with the plaintiff’s oral evidence in chief that she estimated that she only spent one-quarter of her time at work kneeling on the floors doing pricing as part of her duties;

Mr Adams recited the history he had been given by the plaintiff of the incident as follows (paragraph 3.2.2):

“As she lowered herself into position by bending her knees her right knee gave way and she fell. Her right knee impacted heavily with the angled upper edge of one of the horizontal steel components of the shelving in front of her.”

This should be contrasted with the histories which she had apparently provided to a number of the doctors and that set out in her Workers Compensation Claim Form that her right knee had “twisted”;

From the facts Mr Adams stated that the plaintiff was exposed regularly over a period of approximately two years to four of the nine occupational factors that were associated by an expert with increased risks of work related knee injury (paragraph 4.2);

The tasks that the plaintiff undertook at the supermarket for the two years that preceded 5 May 2008 “would have entailed a substantial risk that she might eventually develop or sustain serious injury to at least one of her knees” (paragraph 4.4);

The duties “would likely have imposed potentially injurious stressors on her musculo-skeletal system, and on her knees in particular” (paragraph 4.5);

Her employer should have considered the possibility that she might eventually develop or sustain serious knee injury (paragraph 5.2);

If the defendant had implemented an appropriately considered hazard identification and risk assessment programme with regard to manual handling, the potential risks associated with the work that the plaintiff described would have been identified and could subsequently have been eliminated or at least controlled (paragraph 5.7);

Mr Adams noted that knee guards, knee pads and suitable matting was not provided to the plaintiff. He said there were reasonable preventative actions available that could have significantly reduced the plaintiff’s exposure to the risk of injury. Mr Adams referred to the provision of an applicator tool that could be operated from a standing position in which tickets and ticket holders could have been removed and replaced on both low and high shelving as required. There was no evidence that such an applicator tool was commercially available or was practical in the circumstances and none was referred to in Mr Adams’ report. Mr Adams also indicated that the plaintiff could have been provided with a low stool on which she could sit when she had to undertake work close to floor level for extended periods of time. The plaintiff gave evidence in cross-examination that the use of a low stool was not practical for the duties that she had. Mr Adams said that workers such as the plaintiff could have been provided with suitable knee pads, kneel pads and/or anti-fatigue matting. The plaintiff had indicated that she was unsure whether these would have provided any benefit to her. Mr Adams also indicated that the work of changing pricing displays could have been shared more equally amongst the work force with variation;

Mr Adams expressed the opinion that it was possible that the injuries which the plaintiff had could have been caused either wholly or partially by the internal stressors generated by the squatting movement (paragraph 6.1.1). He expressed the opinion that he would regard the stressors involved in the movements the plaintiff undertook in the squatting and fall as being “the primary or proximal causes” of the injury (paragraph 6.1.2);

Mr Adams expressed the opinion that there was a significant probability that a person who was required to perform over a period of years work such as that as was described by the plaintiff might eventually suffer musculo-skeletal injury, due to cumulative trauma and/or because of a loss of balance and fall. Mr Adams said there were reasonable preventative actions which could have been taken to reduce the risk of injury.

A number of comments can be made about Mr Adams’ report:

The description of the accident as set out by him in his report was inconsistent with the history apparently given by the plaintiff to the majority of doctors that she saw as recorded in their reports including her general practitioner Dr Hamad who she saw on 13 May 2008. It is also inconsistent with the plaintiff’s own signed account in her Workers Compensation Claim Form;

The description of kneeling constituting one-third of the plaintiff’s work was inconsistent with the plaintiff’s oral evidence where she put it at one-quarter of her work;

Mr Adams did not refer to the limited hours worked by the plaintiff and the fact that she was involved in other work for her husband’s business at the time which provided variations in the plaintiff’s movements;

A number of the preventative measures suggested by Mr Adams were either discounted by the plaintiff in her oral evidence or not shown to be readily commercially available in an appropriate fashion (the suggested applicator tool for lower shelves);

In particular, no opinion was expressed by Mr Adams as to his view if the history of the accident was that the plaintiff twisted her knee before it gave way.

Caution should be exercised in placing too much weight on the histories set out in medical reports for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. See also Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144]. The medical reports relied on by the plaintiff and the defendant in the present case were all admitted without objection and no limiting order was sought under Section 136 of the Evidence Act. Accordingly, pursuant to Section 60 of the Evidence Act the histories set out in the admitted medical reports are admissible as the truth of the facts set out in them: see the comments of Bergin CJ in Equity in Ceva, above, at [142]-[143].
In my view some limited weight may be placed on the histories set out in the medical reports and notes as:

The clear majority of the histories refer to the plaintiff’s knee having “twisted”;

The histories in these reports are consistent with the history apparently given by the plaintiff to Dr Hamad on 13 May 2008;

The histories of the knee having “twisted” are consistent with the plaintiff’s signed version in the Workers Compensation Claim Form (Exhibit A); and

The plaintiff confirmed in cross-examination that her knee twisted before giving way.

The evidence relied upon by the defendant

No witnesses were called by the defendant in its case.
The defendant tendered a folder containing a number of medical reports and medical notes/certificates.
A number of these reports have been referred to already in the histories which the plaintiff apparently gave to the various doctors. Apart from the histories apparently given, a number of the reports relied upon are of less help because they were prepared before the plaintiff had undertaken a complete knee replacement in 2012.

Report of Dr Samiul Sorrenti dated 22 May 2008

The history apparently given by the plaintiff in relation to Dr Sorrenti is referred to above. Dr Sorrenti recommended that the plaintiff needed an arthroscopy followed by a fairly intensive rehabilitation programme.

Report of Dr Richard Walker dated 15 December 2009

The history apparently given to Dr Walker by the plaintiff as recorded in Dr Walker’s report was as follows:

“She slipped and twisted her knee in May 2008 and also hit the knee on a steel shelf.”

Dr Walker indicated that the results of surgery with the plaintiff were likely to be unpredictable.

Report of Professor Warwick Bruce dated 31 March 2010

The history apparently given to Professor Bruce is set out above. Dr Bruce diagnosed osteoarthritis and stated that the plaintiff definitely would require a total knee replacement in the future but he recommended pain clinic assessment.

Reports of Dr Rhys Gray

The history apparently given to Dr Gray by the plaintiff as recorded in Dr Gray’s report is set out above. Dr Gray reported that the plaintiff had indicated to him that her general health was compromised by depression. In her cross-examination the plaintiff gave evidence that her depression had substantially improved. Dr Gray expressed the opinion that the plaintiff’s right knee remains significantly symptomatic subsequent to the injury. The predominant problem was increasing degenerative change in the medial compartment of the right knee causing mostly localised knee pain. Dr Gray advised against undertaking knee arthroplasty at the time of his report. He confirmed that the plaintiff was unfit for her normal work duties at present and was unlikely to be fit for such duties for the foreseeable future.
In his report dated 3 August 2010 Dr Gray recommended hydrotherapy and physiotherapy and said chiropractic and remedial massage intervention were not reasonable and necessary.

Reports of Dr Paul Miniter

Part of the history apparently given by the plaintiff to Dr Miniter as recorded in Dr Miniter’s report is set out above. Dr Miniter expressed the opinion that the plaintiff was able to return to work without restrictions in the longer term. This included return to work in the plaintiff’s usual capacity. It is noted that Dr Miniter’s opinion in this respect was contrary to the opinions of other doctors in their reports at or about this time.

Reports of Dr Tim O’Carrigan

Dr O’Carrigan provided reports dated 19 February 2009 and 2 May 2014.
The history of the incident as recorded in Dr O’Carrigan’s first report is referred to above. The first report is of little relevance due to its date. Dr O’Carrigan expressed the opinion the plaintiff did not require any surgery at that stage.
In his report dated 2 May 2014 Dr O’Carrigan expressed the following view:

“She has actually improved quite a bit in the last 12 months. She is certainly not pain free but she is much better than she used to be. The soft tissues have settled nicely. She has 0-100 degrees range of motion. She walks with only a very subtle limp. The knee is less irritable. The soft tissues are more pliable. Her x-ray is very good. She has actually significantly improved, which is fantastic.”

Reports of Dr Frank Machart

The history apparently provided by the plaintiff to Dr Machart, orthopaedic surgeon, as recorded in his report dated 15 August 2013 is partly set out above.
Dr Machart referred to the plaintiff’s past left wrist injury problems with ongoing symptoms including after a fall in July 2013.
He noted that the plaintiff had not worked since the time of the injury as the initial treatment had failed to relieve the pain. He also noted that the total knee replacement had eased the pain but had not resolved it completely. Dr Machart said that the accident had triggered symptoms of osteoarthritis and that the arthritis had progressed dramatically since the time of the injury culminating in the knee replacement in 2012. He indicated that the plaintiff would suffer a permanent impairment as a result of the accident.
In his report dated 24 February 2015 a somewhat different history was set out by Dr Machart as follows:

“She bent to reach a lower shelf. She squatted down. She banged the right knee from a sharp edge of the shelf.”

This history is inconsistent with the other histories apparently provided by the plaintiff to various doctors which indicate a twisting or giving way of the knee prior to the knee hitting the shelf.

Dr Machart noted that the plaintiff was not working as at February 2015. Dr Machart indicated that his opinion had not altered from the time of his earlier report. He indicated that the plaintiff reported ongoing symptoms and a degree of disability which was beyond what was evident pathologically and he indicated that he suspected there was a significant degree of psychological or pain-behaviour type overlay.
It was specifically requested of Dr Machart that he comment on the opinion in the report of Mr Adams that the injury was due to the specific incident of lowering the plaintiff into a kneeling position onto the floor to price tickets on a low shelf and/or due to her alleged requirement to kneel and squat for lengthy periods. Dr Machart expressed the following opinion:

“The injury was specific patello femoral contusion trauma and not squatting or kneeling. There was no allegation of contribution from requirement to kneel or squat for lengthy periods of time.”

Dr Machart was not required by the plaintiff for cross-examination on this point.
Dr Machart expressed the opinion that the plaintiff was fit to work on sedentary or semi-sedentary duties doing work which did not involve squatting or kneeling. He said that the plaintiff could work fulltime including at process work seated, clerical work or similar types of work. He did not accept that the plaintiff did not have the capacity to sit for prolonged periods of time as that was not compatible with the type of knee replacement that was in situ.
The defendant tendered a number of medical certificates and certificates of capacity completed by Dr Hamad, the plaintiff’s general practitioner, which indicated that the plaintiff had the capacity for employment for 13 hours per week with various limitations including lifting to under five kilograms and sitting, standing, pushing, pulling and bending/twisting/squatting to tolerance. It was indicated that the plaintiff had “OK” driving ability. These certificates covered the period from the middle of 2013 until February 2014.
The defendant also tendered a number of reports involving a functional capacity assessment and a vocational assessment of the plaintiff.
The functional capacity evaluation conducted on 21 May 2015 indicated that the plaintiff had the following physical capacities: walking for 10 minutes, sitting for 25 minutes, standing for 20 minutes and “dynamic standing” for 45 minutes. The plaintiff also had a limited lifting capacity. The plaintiff was able to go up and down two flights of stairs. It is unclear what was meant by “dynamic standing”. The opinion was expressed by the author of the report who was a physiotherapist (Ms S Hogarth) that it was likely the plaintiff would experience an increase in pain with full hours of work even with the above limitations.
In relation to the earning capacity assessment report the view was expressed in the report by a rehabilitation assessor (Ms A Locke) that the plaintiff with her injuries was able to work as a fitting room attendant, ticket seller or light process worker/packer. Occupations such as a receptionist and administration assistant were discounted because of the plaintiff’s lack of adequate computer skills.

Issues to be determined

The following issues need to be determined in relation to the current claim:

What were the precise circumstances of the plaintiff’s accident;

Did the defendant breach its duty of care to the plaintiff by failing to provide a safe system of work and/or appropriate equipment for the ticketing task;

If so, did any breach of duty cause the plaintiff’s injuries;

Were the plaintiff’s injuries caused and/or contributed to by her own negligence;

Did the plaintiff fail to mitigate her loss;

What damages, if any, should the plaintiff be awarded?

Legal principles to be applied

The plaintiff’s claim is for damages for injury suffered at work as an employee. Such damages are as altered by the Workers Compensation Act 1987 (NSW). The Civil Liability Act 2002 (NSW) has no application to modified work injury damages under the Workers Compensation Act by an employee: see Section 3B(1)(f) of the Civil Liability Act. See also Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 at [6] per McColl JA (with whom Ward JA and Adamson J agreed on this point).
The common law as unaltered by the Civil Liability Act 2002 but as varied by the Workers Compensation Act thus applies.
In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, Basten JA (with whom Macfarlan and Simpson JJA agreed) stated as follows at [115]-[117]:

“115. Part 5 Div 3 of the Workers Compensation Act applies to an award of damages in respect of injury to a worker caused by the negligence of the worker’s employer. The Civil Liability Act does not apply to the liability relating to such an award. The Workers Compensation Act modifies common law principles, particularly in relation to the assessment of damages. It does not, however, modify the common law principles with respect to duty, breach of duty or causation.
116. The nature of the obligation owed by an employer to an employee was explained by the High Court in Czatyrko v Edith Cowan University:
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”

117. Although the duty is described as “non-delegable”, it is not an obligation to ensure safety at work: it is an obligation to take reasonable care to avoid exposing a worker to unnecessary risk of injury. The scope of that obligation will vary depending upon the nature of the working environment. For a courier or delivery driver, the working environment will be mainly external to the employer’s premises. In the present case, as is common with labour hire arrangements, there was a specific place of work, but it was not under the control of the employer.”

In Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31, Barratt JA (with whom McColl and Basten JJA agreed) stated at [40]-[41] as follows:

“[40] Transpacific, as “host employer”, owed the plaintiff a duty of care in negligence. Because the services of the plaintiff were effectively at the disposal of Transpacific for all purposes and Transpacific controlled the work the plaintiff was required to do and the circumstances and manner in which it was to be done, Transpacific owed to the plaintiff either a duty corresponding with that of an employer or a duty very similar to an employer’s duty: TNTAustralia Pty Ltd v Christie [2003] NSWCA 47 ; (2003) 65 NSWLR 1. That being so, the duty could not have been higher or more onerous, from Transpacific’s viewpoint, than that described by Hoeben J (as he then was) in Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749 at [45]:
[The employer] had an obligation to exercise reasonable care for the safety of the plaintiff while he was carrying out the work allocated to him. That obligation included warning him of unusual or unexpected risks and instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.

[41] Any obligation of Transpacific to warn the plaintiff therefore could not have required more than warning of unusual or unexpected risks; and any obligation to instruct could not have required more than such instruction as might reasonably be thought to be required to secure the plaintiff from danger of injury.”

In assessing whether an employer has breached its duty of care to an employee plaintiff, the Court should consider the principles set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at page 47:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

In relation to the issue of causation the following principles apply. The plaintiff is required to show on the balance of probabilities that the breach of duty of care by the defendant found caused the injury in question. In determining this question of fact a commonsense approach should be adopted: March v E&MH Stramare Pty Ltd (1991) 171 CLR 506.
In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Leeming JA (with whom McColl and Basten JJA agreed) stated as follows at paragraphs [95]-[96]:

“[95] Unlike duty and breach, the inquiry as to causation is “wholly retrospective [and] … seeks to identify what happened and why”: Vairy v Wyong Shire Council [2005] HCA 62 ; 223 CLR 422 at [124]; Warth v Lafsky [2014] NSWCA 94 ; 2014 Aust Torts Rep 82-166 at [61]. Putting to one side s 5D(1)(b) (which was not relied upon), causation is wholly factual and turns on the plaintiff’s proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm: Strong v Woolworths Ltd [2012] HCA 5 ; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19 ; 250 CLR 375 at [14].
[96] Proof of the requisite causal link between those omissions and an occurrence required consideration of the probable course of events had the omissions not occurred: Strong v Woolworths Ltd at [32]. It was accordingly necessary for Mr Hennessy to prove that had an intermediate step been installed, then it is likely that he would not have slipped and fallen on the evening of 21 March 2005.”

Adopting Leeming JA’s analysis, it is accordingly necessary for the plaintiff to prove on the balance of probabilities that had alternative measures such as a variation in work or knee pads or padded matting or other measures been provided to the plaintiff that it is likely that she would not have twisted her knee, her knee would not have given way and she would not have suffered her injury.

Findings of fact

As indicated above, I find the plaintiff to be generally an honest witness who did her best to answer truthfully the questions put to her.
Having regard to the whole of the evidence I make the following findings of fact:

At the time of the accident on 5 May 2008, the plaintiff was aged 42 years and had extensive experience in working as a shop assistant in the retail industry. The plaintiff had very limited education, leaving at the end of Year 8 and had little or no computer skills. She had developed some book-keeping and administration skills while working in her husband’s panel beating business over several years;

At the time of the accident on 5 May 2008, the plaintiff had worked with price ticketing duties at the defendant’s IGA supermarket business at Austral for the previous two years. The plaintiff’s hours of work at the business had reduced from over 40 hours in 2004 to 18-22 hours a few weeks prior to the accident to about 13 hours in the two weeks prior to the accident. Of those 13 hours, about two hours were spent at home cutting up the new ticketing pricing to prepare for the plaintiff affixing them to the supermarket shelves;

The plaintiff had had problems with her left wrist prior to the accident and had a partial wrist fusion in 2005. She had no problems with her right knee prior to the accident although there were degenerative changes;

In the course of her duties, the plaintiff was not provided with a stool, low table, rubber mat, knee pads or padded matting to assist her with her task. She was also not given any instructions or directions in relation to how to conduct the pricing or to vary her tasks to reduce stressors on her body. She was experienced in supermarkets and knew what had to be done to change ticketing;

On the day in question the plaintiff commenced work at 8am and the incident in question happened at 9.15am. There are various versions in the documents in evidence of how the accident occurred. On the clear balance of the evidence any suggestion that the plaintiff slipped or fell over should be rejected. On the clear weight of the evidence, what occurred was that the plaintiff’s right knee twisted as she bent down to the bottom shelf to replace the ticketing pricing and immediately following the twisting her right knee gave way and she fell heavily on the right knee into the shelf edge. On the clear weight of the evidence the knee did not simply give way but there was a twisting of the right knee prior to it giving way;

The mechanism of what happened to the knee is supported by the plaintiff’s oral evidence in cross-examination. It is not established on the medical evidence that the knee injury suffered by the plaintiff was caused by hitting the steel shelf as opposed to the twisting movement itself;

Following the accident the plaintiff experienced immediate pain and after a few days ceased working at the defendant’s business. Over the course of the next few years the plaintiff had a number of operations to her knee including a total right knee replacement in 2012;

Having regard to her duties, the plaintiff’s evidence that the use of a rubber mat to stand on or a stool to sit on were impractical should be accepted. The plaintiff is experienced in the task and her evidence is reliable evidence of what is practical in the circumstances;

The use of knee pads or matting for the plaintiff to kneel on would have provided the plaintiff with some relief from the pressure of kneeling on the hard lino floors of the supermarket;

The plaintiff’s husband’s panel beating business closed in about May or June 2008 and the plaintiff’s husband sought employment. It is therefore likely that the plaintiff would have sought more hours of work at the IGA or alternative retail employment soon after her husband’s business closed when her book-keeping skills were no longer required, if she had not been injured;

The plaintiff had continued problems with her wrists with the result that she had carpal tunnel surgery to both wrists in 2008 and a complete fusion of the left wrist in 2012. The plaintiff would have taken off a considerable period from work for these procedures which would have necessitated her either having leave without pay or resigning from her employment. There is no evidence of the time that would need to be taken off for the procedures in 2008 and 2012 including hospital time, recovery and rehabilitation. There is also the possible need for the plaintiff to resign her job. Doing the best I can, I allow six months for both procedures as any job the plaintiff was likely to have would have required some dexterity and strength in her wrists;

The plaintiff currently has limited capacity to undertake work having regard to her limitations in the distance which she can drive and the time that she can stand, sit, and squat. She also has limitations in her lifting and in her kneeling. On the basis of the whole of the medical evidence it appears that the plaintiff has the capacity to do some work. Dr Hamad expressed the opinion the plaintiff could work 13 hours per week; Dr Machart expressed the opinion the plaintiff could complete seated process work or clerical work on a fulltime basis; Doctors Giblin and Conrad expressed the opinion that the plaintiff had limitations. Dr Conrad confirmed that the plaintiff could complete light process work or clerical work for 12-15 hours per week;

Taking into account the plaintiff’s oral evidence of her limitations (including her driving limitations) I am of the view that the plaintiff has a capacity to work 12 hours per week spread over two or three days in a seated position or in a position involving limited movement but which enables the plaintiff to sit or stand as required;

Based on the plaintiff’s own evidence which I accept, she would likely have worked to 65 years of age.

Findings in relation to the report of Mr Adams

I do not find all of the report of Mr Adams particularly helpful as it was prepared on the basis of incorrect assumptions being that the plaintiff knelt for about one-third of her time at work, that she did not perform other duties (the plaintiff indicated that about two hours of those duties were cutting up the ticketing at home whilst seated), and that the plaintiff’s right knee had simply given way without being twisted. However, I accept Mr Adams’ opinion that there was alternative equipment available to assist the plaintiff in her tasks such as knee pads or knee padding or matting or a small table to relieve the pressure on the plaintiff’s knees.

Breach of duty of care

As indicated in the principles set out above, an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task the employer must take reasonable care to avoid the risk by devising a method to eliminate the risk or provide adequate safeguards.
Applying the test set out by Mason J in Wyong Shire Council v Shirt the following analysis can be performed:

Would a reasonable person have foreseen that the system of work for the plaintiff involved a real risk of injury?

The plaintiff had been directed to undertake pricing duties. No instructions had been given by the employer as to how to complete the duties. The defendant should have been aware that the duties involved extensive squatting, bending and kneeling on the floor as pricing ticketing had to be regularly changed on all shelves. The employer should have been aware that the kneeling/squatting component was extensive and required the plaintiff to kneel on the hard lino floors. No directions were given to vary the plaintiff’s tasks and no aids such as kneeling pads or soft matting were provided.
In my view, a reasonable person would have foreseen that the system of work for the plaintiff involved a real risk of injury;

What would a reasonable person do in response to the risk?

In my view a reasonable person in response to the risk would have varied the plaintiff’s tasks, shared the ticketing duties and provided available aids such as soft matting, kneeling pads and/or a small table. I also take into account the following factors:

The magnitude of the risk was more than slight;

The degree of probability of its occurrence was slight;

The expense, difficulty and inconvenience of changes to the system of work to reduce the risk was slight;

The potential for serious injury existed.

Taking into account all of the factors indicated I am satisfied that there has been a failure by the defendant to provide a safe system of work in the present case. The plaintiff’s duties were effecting pricing changes on ticketing. Those duties, although not on a fulltime basis, required extensive kneeling and squatting. Although there was also walking around, reaching and bending, the squatting and kneeling activities involved a considerable period of time. The kneeling was on hard surfaces. In my view, a safe system of work required reasonable steps to avoid exposing the plaintiff to unnecessary risks of injuries to her knees. This was readily achieved by task rotation, sharing of ticketing duties and the use of the work aids referred to.
Balancing all of the factors, I find that there was a breach of duty of care in the present case.

Causation

As indicated above, the authorities require a commonsense approach to causation to be adopted. Causation is wholly factual and turns on the plaintiff establishing on the balance of probabilities that the failure to take the precautions alleged to be reasonably necessary to provide a safe system of work was a necessary condition of the occurrence of the harm.
The plaintiff has to prove that had the defendant taken steps to vary her tasks or share the ticketing duties or provide her with knee pads or supported matting or a low table that her knee would not have twisted and given way and that the knee injury would not have occurred on 5 May 2008.
I find that causation has not been established on the balance of probabilities by the plaintiff in the present case. I am not satisfied that if the defendant had provided the precautions alleged which were practical and available that the plaintiff would not have twisted her knee and caused it to give way with the resulting injury. The plaintiff had been undertaking shop assistant duties for many years. She also assisted her husband in his panel beating business. The plaintiff’s hours at work at the time were only 13 hours a week of which two hours were spent cutting up the tickets. I am not satisfied on the medical or other evidence that had the practical precautions which have been put forward as being available been taken that the knee would still not have twisted and given way and the injury occurred.
The knee twisted and gave way as the plaintiff was bending down. A small table or padded matting would not have assisted the plaintiff to avoid injury. I am not satisfied that the knee would not have given way if the plaintiff’s tasks had been varied. In relation to knee pads these would have been limiting as to movement. It is much more likely that a padded mat would have been used as it could be moved more easily. There is no evidence that knee pads would have been preferable to a padded mat or that if used they would have avoided the injury in question.
In particular, and importantly, there is no direct medical evidence that the injury received was caused by the action of the knee hitting the shelf as opposed to the twisting movement which led to the right knee giving way.
I also take into account the opinion of Dr Machart in his report dated 24 February 2015 that the injury was not due to squatting or kneeling or due to any contribution for a requirement to kneel or squat for lengthy periods of time. I note that Dr Machart seems to have assumed that the injury was caused solely by the plaintiff banging her right knee on the edge of the shelf but his opinion of the lack of relevance of kneeling or squatting for lengthy periods of time is of some assistance.
At the end of the day I am not satisfied that the plaintiff has established on the balance of probabilities that the injury would not have occurred anyway had the defendant provided the precautions in alternative equipment which were shown to be available and practical in the circumstances or by sharing the ticketing task.

Contributory negligence

Contributory negligence is alleged by the defendant against the plaintiff. In the event that I am wrong and causation should be regarded as established by the plaintiff, I find that there is no contributory negligence in the present case. The plaintiff performed her duties in accordance with the instructions from the defendant employer. The plaintiff had not previously had any problems with her right knee and therefore there was no need for her to seek alternative duties or assistance in the performance of her task. There should be no deduction on account of any contributory negligence by the plaintiff.

Failure to mitigate

An unparticularised failure to mitigate is pleaded by the defendant against the plaintiff. In my opinion there is no evidence that the plaintiff failed to mitigate her loss.

Assessment of damages

In the event that I am in error in relation to the causation issue I consider the question of assessment of damages. The claim by the plaintiff for modified damages pursuant to the Workers Compensation Act is restricted to claims for past economic loss, loss of superannuation benefits, future economic loss, loss of future superannuation benefits and an amount to reflect the principle in Fox v Wood.
The plaintiff was born in August 1965 and was 42 years old at the time of the accident on 5 May 2008. At trial the plaintiff was almost 51 years of age.
The plaintiff seeks the following damages:

Past economic loss

(a) 5 May 2008 – 5 August 2008

13 weeks x $200 per week

   $2,600.00

(b) 6 August 2008 – 28 July 2016

430 weeks @ $800 net per week

$344,000.00

Future economic loss - $900 net per week x factor of 529.3 x 0.85

   $404,914.50

Past loss of superannuation – 11% of $344,000

$37,840.00

Future superannuation – 13% of $404,914.50

$52,638.90

Fox v Wood – agreed

$16,110.50

Total

   $858,103.90

The defendant submits that no damages are payable because breach and causation have not been established. If these matters are established the plaintiff’s losses are according to the defendant as follows:

Past economic loss

5 May 2008 – 6 November 2012

235 weeks x $225 per week (average)

(Six months following right knee replacement surgery)

$50,625 rounded up to $51,000.00

$51,000.00

Superannuation on past economic loss – 11%

$5,500.00

Future economic loss

Nil

Superannuation on future economic loss

Nil

Fox v Wood

$16,110.50

Total

$72,610.50

Past economic loss

In my view I think it is likely and I find that but for the accident the plaintiff would have stayed working at the defendant’s business for about 3 months from 5 May 2008. Her husband’s business closed in May or June 2008 and in my view I should infer that it is likely that she would have left the defendant’s business and sought more hours in the retail industry as a shop assistant to increase her earnings. I allow 13 weeks at $200 per week until 5 August 2008 which amounts to $2,600.
The plaintiff’s history of work is relevant to indicate that the hours of work after she left the IGA would probably not have been fulltime. In relation to past economic loss up until the date of the trial, I think it is likely that the plaintiff would have secured earnings on a part-time basis from 5 August 2008 at about $500 per week. However, I also think it is likely that she would have taken about six months off for her carpal tunnel operations and her complete wrist fusion. There is no clear evidence on this point. I think 6 months allows for the fact that there were two procedures at different times and two instances of recovery. There is also the likelihood that the plaintiff would have had to take leave without pay or possibly would have had to resign her employment. I therefore allow 393 weeks (432 weeks – 13 weeks up until 5 August 2008 – 26 weeks) at $500 per week amounting to $196,500 for past economic loss.

Future economic loss

I have taken into account the plaintiff’s evidence and the medical evidence. In general terms I accept the plaintiff’s evidence that she has a number of restrictions and has pain in various degrees. I also accept the plaintiff’s evidence that she has good days and bad days.
Having regard to my assessment of the plaintiff and the evidence of her current disabilities, I do not accept the opinion of Dr Machart that the plaintiff can work fulltime. I take into account the report of Dr O’Carrigan of 2 May 2014. I also take into account the views of her treating general practitioner Dr Hamad as to her ability to undertake limited part-time work for 13 hours per week. Also relevant is the opinion of Dr Giblin in his report dated 21 January 2016 in relation to the plaintiff’s limitations for work and the opinion of Dr Conrad as to the plaintiff’s ability to perform seated light work.
Taking all of these matters into consideration, I am of the view that the plaintiff does have limited residual working capacity of about 12 hours per week which is slightly less than that certified in his various certificates by Dr Hamad.
The plaintiff’s evidence which I accept establishes that she would have likely worked until age 65.
I also take into account the potential for the plaintiff’s wrists to cause her problems in the future.
Counsel for the plaintiff submitted that the starting figure should be the full-time shop assistant’s salary which is $38,500 on a national average (Exhibit E). However, in my view an important guide to the plaintiff’s earning capacity is her previous working pattern and areas of work. It is necessary to remember that the issue is loss of earning capacity not future loss of earnings; but the tortious injury must cause a diminution of earning capacity which “is or may be productive of financial loss”: Graham v Baker (1961) 106 CLR 340 at 347.
I also take into account that the plaintiff is likely to have some difficulties finding work within travelling distance suitable to her restrictions.
Taking all of these matters into account I would allow $375 per week with a factor of 529.3 (for 14 years until 65) with a discount of 15% for vicissitudes which gives the figure of $168,714.

Past loss of superannuation

I would allow 11% of $196,500 to arrive at $21,615.

Future loss of superannuation

I would allow 12% of $168,714 to arrive at the figure of $20,245.68.

Fox v Wood

The amount for Fox v Wood is agreed at $16,110.50.
I therefore assess the total amount if the plaintiff had succeeded on causation as $425,785.18.

Orders

In the light of the above conclusions I make the following orders:

There be judgment for the defendant;

The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

I invite the parties to review the calculations of the damages set out above and to relist the matter if there are mathematical errors.

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Decision last updated: 29 August 2016

Medium Neutral Citation:	Cicino v F & C Tassone & Sons Pty Ltd [2016] NSWDC 191
Hearing dates:	8 August 2016 – 9 August 2016
Date of orders:	23 August 2016
Decision date:	23 August 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	1. Judgment for the defendant; 2. The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.
Catchwords:	Torts – negligence – work injury – whether breach of duty – whether causation established – whether residual earning capacity.
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Graham v Baker (1961) 106 CLR 340 Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 March v E&MH Stramare Pty Ltd (1991) 171 CLR 506 Mason v Demasi [2009] NSWCA 227 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31 Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Jodie Cicino (Plaintiff) F & C Tassone & Sons Pty Ltd (Defendant)
Representation:	Counsel: L Goodchild (Plaintiff) S Flett (Defendant) Solicitors: Brydens Law Office (Plaintiff) Rankin Ellison Lawyers (Defendant)
File Number(s):	2015/00096042

Past economic loss
(a) 5 May 2008 – 5 August 2008 13 weeks x $200 per week	$2,600.00
(b) 6 August 2008 – 28 July 2016 430 weeks @ $800 net per week	$344,000.00
Future economic loss - $900 net per week x factor of 529.3 x 0.85	$404,914.50
Past loss of superannuation – 11% of $344,000	$37,840.00
Future superannuation – 13% of $404,914.50	$52,638.90
Fox v Wood – agreed	$16,110.50
Total	$858,103.90

Past economic loss 5 May 2008 – 6 November 2012 235 weeks x $225 per week (average) (Six months following right knee replacement surgery) $50,625 rounded up to $51,000.00	$51,000.00
Superannuation on past economic loss – 11%	$5,500.00
Future economic loss	Nil
Superannuation on future economic loss	Nil
Fox v Wood	$16,110.50
Total	$72,610.50