Cvilikas v Sunshine Coast Hospital and Health Service
[2023] QSC 36
•6 March 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Cvilikas v Sunshine Coast Hospital and Health Service [2023] QSC 36
PARTIES:
JODY LEE CVILIKAS
(plaintiff)
v
SUNSHINE COAST HOSPITAL AND HEALTH SERVICE(defendant)
FILE NO:
BS 7447 of 2020
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
6 March 2023
DELIVERED AT:
Brisbane
HEARING DATE:
20 – 23 June, 18 August 2022
JUDGE:
Hindman J
ORDER:
1. Judgment for the plaintiff against the defendant in the sum of $196,193.33 clear of the WorkCover refund of $77,712.06.
2. Each party to the proceedings to bear their own costs.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – EMPLOYER AND EMPLOYEE – where plaintiff suffered personal injury when co-worker placed a mattress on a bed and failed to provide warning to the plaintiff – where plaintiff brings proceedings against her employer – where risk of injury was foreseeable – where risk of injury was not insignificant – where a reasonable person would have taken precautions against the risk of injury – whether the employer breached its duty to take all reasonable steps to avoid exposing plaintiff to a foreseeable risk of injury
TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – whether plaintiff’s intervention in a task being carried out by co-worker amounted to an ‘exceptional case’ – whether plaintiff’s injury was the result of a breach of a duty of care by her employer
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where plaintiff suffered personal injury when intervening in a task being carried out by co-worker – whether plaintiff failed to take precautions against the risk of injury – whether there ought to be a finding of contributory negligence
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERAL DAMAGES – SPECIAL DAMAGES – what measure of damages for general damages, special damages and Fox v Wood damages are appropriate in the circumstances
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where plaintiff has not returned to work since the incident – where pre-incident plaintiff was working on a permanent part-time basis of 0.4FTE – where plaintiff contends that she would have increased her hours but for her injuries – whether plaintiff has proven economic loss to the requisite standard – whether and to what extent plaintiff’s injuries impact her capacity for employment
Civil Liability Act 2003 (Qld), s 51
Civil Liability Regulation 2003 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 270, 305B, 305C, 305D, 305E, 305F, 305H, 306NWorkers’ Compensation and Rehabilitation Regulation 2014 (Qld), regs 129, 130, schs 8, 12
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Bankstown Foundry v Braistina [1986] 160 CLR 301
Bell v Mastermyne Pty Ltd [2008] QSC 331
Burns Philip Trustee Co Ltd v Clarke [1996] NSWCA 79
Chappel v Hart (1998) 195 CLR 232
Czatyrko v Edith Cowan University [2005] HCA 14
Fox v Wood (1981) 148 CLR 438
Hoveydai v Mak and Anor [2021] QSC 16
Kennedy v QAL [2016] QCA 159
Lusk & Anor v Sapwell [2011] QCA 59; (2012) 1 Qd R 507
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; 94 ALR 206
McDonald v FAI General Insurance Co Ltd [1995] QCA 436
Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362
Nichols v Curtis & Anor [2010] QCA 303
Osborne v Downer EDI Mining P/L & Anor [2010] QSC 470Paff v Speed (1961) 105 CLR 549
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330
Wyong Shire Council v Shirt (1980) 146 CLR 40COUNSEL:
T Nielsen for the plaintiff
AS Mellick for the defendant
SOLICITORS:
Travis Schultz and Partners for the plaintiff
McInnes Wilson Lawyers for the defendant
TABLE OF CONTENTS
Introduction
The plaintiff
The circumstances in which Ms Cvilikas’s injury was sustained
The plaintiff’s version
The defendant’s version
Other evidence that may impact on which version to be accepted as true
Credit findings
AL
Ms Cvilikas
Findings as to how the incident occurred
Matters before and after the incident
Matters before the incident - the usual work behaviour of AL
Matters after the incident – relevant reporting of the incident to others
12 December 2017, incident report
19 December 2017, GP appointment
6 February 2018, GP appointment
12 February 2018, GP appointment, review form
Further writing by Ms Cvilikas
Other reporting of the incident to co-workers
Consulting with other doctors
Based on the facts as found, is negligence established
Duty of care, breach of duty
Evidence of Justin O’Sullivan
Causation
Contributory negligence
The injury suffered and the treatment undertaken
The plaintiff’s reported ongoing difficulties
What injury now remains
Rotator cuff tear?
Nerve problem?
No ongoing injury?
Other evidence relevant to plaintiff’s reported ongoing difficulties
Television footage
The plaintiff’s presentation in the witness box
The lack of evidence from the plaintiff’s partner and children
The independent medical evidence
Dr Kilian
Dr Blenkin
Other expert evidence
Relevant findings in respect of the injury suffered and continuing to be suffered
Relevant findings about return to work
Prior/other medical history possibly relevant to assessment of damages
Quantum assessment
General damages
Past economic loss
Interest on past economic loss
Superannuation
Future economic loss
Past special damages
Future special damages
Gratuitous or paid care
Fox v Wood damages
Quantum before contributory negligence and WorkCover refund
Effect of finding of contributory negligence
WorkCover refund
Total quantum
Orders
Introduction
Jody Lee Cvilikas (the plaintiff/Ms Cvilikas) claims damages for a shoulder injury suffered on 10 December 2017 in the course of her employment with the defendant, the Sunshine Coast Hospital and Health Service.
The defendant was responsible for the conduct of the Nambour General Hospital (NGH). Ms Cvilikas was employed by the defendant as a patient support assistant[1] (PSA) at NGH. On 10 December 2017 Ms Cvilikas was employed on a permanent part-time basis.[2] Adam Lenaghan (AL) was also employed by the defendant as a PSA at NGH.
[1]Also known as a wardsperson.
[2]Working 32 hours per fortnight.
Ms Cvilikas and AL were both rostered to work the nightshift on 10/11 December 2017 at NGH. There were usually three PSAs rostered on each nightshift. Ms Cvilikas was rostered to work from 10pm until 6am. AL was her supervisor for that shift meaning he had particular duties and provided limited direction to other PSAs, although “everyone knew what they had to do”.[3]
[3]T1.46, L30.
At the start of her shift Ms Cvilikas encountered AL on the lower ground floor outside the PSA office; she was standing near him when he received a telephone call and heard him take the call. He told her that he had to go and get a bed for a ward. Beds, mattresses and other equipment were stored at NGH in the assets shed, then located on the fourth floor of the building.
It is not in issue that at about 10.30pm on 10 December 2017:
(a)AL went to the assets shed alone;
(b)AL went to the assets shed to retrieve a bed;
(c)Ms Cvilikas did not accompany AL to the assets shed;
(d)Ms Cvilikas entered the assets shed some short time after AL;
(e)it was necessary for AL to place one standard mattress on the bed he was going to deliver to the ward;
(f)AL did not request assistance from Ms Cvilikas;
(g)in the course of AL placing a standard mattress on a bed, Ms Cvilikas intervened and her left arm was caught between the mattress and the bed. Ms Cvilikas immediately felt pain in her left shoulder.
Ms Cvilikas alleges that she has thereafter suffered, and continues to suffer, debilitating pain in her left shoulder. She says it prevents her working, affects her daily life and requires medication to manage.
Ms Cvilikas claims damages in tort for the alleged negligence of the defendant – both as vicariously responsible for the actions of AL and as responsible for its system of work in accordance with the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA).
The defendant denies any liability. In the alternative, the defendant asserts 30% contributory negligence by Ms Cvilikas.
Ms Cvilikas claims damages of $888,738.21, clear of the WorkCover refund of $77,712.06. The defendant contends that any assessment of damages is no greater than $91,419.66.
I find that:
(a)the defendant was negligent;
(b)the plaintiff was contributorily negligent to the extent of 25%;
(c)the plaintiff is entitled to judgment against the defendant for damages for negligence in the sum of $196,248.29 clear of the WorkCover refund of $77,712.06.
The plaintiff
Ms Cvilikas was born on 5 February 1973 and was educated to year ten.
As a young woman Ms Cvilikas worked in banking for approximately four years, before taking twelve years out of paid work to raise her two children. Both children are now independent adults.
Ms Cvilikas is in a long-term de facto relationship with her partner of approximately fourteen years. He is in receipt of a disability benefit following unsuccessful spinal surgery in 2012. Ms Cvilikas has been and is his carer (including on a paid basis by way of Centrelink benefits). They live in their own three-bedroom home on a large block of land.
Ms Cvilikas commenced working as a PSA at NGH in about April 2006. Her work hours have varied from part-time to full-time, at times only working the equivalent of 0.42 of a full-time role[4] (referred to as 0.42 FTE).
[4]Exhibit 19 provides a FTE (full time equivalent) overview of Ms Cvilikas’s employment from 1 October 2012 to 11 September 2017.
The PSA role has a degree of physicality associated with it. Duties include assisting with patient transfers, manoeuvring wheelchairs and beds (including with patients onboard), cleaning tasks, lifting and carrying bags of waste and linen, attending the mortuary and supervisory tasks.[5]
[5]PSA role description at exhibit 11.
Ms Cvilikas denies having any previous left shoulder problems. She did have a left elbow “partial tear” in 2014 in respect of which there was a WorkCover claim, but she fully recovered from that injury.
In 2018 she had a gastric sleeve operation to combat obesity and is on medication for an underactive thyroid. Putting to the side the injury the subject of this proceeding, she reports no other traumatic events or surgeries. She is a non-smoker, a regular drinker, takes some supplements, and is otherwise in reasonable health.
The circumstances in which Ms Cvilikas’s injury was sustained
Ms Cvilikas and AL (and the defendant) disagree as to how AL placed the mattress on the bed as part of the incident resulting in Ms Cvilikas’s injury. Resolution of that disagreement is important to the negligence claim made.
It will be seen from the competing versions below that Ms Cvilikas and AL also disagree as to certain matters leading up to the incident including:
(a)certain layout features of the assets shed, including where particular beds and mattresses were stored in the assets shed;
(b)where in the assets shed the relevant bed was located when AL put a mattress on it;
(c)from where AL sourced the relevant mattress that was placed on the bed.
The plaintiff’s version
In [6] of the amended statement of claim (ASOC) Ms Cvilikas alleges:
(a)about 10.30pm Ms Cvilikas attended the assets shed to assist AL;
(b)AL retrieved a mattress, intending to place that on a bed within the assets shed, and in doing so, raised the mattress above his head;
(c)in order to assist AL, Ms Cvilikas reached out, leading with her left arm, to take hold of one end of the mattress;
(d)without warning, AL threw the mattress onto the bed, catching Ms Cvilikas’s left arm, forcing it between the mattress and the metal frame of the bed;
(e)as a result, Ms Cvilikas sustained an injury to her left shoulder.
The ASOC contains no allegations as to from where AL sourced the relevant mattress, where the relevant bed was located at the time the mattress was placed on it, or how, if at all, Ms Cvilikas communicated to AL that she had come to the assets shed to assist him or was in fact going to assist him.
In evidence at trial, Ms Cvilikas gave evidence that after she had put her things in her locker she went to the assets shed to assist AL in preparing the bed because she had no other jobs to attend to at that time. When she arrived at the assets shed she engaged in small talk with AL before asking if he needed assistance. “Do you want a hand,” she asked. “No, I’m good,” he replied. While this conversation was taking place, Ms Cvilikas said AL was standing at the side of an empty bed[6] and she “was a step back from the empty bed.”[7] Ms Cvilikas identified that AL was making up the empty bed in the back section of the assets shed.
[6]The position is marked on exhibit 6 (being a sketch of the assets shed prepared by the plaintiff setting out her recollection of the layout of the assets shed at the time of the incident). See T1.50.
[7]T1.50, L21.
At T1.50, L34, Ms Cvilikas went on to explain there were four or five mattresses stacked on a bed that was adjoining (side by side) the empty bed.
Ms Cvilikas said that after AL declined her offer of assistance, she asked him if he had any other jobs and he replied, “No, not at the moment.” He then proceeded to walk around to the top of the adjoining bed on which mattresses were stacked.[8]
[8]T1.51.
She described the incident from there as follows:
And then can you tell her Honour what happened then?‑‑‑While Adam was at the top of the bed, I just assumed he was going to pull the stack down. But, in fact, he picked up the mattress. And I can’t demonstrate with this one, but I will with this one, because it’s painful for me. He picked the mattress up from the top of the stack above his head, shuffled it back and I thought, “You bloody idiot, what are you doing? You’re going to hurt yourself,” and I said to him, “Hang on. What are you doing,” and he threw – can I keep going?
Yes, please?‑‑‑And he threw the mattress down before I – I stepped forward to reach out to grip it but before I could grip it the mattress came down on my forearm and the foot of the bed rail and jolted my shoulder forward and the mattress squashed – squashed it down and then I said – can I keep going?
Yes, please?‑‑‑And then I said, “Bloody hell.” I grabbed my shoulder. I slid my arm out from under the mattress and I said, “Bloody” – I said, “Oh, shit, that hurt,” and he came around the side of the bed and he said, “Are you all right?” I said, “No, that bloody hurt.” That’s what happened.
At T1.73, L40 in cross-examination, Ms Cvilikas accepted that on her version immediately prior to the incident AL had positioned himself at the head end of the adjoining beds and the brakes were at the foot end of the beds and AL “didn’t move the bed. The beds were already positioned.”[9] Those matters were confirmed at the end of re-examination.[10]
[9]T1.73, LL44-45.
[10]T3.8.
At T2.26-27 Ms Cvilikas would not commit to a precise number of mattresses stacked on the adjoining bed. She conceded she was 165cm in height, much shorter than AL, however, she said that she and AL “locked eyes”[11] when AL was at the head end of the bed stacked with the mattresses as he was moving, lifting and throwing the relevant mattress. “I can certainly see his face,” she said.[12] She denied that the mattress was sagging where not supported by AL.[13]
[11]T2.26, L44.
[12]T2.27, L2.
[13]T2.27, L10.
The defendant’s version
The allegations in [6] of the ASOC are denied in [3] of the second amended defence (the Defence) where the defendant alleges:
(a)AL went to the assets shed alone;[14]
[14]Admitted by the plaintiff in the reply.
(b)AL went there to prepare a bed that he was then going to deliver to a ward;
(c)preparation of a bed is a one-person task;
(d)AL intended to prepare the bed alone;
(e)Ms Cvilikas did not accompany AL to the assets shed;[15]
[15]Admitted by the plaintiff in the reply.
(f)AL did not need, seek or request any assistance from Ms Cvilikas or anyone else to prepare the bed;
(g)preparation of the bed involved placing a standard mattress on the bed;
(h)a standard mattress weighs 17kg;
(i)Ms Cvilikas entered the assets shed after AL;[16]
[16]Admitted by the plaintiff in the reply.
(j)AL did not request assistance from Ms Cvilikas;[17]
(k)AL did not need assistance from Ms Cvilikas;
(l)AL reasonably had no reason to expect Ms Cvilikas would assist or attempt to assist him and assumed she had some other task to attend to;
(m)AL lifted a mattress to about hip height and slid it onto the bed;
(n)as AL was doing so, Ms Cvilikas, without any forewarning to AL, grabbed at the mattress as it was sliding onto the bed and in doing so her left arm became caught between the mattress and the bed frame;
(o)AL:
(i)did not raise the mattress above his head;
(ii)did not throw the mattress onto the bed;
(iii)had no reason to give Ms Cvilikas any warning as he had not sought her assistance and had no reason to anticipate her unsolicited and unnecessary intervention in his preparation of the bed.
[17]Admitted by the plaintiff in the reply.
In evidence at trial, AL said that after receiving a telephone call, he went alone to the assets shed to get a bed, he did not request anyone to go with him, he knew how to perform the task, he was familiar with the task, he had performed it many times and he did not need any assistance.[18] There was nobody in the assets shed when he arrived there. He located a bed. He cannot recall where in the assets shed that bed was located but it had an air mattress on it, so he unplugged all the cords, made sure everything was turned off, disconnected the pump from the cable and deflated the mattress, rolling it up like a sleeping bag. At T3.32, LL41-42 by reference to exhibit 6, AL said that prior to removing the air mattress he moved the bed near the linen skip where he had a little bit of room to work (in the front part of the assets shed, not too far from the vertical rack). The air mattress was placed by him in a rack in the front section of the assets shed.[19]
[18]T3.31-32.
[19]Parts of that rack can be seen in photos 12 and 13 of exhibit 5 identified by AL at T3.33-34.
AL acknowledged that he saw Ms Cvilikas arrive in the assets shed and they engaged in small talk. He noted that he had not asked her to come there, he did not ask her to assist him and he kept doing what he was doing.[20]
[20]At T3.34.
AL explained the process by which he sourced and removed a mattress from the vertical rack[21] and placed it on the bed; a process which involved very little physical effort and one he had used many times having been shown how to do it.[22]
[21]That can be seen in photo 15 of exhibit 5.
[22]At T3.34-35.
AL said that he moved the mattress in the way demonstrated in the video that is exhibit 24. He believed, “Jody’s tried to get involved, out of the blue, with no warning, and I don’t know whether she grabbed a hold of the mattress while I was moving it or whether her arm was just in the way.”[23] He said that after the incident, Ms Cvilikas said something to the effect of “Ooh.”[24]
[23]T3.35, LL31-32.
[24]T3.36, L19.
In cross-examination at T3.57, LL28-30, AL said:
did you keep an eye on her before you put the mattress onto the bed?---She wasn’t close enough to be involved in the task, so I didn’t think she was part of the task being performed.
Other evidence that may impact on which version to be accepted as true
As above, the parties disagree as to how AL placed the mattress on the bed that led to Ms Cvilikas’s injury.
To support their version of the incident, both parties adduced evidence from others associated with NGH as to:
(a)certain layout features of the assets shed, including where particular beds and mattresses were stored in the assets shed, including what mattresses were stored in the vertical rack (near to the doorway of the assets shed);
(b)how they or others (including cleaners) moved mattresses in various circumstances;
(c)usual procedures associated with damaged or condemned mattresses.
Such evidence came from:
(a)a statement by Rachel Lee who was a PSA at NGH at the time of the incident;[25]
(b)Steven Pacey who had previously been a PSA at NGH and who at the time of the incident was the clinic resources storeperson[26] (in charge of the assets shed with his office located in the assets shed);
(c)Paul Fooks who had previously been a PSA at NGH and who at the time of the incident was a PSA coordinator at NGH;
(d)Lindy Holt who was the senior coordinator of operation support services at NGH at the time of the incident.
[25]Exhibit 21.
[26]A day shift role.
I have not found any of that evidence particularly helpful in determining which version of the incident is true. All of that evidence needs to be approached with caution because it is not specific to the date and time of the incident. Nobody except Ms Cvilikas and AL were present in the assets shed at the time of the incident and can say with any certainty as at approximately 10.30pm on 10 December 2017:
(a)the precise layout of various items in the assets shed;
(b)from where AL sourced the relevant bed;
(c)what mattresses were then contained in the vertical rack;
(d)from where exactly AL sourced the relevant mattress;
(e)where the bed was located when AL placed the mattress on it;
(f)most importantly, how AL placed the mattress on the bed.
Accordingly I consider it is unnecessary for me to set out that evidence because none of that evidence is such that it assists me in determining that either of the parties’ version of how the mattress was placed by AL on the bed is either true or false.
Determining how the incident actually occurred turns predominantly on whose evidence about the incident is to be preferred as between Ms Cvilikas and AL.
Credit findings
AL
AL impressed me as having a reasonably clear recollection of the incident and of giving his evidence in an unembellished and unbiased manner, directly and without fear or favour. I find that AL was an honest witness.
Ms Cvilikas
On the other hand, whilst I do not go so far as describe my impression of Ms Cvilikas as dishonest, I do consider that she was prone to exaggeration, particularly where she considered that may be advantageous to her claim. She was also prone to be disinclined to answer questions directly where she perceived the answer may be disadvantageous to her claim.
By way of example, during cross-examination Ms Cvilikas was shown the video that is exhibit 24. Defence counsel pointed out to Ms Cvilikas that where the mattress is resting on the end of the bed in the video the ends of the mattress sag to a point lower than the middle of the mattress. Ms Cvilikas was asked if the mattress was sagging when AL had it over his head: the obvious point of defence counsel being that if AL had lifted the mattress over his head as Ms Cvilikas contended, the ends of the mattress would have sagged slightly, obstructing his face such that he and Ms Cvilikas could not have locked eyes (as alleged by Ms Cvilikas). Ms Cvilikas avoided answering this question before claiming the mattress was fairly stable and was not sagging at the ends.[27]
[27]T2.29-30.
Findings as to how the incident occurred
Influenced by my findings as to the credit of AL and Ms Cvilikas, I prefer the evidence of AL to Ms Cvilikas as to how the incident occurred.
On the balance of probabilities, I find that:
(a)To move the bed selected (in this case AL says it had an air mattress on it), AL positioned himself at the foot of the bed (to access the brake). He then moved the bed to an area in the front of the assets shed, near the vertical rack, where there was some space to work, and because he intended to retrieve a standard mattress from the vertical rack to place on the bed.
(b)The incident did not occur in the location described by Ms Cvilikas. That is because if AL had intended to put a mattress on a bed in that location, there would have been no reason for him to move to the head of the adjoining beds as described by Ms Cvilikas (if there was even room for him to be between the head of those beds and the adjoining racks[28]). He would have been at the foot of the bed where the brake to the bed was located (which is about where Ms Cvilikas asserts she was located at the time she suffered her injury).
(c)AL did not move the mattress above his head in the manner described by Ms Cvilikas. There was no reason for him to do so if the (obvious) alternate option was simply to slide a mattress down onto the bed from a stack of mattresses on an adjoining bed. There was no locking of eyes by Ms Cvilikas with AL as she alleges – if AL had moved the mattress in the way contended for by Ms Cvilikas the mattress would have bent somewhat from the approximately mid-point at which it was held, blocking eye contact. Further, I do not believe that if AL had locked eyes[29] with Ms Cvilikas at the other end of the bed, he would have thrown a mattress in her direction, at least without giving a warning (and the parties agree that no warning was given).
(d)Whatever the usual practice and procedure in respect of damaged or condemned mattresses, the mattress retrieved by AL from the vertical rack was not a damaged or condemned mattress.
(e)AL sourced a standard (not damaged or condemned) mattress from the vertical rack. AL had the relevant bed positioned nearby in the front of the assets shed, in anticipation of sourcing a mattress for the bed from the vertical rack.
(f)Having sourced and removed a mattress from the vertical rack (by sliding it out of the vertical rack, keeping the mattress upright, short end to the floor), AL manoeuvred the mattress to the nearby end of the bed. AL then moved the mattress onto the bed in a manner broadly similar to that shown in exhibit 24. AL did not see Ms Cvilikas at the other end of the bed whilst initially moving the mattress because he was manoeuvring the mattress on its short side over to the end of the bed (which obstructed his view of the other end of the bed where Ms Cvilikas was then positioned).
(g)Ms Cvilikas, apparently not being familiar with this method of placing a mattress on a bed, was likely surprised to see the top end of the mattress tipping towards her (which she has perceived or subsequently interpreted as the mattress being thrown overhead by AL) and she reached out to assist with her left arm leading.
(h)The mattress in being so moved either came down on or slid towards Ms Cvilikas with sufficient momentum to jam Ms Cvilikas’s reached out left arm between the mattress and the end of the bed.
[28]At T3.29, L8, AL explained beds stored in front of the pillow storage rack would be “hard up against the rack.” A person could not walk between the head of the beds and the rack, T3.29, L10.
[29]T2.26, L44.
The evidence as to what otherwise occurred either before or after the incident (that I will deal with below) does not persuade me that the incident took place in any other way. What Ms Cvilikas perceived (and later reported) as an overhead throwing of the mattress by AL, was no more than AL tipping a vertically held mattress over the end of the bed in a manner with which Ms Cvilikas was apparently not familiar and was not expecting.
Matters before and after the incident
Matters before the incident - the usual work behaviour of AL
Paul Fooks has worked for the defendant since 2003, commencing as a PSA at NGH and later working at Sunshine Coast University Hospital in early 2017. He returned to NGH in a PSA coordinator position in early 2018.
Mr Fooks gave evidence of a prior incident where he admonished AL for carrying a mattress overhead in the vicinity of the Emergency Department of NGH. He seemed to think this prior incident occurred in 2015 or 2016 (but definitely prior to 10 December 2017). He was questioned about whether he reported the prior incident, and said that he did not, because he considered the verbal admonishment he gave AL to be sufficient. AL denied this prior incident’s occurrence.
The plaintiff suggests that this prior incident, along with AL’s physical size and strength, work ethic and can-do type attitude, make it more likely than not that the incident occurred as alleged by Ms Cvilikas, with AL shuffling a mattress overhead and then throwing it down onto the bed.
I do not accept that. Whilst AL impressed me as a person who was committed to performing his PSA role in a correct and efficient manner, I do not accept that one alleged incidence of him carrying a mattress overhead (for which he was allegedly admonished) makes it more likely that the incident occurred in the manner Ms Cvilikas alleges. If the prior incident actually occurred (and I do not consider it necessary to decide that one way or the other) and AL was admonished as Mr Fooks says, I consider it would make AL less likely to raise a mattress above his head again. As above, that is supported by my impression that AL was committed to performing his PSA role in a correct matter. That is also supported by Mr Fooks’s evidence that he did not believe AL “would have done anything outside of what he’s supposed to do.”[30] Nor do I consider that AL’s size, strength, work ethic or attitude that may indicate he is physically capable of raising a mattress above his head, provide any reasonable basis for a conclusion that he did so on 10 December 2017.
Matters after the incident – relevant reporting of the incident to others
[30]At T3.107, LL2-3.
12 December 2017, incident report
Ms Cvilikas completed a workplace incident report on 12 December 2017, two days after the incident.[31] The report is silent as to: (1) the precise location of the incident within the assets shed, (2) the presence/relevance of a stack of mattresses on an adjoining bed or where the mattress was sourced from, (3) AL lifting the mattress above his head, (4) AL then throwing the mattress onto the bed.
[31]Exhibit 8.
The report notes the incident was witnessed by and reported to AL. In part 5 of the report where Ms Cvilikas was asked to record what happened unexpectedly and how exactly did the injury happen, she wrote:
Adam was putting a mattress onto a bed and I was trying to assist and the mattress came down on my arm. Felt pain instantly. It’s sore in certain positions.
Ms Cvilikas said that what she wrote in the report was the “nice version” of the incident. She did not write that AL threw the mattress onto the bed. She said that she omitted this detail as she did not want AL to get into trouble.
I find that what was written in the report was accurate and is consistent with the findings I have made above. I reject that AL threw the mattress onto the bed. As above, what Ms Cvilikas perceived (and later reported) as an overhead throwing of the mattress by AL was no more than AL tipping a vertically held mattress over the end of the bed in a manner with which Ms Cvilikas was apparently not familiar and was not expecting. Because of that it may be that Ms Cvilikas thought (likely wrongly) that AL would get into trouble if she described in more detail the manner in which AL actually placed the mattress on the bed.
19 December 2017, GP appointment
On 19 December 2017 Ms Cvilikas saw Dr Bourke (general practitioner) in respect of problems with breathing, coughing and burping. It was recorded during the appointment that Ms Cvilikas suffered “shoulder injury at work…lifted mattress.”[32] Neither party suggested it was the lifting of a mattress by Ms Cvilikas that caused her injury. I consider it relevant that no “throwing” of a mattress overhead by a co-worker is reported by Dr Bourke as being described by Ms Cvilikas.
[32]Exhibit 22, pp. 188-189.
6 February 2018, GP appointment
Ms Cvilikas saw Dr Bourke again on 6 February 2018 in respect of “ongoing symptoms – sore all the time.” A WorkCover certificate was issued. No further report of how the injury was sustained appears to have been made at this appointment.
12 February 2018, GP appointment, review form
Ms Cvilikas returned to see Dr Bourke on 12 February 2018 to complete paperwork for WorkCover. Dr Bourke noted Ms Cvilikas had suffered a rotator cuff tear (based on an ultrasound that had been completed). The diagnosis may not have been accurate but, at that stage, Ms Cvilikas was entitled to assume that was the injury she had suffered. No further report of how the injury was sustained appears to have been made at this appointment.
The same day Ms Cvilikas completed a workplace review form after the GP appointment.[33]
[33]Exhibit 9.
At T2.22, LL28-33, Ms Cvilikas said she did not recall speaking to Mr Fooks about the review form, she did not complete the review form in his presence and she was not sure how Mr Fooks’s involvement in the review form came about. However it is clear that Mr Fooks was involved in the completion of the review form. He said that in February 2018 Ms Cvilikas approached him about an incident that had occurred in December 2017 and said that she had pain. He gave her the review document and asked her to fill out some basic details so he could “sit down and debrief it.”[34] Ms Cvilikas filled out parts of the form in the next room and then brought it to Mr Fooks, sat down and discussed it with him. Mr Fooks recalled adding to the form in front of Ms Cvilikas; he wrote the “witness information” in the form that was provided to him by Ms Cvilikas.
[34]At T3.103-105.
In the review document in relation to the event causing injury Ms Cvilikas wrote:
Attempted to help Adam put a mattress onto a ward bed and the mattress came down on to my left arm compressing between the mattress and bed rail.
In respect of “comments/concerns” Ms Cvilikas wrote:
Please refer to initial workplace incident form for more detail (re dates, times etc.)
According to Mr Fooks, when Ms Cvilikas gave him the partially completed review form she told him she did not tell the whole truth in the first workplace incident report because she did not want to get AL into trouble. Mr Fooks made no record of that being said by Ms Cvilikas or the true allegations made by Ms Cvilikas against AL about how the incident occurred.[35] In evidence he said that Ms Cvilikas, “was hesitant at saying anything. She said she had reported it in December. She had reported it incorrectly because she didn’t want to get Adam in trouble, is the way she phrased it. She said Adam had the mattress above his head, and as he went to put the mattress down, she considered that that was an exertion on him. She went to help”.[36]
[35]At T3.106.
[36]T3.84, L39-43.
I do not accept that Ms Cvilikas said to Mr Fooks at that time that during the incident AL had raised the mattress above his head. If that had been said to Mr Fooks at the time, it would have been recorded in writing by Mr Fooks, including that such handling of a mattress by AL should not occur. Instead I find that he told Ms Cvilikas, as he recorded in the review form, that:
(a)the manual handling and movement of mattresses procedure was as documented in the review document, and he intended to speak to AL regarding same;
(b)“from what Jody had spoken to me about, it was concerning Adam, in the motion of moving a mattress, and Jody coming to help, thinking that she was assisting. And I just pointed out that they needed to coordinate those tasks, as much as also making sure that they’re doing it in a safe manner”;[37]
(c)at T3.106, LL26-30, that if Ms Cvilikas was going to assist and join in someone else’s activity, she needed to make sure the other person was aware; there is a danger of joining when the other person is not aware.
[37]T3.84, L11-13.
Again, I make findings in accordance with [53] above.
In so far as I have above rejected certain evidence given by Mr Fooks, I do not consider that Mr Fooks was dishonest. By reference to the written documents and other matters I mention, I consider, with no disrespect to Mr Fooks, that his recollection is not in all respects accurate, and his evidence in parts is inaccurate reconstruction.
Mr Fooks never spoke to AL. He said that he had only spoken to Ms Cvilikas and attempted to ring AL and speak with him in person, but was unable to do so.29 I consider that Mr Fooks would have made more of an effort to speak to AL if he had been told at that time that AL had thrown a mattress overhead onto a bed injuring a co-worker.
There is evidence of Mr Fooks making one attempt to contact AL. The next day, AL sent a text message to Ms Cvilikas indicating that Mr Fooks had called him and wanted him to make a statement about Ms Cvilikas’s WorkCover claim.[38] The text reads:
Hey Jody. Paul called today and wants me to make a statement about your work cover claim. What am I telling him
[38]Exhibit 10.
No response to that text is in evidence.
Ms Cvilikas said she called AL after receiving the text message but gave no evidence of what was actually said in the conversation.[39] That is a curious omission in her evidence.
[39]At T1.62, L6. See also at T2.31, LL31-35.
The plaintiff submits that the text from AL is only explicable as AL: (1) being prepared to tailor what he told his employer about the incident, or (2) not recalling the incident, or (3) being concerned about his role in the incident. I do not accept that. And even if I was prepared to accept that the text may reveal some intention for AL to “get his story straight” with Ms Cvilikas’s, that would seem to me to be with the intention of possibly benefiting Ms Cvilikas (a co-worker) in respect of her WorkCover claim.
Further writing by Ms Cvilikas
Ms Cvilikas conceded that in respect of the two workplace forms she filled out reporting the incident, “any person picking up these two documents would have no idea that what’s happened … that Mr Lenaghan picked up this mattress and thrown it”, but noted that she wrote down further things about the incident and put that under the door of the coordinator’s office.25 She said that Alison Robbie (a co-worker) had reminded her of doing so.26
Ms Cvilikas did not take a copy of what she had written and she did not recall what she had written.
At T3.70-71, Ms Robbie gave evidence that in the course of performing her cleaning duties she saw an incident form with Ms Cvilikas’s name on it on a keyboard in a supervisor’s office, she picked it up, there were two pieces of paper, the second piece of paper was handwritten only but she did not recognise the handwriting. Ms Robbie’s evidence does not establish that Ms Cvilikas provided an additional document to the defendant about the incident or what was the content of any such document.
I do not consider this evidence useful at all in determining how the incident in fact occurred.
Other reporting of the incident to co-workers
Ms Cvilikas relies on having made prior consistent statements to Mr Fooks and two friends/co-workers, Rae Tallentire and Ms Robbie. Evidence of prior consistent statements is admissible to rebut recent concoction, but the prior consistent statements do not prove the truth of the allegations contained in them.
I have dealt with Mr Fooks above. I do not accept that on 12 February 2018 Ms Cvilikas told Mr Fooks that the incident involved AL throwing a mattress overhead.
In respect of Ms Tallentire and Ms Robbie, both said there was a one-off conversation in which Ms Cvilikas made allegations against AL and the matter was never mentioned again: T3.12 and T3.78.
I have rejected the contention that AL threw the mattress onto the bed. As above, what Ms Cvilikas perceived (and later reported) as an overhead throwing of the mattress by AL was no more than AL tipping a vertically held mattress over the end of the bed in a manner with which Ms Cvilikas was apparently not familiar and was not expecting. It is unsurprising that in the circumstances of being injured and discussing the matter later, particularly with friends, that the alleged movement of the mattress has been exaggerated or interpreted by Ms Cvilikas as being a “throwing”.
Consulting with other doctors
The history given by Ms Cvilikas to Dr Casey (treating orthopaedic surgeon) contained in his report of 6 July 2018, was that she was “moving a mattress at work on 19 [sic] December 2017 and had the weight of the mattress push against her forearm, causing immediate pain to her left shoulder.”[40]
[40]Exhibit 2 at p. 84.
Ms Cvilikas was referred to Dr Frank (treating anaesthetist and pain physician) whom she saw on 13 May 2019 (some 17 months post-incident). In a letter to Dr Casey that day, Dr Frank recorded this history from Ms Cvilikas:[41]
She was giving a hand to a supervisor in moving a mattress and unfortunately just as she had decided to give him assistance he had thrown the mattress with certain force and she sustained an injury to her left shoulder.
[41]Exhibit 23 at p. 138.
This is the first written record of a “throwing” of the mattress having occurred. It occurs a significant period of time after the incident. I consider it an exaggeration or inaccurate interpretation of how the placing of the mattress occurred.
Based on the facts as found, is negligence established
Duty of care, breach of duty
The defendant was the employer of Ms Cvilikas, with a duty to take reasonable care not to expose its employees to unnecessary risks of injury in carrying out their work.
Further, by reason of s. 305B of the WCRA, the duty owed by the defendant to Ms Cvilikas was a duty to take precautions against a risk of injury to Ms Cvilikas that was foreseeable, was not insignificant and, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions.
Sections 305B and 305C of the WCRA provide:
General standard of care
305BGeneral principles
(1)A person does not breach a duty to take precautions against a risk of injury to a worker unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) -
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
305COther principles
In a proceeding relating to liability for a breach of duty -
(a) the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
Those sections operate against the background of common law principles but modify them to an extent.[42] Wyong Shire Council v Shirt[43] per Mason J at 47-48 and Roads and Traffic Authority (NSW) v Dederer,[44] set out basic and settled matters of legal principle with regards to negligence that are not necessary to repeat here.
[42]Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [11], [15], [27], [39] and [41].
[43](1980) 146 CLR 40.
[44](2007) 234 CLR 330 at 337-338 [18]-[19] and at 345 [43]-[44] per Gummow J, with whom Callinan J (at [270]) and Heydon J (at [283]) agreed.
Considering the elements of ss. 305B and 305C of the WCRA, I find:
(a)The risk that a co-worker in the vicinity of another co-worker may intervene, without notice, to assist in a manual handling task (such as placing a mattress on a bed) is foreseeable. That is particularly so where the item being manually handled is bulky, weighty or awkward to handle, or is commonly manually handled by two persons (like a mattress). The risk that the intervening co-worker may be injured as a consequence of such unannounced intervention is also foreseeable. Again, that is particularly so where the item being manually handled is bulky, weighty or awkward to handle (like a mattress).
(b)The above risk of injury is not insignificant. A mattress is bulky and weighty; particularly once a mattress is in an unsupported or uncontrolled motion,[45] a person in the path of the moving mattress could be hurt.
(c)A reasonable person moving a mattress would take precautions to ensure that no person or part of a person was, or could readily become, in the path of the moving mattress. If that could not be achieved visually then the reasonable person would issue a verbal warning to other persons in the vicinity about the proposed movement of the mattress or to stand clear of the moving mattress.
(d)If such precautions were not taken it was probable that injury would occur to the person intervening to assist without notice in the manual handling task and that the injury would be serious. Those matters would be probable because:
(i)of the matters mentioned in (b) above;
(ii)the person intervening to assist would put themselves, or part of themselves, in the path of the moving mattress;
(iii)the person intervening to assist may wrongly assume how the person moving the mattress intends to move it or be unprepared for the movement that actually occurs.
(e)It is not burdensome for the person in the position of moving a mattress to visually ensure that no person or part of a person was, or could readily become, in the path of the moving mattress; and if a visual assessment could not achieve that assurance, to issue a verbal warning to other persons in the vicinity about the proposed movement of the mattress or to stand clear of the moving mattress. Whilst it was submitted for the defendant that if there were any such requirements in a hospital setting that would make hospitals very noisy places indeed, I do not agree.[46] In most cases the item being manually handled will not cause a visual impediment, or will not at any point in the manual movement not be under the full control of the person moving the item, or will not be of a size or weight likely to cause injury. The circumstances in which verbal warnings need to be given would be expected to be narrow in practice.
[45]Like under the operation of gravity rather than being physically placed by a person in a controlled way.
[46]The defendant says that [7] of the ASOC might be taken as alleging the risk of injury is a risk to a worker from the unannounced action of another worker. It is submitted for the defendant that “(d)oubtless hospitals will become noisy workplaces if each and every worker must announce their every action.” I agree that would be to state the risk too broadly.
I do not accept that the mere fact of one person manually handling a mattress would be sufficient to establish a breach of duty. In many instances the moving of a mattress from one place to another involves beds being placed side by side, and two persons (one at each end of the beds) sliding the mattress from one bed to the other (usually sliding them across at waist height by adjusting the height of the beds using the beds’ remote controllers[47] with the bedrails of the beds lowered[48]). However, it also seems plain enough that that task can be safely undertaken by one person, and that mattresses can be safely moved about in other ways.
[47]T1.43, LL30-31.
[48]T1.44, LL35-36.
The method of a single person moving a mattress in the way demonstrated in exhibit 24, being broadly the way in which I have found the mattress here was in fact placed, seems to carry no obvious risk of injury to the person moving the mattress. Mr Pacey confirmed at T1.102, LL1-13 that the process of placing the mattress on the bed that AL says he used was quite easy to do and involved very little effort. Mr Fooks said at T3.106, L43 that mattresses were commonly manually handled by a PSA working alone. Mr O’Sullivan, at page 18 of his report dated 5 February 2021[49] said “a one person procedure could also be appropriate if carried out in a suitable fashion without undue force or momentum”. The broad procedure demonstrated exhibit 24 is one carried out without undue force or momentum.
[49]Exhibit 15.
In the above circumstances and considering the facts as I have found them, I am satisfied that AL breached a duty to take precautions against a risk of injury to Ms Cvilikas in respect of the incident. I find that:
(a)placing a mattress on a bed does carry with it a foreseeable risk that a person’s body part (being a person not involved in the placing of the mattress) may become caught between the moving mattress and the bed;
(b)if that risk eventuates, injury (not being insignificant) to the person is likely, particularly given the weight of the mattress and solid nature of the bed;
(c)the risk is properly addressed by the person moving the mattress ensuring that no person is in, or may readily come within, the likely path of the moving mattress;
(d)where the positioning of the mattress means that the person moving the mattress cannot ensure or see that no person is in, or may readily come within, the likely path of the moving mattress, the risk is properly addressed by the person moving the mattress issuing a verbal warning to other persons who may be in the vicinity as to the moving of the mattress and to stand clear of the mattress and bed (or words to that effect) prior to executing the mattress movement;
(e)in this case, the manner in which AL manoeuvred the mattress to the end of the bed meant that he could not see that Ms Cvilikas had moved into a position near the other end of the bed, close enough to put part of her body (her left arm) in the intended path of the moving mattress;
(f)AL knew that Ms Cvilikas was physical proximate to him in the assets shed as she had been speaking to him and he did not see her leave the assets shed;
(g)AL gave no verbal warning prior to or at the time of moving the mattress onto the bed to warn Ms Cvilikas of the intended movement of the mattress or to stand clear of the mattress and bed;
(h)AL, acting reasonably, ought to have given such a warning;
(i)in failing to give such a warning, AL breached the duty of care owed by him to Ms Cvilikas, and the defendant is vicariously responsible for that breach;
(j)further the defendant was negligent for not having in place a system of work whereby PSAs were trained to issue warnings about the intended movement of mattresses if it could not be ascertained with certainty that no other person was within, or may readily come within, the path of a moving mattress;[50]
(k)the need for such a system of work did not arise as a consequence of cleaners having suffered injuries whilst handling mattresses at NGH. There is no evidence that such cleaners’ injuries were caused as a consequence of any like movement mechanism as existed here. The need for such a system of work arose as a consequence of the size, bulk and weight of mattresses and the need for PSAs to move mattresses about when other persons may be present (including when making up a bed).
[50]Confirmed by Mr Fooks and Ms Holt that there was no policy; there were some online training modules about handling, but no document was produced.
I do not consider it is an answer to the allegation of breach of duty for the defendant to say that:
(a)workers regularly placed a mattress on a bed whilst working alone;
(b)AL intended to perform the task on his own and did not require assistance;
(c)Ms Cvilikas offered assistance and AL refused that assistance;
(d)there is no evidence of another worker ever having intervened unannounced;
(e)turning and moving mattresses are tasks that occur in a domestic setting;
(f)by December 2017, Ms Cvilikas had been a PSA for more than 10 years and had seen mattresses being moved and been involved in the movement of mattresses on many occasions.
The critical allegation of breach on the part of AL in [7] of the ASOC is the alleged failure to warn. The allegation presupposes AL, not having requested Ms Cvilikas’s assistance and, as she alleges, having expressly rejected her assistance, it then fell to him to give her a warning. I consider that where AL clearly did not have Ms Cvilikas in sight (away from the bed) as he was moving the mattress, a warning ought to have been given. Whilst AL said at T3.57, LL29-30, “She wasn’t close enough to be involved in the task, so I didn’t think she was part of the task being performed” she was in fact close enough to be hurt by the moving mattress.
The risk that a mattress may impact a person in the path of the moving mattress who cannot be seen by the person moving the mattress was a risk of which the defendant and AL knew or ought reasonably to have known and it was significant.
This case has analogies to the decision in Czatyrko v Edith Cowan University,[51] although I note the facts are very different.
[51][2005] HCA 14.
I conclude that Ms Cvilikas has established liability on the part of the defendant.
Evidence of Justin O’Sullivan
Mr O’Sullivan prepared a report for the plaintiff dated 5 February 2021 addressing certain occupational health and safety issues relating to the incident. I admitted only part of that report into evidence.[52]
[52]Exhibit 15.
I do not consider the admitted evidence of Mr O’Sullivan is particularly helpful to determining any of the disputed issues. He opines as to an appropriate method of one person handling a mattress placement on a bed, the focus of which is preventing injury to that person. His reference to the Hazardous Manual Tasks Code of Practice (2012) makes that sufficiently clear – it being concerned with the muscular effort required to handle a load.
In so far as he opines to an appropriate method of two people handling a mattress, that is not the situation here. AL was performing the task on his own and specifically turned down assistance offered by Ms Cvilikas. The task being performed by AL did not involve repetitive or sustained force, high or sudden force repetitive movement, sustained or awkward posture or exposure to vibration. I do not consider there was anything negligent in AL simply moving the mattress on his own.
Causation
Where a breach is established, the injuries must be a ‘necessary condition’ of the accident, and it must be appropriate to extend the scope of the liability to the accident under s. 305D of the WCRA. A plaintiff must prove that whether or not other factors also contributed to the injury occurring, but for the accident, the plaintiff would not have sustained the injuries.[53]
[53]Chappel v Hart (1998) 195 CLR 232.
Sections 305D and 305E of the WCRA provide:
Causation
305DGeneral principles
(1) A decision that a breach of duty caused particular injury comprises the following elements -
(a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty - being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) - should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach -
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
(b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.
305EOnus of proof
In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
This is not an “exceptional case” so s. 305D(2) of the WCRA does not apply.
In Lusk & Anor v Sapwell,[54] Margaret Wilson AJA said at [76]:
An employer’s duty of care to his or her employee is non-delegable, and a high standard of care is expected. But the duty is not absolute. And in order to succeed in an action for damages for breach of that duty the employee must establish both the breach and that the employer’s conduct materially caused the injury. Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.
[54][2011] QCA 59; (2012) 1 Qd R 507.
The onus is on the plaintiff to establish a warning would have made a difference.
I find that Ms Cvilikas’s intervention was unannounced, unexpected and uninvited by AL.
However, I am satisfied that causation is established here. If the warning had been given, I consider that Ms Cvilikas would either have not reached forward with her arm towards the mattress or would have pulled her arm away in sufficient time to ensure that it was not caught between the mattress and the bed. In either case, the injury would not have been suffered by Ms Cvilikas.
Contributory negligence
In [8] of the Defence, the defendant alleges that Ms Cvilikas’s injury and any loss and damage resulting therefrom were caused and contributed to by her failure to take precautions against the risk of injury to herself that a reasonable person in her position would have taken. The standard of care required of Ms Cvilikas is that of a reasonable person in the position of the plaintiff and the matter is to be decided on the basis of what the plaintiff knew or ought reasonably to have known at the time: s. 305F of the WCRA.
Section 305H of the WCRA deals with circumstances in which a finding of contributory negligence may be made. As observed by McMeekin J in Osborne v Downer EDI Mining P/L & Anor,[55] s. 305H did very little to alter the common law position save to say that a court may make a finding of contributory negligence in the circumstances provided for in those provisions.
[55][2010] QSC 470 at [74].
Not claimed.
Fox v Wood damages
The plaintiff submitted for Fox v Wood damages in the amount of $12,093.50. It was submitted that was the amount paid by WorkCover to the ATO on the workers compensation paid.[150] I note that amount is precisely 25% of the $48,373.98 weekly benefits and lump sums total paid as compensation by WorkCover.[151] Under that heading in the WorkCover report there is an ATO transaction recorded (for $1,463), but it is subsequently reversed.
[150]T5.32, LL3-8.
[151]See exhibit 3 at p. 566.
I have been unable to identify an evidentiary basis for the plaintiff’s submission that $12,093.50 was the amount paid by WorkCover to the ATO on the workers compensation paid.
The defendant submitted that the plaintiff has received the benefit of a gross amount of $48,373.98 refundable to WorkCover and it would therefore not be necessary to separately consider and make any allowance for Fox v Wood damages.[152]
[152]Fox v Wood (1981) 148 CLR 438.
I am unable to conclude on the evidence before me whether any amount, and what amount, is properly allowable under this head of damage and I make no such allowance.
I note that whilst all the calculations I have made above appear to have a degree of precision about them, there is not in truth that level of precision that can be achieved in these types of assessments of damages – particularly in respect of calculations of past and future economic loss (which courts commonly calculate and then round down to an appropriate amount). So even if I am wrong in not including an amount of $12,093.50 as a head of damage for Fox v Wood damages, I am satisfied that my overall assessment of damages does reflect a proper and fair assessment of damages even if Fox v Wood damages are properly included.
Quantum before contributory negligence and WorkCover refund
The heads of damage awarded are as follows:
General damages 15,600.00 Interest on general damages 0 Past economic loss 135,785.28 Interest on past economic loss 8,775.95 Lost past superannuation 8,741.13 Future economic loss 146,322.77 Lost future superannuation 16,578.37 Past special damages 31,615.68 Future special damages 1,788.00 Gratuitous and paid care 0 Fox v Wood damages 0 Total $365,207.18
Effect of finding of contributory negligence
Based on my finding of 25% contributory negligence on the part of the plaintiff, the damages reduce to $273,905.39.
WorkCover refund
By reason s. 270(1) of the WCRA, “the amount of damages that an employer is legally liable to pay to a claimant for an injury must be reduced by the total amount paid or payable by an insurer by way of compensation for the injury”.
The refund is $77,712.06.[153]
[153]Exhibit 3 at p. 566.
The WorkCover refund is deducted after reduction for contributory negligence: see Negric v Albion Scrap Steel Pty Ltd.[154]
[154][1978] Qd R 362.
The damages further reduce to $196,193.33.
Total quantum
I allow the plaintiff’s claim at $196,193.33, clear of the WorkCover refund of $77,712.06.
Orders
1.Judgment for the plaintiff against the defendant in the sum of $196,193.33 clear of the WorkCover refund of $77,712.06.
2.The parties provide written submissions on costs within 14 days.
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