Clarke v BHP Billiton Direct Reduced Iron Pty Ltd - [2008] WADC 51

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CLARKE -v- BHP BILLITON DIRECT REDUCED IRON PTY LTD [2008] WADC 51

CORAM: COMMISSIONER LEY

HEARD: 3-6 & 9 OCTOBER 2006, 10 NOVEMBER 2006

DELIVERED : 30 APRIL 2008

FILE NO/S: CIV 1598 of 2003

BETWEEN: CECILIA MARIA CLARKE
Plaintiff
AND
BHP BILLITON DIRECT REDUCED IRON PTY LTD
Defendant

Catchwords:

Tort - Negligence - Personal injury in workplace - Laboratory technician carrying large steel vessel containing reduced iron fines at high temperature and under pressure - Loses grip of vessel and suffers back injury - Whether safe system of work - Whether breach of duty of care - Causation - Previous back injuries - Pre-existing degeneration of lumbar spine - Assessment of damages

Contract - Whether breach of implied term to take all reasonable precautions for plaintiff's safety

Legislation:

Workers' Compensation & Rehabilitation Act 1981 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Pynt & Partners

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

Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Bennett v Minister of Community Welfare (1992) 176 CLR 408
City of Stirling v Tremeer (2006) 32 WAR 155
Fox v Wood (1981) 148 CLR 438
Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383
Newman v Nugent (1992) 12 WAR 119
Sutherland Shire Council v Heyman (1985) 59 ALJR 564
Tame v New South Wales (2002) 211 CLR 317
Wyong Shire Council v Shirt (1980) 146 CLR 40

COMMISSIONER LEY: On 8 June 2001, at about 1 am, the plaintiff was working in the course of her employment as a laboratory technician with the defendant at the defendant's Boodarie Direct Reduced Iron Plant at South Hedland ("the Plant"), and was carrying a reactor sample container full of iron ore fines ("the container"), when it slipped from her grip. The plaintiff immediately recovered her grip on the container but, says that, as she did so, she felt a "big snap" in her lower back ("the accident"). The plaintiff alleges that the accident was caused by the defendant's negligence and/or breach of contract. She alleges that, as a result of the accident, she suffered a serious injury to her lower back and claims damages from the defendant for that injury and its consequences.

The plaintiff

The plaintiff was born on 5 June 1960 in El Salvador and, therefore, is presently 47 years of age. She was the fifth child in a family of six and was educated up to high school level in El Salvador. She was married in 1980 and moved to the United States with her husband. While she was living in the United States, she had two sons: Luis, born on 28 June 1982, and Ricardo, born on 9 May 1985.
In 1989, the plaintiff, her husband and their two sons emigrated from the United States to Australia. On 2 October 1993, the plaintiff gave birth to a third child: a daughter, Michelle. Almost from the time of her arrival in Australia, the plaintiff undertook a variety of courses in applied science and laboratory work and obtained work on a regular basis as a laboratory technician.
In about 1994, the plaintiff separated from and then was divorced from her husband. The children remained with her. In 1995, she married again. However, she was divorced again in 1998.
In 1999, the plaintiff obtained employment as a laboratory technician with the defendant in the laboratory at the Plant. She was employed by the defendant as a laboratory technician at the Plant from February to June 1999 and, from July 1999 to July 2000, was employed as the acting laboratory co‑ordinator at the Plant. After that, she returned to work as a laboratory technician at the Plant and worked in that capacity from August 2000. She was working as a laboratory technician in the laboratory at the Plant at the time of the accident.

The defendant

The defendant is a wholly owned subsidiary of BHP Billiton Limited and was incorporated for the purposes of developing and managing the Plant. Another subsidiary of BHP Billiton Limited, BHP Billiton Minerals Pty Ltd, is one of the members of the Mount Newman Joint Venture, which mined the iron ore which was crushed into iron ore fines and supplied to the Plant.

The Plant

The Plant was located about 20 kilometres south of Port Hedland. It was constructed by the defendant between 1996 and 1999, and opened in 1999. The Plant used new technology to convert iron ore fines, which were composed of approximately 67 per cent iron, into granules, which were composed of approximately 90 per cent iron. The granules were then compressed into briquettes, called "compressed direct reduced iron". Each briquette was similar in size and shape to a bar of soap and weighed approximately half a kilogram.
The Plant consisted of four production lines or "trains". Each train consisted of an ore dryer, a gas plant, four reactors and a briquette plant. It was possible for all four trains to operate at the same time. However, the evidence suggested that it was unusual for that to happen. I was told that it was more usual for two of the four trains to be running at any one time.
After the iron ore fines and then the granules were treated at each part of the train, they were transported by conveyer belt to the next part. At the end of the process, the briquettes were produced.
At the reactor stage, the product was still in the form of iron ore fines. In the reactors, the iron ore fines were exposed to varying degrees of intense heat and were subjected to pressure, using hydrogen and carbon monoxide. The heat in the reactors varied between 250 degrees Celsius and 800 degrees Celsius.
At each part of the process, the operators of that part would collect samples of the product and would leave the samples near that part of the Plant for collection by the laboratory technicians. That involved one or other of the laboratory technicians driving around the Plant on a number of occasions during a shift, collecting the samples from the various different parts of the Plant and transporting them to the laboratory for treatment and analysis. The samples included briquettes, iron ore fines from the reactors, water samples from the cooling ponds and gas samples. After the samples had been transported to the laboratory, they were prepared and analysed by the technicians, who then entered the results of the analyses on the Plant's computer database. In the case of briquette samples, the technicians crushed and pulverised them in the laboratory before analysing them and recording the results of the analyses on the database. The results were monitored to ensure that the composition of the component parts of the process was kept at a constant level and that the composition of the briquettes produced was suitable and acceptable for export.
The Plant worked around the clock and employees worked in two 12 hour shifts. The more trains that were running during a shift, the greater the volume of samples to be collected, treated and analysed, and results recorded, by the laboratory staff.
The Plant had a relatively short life. It operated continuously from 1999 to September 2004, when a gas explosion in the Plant killed one of the defendant's employees and seriously injured two others. Prior to that, the Plant had experienced a number of technical and financial difficulties. After the gas explosion, the Plant was shut down and kept on a care and maintenance basis. There was considerable public opposition to the Plant being re‑opened and, eventually, in September 2005, the defendant shut it down permanently.

The accident

At the time of the accident, the plaintiff was working on night shift. Night shift commenced at 6 pm each day and continued through until 6 am the following day. On the day before the accident, 7 June 2001, the plaintiff arrived for work at the main gatehouse of the Plant at about 5.30 pm. After the plaintiff had arrived at work, she and the other members of the laboratory night shift were collected from the main gatehouse by a member of the laboratory day shift, driving the laboratory utility. They were then driven to the laboratory drop‑off area and had a handover from the day shift. After the handover was completed, a member of the night shift drove the members of the day shift from the laboratory to the main gatehouse, where they clocked off.
After the handover, the plaintiff walked to her workbench which was near the main production sampling area. She then prepared the area by obtaining a number of empty sample bags and taking out her workbooks in which she would enter the results of the analysis of the samples. It was her task on that shift to drive the laboratory utility around the Plant, collect the samples from the other parts of the Plant and bring them back to the laboratory for treatment and analysis. The plaintiff first collected samples of water from the cooling ponds. Those samples were left for her in one litre bottles near the cooling ponds. She placed the bottles into a caddy and put the caddy in the back of the utility.
The plaintiff then collected briquette samples from just outside the briquetting plant. The briquettes were left by briquetting staff in buckets near the briquetting plant. The plaintiff collected the buckets containing the briquettes and placed them in the back of the utility.
The plaintiff then drove the utility to the reactor building. That was for the purpose of collecting reactor samples. Reactor samples were samples of iron ore fines which had been processed through the reactor. The reactor samples were collected in the containers, which were screwed into the reactor and samples taken during the reactor process. The containers were then screwed out of the reactor by reactor staff and left for collection by the laboratory technicians. I have already mentioned that when the fines were in the reactor, they were subjected to intense heat and pressure from hydrogen and carbon monoxide gases. Even when the containers were screwed out of the reactor, the fines inside were often at temperatures between 750 degrees Celsius and 800 degrees Celsius (T260). As a result, the containers were also extremely hot.
The container is a most unusual vessel. One was admitted into evidence and became Exhibit 23. It is tall and slender, but is comprised of stainless steel, and is, therefore, quite bulky and heavy. It comprises a base, a cylinder with a D‑shaped handle on each side, pipework culminating in a circular flange, with a valve at the top. There is a handle on one side of the valve which I was told is used for opening and closing the valve. The very top of the pipework of the container has a thread which, I was told, was used to screw the container into the reactor, to collect the sample of fines during the reactor process. When stood on its base, the container is 580 millimetres high. The weight of the container empty is approximately 9 kilograms. I was told that when it was full of iron ore fines it weighed 11 to 12 kilograms.
In the early morning of 8 June 2001, the plaintiff collected a number of containers, each containing reactor fines, from near the reactor. She could not remember how many containers she collected that morning, but said that it would have been between one and five. Nor could she remember whether this was the first occasion during the shift that she had collected reactor samples. She said that, when she arrived at the reactor, the full containers were standing upright on their bases. The plaintiff said that she picked up the containers, one at a time, from the floor of the reactor building, carried them to the utility and lay them down, next to one another, in the tray.
Whenever the plaintiff handled the containers, she used thick riggers' gloves which were provided by the defendant for that purpose in the laboratory. That was because, while it had probably been some time since each of the containers had been detached from the reactor, they were still likely to be very hot. When the plaintiff picked up each container from the floor of the reactor building, she placed her left hand around the pipework "neck" of the container, just below the circular flange, and, with her right hand, grasped one of the D‑shaped handles on the cylindrical part of the container. She then lifted the container from the floor and walked the distance of a few metres to the utility, holding the container vertically and out in front of her, with the base at the bottom. Her left hand was still around the neck of the container and her left arm was more or less fully extended. Her right hand was still clasping one of the handles and her right arm was not quite fully extended and was slightly bent at the elbow, to prevent the hot surface of the container coming into contact with any part of her body. Each of the containers was at that time full of fines and, accordingly, weighed between 11 and 12 kilograms.
After the plaintiff had loaded all the containers into the tray of the utility, she drove to other parts of the Plant and collected ore dryer samples, gas samples and water samples. Then she drove the utility back to the laboratory.
When the plaintiff arrived back at the laboratory, she parked the utility and began unloading the samples. She began with the buckets of briquette samples. She lifted the buckets out of the tray and carried them to the laboratory. It was a distance of approximately 10 metres.
The plaintiff then processed her briquette samples by crushing two briquettes from each bucket in small jaw crushers in the laboratory. After the briquette samples had been crushed, she caused each of them to be further processed and pulverised for the purpose of analysis. Once all the crushers and pulverisers were occupied in processing the briquettes, the plaintiff went back to the utility to remove the containers and bring them into the laboratory.
The plaintiff's first task, after bringing each container into the laboratory, was to reduce its temperature by placing it in a cooling bath, which comprised an empty oil drum cut in half and filled with water to a depth of approximately 30 centimetres.
The plaintiff lifted each of the containers out of the tray of the utility in the same way as she had lifted them from the floor of the reactor building. She was still wearing the riggers' gloves. She grasped the neck of the container with her left hand and grasped one of the handles with her right. She then lifted the container up from the tray of the utility and carried it a distance of approximately 10 metres to the cooling bath. As before, she held the container out in front of her, to prevent it coming into contact with any other part of her body.
The plaintiff said that, as she was carrying the first of the containers from the utility into the laboratory, and when she was 'only a step or two' away from the cooling bath, she lost her grip on the container. In her examination‑in‑chief (T80), she described the event as follows:
"I lost grip of the sample (the container). I can't tell you if I lost grip here (indicating the neck of the container which she was holding with her left hand) or the grip off there (indicating the handle of the container which she was holding with her right hand), I just lost grip of the whole sample and it slipped from my – it was like slipped from my hands and then I lost grip and as I grappled with it just trying to control it, and the next thing I reached over to catch it and I had already bent my, I don't know, bent my back and I ended with this thing just close to the ground."
When she was cross‑examined, the plaintiff did not give any greater detail of the event. She said that the container "just slipped" (T261). The plaintiff said that when she endeavoured to recover her grip on the container, she felt a "big snap" in her lower back (T80, T213). She said that when she felt the "big snap" in her back, she placed the container on the ground. At about that time, one of her work colleagues came into her area to get a drink of water and saw that she was in difficulty. That person assisted her to the supervisor's office. The plaintiff said that she felt a "very hot pain" in her lower back at that stage (T214).

Pleadings

In her statement of claim, filed on 23 July 2003, the plaintiff alleged that there was a written contract of employment between her and the defendant and that it was an implied term of the contract that, in effect, the defendant would provide her with a safe system of work. The plaintiff also alleged that the defendant owed her a duty of care to, in effect, provide her with a safe system of work.
The plaintiff alleged that the defendant breached the implied term of the contract of employment and/or its duty of care to her in that it:
(a)failed to instruct her as to a safe method of lifting and transferring the container;
(b)failed to provide a trolley in which she could transport the containers;
(c)failed to provide her with assistance by making a helper available;
(d)failed to ensure that the container was a suitable size so that it could be easily managed without slipping;
(e)failed to ensure that warnings and complaints by staff members were heeded and the system of transferring the containers was changed or modified to allow smaller containers which were easier to carry;
(f)failed to ergonomically assess the suitability of transferring samples at temperatures in excess of 700 degrees in a metal container; and
(g)failed to provide sufficient time for the samples to be collected safely.
Also in her statement of claim, the plaintiff alleged that, as a result of the accident, she suffered:
(a)trauma to the lumbar spine involving aggravation and/or acceleration of degenerative changes to L4/5 and L5/S1;
(b)pain and discomfort to the left and right legs arising from referred pain from the lumbar spine;
(c)permanent loss of efficient use of the lumbar spine of 20 per cent; and
(d)depression.
In its defence, the defendant did not admit the implied term of the contract of employment but admitted that it owed the plaintiff the pleaded duty of care. However, it denied that it had been negligent and did not admit that the plaintiff had suffered the alleged injuries as a result of the accident.
In addition, the defendant alleged that the accident was caused wholly or in part by the negligence of the plaintiff in that she:
(a)failed to maintain an adequate grip on the container;
(b)failed to hold the container with both hands, using the handles provided;
(c)failed to seek assistance to transport the container; and
(d)failed to take any or any reasonable care for her own safety.
At the beginning of the trial, the defendant sought leave to amend its defence to allege that, even if the plaintiff was injured in the accident, which was not admitted, her injuries and consequential loss were caused, not by the accident, but by a variety of conditions which pre-dated the accident. Specifically, the defendant sought leave to plead that:
(a)the plaintiff suffered from significant pre‑existing lumbar spine pathology and symptoms prior to the accident;
(b)the lumbar spine injuries, loss and damage allegedly caused by the accident were caused or contributed to by previous incidents, in or about August 1999, in or about August 2000 and in or about January 2001;
(c)the lumbar spine injuries, loss and damage allegedly caused by the accident were caused or contributed to by a pre‑existing disc lesion and nerve root impingement at L5/S1;
(d)the lumbar spine injuries, loss and damage allegedly caused by the accident would have been suffered in any event;
(e)the plaintiff suffered from a psychological and/or psychiatric condition prior to the accident and had been prescribed antidepressant medication;
(f)the depressive injury, loss and damage allegedly caused by the accident were caused or contributed to by previous events; and
(g)the depressive injury, loss and damage allegedly caused by the accident would have been suffered in any event.

The defendant's application for leave had actually been filed, with an affidavit in support, on 6 September 2006, but, for various reasons, it was not dealt with until the trial. The plaintiff opposed the application for leave but I allowed the application and granted the defendant leave to amend its defence in the above terms.
During the course of the trial, the plaintiff sought leave to further amend her statement of claim to expand the allegations of negligence. After hearing argument on the application, I granted the plaintiff leave to add to her statement of claim allegations that the defendant had been negligent in that it had:
(a)failed to assess the specific risks associated with the manual handling of the containers, namely:
(i)their temperature;
(ii)their displaced centre of gravity;
(iii)their weight (with and without sample); and
(iv)the use of leather gloves which became coated with metallic dust progressively throughout a working shift;
(b)failed to consider, devise or implement alternative safer methods of transporting the actual samples contained in the container, such as emptying the contents of the sample at the reactor pick‑up site rather than at the laboratory.

The plaintiff's evidence

I have already outlined the details of the plaintiff's background and have mentioned the evidence which she gave concerning the circumstances of the accident. Following the accident, the plaintiff's work colleague assisted her to the supervisor's office, where she sat down. The supervisor telephoned the main gatehouse and spoke to the emergency service officer. The supervisor then drove the plaintiff to the Plant medical centre where they were met by the emergency service officer. The plaintiff said that, when they arrived at the medical centre, the pain in her lower back was excruciating. She said that, as a result, she was unable to walk and had to be helped into the medical centre by her supervisor and the emergency service officer.
The plaintiff said that she had experienced problems in carrying the containers in the past. She said that she and her colleagues had tried different ways of carrying the containers, including holding them by both handles on either side of the cylindrical part, and by holding the lever which controlled the valve towards the top of the container. However, she did not think that this latter method was safe. There was no security lock on the valve and she had been told, during training, that if the valve opened while the sample was still at high temperature and under pressure, there could be a "jet‑fire". In other words, the fines inside the container could ignite and a fire would shoot out of the valve opening.
The plaintiff said that when she had attempted to carry the container by holding both handles, the top half of the container, which was quite heavy when loaded with fines, would tip away. That caused the base of the container to move backwards, towards her body. That placed her at risk of burning herself.
The plaintiff began working at the Plant when it opened in 1999. She said that, from the outset, she considered that the containers and the method used to transport them from the various collection points to the laboratory and from the utility into the laboratory were unsafe. The plaintiff also said that she realised, also from the outset, that the containers were "slippery". She was, at one time, the health and safety officer for the laboratory. She said that, in that capacity, she complained to her supervisors about the method of transporting the containers and their "slippery" nature, and requested that laboratory technicians have access to trolleys to transport the containers from the utility into the laboratory (T90). She said that her requests fell on deaf ears. However, under cross‑examination, she admitted that she had not made written requests, although that was the usual way such complaints were made.
Also under cross‑examination, the plaintiff maintained that, when she carried the container, she held it vertically out in front of her. She was asked why she did not allow the container to drop naturally with its weight and carry it at an angle of about 45 degrees from the vertical. She said that she did not do that because it meant that the container would be closer to her body and she would be at greater risk of being burnt. She also said that she did not ever lift the container up by one of the handles using just one hand. She said that she did not find that satisfactory because her fingers could become caught in the valve lever. When she was asked again how the container slipped on 8 June 2001, she said that the gloves she used became covered in direct reduced iron and that made them very slippery. That was not a direct answer to the question. She seemed to be implying that it was the "slippery" nature of the gloves at that time which caused her to lose her grip. The plaintiff had said, during her evidence‑in‑chief, that, towards the end of a shift, the gloves were covered with a film or a coat of direct reduced iron (T73). Under cross‑examination, she said that happened very soon after the shift started (T262). However, whichever of those two alternatives was correct, she conceded that there was a supply of new gloves in the laboratory and that she could change her gloves whenever she wanted. The plaintiff did not seem entirely sure when the accident occurred. She at first said that the accident had occurred on the fourth occasion that she had collected samples during the shift, but later conceded that it might have been only the second occasion.
The plaintiff said that, prior to the accident, she had carried containers full of hot fines from the utility into the laboratory on hundreds of occasions without ever having dropped one before. She said that the weight of the container was not a problem and that she was well aware of the correct way of lifting it.
Following the accident, the plaintiff was off work for five days, and then returned to work on light duties. She was still working in the laboratory but was doing sample analysis only and not sample preparation. The plaintiff continued working on light duties for approximately 12 months but said that her back was very sore throughout that time and she began to become very depressed. For advice and treatment, she consulted Dr R Gillett, a doctor employed by the defendant or one of the companies associated with the defendant, who practised at the BHP Medical Centre. The plaintiff consulted Dr Gillett for the first time on the afternoon of 8 June 2001. Dr Gillett referred the plaintiff for physiotherapy and that seemed to alleviate her back pain for a short time. When the plaintiff's low back pain was still quite bad a month following the accident, Dr Gillett referred her for an MRI scan. That revealed disc degeneration at L4/5 and L5/S1. She underwent a further MRI scan on 31 January 2002. In June 2002, Dr Gillett referred her to Mr Paul Bannan, a neurosurgeon, and Dr Geoffrey Gee, a consultant in pain management. Also at that time, the plaintiff ceased working in the laboratory at the Plant.
When the plaintiff saw Mr Bannan, he referred her to another pain management specialist, Dr Philip Finch. At Mr Bannan's request, Dr Finch performed a three level discography in an endeavour to ascertain the exact source of the plaintiff's back pain. The results of the discography suggested that the pain was coming from L4/5 and L5/S1. Dr Finch provided the results of the discography to Mr Bannan. Mr Bannan recommended to the plaintiff that she have back surgery in an effort to relieve the pain, and the plaintiff agreed. In early October 2002, Mr Bannan performed a two level interbody fusion at L4/5 and L5/S1.
After her back surgery, the plaintiff did not return to work with the defendant. However, with the agreement of the defendant, she obtained light work with a company called PNF Transport, where she worked approximately 20 hours per week for a month, doing the accounts.
After the job with PNF Transport, the plaintiff worked as a migrant community worker for the Uniting Church between July and September 2003. In that job, she assisted new migrants in dealing with the problems associated with settling into a new country. She stopped doing that work because she could not cope with the long hours. She also said that her back pain and her depression caused her difficulty with that work.
Until November 2003, the plaintiff had remained living in Port Hedland, where she had lived while working for the defendant. In November 2003, she moved to Perth. In early 2004, she obtained a position with Swan Personnel doing document control. The plaintiff worked there until August 2004.
It was not until August 2004 that the plaintiff's employment with the defendant was formally terminated. For part of that time, from 8 July to 29 November 2002, the defendant had paid her workers' compensation.
In September 2004, the plaintiff obtained casual work as a receptionist with the Roleystone District High School, near where she was then living. In that job, she worked 6 hours per day, two days per week. However, that employment ceased at the end of the school year in December 2004. After that, the plaintiff did not work for about 6 months and then did voluntary work with the Catholic Migrant Centre, visiting a resident of a nursing home in Armadale and effectively keeping him company for about two hours per week. That took her through until November 2005. She then moved from Perth to Bunbury.
The plaintiff said that, since her move to Bunbury, she has again been doing only volunteer work at a local nursing home, providing the residents with manicures and talking to them for three or four hours once per week.
The plaintiff said that, from about May 2002, she began experiencing depression (T219). She consulted Dr Gillett about it. She said that Dr Gillett prescribed for her anti‑depressant medication and gave her a month off work. She said that the medication was Arapax. She said that she suffered bad side effects from that medication. She said that when she took it her tongue went numb and she was unable to talk properly. She said that Dr Gillett took her off that medication and that she did not take anti‑depressants again until she consulted Dr Stephen Adams, a general practitioner who specialises in sexual health, in March 2003. She said that Dr Adams prescribed an anti‑depressant called Avanza and that another doctor whom she consulted, Dr Pearson, a general practitioner in Roleystone, placed her on Zoloft.
The plaintiff said that after she underwent the lumbar spine fusion in October 2002, her back pain improved a lot. However, she said that she continued to suffer back pain after the surgery, and was still taking Panadeine for it at the time of the trial. She said that her pain fluctuated from time to time. She said that the pain interrupted her sleep and made her very tired during the day. She said that her pain increased when she stood for long periods of time, when she went shopping and when she drove a long distance. She said that her back pain was a "crushing" pain which she felt in her back at the top of the hips.
In support of the amendment which it made to its defence at the trial, the defendant introduced into evidence various documents relating to the plaintiff's medical history prior to the accident. Those documents were: a report from Hedland Physiotherapy dated 12 June 2001 (Exhibit 35), an Accident and Emergency Triage Assessment from the files of the East Pilbara Health Service dated 15 August 1999 (Exhibit 10A), notes from the Emergency Department of Port Hedland Hospital dated 27 August 2000 (Exhibit 10B), notes from the Edgar Street Medical Centre in Port Hedland in respect of attendances by the plaintiff on 6 and 29 August and 5 September 2000 (Exhibit 10C), a medical certificate issued by Dr Max Bowater from Edgar Street dated 29 August 2000 (Exhibit 10D) and notes from the BHP Medical Centre in respect of attendances by the plaintiff between June 2001 and September 2002 (Exhibit 10E). The defendant cross‑examined the plaintiff about each of those documents in turn.
In the report from Hedland Physiotherapy dated 12 June 2001, it was said:
"Cecelia (sic) reports a long past history of lower back pain with some leg radicular symptoms on occasions ever since falling over playing basketball when she was 17 years old."
When she was asked about that, the plaintiff denied that, prior to the accident, she had had "a long history of lower back pain" with pain radiating into her legs. She admitted that she had experienced some "tightness" in her back when playing basketball at the age of 17 and said that she had similar tightness on several occasions after that. She said that her symptoms even got so bad that, on some occasions, she went to the emergency department of a hospital.
The plaintiff was then taken to the Accident and Emergency Triage Assessment made at the East Pilbara Health Service on 15 August 1999. The plaintiff admitted that that was a note of her attendance at the East Pilbara Health Service on that date. Part of the note read:
"lower back pain, moving furniture 2/7 (two days) ago, not getting better.
…
Painful back
Intermittent for months."
The plaintiff said that she could remember that episode of back pain and could not explain why she had not mentioned it to the doctors who had treated her following the accident.
The plaintiff was then taken to Emergency Department notes from the Port Hedland Hospital for 27 August 2000. She admitted that those notes related to her and said that she could remember her attendance on that evening. The notes included the following:
"PMH (past medical history)
Back Pain …
C/O (complained of) Back Pain. Saw GP 1/52 (one week) ago, prescribed Voltaren. Pain worse today.
…
Acute on chronic lumbar back pain came 8/7 (eight days) ago → improved with Voltaren."
The plaintiff admitted that she had had a sore back on that occasion and that she had an injection of Pethidine for her pain. The plaintiff also admitted that, two days after she had attended hospital, she had consulted Dr Bowater at the Edgar Street Medical Centre. Dr Bowater's notes of his attendance on the plaintiff on 29 August 2000 read:
"9 days ago woke with severe Lx (lumbar) back pain and now has the pain radiating down to the L (left) knee. Note has a Pmhx (previous medical history) of many similar type episodes which usually spontaneously resolves (sic).
…
Imp (impression) L5/S1 disc lesion with L S1 nerve root impingement.
Diagnosis:
L5/S1 disc lesion and OA (osteoarthritis) of the L (left) L5 facet (joint)."
The plaintiff said that she could not recall what she told Dr Bowater on 29 August 2000. However, she admitted that at that time she was suffering severe lumbar back pain radiating down to her left knee. She was rather evasive as to Dr Bowater's note of her previous medical history of "many similar type episodes". Ultimately, she denied completely that she had had many episodes of lower back pain before seeing Dr Bowater on that occasion (T283).
In the medical certificate which Dr Bowater gave to the plaintiff on 29 August 2000, he expressed the opinion that she was unfit for work for 4 days from 28 August 2000.
The plaintiff returned to see Dr Bowater on 5 September 2000, 7 days later. His notes of that consultation read:
"Dramatically improved with ROM (range of movement) of the Lx (lumbar) spine now so good that the hands reach to the ankles. Reflexes are normal and the SLR (straight leg raising) = 90 degrees both (legs)."
The plaintiff was then referred to Dr Gillett's note of his attendance upon her, at 3 pm on 8 June 2001, following the accident. She was directed to a note which indicated that, at that time, she had told Dr Gillett that she had a supply of the anti‑inflammatory, Celebrex, at her home and could take them for her back condition. She conceded that she did have that medication at home at that time but denied that she was using them.
The plaintiff was then shown a note made by another BHP doctor, Dr Heather Campbell, who had attended the plaintiff on 4 July 2001. Dr Campbell's note read:
"HO (history of) 3 – 4 episodes LBP (lower back pain) init (initially) 17 yo (17 years of age). In 8'00 (August 2000) → A&E (Accident and Emergency) parent (parental) analgesia. O’WK (off work) 4/7 (four days). Spont. (spontaneous) onset."
Once again, the plaintiff would not concede that she had had a history of lower back pain prior to the accident.

Elmar Zielkee

Mr Zielkee worked as a laboratory technician for the defendant in the laboratory of the Plant from April 2000 to February 2002. He was trained by the plaintiff. Mr Zielkee also had experience in collecting containers filled with fines and transporting them to the laboratory for analysis. He said that when he first carried the containers, he carried them by the two D‑shaped handles on either side of the cylindrical part. He said that that method was unsuccessful because, on one occasion, the container slipped in his hand and he hurt one of this thumbs.
Mr Zielkee said that he also used riggers' gloves to handle the containers. However, he said that the gloves were not of great assistance in gaining a good grip on the container. He said that the gloves would become covered with particles of direct reduced iron and that would make the container slippery to hold with the gloves. He said that he received no direct instruction as to the best method of carrying the container.
Under cross‑examination, Mr Zielkee said that he usually carried two containers at once, by picking up each container by one of the handles. He said that he had been doing that when he had hurt his thumb. He said that he had taken one of the containers off the tray of the utility and it had swung around and bent his thumb back. Mr Zielkee said that when he carried one container by itself, he carried it by the handle in one hand and did not use his other hand at all. However, Mr Zielkee was a man of large build whereas the plaintiff was a woman of relatively slight build. Mr Zielkee said that he had never carried a container by holding the neck in one hand and a handle in the other, being the method used by the plaintiff. However, he said that he had seen some of the smaller laboratory technicians carry the container in that way.

Syliva Leigh Sujud

Ms Sujud worked for the defendant as a laboratory technician in the laboratory at the Plant from May 1999 to July 2004. She said that, like the plaintiff and Mr Zielkee, she handled the containers on a daily basis. She said that they were difficult to handle. She said that, on one occasion, she was putting a container into the laboratory utility when it slipped and burnt her wrist. That happened on 8 April 2001.
Ms Sujud said that when she picked up the container, she held it with her left hand around the neck and her right hand on one of the handles. She said that when she had her accident, she was holding the container in that manner and lifting it into the utility. She said that the handle slipped in her right hand and the cylindrical part of the container came into contact with her right wrist. She said, at the time of that accident, the laboratory had been fairly busy and she had been working for eight and a half hours. She said that, by then, her gloves would have been "pretty dirty and wet and sogged out" (T307).
Ms Sujud said that the defendant made riggers' gloves readily available in the laboratory. However, she said that the gloves came in different sizes. If there were no small gloves available, and she was forced to wear a large pair of gloves, it was difficult for her to properly grip the containers. However, she had no difficulty in gripping the containers when she was wearing small gloves.

Expert evidence (non‑medical)

Each of the parties called one expert witness in relation to liability. The plaintiff called Dr Steven Chew and the defendant called Jennifer Rosemary Miller.
Dr Chew is a mechanical engineer and is also a certified professional ergonomist. He is a bachelor of mechanical engineering and holds a PhD in mechanical engineering which he was awarded by the University of Canterbury, New Zealand in 1980. Since 1988, he has been the principal of Westralian Technical Consultants Pty Ltd which specialises in industrial and occupational accident investigation and analysis with emphasis on ergonomics and the safety aspects of work systems.
In November 2005, Dr Chew was retained by the plaintiff to investigate the circumstances of the accident and to give evidence on her behalf at the trial. On 23 November 2005, Dr Chew interviewed the plaintiff and inspected a container which the plaintiff told him was the same as the container which she had been carrying at the time of the accident. A photograph of the container, which was provided to Dr Chew, appears on page 2 of his report dated 6 December 2005 (Exhibit 11A), and appears to be similar to, if not exactly the same as, the container which was admitted into evidence (Exhibit 23).
In his report dated 6 December 2005, after listing the documents with which he had been provided, referring to his qualifications and describing the container (of which he had taken a photograph), Dr Chew set out what the plaintiff had told him about the circumstances of the accident. Dr Chew described one of those circumstances as follows:
"When collecting the (container) (the plaintiff) wore leather rigger gloves because of (sic) the container was hot due to the high temperatures of its contents. As a result of the build up of iron fines on the gloves, they provided poor grip on the container's handles. The build up of iron fines occurred when (the plaintiff) had to wear the same gloves to perform sampling preparation tasks."
However, the plaintiff did not say in her evidence before me that, because of the build up of iron fines on the gloves, she could not get a good grip of the handles of the container. In the accident, she was not sure whether she lost her grip on the neck of the container, which she was holding with her left hand, or the handle, which she was holding with her right, or both. She did not say that, at the time, there was a build‑up of iron fines on the gloves and that was why she lost her grip.
Also in his report, Dr Chew outlined his understanding of the tasks which the plaintiff was required to undertake in relation to the containers during each 12 hour shift. He said that the tasks were as follows:
"Task 1: manually lifting a reactor sample container which weighed 11 to 12 kg off the floor, carrying it over a distance of approximately 100 metres with the container held approximately 40 cm in front of her spine, and lowering it onto the utility vehicle. This task was undertaken 5 times every 2 hours, resulting in total 30 tasks over a 12 hour work shift.
Task 2: manually lifting the abovementioned reactor sample container off the utility vehicle, carrying it over a distance of approximately 10 metres with the container held approximately 40 cm in front of her spine, and lowering it into a pale (sic) of water on the floor in the laboratory. This task was undertaken 5 times every 2 hours, resulting in total 30 tasks over a 12 hour work shift."
There were some differences between Dr Chew's understanding of the plaintiff's tasks and the plaintiff's evidence in that regard. In the first place, the plaintiff did not say that she carried a container from the reactor to the utility and from the utility to the laboratory five times every two hours. She said that she would collect containers every two hours and, on each of those occasions, there would be between one and five containers to be collected (T55). Accordingly, she would carry between one and five containers from the reactor to the utility and from the utility to the laboratory every two hours.
In addition, the plaintiff did not say that she carried the containers approximately 100 metres from the reactor to the utility. She said that she collected the containers from near the "Alimak", an industrial elevator which was used to transport workers and equipment to higher levels of the Plant, and carried them to the utility. She said that she did not know how far she carried the containers from the Alimak to the utility, but estimated that it was approximately 25 metres (T55, T56).
After having outlined his understanding of the tasks which the plaintiff was required to undertake in respect of the containers, Dr Chew expressed his opinion as to the soundness of the system from an ergonomic perspective. He said:
"In my opinion the two tasks involving the manual handling of the reactor sample containers required of the Plaintiff are unsound from the ergonomic perspective. The reasons for my opinion are:
-The high temperature of the reactor samples resulted in it not being possible to lift and carry the container with a sound manual handling technique, that is, by holding the container close to the body. Instead the container was held at considerable distances in front of the body. This would have resulted in large reaction forces in the elbow, shoulder and lower spine, and increased the risk of injury to these body parts.
-The reactor sample container had to be carried over distances of approximately 100 metres for each container at the plant, and approximately 10 metres at the laboratory. The weight of the container being 11 to 12 kgs, and the poor design and location of the container’s handles, were such that the container was unsuitable for carrying over long distances.
-The handles being made from 12 mm diameter steel bar were too small for easy gripping by gloved hands. This would have increased the risk of the container slipping from her hands.
-The smooth texture of the steel handle material presented poor grip to gloved hands. This would have increased the risk of the container slipping from her hands.
-The accumulation of iron dusts (sic) on the gloves worn by the Plaintiff would have increased the risk of the Plaintiff losing grip of the reactor sample container when she was carrying it.
-The Plaintiff was required to manually carry a reactor sample container which weighed 11 to 12 kg over approximately 100 metres on 30 occasions, and manually carry the same over approximately 10 metres on 30 occasions, on each 12 hour work shift, in additional (sic) to other manual handling duties. The cumulative effect of the above mentioned tasks would have caused fatigue, and increased the risk of injury to her musculoskeletal system. The frequency of carrying task (sic) should and could have been reduced."
On p 8 of his report, Dr Chew expressed an opinion as to how the plaintiff may have suffered the injury to her back as a result of the accident. He said:
"In this case, the Plaintiff's advice to me is that she did lose grip of the reactor sample container when she was carrying it in the laboratory area, but she, fearing the contents of the container could escape if the container fell hard onto the ground, grappled with it in an attempt to prevent its fall, and that she in doing this sustained low spine injury. In my opinion, as the plaintiff was grappling with the container as it fell, she would have flexed her spine forward and had her hands extended in front of her body, and she would have exerted dynamic and jerky forces through her hands."
In fact, in her evidence before me, the plaintiff did not say why she attempted to recover her grip on the container when it slipped. She did not say that she had any fears that the contents of the container would escape if the container fell hard onto the ground.
On p 9 of his report, Dr Chew expressed some views as to how the task of transferring the containers from the reactor to the laboratory could be improved. He said:
"In my opinion, the task involving the transfer of reactor sample containers between the plant and laboratory could have been improved, from the ergonomic and occupational safety perspective, by any or a combination of the following measures:
-Redesign the work task to reduce the amount of manual handling required, in particular the carrying work element. This could be easily achieved by designing and fabricating a trolley to transfer the containers between the plant and the utility vehicle, and between the utility vehicle and the laboratory. Had a trolley been used in the Plaintiff’s case, the risk of the container slipping from her grip while she was carrying would have been obviated.
-Redesigning the handles on the cylinder (the container) to provide better grip by increasing its diameter to approximately 30 to 50 mm, and by having a textured grip surface on the handle.
-Redesigning the handles so that they span over the centre of mass of the container when it was filled with samples. Although I have not undertaken a detail (sic) analysis to determine the location of the centre of mass of the container, it is highly probable that the handles had to be repositioned higher on the container to achieve this.
-Redesigning the valve handle on the container so that this handle could be locked in the closed setting when the container was being manually handled. This would eliminate the risk of the contents of the container escaping should the container be dropped when it was being manually handled between the plant and the laboratory.
-Providing the Plaintiff with more gloves, and clear instruction that gloves used for manual handling of the reactor sample containers must not be mixed with gloves used for sample preparation. These measures would have been minimised the risk of iron dust accumulation on the gloves worn by her when she was manually handling the reactor sample container."
In a subsequent report dated 24 September 2006 (Exhibit 11B), Dr Chew provided a design for a two‑wheel trolley which could be used to transfer the containers from the reactor to the utility and from the utility to the laboratory. He said that the cost of the trolley would be "in the low hundreds of dollars". He also said that the cost of redesigning the handles on the containers and replacing them with handles with a "more textured" grip surface would be "in the low hundreds of dollars" per container.
Under cross‑examination, Dr Chew said that the need for the plaintiff to carry each of the containers approximately 100 metres from the reactor to the utility (which he had said was his understanding of the distance the containers were carried during that part of the task) would have contributed to the plaintiff's fatigue. However, he conceded that the plaintiff's fatigue did not necessarily cause or contribute to the accident (T167).
Also under cross‑examination, Dr Chew repeated the view which he had expressed in his report dated 6 December 2005, that a work system which required the plaintiff to lift and carry a container 100 metres, from the reactor to the utility, and then 10 metres, from the utility to the laboratory, 30 times per shift, holding the container at all times 40 centimetres in front of the spine, was ergonomically unsound. As I have already observed, the plaintiff's evidence was that the distance which she carried the container from the reactor to the utility was, in fact, only 25 metres.
Dr Chew did not attempt to express a view as to what had caused the accident. He did not say that any of the deficiencies which he had identified and which made the system, in his opinion, ergonomically unsound, had caused or contributed to the accident in any way. Although he based his opinion on, inter alia, the number of times during a shift the plaintiff would be obliged to undertake the two tasks in relation to the containers, he did not know how many times she had performed those tasks on the night in question, prior to the accident.
Dr Chew was also cross‑examined about his suggestion that the containers be transported from the reactor to the utility and from the utility to the laboratory by means of a trolley, rather than manually. It was put to him that that would involve double handling by the technician and the risks of the technician losing his or her grip on the container would actually be increased. Dr Chew conceded that the trolley would involve double handling but said "the trade off is worth it" (T170).
I am not sure if that is right. Under the system which existed, the technician picked up the container at the reactor, carried it to the utility and placed it in the tray. When she arrived at the laboratory, she removed the container from the tray, carried it into the laboratory and placed it in the cooling bath. If a trolley were used, the technician would be required to lift the container from the reactor, place it on the trolley, wheel the trolley to the utility, lift the container from the trolley and place it in the tray. At the laboratory, she would be required to lift the container out of the tray, place it on the trolley, wheel the trolley to the cooling bath, lift the container from the trolley and place it in the cooling bath. The trolley would reduce the carrying but would significantly increase the lifting.
Dr Chew was also cross‑examined about the manner in which the plaintiff had held the container. It was put to him that, instead of holding the container straight out in front, with her left hand around the neck and her right hand holding one of the handles, she could have held it the same way, but at an angle of 45 degrees to the vertical. It was suggested that if the container were held in that way, it would be less likely to slip. Dr Chew agreed with that and also agreed that it was difficult to see how the hand on the neck, even if it slipped, would move past the circular flange above the pipework.
As I have mentioned, the expert called by the defendant in relation to these aspects of the matter was Ms Jennifer Miller. Ms Miller originally qualified as a physiotherapist but obtained a post graduate diploma in Health Science, majoring in ergonomics, in 1989, and a Masters degree in ergonomics in 1993. She has worked as an ergonomist since 1985 and began her own ergonomic consultancy, known as Ergonomica, in 1990.
On 25 and 26 September 2003, independently of these proceedings, Ms Miller was retained by the defendant to undertake an ergonomic assessment of the work performed in the laboratory at the Plant, focusing primarily on the manual handling requirements of sample collection and preparation. After having conducted that assessment, Ms Miller submitted to the defendant a report dated October 2003 (Exhibit 29).
In her assessment, Ms Miller considered all the handling requirements for sample collection and preparation and not only those relating to the manual handling of the containers. It is also apparent from the photographs in Ms Miller's report that the container being used in 2003 was somewhat different from the container which the plaintiff was carrying at the time of the accident. The 2003 model was significantly shorter (by about 70 millimetres) but weighed about the same as the 2001 model, both when empty (8.8 kilograms) and full (10.54 kilograms). The alteration in height was due largely to a reduction in the amount of pipework above the valve. That would probably have meant that a technician could not have carried a container in 2003 in the same way as the plaintiff had in 2001. In her report dated October 2003, Ms Miller said that the container was held by the valve handle whether full or empty, but that when it was lifted from the tray of the utility, it was held with two hands, with one hand holding the valve handle and the other a side handle.
Ms Miller's report did not address any perceived difficulties in lifting or carrying the containers. Her report was rather directed to suggesting alternatives to manual handling generally. Her recommendation was that:
"The (containers) could be emptied at the (reactor) by setting up a sea container or similar structure with the sample splitter and hole (or just a platform with a hole and shelf for a tray), and an extractor covered with an air hose (all of which was only previously provided in the laboratory). The (reactor) operators could put the (containers) in or near the 'mini‑lab', and (laboratory technicians) could collect the sample, clean the (containers) and leave them there, just returning to the (laboratory) with the sample."
In a later part of the report, she said:
"If the above recommendation for reducing the handling of (containers) is not feasible, we had a discussion … about mechanically lifting the (containers). I understand that there is discussion about installing a hiab (crane) on the back of the new (utility). A trolley would be designed to hold four (containers), the maximum number collected at any one time. The (containers) would be placed in compartments in the trolley by the (reactor) operators. With the (utility) parked next to the loaded trolley, the entire thing would be lifted with the (crane) into the back of the (utility). The (crane) would be used to unload the trolley at the (laboratory), and the trolley would then be pushed into the (laboratory).
…
In dealing with the risk from handling (containers), setting up a 'mini‑lab' may be more cost effective than using a (crane) with a specially designed trolley."
In December 2003 the defendant retained Ms Miller again, told her about the circumstances of the plaintiff's accident, and asked her for an opinion as to whether its system for handling the containers was safe. Ms Miller expressed her views in a report dated 3 December 2003 (Exhibit 28). It is important to note that, from the photographs in the report, Ms Miller was expressing views about the manual handling of the 2003 model of the container and not the container which the plaintiff had been carrying at the time of the accident. Nevertheless, she said:
"(Containers) are collected on two occasions over the twelve hour shift. I understand that between 3 and 8 (containers) are collected during a shift. During my assessment (in September 2003), only one (container) was collected.
…
9.Because of the distribution of weight of the (container), there is a tendency to tip if held upright with both hands on the side handles. The valve handle is the most balanced position to hold the (container). It was noted that the (container) was held by the valve handle whether full and (sic) empty. When lifted with two hands, such as placing it in the (utility) tray, the (container) is held by the side handle and the valve. I am informed that the instructions are to carry only one (container) at a time.
10.The distance from the (utility) into the laboratory would be approximately 5 metres. Carrying one (container) from the (utility) into the laboratory would take approximately 30 seconds.
11.OPINION. The (container) is a compact weight. Carrying one full (container) (weight 10.54 kg) in the manner described above over distances of 5 metres does not present a risk of injury. The number of (containers) handled per 12 hour shift is small (up to 8). The number of (containers) handled per shift would not present a risk of injury.
12.The method of holding the (container) by the valve allows for good grip. The side handle provides a good grip for the second hand when lifting the (container) into and taking it out of the (utility) tray.
13.There would be some risk of injury in grabbing a falling weight of 10.54 kg. Sudden or jerky movements in a flexed posture place the spine at risk of injury.
14.The consequence of not catching the falling (container) may have been a burn to the Plaintiff’s leg, depending on where her leg was in her stride.
...
16.I am unsure how the Plaintiff came to drop the (container) if she had been holding it by the valve. Overall I would conclude that the Defendant had a safe method of handling the (containers)."

After Dr Chew had given his report dated 6 December 2005, the defendant's solicitors retained Ms Miller again. They sent her, inter alia, a copy of Dr Chew's report and asked her for a further opinion. She gave her opinion in a report dated 13 January 2006 (Exhibit 24). In that report, Ms Miller said:
"I have been requested by the solicitors for the Defendant to provide an opinion on handling the (containers) at the (Plant). I understand that the Plaintiff injured her lower back on 8 June 2001 while trying to catch a (container) which had slipped out of her grasp while she was carrying it into the sample preparation room. She was working night shift, from 1800 hours to 0600 hours on 9 June. The incident took place at 0050 hours.
…
5. I am informed that on the night of 8 June 2001, only two of the four trains were running. These were Trains 2 and 3 whose collection times for the (containers) were 2300 hours for Train 2, and 0100 hours for Train 3. I understand that on that night, there were five (containers) collected in total, three from one train and two from the other. Given the time of the Plaintiff’s injury, she would have completed the collection from Train 2 only, collecting a maximum of 3 (containers).
…
7.The (container) in use at the time of my inspection in September 2003 is shown in the photographs below. It weighed 8.8 kg empty, and 10.54 kg with sample. The (container) was measured to be 510 mm high with a diameter at the bottom of 90 mm. Two handles are placed on the sides, each 140 mm long. The valve is located 380 mm above the bottom of the (container), and has a long valve handle which is horizontal when the valve is closed (that is, there is sample in the (container)) and vertical when open. (The container shown in the photographs below paragraph 7 were of the 2003 model of the container).
8.The (laboratory) personnel have stated that the (containers) are picked up by the valve handle, and carried in two hands, with the second hand on the side handle. I am informed that the instructions are to carry only one (container) at a time. Riggers gloves are worn while handling the (containers).
9.I understand that the type of (container) handled by the Plaintiff in June 2001 was an earlier model. On 11 January 2006 at the offices of the Defendant's solicitors, I inspected a (container) similar to the one shown in the photographs in (Dr Chew's) report.
…
10.It is similar to the (containers) seen in 2003 (the 2003 model) but is higher due to additional pipework above the valve (total height 580 mm). Above the valve, there is 90 mm of relatively smooth pipework separated from a threaded section above it by fluting jutting out approximately 15 mm … There is a square metal base which was not present in the newer (container). This empty (container) weighed 9 kg.
11.Photographs in (Dr Chew's report) demonstrate how the Plaintiff was holding the (container) on 8 June 2001. Photographs show the (container) held in a vertical position with the right hand around the pipework between the fluting and the valve and the left hand on one of the side handles. The report states that the (container) was held approximately 40 cm in front of the Plaintiff's spine.
12.The (container) was held by myself, and the photographs show my hand positioned with the right hand on the pipework above the valve, and the left on a side handle, similar to the Plaintiff's hand position.
13.The (container) was picked up with the right hand only and held vertically.
14.As it was raised, the left hand grasped one of the side handles. When weight is taken by the side handle, the (container) tends to rotate, with the pipework downwards. Thus the (container) is held at an angle. My right elbow automatically braced against my body. This shortened my lever arm, and reduces the effort required to hold the (container). In this position, the (container) is held approximately 40 cm from my spine.
15.OPINION. The (container) is a compact weight with a variety of points to grip the (container) with both hands. In the older (container) there are two side handles, and a 90 mm section of pipe work with a fluted section above. This wider section will rest on the side of the hand holding the pipe work, providing additional grip. The valve handle could also be used. The newer (container) can be grasped by the valve handle and the side handles.
16.The (container) weighs 10 – 11 kg and is held in both hands. This would be considered a safe weight to handle.
17.Carrying one full (container) (weight 10 – 11 kg) in both hands over distances of 5 – 10 metres does not present a risk of injury.
18.The Plaintiff only handled 3 – 5 (containers) on 8 June 2001. This number of (containers) (5) would not present a risk of injury to the Plaintiff.
19.The method of holding the (container) demonstrated by the Plaintiff's expert allows for good grip. I cannot explain why the (container) is held vertically, with the arms outstretched and not braced.
20.I am unsure how the Plaintiff came to drop the (container) when she had been holding it by the pipework and handle as demonstrated.
…
23.I conclude that the Defendant had a safe method of handling the (containers)."
In her reports, Ms Miller gave the impression that she had been informed by laboratory technicians at the Plant that they carried the 2003 model of the container in one hand, holding onto the valve handle. However, under cross‑examination, she said that she was actually told that laboratory technicians lifted and carried that model of the container in two hands: one holding the valve handle and the other holding one of the D‑shaped handles attached to the cylinder. She also said that none of the laboratory technicians lifted or carried the 2003 model of the container by the neck because there was insufficient pipework on that model to allow the container to be held in that way (T322).
Also under cross‑examination, Ms Miller demonstrated how she held the 2001 model of the container. She held it with one hand on the neck and the other on one of the lower handles, and at an angle of 45 degrees to the vertical. It was suggested to her that, in that position, the container would be very close to her thigh. However, she said that it was still a significant distance away and that, when she had originally held the container, in the office of the defendant's solicitors, the container, when held in that position, was 40 centimetres in front of her spine. That was the same distance as the container was from the person's spine when held vertically, as demonstrated by Dr Chew.
During her cross‑examination, I asked Ms Miller whether she believed there was a risk of the container slipping while it was being carried. She said (at T331):
"No. I didn’t consider there was a risk of the (container) slipping. I felt that they had – it was a compact weight, there were a lot of points where you could get a good grip on it … I considered that that actually covered the risks and that there should not have been a risk of the (container) actually slipping out of one's hand."
Also in her evidence, Ms Miller dealt with the question of whether a trolley should have been provided to transport the containers. She said (at T331 – 332):
"You couldn’t push a trolley out at the DRI plant (the reactor) because you have got gravel and dirt and things like that and it would be very difficult to get a trolley through that. So it would only be actually in – well it really would be at the lab side of things at the, sort of, drop off point, as it were. And the issue there is if you have got a fully laden trolley – say you have got a trolley that carries four of these (containers) – you would then have to have a crane on the back of your (utility) to get this loaded trolley off with the (containers) and onto the ground and then you could push it into the lab. But the distances are relatively small – 5, 10 metres at the most ---
Why would the trolley have to be loaded in the (utility)? --- Well, there wouldn’t be much point having a trolley if you didn’t – that’s if you are going to use the trolley at both ends. If it was just in the lab, you wouldn’t have the trolley loaded in the (utility), I agree. You would just have the trolley in the lab and they would pull into the lab, they would walk inside, get the trolley, pull it out and take the (containers) one at a time and push it into the lab. My concern with that is that you have now introduced basically double handling – because you have got to take them from the (utility) into the trolley and then from the trolley and then into the water bath – and you are also introducing manual handling where you are bending down and putting these things – well, not far above foot height, depending on how high the trolley was, but it would have to be quite low. So my concern is that you are introducing two manual handling hazards by just having the trolley at the lab."
She also said (at T333):
"… it's a question of balancing risks. I think the risk of actually double handling and bending down below what they call mid‑thigh height is actually going to raise your risk more than actually carrying them, and the maximum would be 10 metres they would be carrying them. Often if the (utility) was parked close to the door, it would mean 3 or 4 metres."

Medical evidence

The plaintiff called and adduced evidence from the doctors who had treated the plaintiff and from Dr Robert Warner, an occupational physician, who examined the plaintiff at the request of her solicitors to determine the level of her disability under the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the WC Act"). On the other hand, the defendant called evidence from doctors to whom it had referred the plaintiff for examination and opinion and from Dr Bowater, the general practitioner whom the plaintiff had consulted in Port Hedland in August and September 2000, and Dr Campbell, the BHP doctor whom the plaintiff had consulted on 4 July 2001.

Paul Elliott Bannan

I have already mentioned Mr Bannan. He is a consultant neurosurgeon. Dr Gillett referred the plaintiff to him in June 2002. In a report dated 11 June 2002 (Exhibit 9B), Mr Bannan said that, when he had first seen the plaintiff, she had been complaining of mechanical back pain and intermittent left S1 sciatica. When he examined her, he found that she was tender over the low lumbar back, axial loading was negative, simulated rotation was positive, straight leg raise was 90 degrees, reflexes were brisk and symmetrical and power and sensation were normal. He reviewed the MRI performed in July 2001 and January 2002 which showed two level disc degeneration at L4/5 and L5/S1 and considered that the plaintiff's pain was probably arising from both those discs. He said that he had asked Dr Finch, the pain management specialist, to help the plaintiff with her medication and to ascertain the source of her pain. He said that she might need surgery in the form of a fusion of her lumbar spine but said that he had told the plaintiff that that would only be done as a last resort.
Mr Bannan next saw the plaintiff on 23 August 2002, after she had undergone discography performed by Dr Finch. That confirmed that the plaintiff's pain was coming from L4/L5 and L5/S1. In a report dated 23 August 2002 (Exhibit 9C), Mr Bannan expressed the view that the plaintiff was a surgical candidate and that he would carry out a two level posterior lumbar interbody fusion with bone graft as soon as that could be arranged.
Mr Bannan performed the two level interbody fusion of the plaintiff's lumbar spine in early October 2002. In a report dated 25 October 2002 (Exhibit 9D), he said that, since the operation, her back pain had significantly improved. He had placed her in a lumbar corset which she was to wear intermittently for three months following the operation.
Mr Bannan referred the plaintiff back to Dr Gillett and suggested that he cause x‑rays to be taken of her lumbar spine at regular intervals over the following two years.
In a further report to Dr Gillett dated 5 November 2002 (Exhibit 9E), Mr Bannan expressed the view that the plaintiff should return to work gradually. He said that she should not return to any work which required repetitive heavy lifting and forward bending.
In a report to the plaintiff’s then solicitors dated 25 November 2002 (Exhibit 9F), Mr Bannan expressed the view that, as a result of the accident, the plaintiff had suffered a permanent reduction in the efficient use of the lumbar spine. He considered that her low back pain would gradually improve over the following twelve months.
On 4 February 2004, Mr Bannan reviewed the plaintiff at the request of her solicitors and issued a report of that date (Exhibit 9G). In that report, Mr Bannan expressed the opinion that, as a result of the accident, the plaintiff had suffered a permanent reduction in the efficient use of the lumbar spine. He considered that that had resulted from residual mechanical back pain with intermittent left L5 nerve pain.
Mr Bannan next reviewed the plaintiff, at the request of her solicitors, on 18 July 2006. In a report of that date (Exhibit 9H), he said that the plaintiff was complaining of ongoing lower back pain which was sited low down bilaterally at L5/S1, referred left buttock and posterior thigh pain. She had told him that she needed to take Panadol almost daily and Panadeine two or three times per week.
Mr Bannan said that he had arranged for the plaintiff to undergo a CT scan of the lumbar spine and a bone scan. He thought that she may need to be reviewed by a pain management specialist and may require injections in the lower back. He noted that she had already received some injections, administered by an anaesthetist in Bunbury.
In that report, Mr Bannan expressed the opinion that, as a result of the accident, the plaintiff had suffered a permanent reduction in the efficient use of the lumbar spine. He considered that she had a reduced capacity to return to unrestricted employment and that, if she did return to work, she would need to avoid any heavy lifting or repetitive forward bending and could not be expected to perform any manual work. He considered that she would require ongoing medication for her back pain.
Mr Bannan also indicated that if the plaintiff's back symptoms persisted or became worse, she may require investigation to see if there was a problem at the L3/4 level. He considered that she might require surgery to that level in the future and that it was possible that her future working life would be affected by those symptoms and the need for that surgery.
In his oral evidence at the trial, Mr Bannan expressed the view that when the plaintiff lost her grip on the container and attempted to "catch" it, there was probably a sudden flexion or twisting motion which caused her to tear one of the discs at L4/5 or L5/S1. Under cross‑examination, he was taken to the evidence of the plaintiff's various complaints of lower back pain prior to the accident and, in particular, to Dr Bowater's notes of his attendance on the plaintiff on 29 August 2000, which suggested that, at that time, Dr Bowater considered that the plaintiff may have suffered a lesion to her L5/S1 disc. However, Mr Bannan pointed out that, according to the notes of Dr Bowater's later examination of the plaintiff (on 5 September 2000), she had improved dramatically. He said that a disc tear did not resolve spontaneously within a four day period (which I took to mean the period between 29 August and 5 September 2000) and that, accordingly, he thought that her problem at that time was only sciatica, caused by general wear and tear of the discs, and not a lesion at L5/S1. Mr Bannan did however concede that, in his view, the plaintiff had significant two level degeneration prior to the accident (T153).
Also under cross‑examination, Mr Bannan said that he believed the plaintiff could undertake office work provided that she was able to get up and walk around from time to time. He would not express a view as to whether she would be able to work full‑time after a graduated return to work.

Philip Michael Finch

Dr Finch is a pain management specialist. Mr Bannan referred the plaintiff to Dr Finch in June 2002. Dr Finch performed a three level discography to ascertain the source of the plaintiff's pain. That indicated that most of the plaintiff's pain was coming from L4/5 with some pain also from L5/S1. It was on the basis of those results that Mr Bannan performed the lumbar fusion in early October 2002. Dr Finch did not see the plaintiff again until 20 July 2006.
When Dr Finch reviewed the plaintiff on that occasion, he found that she had a very limited range of lumbar flexion and extension. She could reach to about half way down her thighs with her fingertips in lumbar flexion. She suffered hyperaesthesia over the lateral aspect of the right thigh and calf and over the posterior thigh and right buttock. She was tender over the right L5/S1 facet joint and sacroiliac joint. Dr Finch was not entirely sure what was causing her lumbar pain. However, he did not think she was fit for work as a laboratory technician but thought that she might be fit for part‑time work which did not involve lifting heavy weights or working with her back in prolonged flexion or maintained postures.
When he gave oral evidence, Dr Finch was asked whether there was any evidence to suggest that the plaintiff had suffered a tear of her L4/5 disc on 8 June 2001. Dr Finch said that here was. He referred to a radiology report dated 12 July 2001, in which the tear to L4/5 was noted but it was said:
"Disc space narrowing is present with no Nodic Type I changes in the adjacent end plate."
Dr Finch said that there was a typographical error in that report in that "Nodic" should read "Modic". In addition, he said that he had reviewed the films and believed that there were Modic Type I changes at L4/5. He considered that his view in that regard was reinforced by a later radiology report dated 30 January 2002, in which it was said:
"At L4/5, there is disc degeneration with narrowing, desiccation and advanced reactive end plate change."
He said that that later radiology report indicated that something significant had happened to the L4/5 disc at the time of the first report to have caused the level of degeneration noted in the second report. That made him think that there had been a substantial tear of the disc at some time shortly prior to the films taken on 12 July 2001. That was consistent with the tear having occurred in the accident.
Dr Finch also expressed the view that the container was quite awkward and heavy and that if it was partly dropped, in the manner described by the plaintiff, a sudden movement of the spine in an attempt to "catch" it could lead to a tear of an already abnormal disc.
Under cross‑examination, Dr Finch said that the plaintiff had not told him when she saw him that she had had low back pain from time to time since she was 17 (T136). However, he said that he had taken only a limited history from her, for the purpose of diagnosis. He admitted that the evidence of the plaintiff's medical and hospital attendances prior to the accident indicated that she had a chronic low back problem which flared from time to time (T140). Notwithstanding that, x‑rays taken on 9 January 2001, before the accident, showed that the lumbar disc spaces were maintained. However, Dr Finch accepted that, at the time of the accident, the plaintiff's lumbar spine was vulnerable and that a very modest incident could have caused one of her lumbar discs to tear.

Robert James Warner

Dr Warner is an occupational physician. He first saw the plaintiff on 15 February 2005 for the purpose of examining her and expressing an opinion as to her percentage of overall disability for the purposes of the WC Act. In a report dated 17 February 2005 (Exhibit 12B), Dr Warner expressed the view that the plaintiff's disabilities were caused by a permanent loss of the full efficient use of her back, a permanent loss of the full efficient use of her neck and a permanent loss of sexual function (Exhibit 12B at p 6). Dr Warner also expressed the view that the plaintiff's permanent loss of the full efficient use of her back was entirely due to the accident.

Dr Finch was, in his evidence‑in‑chief, also taken to Dr Marsden's report dated 30 August 2006 (Exhibit 8B). Except for one very minor matter, he said that there was nothing in Dr Marsden's report which caused him to alter the views which he had previously expressed (presumably, that the accident had caused a tear in the plaintiff’s L4/5 disc) (T134). He maintained that view under cross‑examination, saying that the plaintiff's lumbar spine was obviously vulnerable at the time of the accident and that a lumbar disc in that condition could tear with the application of a very modest force (T140).
I have already mentioned that in his reports (Exhibits 12B and 12C), Dr Warner expressed the view that, inter alia, the plaintiff's back disability was caused by the accident. However, to be fair to him, he was retained for the purpose of assessing the plaintiff's percentage disability under the WC Act and, for that reason, did not deal in any great detail with the circumstances of the accident (except at one point, under cross‑examination, when he demonstrated how the accident could have caused injury to both the cervical and lumbar spines – T186). Essentially, he agreed with Mr Bannan (Exhibit 12C at p 8). He was not cross‑examined extensively about his view in that regard.
For the defendant, I have already outlined in some detail the evidence given by Dr Stevenson and Dr Marsden. Dr Stevenson expressed the very firm opinion that the forces in the accident were not sufficient to cause disc injury, as suggested by Mr Bannan and Dr Finch. He also said that there was no evidence that the accident had caused a significant alteration in the plaintiff's lumbar spine. He was barely cross‑examined about that (T408 – 411) and certainly did not resile from his opinion.
Dr Marsden did not, on the other hand, express a view as to whether the plaintiff had suffered a disc injury in the accident. He did refer to the accident as "singularly trivial" and "extremely trivial". However, that was not inconsistent with Dr Finch's evidence that if the discs were degenerate, they could be liable to tear even with the application of a very modest force.
In the end, this is a difficult issue to resolve. On one hand, there is the evidence of Mr Bannan, who did not have Dr Stevenson's views put to him, and Dr Finch, who did and disagreed with them. There are also my findings about what the plaintiff felt at the time and immediately after the accident. On the other hand, there are Dr Stevenson's views, unshaken in cross‑examination.
On balance, I prefer the evidence of Mr Bannan and Dr Finch to that of Dr Stevenson. Mr Bannan and Dr Finch treated the plaintiff and saw her at a time much closer to the accident than the only time she was seen by Dr Stevenson. In fact, when Dr Stevenson reviewed the plaintiff on 8 September 2004, he was investigating whether she had suffered a neck injury rather than a back injury. It was only in his report dated 1 September 2006, written after he had seen the evidence of the plaintiff's medical and hospital attendances prior to the accident, that Dr Stevenson expressed views specifically about the plaintiff's back injury.
I also accept the evidence of Dr Finch that the plaintiff's lumbar spine was vulnerable, that a very modest incident could have caused the L4/5 disc to tear and that the accident could have caused "radical" tears in the disc. I also rely upon my previous findings that the plaintiff felt "a big snap" in her low back at the time of the accident and immediately experienced pain in that area.
Accordingly, I find that, in the accident, the plaintiff sustained a tear of her L4/5 disc, which caused her subsequent pain.
The next question is whether the defendant has breached the implied term of its employment contract or its duty of care to provide the plaintiff with a safe system of work. To answer that question, I must first ask myself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff. If I decide that a reasonable man would have foreseen that his conduct involved such a risk, it is then for me to determine what a reasonable man would do by way of response to the risk. That 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: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48 per Mason CJ.
In my opinion, a reasonable man would have foreseen that there was a risk that the plaintiff might be injured in carrying the container from the utility to the laboratory. The issue then is whether the defendant's response to that risk was, in all the circumstances, reasonable. I will consider that in the context of the allegations of breach of duty made by the plaintiff.

Failure to instruct

The first allegation of breach of duty (both the contractual duty and the duty of care), which is made in par 9.1 of the statement of claim, is that the defendant failed to instruct the plaintiff as to a safe method of lifting and transferring the container. However, the allegation that the defendant failed to instruct the plaintiff as to a safe method of lifting the container is irrelevant to the issues to be determined. The accident did not occur while the plaintiff was lifting the container out of the utility or off the ground. The accident occurred while the plaintiff was carrying the container from the utility to the cooling bath in the laboratory. Therefore, I will confine myself to the questions of whether it was necessary for the defendant to instruct the plaintiff as to a safe method of carrying the container and, if so, whether the defendant failed to do so.
The plaintiff said that she had been told how to handle the containers (T 57‑58, 260). I infer from that that the plaintiff had been instructed by the defendant to carry the container in the manner she was on the night in question.
At the time of the accident the plaintiff was very experienced in carrying the containers from the reactor to the utility and from the utility into the laboratory. She had been doing that as part of her duties for approximately two years. For part of that time, she had been employed as the Acting Laboratory Co‑ordinator at the Plant, during which time she had been instructing others as to the same tasks that she was required to perform.
The plaintiff carried the container with her left hand around the neck and her right hand around one of the D‑shaped handles on the cylindrical part of the container. She held the container vertically and out in front of her, with the base at the bottom. The container was approximately 40 centimetres from her spine.
The method used by the plaintiff to carry the containers was the same as that used by Ms Sujud. However, it was different from the method used by Mr Zielkee, who carried the container in one hand, holding on to one of the D‑shaped handles. The plaintiff said that, from the time she started working at the Plant in 1999, she considered that the method used to transport the containers was unsafe. She did not really say why she thought that except to say that the containers were "slippery". I took her to mean by that that the surfaces where she held the containers, around the neck and on the handles, were smooth.
On the other hand, Ms Miller, both in her report dated 3 December 2003 and her report dated 13 January 2006, concluded that the method of handling the containers was safe.
In his evidence, Dr Chew did not actually say that the method of carrying the container was unsafe. What he said was that it was "unsound from the ergonomic perspective". He said that because the container had to be held a considerable distance in front of the body (40 centimetres). He said that that caused large reaction forces in the elbow, shoulder and lower spine, and increased the risk of injury to those body parts.
However, it was not the reaction forces in the elbow, should and lower spine which caused the plaintiff's injury. Her injury was caused by the container slipping from her hands and her attempting to recover her grip on it. That did not mean that the method she was using to carry the container was unsafe.
In addition, it was difficult to understand why the plaintiff found the need to carry the container vertically. As the container was bottom heavy, it naturally tilted to the side when picked up by the neck and one of the D‑shaped handles. That seemed a more natural and comfortable position than holding the container straight out in front, as the plaintiff described. That alternative position would also have reduced, at least to some extent, the forces on the lower hand around the handle and thus would have reduced the chance of that hand slipping.
I accept the evidence of Ms Miller and find that the method of handling the container was safe. Therefore, the defendant did not breach its duties to the plaintiff by failing to instruct her to carry the container in an alternative manner.

Failure to provide a trolley

The next allegation, made in par 9.2 of the statement of claim, is that the defendant breached its duties to the plaintiff because it failed to provide a trolley in which the plaintiff could transport the containers. This allegation appears to arise directly from Dr Chew's evidence that the task of transferring the containers from the reactor to the laboratory could be improved. He said that if a trolley were provided to carry the containers from the reactor to the utility and from the utility to the laboratory, the risk of the container slipping from the technician's grasp while he or she was carrying it would be obviated.
However, I am not sure if that is correct. As Ms Miller said, if the trolley were only to be used to transport the containers from the utility to the laboratory, that would involve double handling. The containers would have to be lifted out of the utility and placed onto the trolley, wheeled into the laboratory and then lifted from the trolley and placed in the cooling bath. That might actually increase the risk of the container slipping from the technician’s grasp.
When Ms Miller reviewed the manual handling requirements of the Plant between September and October 2003, she considered the possibility of using a trolley to transport the containers. However, as the trolley proposed would have been designed to carry four containers at once, it would have been too heavy for a person to lift into the utility. That meant that the utility would need to be fitted with a crane to lift the trolley and the containers into the utility and out again when the utility reached the laboratory. Ms Miller considered that that was not a cost effective means of handling the containers. Apart from that, and as I have found, the existing method of handling the containers was safe.
For those reasons, the defendant did not breach its duties to the plaintiff by failing to provide her with a trolley.

Failure to provide a helper

The plaintiff's next allegation in par 9.3 of the statement of claim, is that the defendant breached its duties to the plaintiff by failing to provide her with "a helper".
There was no evidence given, for either the plaintiff or the defendant, in relation to this aspect of the claim. It was not suggested by the plaintiff that she required another person to assist her in carrying the containers. The containers, when full, weighed 11 – 12 kilograms. The plaintiff said that she was quite capable of carrying an object of that weight and had done so, without incident, for two years (T266).
The failure by the defendant to provide the plaintiff with a person to help her carry the containers did not constitute a breach of the duties which the defendant owed to the plaintiff.

Failure to ensure that the container was of suitable size

In par 9.4 of the statement of claim, the plaintiff alleges that the defendant breached its duties to her by failing to ensure that the container was a suitable size that could be easily managed without slipping.
This was another allegation which was not really the subject of any evidence. It was suggested by some witnesses that the container was awkward and heavy but there was no investigation of whether the container could be reduced in size and still perform the function of collecting samples from the reactor for testing. There was evidence that the containers were screwed into the reactor for the purpose of collecting samples and were then screwed out when they were full. I presume that they were designed as part of the reactor and, if they were redesigned, it would have been necessary to ensure that they remained compatible with the reactor. However, I did not hear any evidence about that.
In her report, Ms Miller mentioned that the 2001 model of container, being that carried by the plaintiff, was different from a model which she examined during her investigations in September 2003. The 2003 model was somewhat smaller than the 2001 model. However, it was not suggested by the plaintiff that the task of carrying the container would have been any easier if the 2003 model had been introduced prior to the accident.
Accordingly, in my opinion, the plaintiff has not established that the defendant has breached either of its duties by failing to provide a container of "suitable size".

Failure to heed warnings

In par 9.5 of the statement of claim, the plaintiff alleges that the defendant breached its duties by failing to ensure that warnings and complaints by staff members were heeded and the system of transferring the containers was changed or modified to allow smaller containers which were easier to carry.
As I said in relation to the previous allegation, no evidence was adduced before me to the effect that the containers could have been reduced in size and, if they were, they would have been easier to carry. It seems that it was the fact that the containers were modified slightly, although there was no evidence whether the 2003 model was any easier to carry than the 2001 model. In any event, as I have found, the method used to carry the 2001 model of the container was safe.
The only evidence I heard about warnings and complaints by staff members was evidence by the plaintiff (T89). She said that her complaints were that the container was very slippery to hold and carry and that the sample collection points were not readily accessible. She did not say that she complained that the containers were too big and should be replaced with smaller models. In a later part of her evidence (T90), the plaintiff said that she requested a trolley to transport the containers.
Under cross‑examination, the plaintiff admitted that the defendant had a procedure to be followed by employees if they were complaining about dangers or hazards in the workplace. The procedure was that all complaints were to be put in writing and submitted to the safety representative. The plaintiff said that she had at one time been the safety representative herself but admitted that she had never lodged a written complaint about the containers being slippery or the need for a trolley to carry them (T270‑271).
In those circumstances, I am not prepared to accept that the plaintiff made any complaints, as she suggests. As an experienced laboratory technician and a one time safety representative for the laboratory, she was well aware of the procedure to be employed. I consider that if she had had a serious complaint, she would have put it in writing.
For those reasons, I do not consider that the defendant breached its duties to the plaintiff by failing to heed warnings or complaints by modifying the containers by making them smaller.

Failure to assess and implement alternative methods of carrying

In par 9.6 of the statement of claim, the plaintiff alleges that the defendant breached its duties by:
‑failing to ergonomically assess the suitability of transferring samples at temperatures in excess of 700 degrees in a metal container; and/or
‑failing to assess the specific risks associated with the manual handling of the containers, being:
‑their temperature;
‑their displaced centre of gravity; and/or
‑their weight; and/or
‑the use of leather gloves which became coated with metallic dust progressively throughout the shift; and
‑failing to consider, devise or implement alternative safer methods of transporting samples in the container, such as emptying the contents of the container at the reactor pick up site rather than at the laboratory.
The first two of those allegations appear to be simply allegations that the defendant failed to adequately assess the risks associated with its employees carrying the containers. I cannot see how those allegations can amount to a breach of the duties unless it is also said that there was a particular risk which could have been identified during such an assessment and the defendant failed to take steps to reduce that risk. However, in my opinion, mere failure to assess a risk cannot constitute a breach of duty.
The third allegation arises out of the recommendation made by Ms Miller in her report dated October 2003 (Exhibit 29). In that report, Ms Miller suggested that manual handling of the containers could be reduced by setting up a "mini lab" near the reactor, where the technicians could empty the samples from the containers, collect the samples, clean the containers and return to the laboratory with the sample only. However, the fact that Ms Miller made that recommendation did not mean that she considered that the existing method of handling the containers was unsafe. Indeed, in both her report dated 3 December 2003 (Exhibit 28) and 13 January 2006 (Exhibit 24), Ms Miller expressed the clear opinion that the defendant had a safe method of handling the containers.
Therefore, I consider that the defendant did not breach its duties to the plaintiff either by failing to assess the risk or by failing to implement the alternative method of dealing with the containers and the samples which they contained recommended by Ms Miller in her report dated October 2003.

Failure to provide sufficient time

In par 9.7 of the statement of claim, it is alleged that the defendant breached its duties to the plaintiff by failing to provide sufficient time for the samples to be collected safely.
The plaintiff said in her evidence that the laboratory was very busy and she was required to analyse samples and provide results within specified time frames. However, she did not suggest that that compromised safety in any way. Nor did Dr Chew or Ms Miller say that the system of work was deficient because the plaintiff was not given sufficient time to collect samples safely.
In those circumstances, the plaintiff has not established that the defendant breached its duties in that regard.

Failure to provide containers which were appropriately configured

In par 9.8 of the statement of claim, the plaintiff alleges that the defendant breached its duties by failing to ensure that the containers "had a grip" and handles appropriately positioned to enable the containers to be carried with one hand on each handle.
The evidence was that the two D‑shaped handles on either side of the cylindrical part of the container were not for carrying the container at all but were used to screw the container out of the reactor when it was full of fines. It just so happened that one of the handles could be used to carry the container whether the method of carrying was that employed by the plaintiff and Ms Sujud or the method employed by Mr Zielkee.
In his report dated 6 December 2005, Dr Chew expressed the opinion that the method of transferring the containers from the reactor to the laboratory could be improved by redesigning the handles on the container and positioning them higher on the container so that they spanned over the centre of the container's mass. He also considered that the method of transfer could be improved by increasing the diameter of the handles to approximately 30‑50 millimetres and fitting a textured grip surface on the handles.

It was apparent from Dr Chew's report that he did not realise that the handles were positioned on the container for the purpose of screwing the container out of the reactor rather than for the purpose of carrying the container. Quite clearly, any repositioning of the handles, such as that suggested by Dr Chew, would need to be considered from the point of view of its impact upon the ease with which the container could be removed from the reactor if the handles were repositioned.
Quite apart from that, however, that was only a suggestion by Dr Chew as to how the handling of the containers could be improved. He did not say the existing positioning of the handles on the container rendered it unsafe to carry.
Ms Miller, on the other hand, considered that the container was of compact weight with a variety of points to grip with both hands. She considered that the method employed by the plaintiff allowed for good grip and she could not understand how the plaintiff had come to lose her grip on the container. In her evidence, the plaintiff could not explain that either.
In those circumstances, I am not satisfied that there was any breach of duty by the defendant because of inadequate grip on the container or because the handles were inappropriately positioned.

Failure to provide gloves

When the containers were full of fines from the reactor, they were extremely hot. For that reason, the technicians always wore riggers' gloves whenever handling them. In par 9.9 of the statement of claim, the plaintiff alleges that the defendant breached its duties because it failed to ensure that the gloves issued to the plaintiff were not coated in metallic dust from repeated handling of samples.
The plaintiff gave evidence that, towards the end of a shift, the gloves which she wore were covered with a film or a coat of direct reduced iron (T273). Ms Sujud gave similar evidence. However, both the plaintiff and Ms Sujud also conceded that there was at all times a supply of new gloves in the laboratory and that the technicians could change their gloves whenever they wanted.
In my view, that was an appropriate response to the risk of the gloves becoming coated in direct reduced iron and slipping when they came into contact with the smooth surfaces of the container.
For those reasons, I do not consider that the defendant was in breach of its duties to the plaintiff by providing gloves which, during the course of a shift, became coated in direct reduced iron.

Conclusion on liability

In summary, therefore, it is my opinion that the defendant did not breach either its contractual duty or its duty of care to the plaintiff in any of the respects alleged. Accordingly, the defendant is not liable for the plaintiff’s claim.

Causation

In case I am later found to be wrong in the view which I have reached regarding the defendant’s liability, I will deal provisionally with the issue of causation.
If a plaintiff has established that a defendant has breached his duty of care (or, as in this case, has breached his contractual duty to provide a safe system of work) and the plaintiff has also established a prima facie causal connection between the breach and the injury, the defendant has an evidential burden to adduce evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed: Bennett v Minister of Community Welfare(1992) 176 CLR 408 at 412‑413. If there is evidence sufficient to displace the prima facie case, it remains for the plaintiff upon the whole of the evidence to satisfy the Tribunal of fact that the injury was caused by the defendant’s negligence: City of Stirling v Tremeer(2006) 32 WAR 155 at [95]; Amaca Pty Ltd v Hannell, (supra) at [395].
In this case, there was very little evidence to establish that any of the omissions, alleged to be breaches of the duties owed, caused or materially contributed to the accident and the injury suffered. For instance, there was no evidence that, at the time of the accident, iron fines had built up on the gloves being used by the plaintiff and that was what caused the container to slip from her grasp. However, even if it were considered that there was enough evidence to establish a prima facie case that the breach caused the injury, the defendant adduced evidence of the plaintiff's prior episodes of low back pain and evidence from Dr Stevenson which suggested both that any breaches of duty had no effect and that the plaintiff would have suffered the injury even if the duties had been performed. That satisfied the evidential burden. In those circumstances, it was for the plaintiff, on the whole of the evidence, to prove, on the balance of probabilities, that the defendant’s breaches of duties caused her injury.
In that regard, there was simply no evidence to establish that any of the alleged breaches of duty caused or materially contributed to the plaintiff's injury. The plaintiff said that the container had "just slipped" out of her hands. She could not say why that happened. As a result, it could not be established whether it happened as a result of any of the breaches of duty alleged.
Accordingly, even if I had found that the defendant had breached one or other of its duties to the plaintiff, I would not have found that that breach of duty or those breaches of duties caused or materially contributed to the back injury which the plaintiff suffered.

Damages

I will also provisionally assess the plaintiff's damages.
I have found that, as a result of the accident, the plaintiff suffered radical tears to the L4/5 disc which caused her to suffer persistent low back pain and resulted in her undergoing a two level interbody fusion performed by Mr Bannan in October 2002. Although that surgery relieved her back pain to a large extent, she still continued to experience some back pain after that time.
Following the accident, the plaintiff was off work for five days, but then returned to work on light duties. She was still working in the laboratory but was doing sample analysis and not sample preparation. She continued working on light duties for approximately 12 months but claimed that her back was very sore throughout that time. She said that it was also at about that time that she began to become very depressed.
After her back surgery, the plaintiff did not return to work with the defendant. However, as I have indicated above, she undertook a variety of light work with PNF Transport, the Uniting Church, Swan Personnel and the Roleystone District High School. She was occupied doing that work between the middle of 2003 and the end of 2005.
There is a divergence of medical opinion as to whether the plaintiff is capable of full‑time work. I deal with that when discussing her claim for loss of earning capacity.
I find that the plaintiff experienced low back pain in the period of 12 months following the accident but that it was not of great severity and allowed her to continue working full‑time in the laboratory, although doing only sample analysis not sample preparation. I also find that her back pain became worse towards the end of that 12 month period and that that was why Dr Gillett referred her to Mr Bannan, Dr Gee and Dr Finch.
I find that, following the surgery, the plaintiff's pain was greatly improved but still persisted to a much lesser degree.
Although the plaintiff says in her evidence that her back pain was greatly improved by the surgery, she also said that it had continued from then up until the time of trial. She said that her pain was usually at a level of 3 or 4 out of 10 but varied up to 6 and even as much as 8. She said that it was at the level of 6 out of 10 during the trial.
However, the examination findings made, in particular, by Dr Stevenson, Dr Marsden and Dr Adams, strongly suggest that the plaintiff's pain has not been as severe as she claims since the surgery. Nor does there seem to be any clinical basis for her pain. Rather, it seems to be associated with the distress and anxiety that she is experiencing in respect of these proceedings.
I am not prepared to accept that the plaintiff's back pain has been as bad since the surgery as she claims. However, I am prepared to make an allowance for some continuing modest back pain, both up to the trial and in the future.
I accept that the plaintiff has suffered from depression as a result of the accident and that, at one stage at least, it was bad enough to be characterised by both Dr Shannon and Dr Shub as a Major Depressive Disorder. On the evidence, the plaintiff has sought some treatment for that condition but certainly not to extent suggested by Mr Shub. I will make an allowance for that condition but on the basis that, with appropriate treatment, it could be overcome.
The plaintiff also said that, as a result of the accident, she has suffered loss of sexual function. That disability was not specifically pleaded but the plaintiff led evidence about it, without objection, and the defendant also led evidence in that regard from Dr Stevenson. Dr Adams was prepared to accept that, at least subjectively, and because of her depression, the plaintiff had suffered a reduction in her sexual function as a result of the accident. However, Dr Stevenson rejected it out of hand. He said that there was simply no clinical basis for it.
At the time of the accident, the plaintiff had been divorced from her second husband for three years but was in a relationship with another man. She said that, following the accident, her sexual relations with that person were reduced and she did not see him as much as she had done prior to the accident. That relationship ended in November 2001. However, in January 2002, only six months after the accident, the plaintiff began a relationship with a work colleague, Tom Lynch. She and Mr Lynch began living together at that time and were still living together at the time of the trial. The plaintiff said that Mr Lynch was very "understanding" but that their sexual relations were virtually non‑existent. However, Mr Lynch did not give evidence.
In the absence of any evidence from Mr Lynch, and having regard to the evidence of Dr Stevenson, which I accept, I am not prepared to find that the plaintiff has suffered any sexual dysfunction as a result of the accident.
However, for the injury which she suffered in the accident, the pain which she experienced prior to her surgery and, to a lesser degree continues to experience, the surgery itself, the loss of her chosen occupation and her reduced amenities generally, I would provisionally award the plaintiff general damages of $30,000.

Loss of earning capacity

In his report dated 18 July 2006, Mr Bannan said that the plaintiff had a reduced capacity to return to unrestricted employment because of her previous back surgery. However, in his oral evidence, he conceded that she could do office work although she might be limited in her sitting or standing tolerances. He said that she would need to be in a position where she could get up and walk around from time to time. He would not express a view as to whether the plaintiff could have a graduated return to the workforce and eventually work full‑time after a short period.
In his report dated 4 September 2006, Dr Finch expressed the view that the plaintiff might be fit for very light part‑time work which did not involve lifting of weights of more than 5 kilograms. He thought that she could work for only a few hours a day at the most (T126). Under cross‑examination, Dr Finch accepted that the plaintiff could work as a receptionist, but still only for one or two hours a day at the most. In his report dated 18 August 2006, Dr Warner expressed the view that the plaintiff had reduced capacity to return to full, unrestricted pre‑injury type employment. In oral evidence, he expressed the view that she was totally incapacitated (T179). Under cross‑examination, Dr Warner conceded that the plaintiff could work as a receptionist or a clerk provided that her duties were limited.
In his report dated 15 September 2004, Dr Stevenson expressed the view that, save for the issue of her psychiatric condition, the plaintiff was fit for work on a full‑time basis. He was not cross‑examined about that opinion but it was obviously based upon his view that the plaintiff had not suffered an injury in the accident in any event.
In his report dated 10 October 2005, Dr Marsden expressed the view that the plaintiff had a capacity to work where she could sit, stand and walk within her own reasonable time frame. He suggested reception duties and considered that if she could work for at least four hours per day initially and regain some sort of work fitness, she could ultimately work up to eight hours per day in the reception or administration area of an office. However, he also made it clear that he believed the plaintiff was unfit for industrial laboratory work (T358).
The plaintiff ceased working for the defendant on 8 July 2002. Between 8 July and 29 November 2002, the defendant paid the plaintiff gross workers' compensation totalling $22,388.60. That amount is recoverable as damages: Fox v Wood (1981) 148 CLR 438.
In relation to the period since 29 November 2002 and the future, I am not satisfied that the plaintiff has been or will be unemployable. The preponderance of medical evidence is that she has been and will continue to be able to undertake reception and administrative work in an office but will not be able to return to her pre‑accident occupation as a laboratory technician. However, the evidence also suggests that she may not be able to work full‑time.
The plaintiff put in evidence copies of her taxation returns and notices of assessment for the years 2001‑2005 inclusive (Exhibit 1). They show that her income during those years was as follows:

Year	Gross	Tax	Net
2001	$62,942	$16,963	$45,979
2002	$60,327	$15,734	$44,593
2003	$47,433	$10,610	$36,828
2004	$14,344	$1,418	$12,926
2005	$48,519	$10,728	$37,791

That would tend to suggest that, between 29 November 2002, when she ceased receiving workers' compensation, and 30 June 2005, the plaintiff made a net loss of approximately $16,000 per annum. However, if she had worked throughout that time as a receptionist or office assistant, even on reduced hours, I expect that she would have been able to earn more than she did between 29 November 2002 and 30 June 2005. However, neither the plaintiff nor the defendant adduced any evidence of what the plaintiff could have earned in that period or in the period from 1 July 2005 to trial in either a full‑time or part‑time capacity as a receptionist or an office assistant.
I consider that the plaintiff has suffered and will in the future suffer a loss of earning capacity, but, in the absence of any evidence as to what she could earn and could have earned as a receptionist or office assistant, I am unable to calculate precisely what that loss might be. Doing the best I can, I would provisionally award a global amount of $50,000 for both past and future loss of earning capacity.

Gratuitous Services

The plaintiff said that after she had undergone the double fusion of her lumbar spine she was not able to do any housework, which was done by two of her children, who were then aged 16 and 9. She said that they were engaged in doing that work for between one and three hours per day. She did between one and three hours per day following her surgery. She also said that, at the time of the trial, her partner was doing the housework for a period of approximately 10 hours per week. She said that she paid for gardening to be done at the rate of $25 per week because her partner no longer did the gardening.
However, in my opinion, the services provided by the plaintiff's children and by her partner were an incident of the family relationship between them and were provided not only for the plaintiff's benefit but also for the benefit of those providing the services. Accordingly, I would have made no allowance in any assessment of damages for the value of those services: Newman v Nugent(1992) 12 WAR 119.

Special Damages

The plaintiff has admitted into evidence a statement from the Health Insurance Commission (Exhibit 17) which detailed a variety of medical expenses which the plaintiff incurred. In her evidence, the plaintiff identified medical expenses relating to her accident totalling $1,772.30. I would make a provisional allowance for that amount.

Summary

Therefore, my provisional award of damages totals $109,160.90 comprised as follows:

General damages:	$35,000.00
Gross workers' compensation payments:	$22,388.60
Loss of earning capacity:	$50,000.00
Special damages:	$1,772.30
TOTAL:	$109,160.90

However, for the reasons given earlier, the plaintiff's claim will be dismissed.