Clarke v BHP Billiton Direct Reduced Iron Pty Ltd

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CLARKE -v- BHP BILLITON DIRECT REDUCED IRON PTY LTD [2009] WASCA 134

CORAM: PULLIN JA
BUSS JA
NEWNES JA

HEARD: 22 MAY 2009

DELIVERED : 6 AUGUST 2009

FILE NO/S: CACV 46 of 2008

BETWEEN: CECILIA MARIA CLARKE
Appellant
AND
BHP BILLITON DIRECT REDUCED IRON PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER LEY
Citation  :CLARKE -v- BHP BILLITON DIRECT REDUCED IRON PTY LTD [2008] WADC 51
File No  :CIV 1598 of 2003

Catchwords:

Negligence - Personal injury in workplace - Whether breach of duty by employer - Whether causation established in any event - Whether provisional assessment of damages erroneous - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B L Nugawela & Mr G Math
Respondent: Mr D R Clyne

Solicitors:

Appellant: Friedman Lurie Singh & D'Angelo
Respondent: Mallesons Stephen Jaques

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

Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Chelini v Northern Territory Port Authority (1976) 12 ALR 519
Clark v Kramer [1986] WAR 54
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Newman v Nugent (1992) 12 WAR 119
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

PULLIN JA: I agree with Buss JA's identification of the issues in relation to ground 1. For the reasons given by Buss JA, I agree that ground 1 should be dismissed and that in consequence, the appeal should be dismissed. I also agree that it is inappropriate to deal with ground 2.
As to ground 3, I agree with Buss JA, save in relation to his conclusion in relation to past and future loss of earning capacity. I do not detect any error in the commissioner's assessment in respect of that head of damage.
BUSS JA: On 8 June 2001, at about 1.00 am, the appellant was injured in an accident which occurred in the course of her employment as a laboratory technician with the respondent at the respondent's Boodarie Direct Reduced Iron Plant (the Plant) at South Hedland.
The appellant commenced proceedings against the respondent in the District Court for damages. She alleged her injuries were caused by the respondent's negligence, further or alternatively, breach of contract.
The action was tried before Commissioner Ley. His Honour dismissed the appellant's claim. He held that the respondent did not breach its duty to her in tort or contract as alleged. Also, he held that even if the appellant had established one or more breaches of duty, he would not have found that any breach caused or materially contributed to her injuries. He made a provisional assessment of damages.
The appellant appeals to this court against the learned Commissioner's decision on liability. She also appeals against the amount of his Honour's provisional assessment of damages.

The appellant's employment before the accident

The appellant was born on 5 June 1960 in El Salvador. In 1980 she moved to the United States, returning to El Salvador in 1984 before emigrating to Australia in 1989.
Soon after arriving in Australia, the appellant undertook several courses in applied science and laboratory work. She obtained employment on a regular basis as a laboratory technician.
In 1999, the appellant commenced work with the respondent as a laboratory technician in its laboratory at the Plant. She was a laboratory technician between February and June 1999, and the acting laboratory coordinator between July 1999 and July 2000. At all material times after

July 2000 (including at the time of the accident), she was working as a laboratory technician in the laboratory at the Plant.

The Plant

The Plant converted iron ore fines (comprising about 67% iron) into granules (comprising about 90% iron). The granules were then compressed into briquettes. Each briquette weighed about half a kilogram.
The Plant consisted of four production lines or 'trains'. Each train comprised an ore dryer, a gas plant, four reactors and a briquette plant.
The Plant operated continuously, and employees worked in two 12 hour shifts, between 1999 and September 2004, when a gas explosion killed one of the respondent's employees and seriously injured two others. After the explosion, the Plant was shut down and placed on a care and maintenance basis. Eventually, in September 2005, the respondent closed the Plant permanently.

The circumstances of the appellant's accident

When the accident occurred, the appellant was working on nightshift. This shift commenced at 6.00 pm and continued until 6.00 am the following day. On the day before the accident, the appellant arrived for work at about 5.30 pm. After completing a handover with members of the dayshift, the appellant, relevantly, collected briquette samples from near the briquetting plant. These briquettes were in buckets. She placed the buckets in the back of a utility motor vehicle.
The appellant then drove the utility to the reactor building for the purpose of collecting reactor samples. These were of iron ore fines which had been processed by the reactor. The samples were in containers. These containers had been screwed into the reactor. Samples were collected in the containers during the reactor process. The containers were then unscrewed from the reactor by employees working in the reactor building, and left for collection by the laboratory technicians.
When the fines were in the reactor they were subjected to intense heat and pressure. Upon the containers being unscrewed from the reactor, the fines they contained were often at temperatures between 750° Celsius and 800° Celsius. As a result, the containers were extremely hot.
The learned Commissioner described the containers, as follows:
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 [18].
Early in the morning on 8 June 2001, the appellant collected a number of containers, each containing fines, from near the reactor building. She picked up the containers, one at a time, carried them to the utility, and laid them down, next to each other, in the tray of the vehicle.
The appellant used thick riggers' gloves when she handled the containers. The respondent made available the gloves for this purpose. They were stored in the laboratory. It was essential to use gloves for protection from the extreme heat of the containers.
After the appellant loaded the containers into the tray of the utility on the morning in question, she drove to other parts of the Plant and collected ore dryer, gas and water samples. She then drove the utility to the laboratory.
When the appellant arrived at the laboratory she began unloading the briquette samples. She lifted the buckets out of the tray and carried them a distance of about 10 m to the laboratory. The appellant then processed the samples in the laboratory.
On completion of this task, the appellant returned to the utility to remove the containers and bring them into the laboratory. She was still wearing the riggers' gloves. The appellant's practice was to grasp the neck of the container with her left hand and grasp one of the handles with her right. She would then lift the container from the tray and carry it a distance of about 10 m to a cooling bath in the laboratory. She would hold the container in front of her to prevent it coming into contact with any other part of her body.
The appellant gave evidence that, on the morning in question, as she was carrying the first of the containers from the utility to the laboratory, and when she was 'only a step or two' from the cooling bath, she lost her grip on the container. The learned Commissioner set out the appellant's description of the event in her examination‑in‑chief (ts 80), 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 (26).
The appellant said in cross‑examination:
(a)The container 'just slipped' (ts 261).
(b)When she endeavoured to recover her grip on the container, she felt a 'big snap' in her lower back (ts 213).
(c)When she felt the 'big snap', she placed the container on the ground. At about that time, a fellow employee in her vicinity saw that she was in difficulty. The fellow employee assisted her to the supervisor's office. At that stage, she felt a 'very hot pain' in her lower back (ts 214).

The final version of the appellant's statement of claim

In the final version of her statement of claim, the appellant pleaded she was employed under a written contract with the respondent. It contained an implied term that, in effect, the respondent would provide her with a safe system of work. She also pleaded the respondent owed her a duty of care to, in effect, provide her with a safe system of work.
The appellant alleged the respondent breached the implied term, further or alternatively, its duty of care, in these respects:
9.1Failed to instruct the Plaintiff as to a safe method of lifting and transferring the container.
9.2Failed to provide a trolley in which the Plaintiff could transport the containers.
9.3Failed to provide assistance to the Plaintiff by making available a helper.
9.4Failed to ensure that the container was a suitable size that it could be easily managed without slipping thereby putting the Plaintiff at risk of injury.
9.5Failed 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.
9.6.1Failed to ergonomically assess the suitability of transferring samples at temperatures in excess of 700 degrees in a metal container.
9.6.2Further or alternatively, failed to assess the specific risks associated with the manual handling of the containers, these being:
(a)their temperature; and/or
(b)displaced centre of gravity; and/or
(c)their weight (with and without sample); and/or
(d)the use of leather gloves which became coated with metallic dust progressively throughout the working shift.
9.6.3Failed 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.
9.7Failed to provide sufficient time for the samples to be collected safely.
9.8Failed to ensure that the containers, which were hot and top heavy, had a grip and handles appropriately positioned to enable the containers to be carried with one hand on each handle on either side, in that the grip and handles were positioned too low down to enable this to occur.
9.9Failed to ensure that the protective leather gloves issued to the Plaintiff were not coated in metallic dust from repeated handling of samples, which dust had gathered as a metallic film on the gloves thereby adding to the inherent slipperiness of the container.
The appellant also alleged that, as a result of the accident, she suffered:
11.1.1Trauma to the lumbar spine involving:
Aggravation and/or acceleration of degenerative changes to the L4/5 and L5/S1.
11.1.2Pain and discomfort to the left and right legs arising from referred pain from the lumbar spine.
11.1.3Permanent loss of efficient use of the lumbar spine 20%.
11.1.4Depression.

The final version of the respondent's defence

In the final version of its defence, the respondent did not admit the alleged implied term of the contract of employment, but did admit it owed the appellant the pleaded duty of care. However, it denied it had been negligent, and did not admit the appellant had suffered the alleged injuries as a result of the accident.
In addition, the respondent alleged the accident was caused wholly or in part by the appellant's own negligence. Further, the respondent pleaded that if, which it did not admit, the appellant had suffered injuries, loss and damage as alleged or at all:
(a)The plaintiff suffered from significant pre‑existing lumbar spine pathology and symptoms prior to the alleged 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, and 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 alleged accident and had been prescribed anti‑depressant medication.
(f)The depressive injury, loss and damage allegedly caused by the accident was caused or contributed to by previous events.
(g)The depressive injury, loss and damage allegedly caused by the accident would have been suffered in any event.

The learned Commissioner's findings and reasons on liability: general

The learned Commissioner found that, at about 1.00 am on 8 June 2001, the appellant was carrying the container from the utility to the laboratory. She was holding the container in front of her, with her left hand around the neck of the container and her right hand holding one of the two D-shaped handles which were on either side of the cylindrical part of the container. The appellant lost her grip on either the neck or the handle of the container or both. She endeavoured immediately to recover her grip to prevent the container falling to the floor of the laboratory. As she did that, she heard a 'big snap' in her lower back. She felt pain immediately in that area. She succeeded, however, in preventing the container falling to the floor. After the accident, the appellant continued to experience pain in her lower back and sought and received medical assistance for it [184].
Medical evidence was given at the trial in relation to the appellant's injuries by, amongst others, Mr Paul Bannan (a consultant neurosurgeon), Dr Philip Finch (a pain management specialist) and Dr Peter Stevenson (a consultant physician). The learned Commissioner summarised their evidence, relevantly, as follows:
When Mr Bannan first reported the plaintiff's condition, to Dr Gillett on 11 June 2002 (Exhibit 9B), he said that the plaintiff had 'a history of mechanical back pain and intermittent left S1 sciatica'. He said that MRI performed in July 2001 and January 2002 had shown disc degeneration at L4/5 and L5/S1 and that he thought that the plaintiff's pain was arising from her degenerate discs. He did not mention the accident at all.
In fact, in none of the reports which he issued did Mr Bannan actually say that the plaintiff's back pain was caused by the accident. In his report to Dr Gillett dated 23 August 2002 (Exhibit 9C), in which he said for the first time that he thought the plaintiff was a candidate for surgery, he merely observed:
'… it is now 15 months following her accident.'
In his reports to the plaintiff's solicitors dated 25 November 2002 (Exhibit 9F), 4 February 2004 (Exhibit 9G) and 18 July 2006 (Exhibit 9H), Mr Bannan assessed the plaintiff's percentage of disability for the purposes of the WC Act. In those reports, he assumed the disability was caused by the accident, without saying so.
However, in his oral evidence, Mr Bannan expressed the clear opinion that, at the time of the accident, the plaintiff had pre-existing degeneration at L4/5 and L5/S1 and, with the sudden flexion or twisting of her back in attempting to recover her grip on the container, she had torn one of those discs (T 149, 151). It was not put to Mr Bannan in cross-examination, as Dr Stevenson later said in his evidence, that the MRI performed in July 2001 and January 2002 showed only degenerative disease and no major catastrophic discogenic injury (Exhibit 7A at p 7).
Like Mr Bannan, Dr Finch in his reports assumed that the accident had caused the plaintiff to suffer a low back injury, without saying that it had. However, he was much more definite in his oral evidence. He said that when he performed the three level discography, he diagnosed the L4/5 disc to be degenerate with a posterior and an anterior tear (T125). He considered that the plaintiff had suffered an annular tear on top of pre‑existing degeneration (T127).
In his evidence-in-chief, Dr Finch was taken to Dr Stevenson's report dated 1 September 2006 (Exhibit 7B) and to Dr Stevenson's comment that the combination of forces required to injure a disc were not present in the accident. Although he did not specifically agree or disagree with that proposition, Dr Finch said that Dr Stevenson's comments applied to normal discs, whereas the plaintiff's discs, at the time of the accident, were abnormal (T128). He referred to the rapid rate of degenerative change apparent on the radiological evidence between 12 July 2001 and 30 January 2002. He considered that indicated that there had been cracks or 'radical tears' in the discs at the time the earlier x-rays were taken (T130).
Dr Finch also disagreed with Dr Stevenson's view that the weight of the container (which Dr Stevenson thought was 15 ‑ 20 kilograms but was actually 11 ‑ 12 kilograms) was insufficient to cause chronic damage. Dr Finch said that the container was heavy and awkward and could easily have caused a sudden movement of the spine which led to a tear of the disc (T132).
Understandably, there was also a considerable divergence of opinion between Dr Stevenson and Dr Finch as to the usefulness of discography. That is not an issue I am able to determine in these proceedings. Discography obviously has its limitations, but remains a valid tool in certain clinical situations.
Dr Finch also disagreed with Dr Stevenson's opinion that the radiological changes shown on the plaintiff's MRI scans were within the range found in patients without symptoms. He considered the changes such as those shown were usually associated with symptoms. Dr Finch doubted that Dr Stevenson could express the view that there was no evidence of significant injury to the lumbar spine without the benefit of MRI prior to the accident. However, Dr Stevenson was saying that, even on MRI performed after the accident, he could see no evidence of lumbar disc injury.
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 [186] ‑ [198].

The learned Commissioner preferred the evidence of Mr Bannan and Dr Finch to that of Dr Stevenson [200]. Also, his Honour accepted the evidence of Dr Finch that the appellant's lumbar spine was vulnerable, that a very modest incident could have caused the F4/5 disc to tear, and that the accident could have caused 'radical' tears in the disc [201]. Accordingly, he found that in the accident the appellant sustained a tear of her L4/5 disc, which caused her subsequent pain [202].
The learned Commissioner held that a reasonable person would have foreseen there was a risk that the appellant might be injured in carrying the container from the utility to the laboratory. The issue then was whether the respondent's response to that risk was, in the circumstances, reasonable [204]. His Honour proceeded to consider that issue in the context of the allegations of negligence set out in the final version of the statement of claim.

The learned Commissioner's findings and reasons on liability: failure to instruct

In par 9.1 of the statement of claim, the appellant alleged the respondent breached its duties by failing to instruct her as to a safe method of lifting and transferring the container.
The learned Commissioner held that this allegation was irrelevant to the issues he had to determine. The accident did not occur while the appellant was lifting the container from the tray of the utility or from the ground. Rather, the accident occurred while she was carrying the container from the utility to the cooling bath in the laboratory. The learned Commissioner therefore confined his attention to whether it was necessary for the respondent to instruct the appellant as to a safe method of carrying the container and, if so, whether the respondent failed to do so [205].
The learned Commissioner noted the appellant's evidence to the effect that she had been told how to handle the containers (ts 57 ‑ 58, 260). His Honour inferred from this evidence that she had been instructed by the respondent to carry the container in the manner she was carrying it on the night in question [206].
The learned Commissioner referred to evidence from the appellant and from two experts, Ms Jennifer Miller (a physiotherapist and ergonomist) and Dr Steven Chew (a mechanical engineer and an ergonomist) in relation to whether the appellant's method of handling the containers was safe:
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 [209] ‑ [211].
His Honour then found:
However, it was not the reaction forces in the elbow, should [sic] 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 [212] ‑ [213].
The learned Commissioner accepted Ms Miller's evidence and found that the appellant's method of handling the containers was safe. On this basis, his Honour reasoned that the respondent did not breach its duty to the appellant by failing to instruct her to carry the container differently [214].

The learned Commissioner's findings and reasons on liability: failure to provide a trolley

In par 9.2 of the statement of claim, the appellant alleged the respondent breached its duties by failing to provide a trolley in which the appellant could transport the containers.
The learned Commissioner noted Dr Chew's evidence that if the respondent had provided a trolley to enable the appellant to carry the containers from the reactor to the utility and from the utility to the laboratory, the risk of a container slipping from her grasp while carrying it would have been obviated [215].
His Honour did not accept Dr Chew's evidence in this respect. He preferred Ms Miller's evidence. His reasons were these:
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 [216] ‑ [217].
The learned Commissioner concluded that the respondent did not breach its duties by failing to provide the appellant with a trolley [218].

The learned Commissioner's findings and reasons on liability: failure to provide a helper

In par 9.3 of the statement of claim, the appellant alleged the respondent breached its duties by failing to provide assistance to her by making available a helper.
No evidence was given in relation to this aspect of the appellant's claim. The appellant said in cross‑examination that she was quite capable, at the material time, of carrying an object weighing up to 20 kg and that she had carried the containers (which, when full, weighed 11 kg ‑ 12 kg), hundreds of times without ever dropping one (ts 266).
The learned Commissioner concluded that the respondent's failure to provide the appellant with a person to help her carry the containers did not constitute a breach of its duties [221].

The learned Commissioner's findings and reasons on liability: failure to ensure that the container was of a suitable size

In par 9.4 of the statement of claim, the appellant alleged the respondent breached its duties by failing to ensure that the container was of a suitable size so that it could be easily managed without slipping.
At the trial, some witnesses suggested the container was awkward and heavy. There was no evidence, however, of any investigation having been undertaken as to whether the containers could be reduced in size and still perform the function of collecting samples from the reactor. As there was evidence the container screwed into the pipe‑work of the reactor, the learned Commissioner presumed, although there was no evidence on the point, they were designed as part of the reactor and, if they were redesigned, it would have been necessary to ensure they remained compatible with the reactor [223].
The learned Commissioner noted that Ms Miller, in her report, mentioned that the 2001 model of the container, which was the model carried by the appellant on the night in question, was different from a model which she examined in September 2003 [224]. This 2003 model was smaller than the 2001 model. It was not suggested, however, by the appellant that carrying the container would have been any easier if the 2003 model had been used before the accident.
The learned Commissioner concluded that the appellant had not established the respondent had breached its duties by failing to provide a container of 'a suitable size' [225].

The learned Commissioner's findings and reasons on liability: failure to heed warnings

In par 9.5 of the statement of claim, the appellant alleged the respondent 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.
The learned Commissioner reiterated that no evidence had been adduced to the effect that the containers could have been reduced in size and, if they had been, they would have been easier to carry. His Honour also reiterated his earlier finding that the method used by the appellant to carry the 2001 model of the container was safe [227].
The learned Commissioner noted that the only evidence at the trial about warnings and complaints by staff members came from the appellant [228]. His Honour recorded the substance of her evidence on this point, as follows:
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) [228] ‑ [229].
The learned Commissioner was not prepared, in the circumstances, to accept the appellant's evidence that she made complaints. The appellant was an experienced laboratory technician, for a period she had been the safety representative of the laboratory, and she was well aware of the procedure to be used. His Honour was of the view that if she had had a serious complaint, she would have put it in writing [230].
The learned Commissioner concluded that the respondent did not breach its duties to the appellant by failing to heed warnings or complaints by staff members or by failing to modify the containers to reduce their size [231].

The learned Commissioner's findings and reasons on liability: failure to assess and implement alternative methods of carrying

In par 9.6 of the statement of claim, the appellant alleged the respondent breached its duties by:
(i)failing to assess ergonomically the suitability of transferring samples at temperatures in excess of 700° Celsius in a metal container; and/or
(ii)failing to assess the specific risks associated with the manual handling of the containers, being:
(a)their temperature; and/or
(b)their displaced centre of gravity; and/or
(c)their weight; and/or
(d)the use of leather gloves which became coated with metallic dust progressively throughout a shift; and
(iii)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.
As to the first and second allegations, the learned Commissioner noted they appeared, in substance, to assert the respondent had failed adequately to assess the risks associated with its employees carrying the containers. His Honour was of the view that mere failure to assess a risk could not constitute a breach of duty. Rather, it was necessary also to allege and prove there was a particular risk which could have been identified in the course of the assessment and the respondent had failed to take reasonable steps to reduce that risk [233].
The learned Commissioner noted the third allegation arose out of a recommendation made by Ms Miller in her report dated October 2003 (exhibit 29). His Honour then said:
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 [234].
The learned Commissioner concluded that the respondent did not breach its duties either by failing to assess the risk or by failing to implement the alternative method of dealing with the containers and the samples as recommended by Ms Miller in her report dated October 2003 [235].

The learned Commissioner's findings and reasons on liability: failure to provide sufficient time

In par 9.7 of the statement of claim, the appellant alleged the respondent breached its duties by failing to provide sufficient time for the samples to be collected safely.
The learned Commissioner referred to the appellant's evidence that the laboratory was very busy and she was required to analyse samples and provide results within specified periods. She did not, however, suggest this requirement compromised safety. Further, the learned Commissioner noted neither Dr Chew nor Ms Miller said the system of work was deficient in that the appellant was not provided with sufficient time to collect the samples safely [237].
The learned Commissioner concluded that the appellant had not established the respondent had breached its duties as alleged [238].

The learned Commissioner's findings and reasons on liability: failure to provide containers which were appropriately configured

In par 9.8 of the statement of claim, the appellant alleged the respondent breached its duties by failing to ensure the containers 'had a grip' and handles 'appropriately positioned' to enable them to be carried with one hand on each handle.
The learned Commissioner summarised the relevant evidence, as follows:
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 [240] ‑ [244].
The learned Commissioner was not satisfied that there was any breach of duty by the respondent because of an inadequate grip on the containers or because the handles were inappropriately positioned [245].

The learned Commissioner's findings and reasons on liability: failure to provide gloves

In par 9.9 of the statement of claim, the appellant alleged the respondent breached its duties by failing to ensure the gloves provided to the appellant were not coated in metallic dust from repeated handling of samples.
The appellant said in evidence that, towards the end of a shift, the gloves she wore were covered with a film or coat of direct reduced iron (ts 73). A fellow employee, Ms Sylvia Sujud gave evidence to similar effect (ts 304). However, both of them conceded there were, at all material times, a supply of new gloves in the laboratory and the technicians were able to change their gloves at any time.
The learned Commissioner was of the view that the availability of new gloves in the laboratory was an appropriate response by the respondent to the risk of gloves becoming coated in direct reduced iron and, as a result, slipping when they came into contact with the smooth surfaces of the containers [248].
The learned Commissioner therefore concluded that the respondent was not in breach of its duties by providing gloves which, during the course of a shift, became coated in direct reduced iron [249].

The learned Commissioner's conclusion on liability

The learned Commissioner decided that the respondent did not breach its duties in any of the respects alleged by the appellant in her statement of claim [250]. He therefore dismissed the appellant's claim.

Causation

Notwithstanding his conclusion that the respondent did not breach its duties to the appellant, the learned Commissioner gave consideration to the issue of causation. His Honour analysed this issue as follows:
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 [253] ‑ [254].

The learned Commissioner concluded that even if he had found the respondent had breached one or more of its duties, he would not have found the particular breach or breaches caused or materially contributed to the injuries which the appellant suffered in the accident [255].

Damages

As I have mentioned, the learned Commissioner made a provisional assessment of damages.
The learned Commissioner made a number of findings in the course of considering general damages:
(a)As a result of the accident, the appellant suffered radical tears to the L4/5 disc which caused her to suffer low back pain and resulted in her undergoing a two level interbody fusion performed by Mr Bannan in October 2002. Although the surgery relieved her back pain to a large extent, she still continued to experience some back pain [257].
(b)The appellant suffered low back pain in the 12‑month period following the accident, but it was not of great severity and allowed her to continue working full‑time in the laboratory, although doing only sample analysis and not sample preparation. Her back pain became worse towards the end of that 12-month period. Following the surgery, her pain was greatly improved and persisted to a much lesser degree [261] ‑ [262].
(c)The appellant's back pain has not been as severe since the surgery as she claims. Nevertheless, his Honour was prepared to make an allowance for some 'continuing modest back pain', both before and after the trial [265].
(d)The appellant suffered from depression as a result of the accident and, at least at one time, it was severe enough to be classified by two psychiatrists, Dr Peter Shannon and Dr Daniel Shub as a major depressive disorder. His Honour made an allowance for the condition but on the basis it could be overcome with appropriate treatment [266].
(e)The appellant claimed that, as a result of the accident, she suffered loss of sexual function. Dr Stephen Adams, a general medical practitioner with a special interest in sexual health, accepted that, at least subjectively and in consequence of her depression, the appellant had suffered a reduction in her sexual function as a result of the accident. However, Dr Stevenson rejected the appellant's claim. He said there was no clinical basis for it. His Honour noted that in January 2002, only six months after the accident, the appellant commenced a relationship with a work colleague, Mr Tom Lynch. They commenced living together at that time and were still living together at the time of the trial. According to the appellant, Mr Lynch was very 'understanding', but their sexual relations were virtually non‑existent. Mr Lynch did not give evidence. His Honour accepted Dr Stevenson's evidence. On the basis of that evidence, and in the absence of any evidence from Mr Lynch, he was not willing to find the appellant had suffered any sexual dysfunction as a result of the accident [267] ‑ [269].
The learned Commissioner provisionally awarded the appellant general damages of $30,000 [270].

Damages: loss of earning capacity

The appellant stopped working for the respondent in July 2002. Between 8 July 2002 and 29 November 2002, the respondent paid the appellant workers' compensation payments in a total gross amount of $22,388.60. The learned Commissioner allowed that amount as damages. See Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.
As to the period after 29 November 2002 (both before and after trial), the learned Commissioner was not satisfied the appellant had been or will be unemployable. He found she had been and will 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. Also, she may not be able to work full‑time [276].
The learned Commissioner was satisfied the appellant had suffered a loss of earning capacity, but in the absence of any evidence as to what she could have earned before trial and what she could earn after trial as a receptionist or office assistant, he was unable to calculate her loss of earning capacity with any precision. In the circumstances, he provisionally awarded a global amount of $50,000 for past and future loss of earning capacity [279].

Damages: gratuitous services

The appellant gave evidence that after she had undergone the double fusion of her lumbar spine, she was unable to perform any housework. This work was undertaken by two of her children, who were then aged 9 and 16 years. The appellant also said that, at the time of her trial, her partner, Mr Lynch, was doing the housework for about 10 hours per week. She also said she paid for gardening to be done at the rate of $25 per week, and this appears to have been as a result of her partner doing the housework instead of the gardening.
The learned Commissioner rejected the appellant's claim for gratuitous services. He said the services provided by her children and her partner were 'an incident of the family relationship between them' [281]. The services were provided not only for the appellant's benefit, but also for the benefit of those providing the services [281].

Damages: special damages

The learned Commissioner made a provisional allowance of $1,772.30 for medical expenses incurred by the appellant as a result of the accident [282].

Damages: summary

The learned Commissioner's provisional award of damages totalled $109,160.90, as follows:

General damages:

$35,000.00 [sic]

Gross workers' compensation payments:

$22,388.60

Loss of earning capacity:

$50,000.00

Special damages:

$1,772.30

TOTAL:

$109,160.90 [sic]

Before this court, counsel for the parties accepted, correctly in my view, that the learned Commissioner's reasons at [283] contained a typographical error in relation to the amount of general damages ($35,000 rather than $30,000) and that the total of $109,160.90 at [283] was, in consequence, overstated by $5,000.

The relevant principles of appellate review

Section 79(1) of the District Court of Western Australia Act 1969 (WA) provides, relevantly, that a party to an action or matter who is dissatisfied with a final judgment may appeal from that judgment to the Court of Appeal. By s 79(3), the Court of Appeal has jurisdiction to hear and determine the appeal accordingly.
The nature of the rehearing before this court is as described by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118:
The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits [22].
The requirements and limitations of a rehearing of the kind which occurs before this court were described by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458. His Honour said:
The form of rehearing so provided 'shapes the requirements, and limitations, of such an appeal'. The relevant 'requirements' are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing … inferences and conclusions'.
The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole [16] ‑ [17] (footnotes omitted).
It is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination on the one hand, and the reasoning of a trial judge which is based on inferences drawn from facts that were undisputed or found by the trial judge on the other. See Fox v Percy [88]. As Kirby J observed in CSR:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it' [21] ‑ [22] (footnotes omitted).
Normally, therefore, a trial judge's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the trial judge's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [23]. In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23]. (footnotes omitted).

The grounds of appeal

There are three grounds of appeal. They are prolix and argumentative. The person responsible for their drafting has obscured rather than defined the issues genuinely in dispute. It is preferable to deal with the grounds by reference to the issues which emerged at the hearing of the appeal as a result of the court's questioning of counsel for the appellant. Ground 1 relates to breach of duty, ground 2 to causation and ground 3 to damages. I will deal separately with each ground by reference to the issues which counsel for the appellant accepted, in the course of oral argument, were relied on.

Ground 1: breach of duty: the issues in the appeal

As I have noted, the learned Commissioner dealt separately with each allegation in par 9 of the statement of claim that the respondent had breached its duties to the appellant.
At the hearing of the appeal, the appellant's counsel informed the court that the appellant did not challenge the learned Commissioner's findings and conclusions in relation to the following allegations:
(a)par 9.3: failure to provide a helper;
(b)par 9.4: failure to ensure the container was of a suitable size so it could be easily managed without slipping;
(c)par 9.5: failure to ensure 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; and
(d)par 9.7: failure to provide the appellant with sufficient time for the samples to be collected safely.
The appellant's challenge to the learned Commissioner's findings and conclusions was confined to these allegations:
(a)par 9.1: failure to instruct the appellant as to a safe method of lifting and transferring the container;
(b)par 9.2: failure to provide a trolley in which the appellant could transport the containers;
(c)par 9.6: failure to assess ergonomically the suitability of transferring samples at temperatures in excess of 700° Celsius in a metal container; and/or failure to assess the specific risks associated with the manual handling of the containers; and/or failure to consider, devise or implement alternative safer methods of transporting samples in the container, such as emptying the contents of the container at the pick up point (the reactor), rather than at the laboratory;
(d)par 9.8: failure to ensure the containers 'had a grip' and handles 'appropriately positioned' to enable the containers to be carried with one hand on each handle; and
(e)par 9.9: failure to ensure the gloves issued to the appellant were not coated in metallic dust from repeated handling of samples.

Ground 1: breach of duty: par 9.1 of the statement of claim

Counsel for the appellant challenged the learned Commissioner's acceptance of Ms Miller's evidence and his finding that the appellant's method of handling the containers was safe and, therefore, the respondent did not breach its duties by failing to instruct the appellant to carry the container in an alternative manner [214].
Counsel for the appellant made these submissions:
(a)Counsel referred to the learned Commissioner's observations at [213] that:
(i)it was difficult to understand why the appellant found it necessary to carry the container vertically;
(ii)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;
(iii)that appeared to be a more natural and comfortable position than holding the container straight out in front, as the appellant described;
(iv)the 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.
According to counsel, his Honour, by these observations, accepted that the method chosen by the appellant (namely, holding the container vertically and away from her body) involved a higher risk of slipping occurring.
(b)His Honour overlooked the fact that the appellant had been taught by her supervisor to carry the container in the manner she did and that she received no other contrary instruction.
(c)His Honour also overlooked the evidence of the appellant that if she had held the container at an angle and closer to her body, she would have been likely to have burned herself.
(d)The container was extremely hot and, as a result, had to be carried away from and forward of the appellant's body, with her elbows away from the side of her torso.
The appellant gave evidence relating to the allegations of negligence in the statement of claim (including par 9.1), relevantly, as follows:
(a)Ordinarily, she collected between one and five containers every two hours during a shift (ts 55).
(b)She would carry the containers with her left hand clasped around the neck of the container just beneath the circular flange. Her right (and dominant) hand would be clasped around one of the D‑shaped handles at the base of the container. She wore riggers' gloves which were made from leather. She would hold the container in a vertical position in front of her. Her hands would not be 'quite fully extended', they would be slightly bent at the elbow, and each elbow would not be close to the side of her body (ts 58, 261).
(c)The accident was the first time the container had slipped while she was carrying it (ts 81).
(d)Before the accident, she had tried different ways of carrying the container (ts 81 ‑ 82).
(e)Before the accident, she noticed 'the unsafeness of the [containers] due to heat ‑ it was very slippery to hold it and carry it. Sample collection points very awkward' (ts 89).
(f)She had been taught 'how to do manual handling' (ts 57 ‑ 58, 260).
(g)When asked, in cross‑examination, how the container slipped from her grasp on the morning in question, the appellant said:
The gloves used to get really covered in DRI [direct reduced iron] (ts 261).
A little later, she said:
It gets very slippery when you put metal to metal (ts 261).
(h)The appellant then gave this evidence in relation to gloves:
How old were the gloves you had on?---I don't ‑ I can't remember that.
There was a shelf that had gloves on under the?---Yes.
Under the bench?---That's right.
There was a tray there with new gloves?---Yes.
And there was a cupboard with new gloves - a store cupboard?---Yes.
You could have gloves whenever you wanted?---Yes.
So if your gloves got slippery, you could change them?---Yes.
You said they got slippery - when you first spoke to Mr Nugawela, I understood you to say the gloves got slippery at the end of a shift?---No, actually the gloves used to get covered in DRI very soon after you started working with your DRI samples (ts 261 ‑ 262).
(i)It is possible that on the night of the accident she had done only one pick up of containers before she was injured (ts 265).
(j)Before the accident she had carried containers from the utility to the laboratory hundreds of times and had never dropped a container (ts 266).
(k)There was nothing wrong with her grip normally (ts 266).
(l)When the accident occurred the container 'just slipped from [her] hand' (ts 266).
(m)Before the accident she was accustomed to lifting weights and she could easily lift up to 20 kg (ts 266).
(n)Before the accident, she knew 'how to lift property [sic] and that sort of thing' (ts 268).
(o)Although the containers were 'a little awkward', they were not too heavy for her (ts 269).
(p)Slipperiness in relation to the containers was 'always an issue' and, according to the appellant, she had passed on complaints by others (she mentioned Julie Black) about slipperiness to her supervisor (ts 271).
(q)She was instructed to hold the containers vertically (ts 461 ‑ 462).

The learned Commissioner reviewed in detail Dr Chew's written reports dated 6 December 2005 and 24 September 2006, and his oral evidence. It is convenient to reproduce his Honour's review:
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 [73] ‑ [89].
The learned Commissioner also reviewed in detail Ms Miller's written reports dated October 2003, 3 December 2003 and 13 January 2006, and her oral evidence. Again, it is convenient to reproduce his Honour's review:
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' [91] ‑ [101].

It is unnecessary for this court to consider ground 3. I will, however, for completeness, express my opinion on whether the appellant has made out any material error in the learned Commissioner's provisional assessment of damages.
As to particulars (a), (b) and (d) of ground 3, the learned Commissioner made a detailed review of the medical evidence [102] ‑ [177].
His Honour made these findings in relation to the pain experienced by the appellant before and after the surgery:
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 [261] ‑ [265].
The evidence of Dr Stevenson (ts 396 ‑ 398 and exhibits 7A and 7B), Dr Marsden (ts 344 ‑ 347 and exhibits 8A and 8B) and Dr Adams (ts 205 and exhibit 13B) supported the learned Commissioner's finding that the appellant's pain had not been as severe as she claimed since the surgery [264]. It was reasonably open to his Honour to make this finding by accepting the evidence of Dr Stevenson, Dr Marsden and Dr Adams on the issue in preference to other medical evidence and the appellant's evidence.
The learned Commissioner's finding at [264] that there does not seem to be 'any clinical basis for her pain' since the surgery is, on my reading of the relevant passage, a statement that, on the evidence of Dr Stevenson, Dr Marsden and Dr Adams, her clinical condition was inconsistent with pain of the degree she alleged. His Honour was not asserting that there was no evidence at all which suggested a clinical basis for the appellant's pain.
There is no merit in particulars (a), (b) and (d) of ground 3.
As to particular (c) of ground 3, the learned Commissioner's delay in delivering judgment (about 17 months after the trial) was inordinate and unacceptable. However, the delay does not appear to have affected adversely the cogency or reliability of his Honour's reasons. His findings at [261] ‑ [265] relied, at least in part, on a negative assessment of the appellant's credibility. However, that assessment does not appear to have been based to any material extent upon demeanour. The adverse finding was based primarily on the inconsistency between the appellant's professed pain after the surgery on the one hand, and the opinions of the Dr Stevenson, Dr Marsden and Dr Adams (whose evidence his Honour accepted) as to the appellant's clinical state after the surgery on the other. In the circumstances, his Honour's reasons on this point were adequate.
There is no merit in particular (c) of ground 3.
As to particular (e) of ground 3, there was evidence to support the learned Commissioner making an allowance for the appellant's depression 'on the basis that, with appropriate treatment, it could be overcome' [266].
In his report dated 15 April 2004, Dr Shub said, in relation to the appellant's prognosis:
What is your prognosis?
Generally speaking the prognosis for Major Depressive Disorder is good, with approximately 70% of those suffering from such a condition achieving remission with the optimally proven combination of pharmacotherapy, and psychotherapy.
However, in depressive disorders which are secondary to physical symptoms (as in the [appellant's] case), the prognosis tends to be more guarded.
Essentially, this is because the prognosis of her psychological condition is intimately associated with the efficacy of those treatments applied to reduce her physical symptoms.
To that extent, her psychiatric prognosis is closely associated with her physical state, and response to treatment.
Positive prognostic factors in the [appellant's] case involve my impression of her resilience, the fact that she has been actively considering alternative employment options, and the fact that she has only recently been prescribed antidepressant medication.
I feel that with adequate psychiatric management she should further improve, and ultimately return to the workforce.
Do you consider the condition:
a.should improve into the future? Specifically, do you consider the condition should improve or resolve upon the worker being redeployed into an alternative role? Or
b.is permanent, in the sense of likely to remain at its present level for the foreseeable future?
I do believe that the [appellant's] psychiatric state will improve into the future. She has not yet received adequate psychiatric management, and I will be making recommendations regarding this area in my response to question eight.
I also believe that further improvement will occur once she has been redeployed into an alternative working role.
I do not believe that she will be able to work in her prior position ‑ postion [sic] as it involved a degree of lifting.
However, she indicated that she was highly motivated to work in some other capacity ‑ which I feel will facilitate her general psychological recovery.
I do not believe that her Mood Disorder will be permanent (GAB 161 ‑ 162).
In his report dated 12 March 2005, Dr Shub made this assessment of the appellant's psychological difficulties:
It is my view that her chronic pain state, associated with significant limitation of movement, has been driving her psychiatric morbidity (Major Depressive Disorder).
Her psychological difficulties have been exacerbated by the fact that she has not been adequately psychiatrically managed.
I have outlined above my views regarding her management, specifically involving the skilful combination of pharmacotherapy and psychotherapy.
It is my view that she requires referral to an experienced psychiatrist in order to adequately manage her state.
My response to those questions posed in your letter of 22 February 2005 is as follows:
1.Has the worker's undertaking of a number of jobs facilitated the general improvement in the psychological recovery and will any such recovery continue upon the undertaking of further work?
It is my view that her undertaking the jobs described above are reflective of her resilient personality and her attempts to rehabilitate herself via a return to the work force.
The only way in which she will adequately recover is to be provided with appropriate psychiatric care, as described above.
I should state that she is keen to return to the work force but needs to have a significant symptomatic improvement prior to this eventuating.
2.To what extent have the factors above in b and c prevented or restricted improvement in the worker's psychiatric condition?
I believe that these points, namely that she has not been taking any antidepressant medication, as well as not having any formal psychiatric treatment, are highly relevant in restricting her recovery.
That is to say, it is my view that she definitely requires adequate psychiatric care, involving the combination of antidepressant medication and appropriate psychotherapy.
3.Do you consider it reasonable that the worker seek a referral to a psychiatrist to provide and/or oversee appropriate and manageable medication and psychological treatment, as outlined in your initial report?
I feel it is essential that the [appellant] be referred to an experienced psychiatrist in order to provide appropriate psychiatric management, involving the combination of pharmacotherapy and psychotherapy.
4.If the worker does receive such appropriate psychiatric management, do you remain of the view that her condition should, on the balance of probabilities, continue to improve and, consequently, not be permanent.
It is my view that significant improvement with respect to her psychological symptoms should occur with appropriate psychiatric management, as described above.
However, the ultimate prognosis will depend upon her physical state, that is to say, her chronic pain with associated limitation of movement.
It is my view that her Major Depressive Disorder is essentially secondary to her musculo‑skeletal symptomatology and, therefore, the efficacy of those treatments applied to relieve her physical state will be reflective in her psychiatric prognosis.
Given all of the above, it is still my current view that she is not likely to sustain a permanent psychiatric disability (GAB 167 ‑ 169).
In his report dated 13 September 2006, Dr Shub expressed concern regarding the appellant's prognosis, given that it had been more than five years since the accident, and she still continued to experience 'significant psychological morbidity' (GAB 181). He said her ultimate psychiatric prognosis would be closely linked with the efficacy of those treatments applied to minimise her musculo‑skeletal symptoms. However, Dr Shub believed that her psychiatric state would improve with appropriate psychiatric management (GAB 181). Adequate psychiatric care involved a combination of pharmacotherapy and psychotherapy (GAB 182).
Dr Shub said, in his oral evidence, that the prognosis was generally good for the appellant's major depressive disorder (ts 290). He remained of the view that she could improve or recover from her psychiatric condition (ts 290).
Dr Shub acknowledged, however, in cross‑examination, that, leaving psychotherapy to one side, new psychiatric drugs which had become available did not 'guarantee a complete cure' (ts 300).
In my opinion, it was reasonably open to the learned Commissioner to conclude that, with appropriate treatment (that is, with ongoing pharmacotherapy and psychotherapy, which the appellant was not then undergoing) her psychiatric condition could be 'overcome' [266]. By 'overcome', I understand his Honour to mean put into remission on a long term basis or indefinitely. See, in relation to remission, Dr Shub's evidence at ts 290.
There is no merit in particular (e) of ground 3.
As to particular (f) of ground 3, the learned Commissioner made these findings in relation to the appellant's allegation that, as a result of the accident, she had suffered loss of sexual function:
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 [267] ‑ [269].
The learned Commissioner did not decide against the appellant on the issue of sexual dysfunction on the basis that Dr Stevenson's evidence was 'conclusive'. His Honour said, critically, that 'in the absence' of any evidence from Mr Lynch (the appellant's current partner) and 'having regard to' Dr Stevenson's evidence, he was not prepared to find that the appellant had suffered any sexual dysfunction as a result of the accident [269]. In other words, the evidence adduced at the trial was not sufficiently cogent or persuasive to satisfy him of the existence of any relevant sexual dysfunction. In my opinion, that conclusion was reasonably open on the evidence. His Honour was entitled to base his lack of satisfaction, in part, on the unexplained failure of the appellant to adduce corroborating evidence from Mr Lynch, with whom she had been in a relationship since January 2002 (that is, for more than 4 1/2 years at the time of the trial).
Particular (f) of ground 3 is without merit.
As to particulars (g) and (h) of ground 3, the learned Commissioner made these findings as to the appellant's future capacity for employment:
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 [276].
Counsel for the appellant challenged his Honour's finding that the appellant had been and will continue to be able to undertake reception and administrative work in an office on a part‑time basis. Counsel argued that his Honour should have found that the appellant had no retained earning capacity and was 'realistically unemployable'. It was argued his Honour's findings were against the weight of the evidence.
In my opinion, the learned Commissioner's findings were reasonably open to him and they were not against the weight of the evidence. Indeed, there was some evidence to the effect that the appellant may have a greater future earning capacity. For example:
(a)Dr Stevenson was of the opinion that, at least physically (that is, setting aside the issue of psychiatric illness), the appellant could work full‑time (ts 398);
(b)Dr Marsden was of the opinion that the appellant could work full‑time in reception duties or as an administrative assistant (after having worked part‑time for about a month) (ts 349 ‑ 350) with an understanding and sympathetic employer (ts 360 ‑ 361); and
(c)Mr Bannan gave evidence that:
[S]he could do office work. She may be limited in her sitting or standing tolerances but she should be able to do office work (ts 154).
I have already referred to Dr Shub's prognosis in relation to the appellant's psychiatric condition. See [167] ‑ [171] above.
Further, the learned Commissioner was entitled to make the findings he did in relation to the diminution in her future earning capacity as a result of the accident, in part, on the basis of his finding that an alleged injury to the appellant's neck was not caused by the accident. His Honour's findings on this point were as follows:
In recounting the medical evidence, I have made mention of an alleged injury to the plaintiff's neck. It seems that before these proceedings were instituted, the plaintiff alleged that, in addition to the injury to her back which she suffered in the accident, she also suffered an injury to her neck. That was why some of the doctors, and Dr Warner and Dr Stevenson in particular, expressed opinions as to whether the plaintiff had suffered a neck injury in the accident. Dr Warner was of the view that she did, whereas Dr Stevenson was of the view that she did not.
However, whichever view was correct, the fact of the neck injury was not alleged in the statement of claim. At one point in the trial, the plaintiff sought to give evidence that she had injured her neck in the accident. The defendant objected and the plaintiff then sought leave to amend the statement of claim to allege the neck injury. That application was opposed and the plaintiff eventually abandoned it.
The defendant, however, in cross-examination, attempted to elicit evidence that the plaintiff did have a neck injury and it was that and not her back injury which had caused her disability and incapacity for work, if any. The plaintiff objected to that evidence being given but was content for me to rule on its admissibility in these reasons. In my opinion, the evidence was admissible. In the first instance, the plaintiff bore the onus of proving prima facie that her disabilities and incapacity were caused by the back injury. At that stage, the defendant was entitled to adduce evidence which suggested that that was not the case.
However, I accept the evidence of Dr Stevenson and find that the plaintiff did not suffer a neck injury in the accident [174] ‑ [177].
In my opinion, the learned Commissioner did not err in failing to find that the appellant had no retained earning capacity or in failing to find that she was realistically unemployable.
The learned Commissioner made these findings as to the appellant's past loss of earning capacity:
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 [277] ‑ [278].
I am not persuaded that these findings were not open to his Honour on the evidence.
The learned Commissioner made a provisional award in a global amount of $50,000 for past and future loss of earning capacity. He said:
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 [279].

In the circumstances, the learned Commissioner was entitled to make a provisional award of a global amount. Where earning capacity has undoubtedly been reduced but its extent is difficult to assess (for example, because there is no evidence or no precise evidence of relevant earning rates), the court, doing the best it can, may properly assess damages in a global amount. See Chelini v Northern Territory Port Authority (1976) 12 ALR 519, 519 ‑ 520; State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 [72] ‑ [78], [87].
The learned Commissioner was not bound to have invited the parties to make further submissions on the issue and he was not entitled independently to make his own enquiries and investigations. The relevant evidence should have been tendered by the appellant.
In my opinion, however, the provisional award of a global amount of $50,000 for past and future loss of earning capacity was sufficiently disproportionate to:
(a)the nature and extent of the appellant's physical and psychiatric condition and her prognosis, as found by the learned Commissioner;
(b)the constraints on the appellant's earning capacity inherent in his Honour's finding that she would be able to undertake administrative work in an office only on a part‑time basis; and
(c)the appellant's age at the date of the accident (she was only 41 and had, potentially, about 20 years future full‑time employment as a laboratory assistant),
as to require this court's intervention.
Significantly, the learned Commissioner found that the appellant will not be able to return to her pre‑accident occupation as a laboratory technician [276]. This was a skilled occupation in which she had substantial experience. It involved a substantial loss of capacity. At the time of the accident her salary was about $68,250 per annum (GAB 4).
In the circumstances, a provisional award in a global amount of $150,000 for past and future loss of earning capacity would more appropriately reflect the nature and extent of the appellant's loss, after taking into account the vulnerability of the appellant's lumbar spine before the accident and the risk this condition posed to her earning capacity in any event.
As to particular (i) of ground 3, the appellant contends that the learned Commissioner's award of $30,000 for general damages was 'so inordinately low, having regard to matters mentioned in Particulars 3(a) ‑ (e) above and the evidence generally', as to warrant intervention by this court.
I have decided, for the reasons given, that particulars (a) ‑ (e) of ground 3 are without merit.
This court cannot interfere with an award of general damages unless it is satisfied that the amount in question is outside the range of a sound discretionary assessment. See Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33 [42]. A court should not, in determining whether an award of general damages is manifestly excessive or inadequate, seek out and measure it against a normal standard from the decided cases. See Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 124. The court endeavours to ensure, however, that the award is proportionate to the injury suffered by the particular plaintiff and the disability occasioned by his or her injuries, based on contemporary notions of fairness and moderation which are revealed by the decided cases generally. See Planet Fisheries (125); Clark v Kramer [1986] WAR 54, 60; Aerospace Engineering Services [39].
I am not persuaded, on the basis of the matters set out in particular (i) of ground 3, that the learned Commissioner's provisional award of general damages was inordinately low.
As to particular (j) of ground 3, the learned Commissioner dismissed the appellant's claim for damages for past and future gratuitous services. His reasons were:
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 [280] ‑ [281].
The applicable legal principles are set out in Newman v Nugent (1992) 12 WAR 119. In that case the respondent was injured in a motor vehicle accident. She sued the appellant and, after a trial, was awarded damages in an amount which included $20,000 plus interest for past gratuitous services and $60,000 for future gratuitous services. On appeal by the appellant against the amounts awarded for past and future gratuitous services, Franklyn J said:
As I understand the law, any compensation payable to the respondent in respect of gratuitous services must be compensation for her 'incapacity to look after herself as demonstrated by the need for' (emphasis added) the services provided for her: see Griffiths v Kerkemeyer (1977) 139 CLR 161 at 192, Mason J. The incapacity to look after herself must arise out of the injuries sustained as a result of the appellant's wrong doing. The compensable loss is the existence of the need for those services: Donnelly v Joyce [1974] QB 454, Megaw LJ (at 462) adopted by Stephen J in Griffiths v Kerkemeyer (at 173) when he said:
'"The critical point is his Lordships' affirmation that when a plaintiff, as a result of his accident‑caused injuries, becomes in need of goods or services, that need is itself a loss suffered by him, for which he may recover damages against the defendant." It is then, his Lordship said, irrelevant to his entitlement to those damages that the need has been satisfied by the gratuitous supply to him of the needed goods or services.'
That that is the proper principle has now been put beyond doubt by the recent High Court decision Van Gervan v Fenton (1992) 175 CLR 327. In that case the court upheld and favoured the approach of Stephen and Mason JJ in Griffiths v Kerkemeyer and the adoption of the principles stated in Donnelly v Joyce over that taken by Gibbs CJ in Griffiths v Kerkemeyer (122).
Ipp J (Pidgeon J agreeing) said:
The true basis of [a claim for loss of gratuitous services] is the need of the claimant for the services provided for him or her. The claim is not compensation for loss of amenities: see Van Gervan v Fenton (1992) 175 CLR 327.
As Mason J remarked in Griffiths v Kerkemeyer (1977) 139 CLR 161 at 192:
'The respondent's relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services and this loss is to be quantified by reference to the value or cost of providing those services.'
The same point, in effect was made by Stephen J when he said (at 178) that the right to claim for gratuitous services:
' … is concerned not with what outlays of money the plaintiff will in fact incur as a consequence of his injuries but with the objective monetary "value" of his loss.'
It is apparent from these remarks that the loss is constituted by the diminution of the claimant's capacity to look after herself, usually by being unable to provide nursing or household services for her own needs. In the words of Gaudron J in Van Gervan v Fenton: 'The real loss for which damages are awarded is the loss which gives rise for the need for care or services.'
The loss resulting from the need for care and services is to be calculated by reference to the objective value of the services concerned: see Van Gervan v Fenton.
The loss is to be distinguished from the loss of enjoyment that a claimant may suffer from being unable to provide household services to his or her family. That is to be allowed for in the award of general damages for loss of amenities: see Maiward v Doyle [1983] WAR 210.
Further, damages recoverable for loss due to incapacity to look after oneself is not to be assessed by reference to any services the claimant would otherwise have provided for other members of the family. Those services are irrelevant to the loss suffered by the claimant: see Maiward v Doyle.
The need for extra services is not diminished by the existence of family or friends who are prepared to render services gratuitously. The argument that those close to the claimant should carry a greater burden than would have been the case had the claimant not been injured, strikes at the policy underlying the recognition of a claim of this kind where services are provided gratuitously: see Griffiths v Kerkemeyer. The claimant, who has relatives regarded by society as morally obliged to provide extra help free of charge, should not receive less than a claimant without family.
In Van Gervan v Fenton, Mason CJ, Toohey and McHugh JJ (with whom Brennan J on this issue agreed) held that the claimant is not required to show that the need is or may be productive of financial loss. The relevant criterion is reasonableness.
In determining the reasonableness of the amount to be awarded, it is relevant to note that, as Brennan J pointed out in Van Gervan v Fenton:
' … it is appropriate to omit from the list of services to be paid for by the defendant some of the time or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services to the care provider in return.'
The reasonableness of the award is, of course, dependent on the particular circumstances of each case, but it has to be borne in mind that, as Kirby J said in Hodges v Frost (1984) 53 ALR 373 at 381:
'Any award that is made is subject to the over riding requirement that the component attributable to Griffiths v Kerkemeyer will be scrutinised against the test that the total verdict must be reasonably proportionate to the magnitude of the loss suffered by the plaintiff' (128 ‑ 129). (original emphasis)
An award of damages for gratuitous services is based on the plaintiff's need for the relevant services as a result of his or her injuries suffered in the accident.
As Brennan J observed in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 340 ‑ 341, it is inappropriate to award damages for gratuitous services to the extent that those services are properly to be characterised as minor services rendered by the care provider to the plaintiff and those services would have been provided in any event as part of the pre‑existing personal relationship between them, provided the plaintiff is able to offer services to the care provider in return.
In my opinion, the learned Commissioner erred in not provisionally awarding the appellant any damages for past gratuitous services in respect of the period before her surgery. During that period, the appellant was unable to perform any housework, which was undertaken by two of her children. I would not characterise that service as a minor service of the kind referred to by Brennan J in Van Gervan. Some part of the domestic and household work in question met a relevant need of the appellant for those services. The relevant need arose as a result of the injuries she suffered in the accident. If the appellant had made out grounds 1 and 2 of the appeal, I would have awarded her 40% of the value of the domestic and household work performed by her children before her surgery, together with interest. It is unnecessary, however, in the circumstances, to calculate the relevant amount.
Similarly, I am satisfied that the learned Commissioner erred in failing to make a provisional award of damages in respect of the cost paid by the appellant after her surgery for gardening services. The appellant paid for these services at the rate of $25 per week. At least part of those services was required as a result of a need of the appellant arising from the injuries suffered in the accident. Again, it is unnecessary, in the circumstances, to calculate the appropriate monetary compensation.
As to particular (k) of ground 3, the learned Commissioner did not make any allowance for special damages in respect of future treatment expenses.
The appellant gave evidence that she was taking panadeine for pain relief, being two tablets every four hours (ts 225). His Honour accepted that the appellant had 'some continuing modest back pain' and that this would continue in the future [265]. The appellant also had some headaches and neck pain (ts 454 ‑ 455) which, on his Honour's findings, were not related to the accident [174] ‑ [177]. Although there was no evidence as to the cost of the panadeine, I am satisfied that his Honour should have provisionally awarded a modest global amount for the future cost of pain relief arising from the accident.
Similarly, Dr Shub's evidence indicated that the appellant had an ongoing need for pharmacotherapy and psychotherapy to treat her depression. See [167] ‑ [171] above. His Honour accepted that the appellant was suffering from depression as a result of the accident and that an allowance for the condition should be made on the basis that, with appropriate treatment, it could be overcome [266]. I am satisfied that his Honour erred in failing to make a global award for the future cost of pharmacotherapy and psychotherapy.
Mr Bannan gave evidence that there was a 40% chance that within the next 10 ‑ 20 years the appellant would develop a disability at the L3/4 segment. The possibility of this surgery appears to be causally related to the accident. I consider the learned Commissioner erred in not making any allowance for the reasonable prospect that the appellant may require future treatment as a result of the development of this disability. There

was no evidence as to the likely cost of any future treatment and, in the circumstances, a modest global award would have been appropriate.

It is unnecessary, in the circumstances, to calculate the precise amount that should have been awarded for future treatment expenses.

Ground 3: conclusion

It is unnecessary for this court to determine ground 3. I have, however, for completeness, considered the ground. For the reasons I have given, the appellant has made out some aspects of ground 3 and failed on others.

Result of the appeal

The appeal should be dismissed.
NEWNES JA: I agree that the appeal should be dismissed. I concur with the reasons given by Buss JA save that, like Pullin JA, I am not persuaded that the Commissioner erred in his assessment of the appellant's past and future loss of earning capacity.

[2009] WASCA 134

6 AUGUST 2009

Key Legal Topics

Areas of Law

Tort Law

Legal Concepts

Negligence

Causation

Compensatory Damages

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