Damjanovic v Kah Australia Pty Ltd (trading as Bayview Eden) (ABN 51 052 003 139)
[2017] VCC 1657
•16 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-05989
| ZORKA DAMJANOVIC | Plaintiff |
| v | |
| KAH AUSTRALIA PTY LTD (trading as BAYVIEW EDEN) (ABN 51 052 003 139) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2017 | |
DATE OF JUDGMENT: | 16 November 2017 | |
CASE MAY BE CITED AS: | Damjanovic v Kah Australia Pty Ltd (trading as Bayview Eden) (ABN 51 052 003 139) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1657 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Cause – Claim for damages for injury to plaintiff in the course of her employment as a cleaner – whether negligence on the part of the defendant employer – whether breach of the Occupational Health and Safety Regulations 2007 – plaintiff claims to have had to perform repetitive and arduous cleaning duties – suffered injury to her neck, left shoulder and arms – resultant psychological reaction – causative relationship between breach and injury –the need for evidence that had an alternative system of work had of been in place whether the plaintiff would have suffered injury.
Legislation Cited: Civil Procedure Act 2010; Occupational Health and Safety Regulations 2007
Cases Cited:Duma v Mader International Pty Ltd (2013) 42 VR 351; Betts v Whittingslowe (1945) 71 CLR 637; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Swain v Waverley Municipal Council (2005) 220 CLR 517; Vozza v Tooth & Co Ltd (1964) 112 CLR 316; Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; Maloney v Commissioner for Railways (NSW) (1978) 18 ALR 147; Tressider v Austral Stevedoring and Lighterage Co Pty Ltd (1968) 1 NSWR 566; Southern Colour (Vic) Pty Ltd v Parr & Anor [2017] VSCA 301; Greater Shepparton City Council v Clarke [2017] VSCA 107
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr D E Curtain QC with Mr R H Stanley | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 In this proceeding, the plaintiff, Mrs Damjanovic, claims damages, both as to pain and suffering, and economic loss, for the injuries she alleges she sustained in the course of her employment with the defendant, Kah Australia Pty Ltd, (trading as “Bayview Eden”). She had worked as a housekeeper and cleaner of hotel rooms at the defendant’s hotel premises in Queens Road, Melbourne over a number of years. She alleges the work was repetitive, arduous and required her to work quickly. She commenced work with the defendant in 2003 and remained in employment until she says she was forced to cease work in November 2010, as a result of the injuries she sustained.
2 This proceeding was listed for hearing before his Honour Judge Misso and a jury of six and commenced on 11 February 2016 (“the first trial”). For reasons which are not relevant to the issues I have to determine, his Honour accepted a submission on behalf of the defendant at the conclusion of the evidence in that trial that the defendant had no case to answer. Consequently, the plaintiff’s claim was dismissed.
3 The decision was appealed, and by agreement of the parties at the time of the appeal, his Honour’s judgment was set aside, and orders made that the proceeding be remitted for retrial.
4 The proceeding came for determination before me, together with a jury of six, on 30 October 2017. Following empanelment of the jury, the parties had some discussions. As a result, each party urged me to hear the matter as a cause, with the evidence limited to that which was before the Court in the first trial. In the interests of efficiency and cost-effectiveness, and in accordance with the provisions of the Civil Procedure Act 2010, I acceded to the parties’ request. Consent orders were made to that effect.
5 I have read the transcript of the evidence in the first trial and considered the exhibits. I have not read any of the documents contained in the parties’ respective court books, as they are no longer relevant. I have not read any of the submissions made in support of the defendant’s ‘no case’ application in the first trial, not his honour’s Ruling to that effect. I have read the opening address of the plaintiff and the defendant in the first trial. I have not seen the need to observe the video/audio recordings of the first trial.
6 On 10 November 2017, counsel appeared after I had read the transcript, to make final submissions.
7 I am satisfied that from the transcript and assisted by the submissions of counsel, I am in a position to make a determination of the issues in this proceeding and have concluded that the plaintiff’s case should succeed.
Pleadings
8 By her Statement of Claim, Mrs Damjanovic alleged that over the course of her employment from January 2003 until 12 March 2010, she suffered injury to her cervical spine, upper limbs, left shoulder, including to the supraspinatus tendon, a SLAP lesion and aggravation of osteoarthritic change, left Carpal Tunnel Syndrome and reactive Anxiety and Depression. She alleges the injuries were caused by the negligence of the defendant, relevantly particularised as:
·failing to provide a safe system and place of work, and safe plant and equipment;
·failing to provide proper assistance;
·failing to provide adequate rotation of duties;
·requiring the plaintiff to work at too fast a pace;
·requiring the plaintiff to undertake heavy and repetitive cleaning duties;
·failing to comply with the provisions of the Occupational Health and Safety Regulations 2007 (“the Regulations”).
9 Further, the plaintiff alleges a separate statutory cause of action, being a breach of the Regulations, in particular, PART 3.1.
10 By its Defence, the defendant generally denied the allegations of negligence or breach of statutory duty. The allegations of contributory negligence pleaded by the plaintiff in its Defence, were abandoned.
Evidence – liability
11 Mrs Damjanovic is now fifty-four years old. She was born in Bosnia. She married her husband, Branko, in Bosnia in 2001 and the couple emigrated to Australia in 2002. In Bosnia, Mrs Damjanovic worked for a short period in administration. Ten months after arriving in Australia, she obtained work at the Bayview Eden. She was employed as a housekeeper/cleaner.
12 Mrs Damjanovic worked full time, Thursday, Friday, Saturday, Sunday and Mondays. On Thursdays, she worked six hours, and on each other day she worked eight hours. She commenced work at 8.00am and finished around 4.30pm. She took half-an-hour for lunch, but took no other breaks. After a period as a casual worker, she became permanent and, thereafter, worked only on the fifth floor of the hotel. There were seventeen rooms on that floor which she was required to clean, except Thursdays, when she was only required to clean thirteen rooms. Two of the rooms were larger rooms known as apartments.
13 Mrs Damjanovic was provided with a trolley which contained a range of items, including sheets, towels, cosmetics, toilet paper, and items for the bar fridge. Her first task was to take the rubbish from a room. Particularly on weekends, there was, sometimes, a delay of between ten and twenty minutes before the occupants left the room so she could commence her cleaning duties.
14 On weekends, there was more rubbish to be collected, including bottles, papers, and sometimes confetti. The rubbish was placed in bags. Particularly on a weekend, she would fill one bag per room and was required to take the bag full of rubbish to a staff room. The rubbish bags were heavy, and she had to pull them along the ground.
15 Mrs Damjanovic’s next task was to make up the beds. That included changing the sheets, doona and pillow covers. The soiled linen would be taken to a room nearby with a chute. She would then make up the beds. That sometimes required moving the bed and cleaning out under the bed. Some of the beds had wheels, and some did not. In some rooms, there would be one bed and in others, two beds. On occasions, there were extra folding beds. The beds did not always move easily when they did not have wheels. She would have to lift the mattresses and that was a difficult task. Some of the mattresses were large.
16 Mrs Damjanovic’s next task was to take dirty glasses to the bathroom and wash and dry them. She would then start cleaning the bathroom. This involved cleaning the tiles, toilet and vanity bench. The towels had to be replaced. She would clean the bath and then the floor. She cleaned the floor by squatting or kneeling and rubbing it down with a rag. She was not provided with a mop.
17 Mrs Damjanovic would return to the main bedroom area and commence vacuuming the floor. Items of furniture had to be lifted to allow vacuuming underneath them.
18 Throughout these tasks, Mrs Damjanovic worked alone. She would check to see whether items in the bar fridge or in the wardrobe had to be replaced, and she cleaned various surfaces in the rooms.
19 There were two apartments on the floor which were larger, with more beds, chairs and a table. The items on a trolley had to be replaced over the course of a shift.
20 She said that the work was difficult for her, and she complained to her supervisor, Tania. She sought to arrange a reduction in her working hours on Fridays and Mondays to six hours.
21 She described the work as heavy and hard, particularly lifting the mattresses. It was hard to kneel and squat. There were bedside tables which were heavy and had to be moved, together with other items of furniture. She had to work very fast. Pulling the bags of rubbish was difficult. She said there was very little time to do all of the tasks.
22 Mrs Damjanovic developed pain between her shoulder blades, which developed and got worse. It started in the neck, the left arm and three fingers. That was at about the end of 2009, the beginning of 2010.
23 Initially, Mrs Damjanovic had two days off work and then returned to work.
24 When her pain developed, Mrs Damjanovic told her supervisor, Tania, that she was in a lot of pain, and was told to go home.
25 She was told by Tania, when she returned to work, to help other workers. She did some dusting and cleaning, helping other housekeepers. Her days changed to Monday to Friday and she did not work weekends.
26 Mrs Damjanovic was shown various photographs of the housekeeping stores, trolley, laundry items and some photographs of the rooms.[1] Each floor had a linen cabinet. On occasions, when linen ran short, she would have to recover it from other floors. The soiled towels and sheets, she would carry by hand, sometimes pulling them along the ground to a chute (Photograph 5).
[1]Exhibit “A”
27 She said, on occasion, she worked longer than the six or eight hours. Over a period of about six weeks she was required to start at 4.00am and continued through until her normal finishing time. That was in about 2008 or 2009.
28 Mrs Damjanovic was then cross-examined. She worked as a casual over the first three years of her employment with Bayview Eden.
29 She accepted she earned more money on Saturday and Sunday. She started as a casual and commenced work as a permanent cleaner in September 2006, and continued that work until March 2010. Throughout that time she had the same supervisor, Tania, with whom she had a good relationship.
30 It was only rarely that Mrs Damjanovic had to do less than seventeen rooms. If a room was occupied and she could not get access, she was allocated another room. If a person was staying for more than one night, it was not necessary to do a full change of bed linen each day, rather, it was done every second day. It was only occasionally she would finish the rooms early. On those occasions, she would be allocated other cleaning jobs. Sometimes, she would have a cigarette at morning break, or she might finish a little earlier and would help another worker.
31 It was suggested to her that the appropriate way to clean the floor was to spray it and then use her foot to push a rag around the floor. She said it was impossible to clean that way. On the day she complained to Tania of pain in the shoulder blade area, 11 or 12 March 2010, she had been moving furniture, although could not recall precisely which items.
32 Mrs Damjanovic moved the cabinets containing the television in the rooms, and the bedside tables, but could not recall how often.
33 She said it was actually from 2009, when she started to experience pain in her shoulder and neck. At the outset, it was something she could control. The pain would start again when she was moving furniture. The pain became stronger with time. Other aspects of her job caused pain, including lifting the mattresses, taking the rubbish out and replacing sheets.[2] She thought it was at the end of 2009 that the problem started. There was a lot of carrying involved, including of towels, and sheets. Sometimes there was not enough of these items, and she had to go to another area to obtain more. Sometimes she had to go to other floors to get them.
[2]Transcript (“T”) 138
34 When Mrs Damjanovic was cleaning her seventeen rooms, she did not receive any assistance.
35 Evidence was given by Mr Bill Contoyannis, forensic engineer. He has experience in undertaking manual handling risk assessments. He obtained a history that Mrs Damjanovic’s duties at the Bayview Eden included housekeeping and cleaning of seventeen rooms on a shift which allowed about twenty minutes for each room. The tasks included making beds, vacuuming, mopping and general cleaning. She was required to move beds and other items of furniture and to lift and carry bags of linen. She said that the weekends were the busiest days and there was a lot of pressure to get the rooms clean for incoming guests. There was a lot of bending, lifting, twisting and repetitive work involved. Sometimes, on the weekends, there was less time available to clean the rooms.
36 Mr Contoyannis went to the Bayview Eden in November 2015 and inspected the rooms. He was provided with a blank copy of Manual Handling Hazard Identification Worksheet.[3] Once a hazard was identified in the workplace, it was necessary to undertake some sort of risk control. He was then provided with the Hazard Identification Worksheet completed on behalf of the defendant.[4] The document was completed on 19 October 2001 and related to the cleaning duties which were subsequently undertaken by Mrs Damjanovic. On this document, a number of areas of hazardous manual handling were identified, including repetitive and sustained application of force in the activities in the bathroom and bedroom. The document did not identify particular tasks, but rather areas of the rooms where work was performed.
[3]Exhibit B
[4]Exhibit C
37 Requiring employees to clean seventeen bedrooms and bathrooms over an eight-hour shift would ring alarm bells. There was a significant risk of injury given the tasks were hazardous. Mr Contoyannis noted that the worksheet identified a number of tasks as being risky and a number of tasks as involving high force. He concluded that the risk assessment was totally inadequate. After the assessment, no risk control was referred to as having been undertaken. The Regulations required an identification of the risk, eliminating it if possible, or controlling it, including with instruction and training.
38 Mr Contoyannis said there ought to have been a proper risk assessment and audit carried out. No proper assessment was undertaken, as specific tasks were not identified. The company then should look to implement controls of those tasks which were assessed as being at risk of causing injury. A company should also encourage its employees to report problems. Further, there should be training in manual handling. They should be trained to identify hazards. There should be rotating of the workers and their shifts. This was not undertaken. There should have been another worker present to assist in moving the heavy furniture and the other arduous tasks. He said there ought to have been better supervision to identify hazardous tasks. A person who is bent over will place more load when involved in lifting objects or other activities such as making beds. The cervical spine was vulnerable when arms were extended outstretched and lifting above the shoulder height occurred.
39 Mr Contoyannis said that repetitive tasks create an additional risk factor.
40 In cross-examination, Mr Contoyannis agreed that even the smallest amount of musculoskeletal force in a work-related task could cause injury. If one was to guarantee no exposure to risk, then every such task would have to be eliminated.
41 It was put to Mr Contoyannis that in the course of her evidence, Mrs Damjanovic accepted that she did receive some assistance in some of the tasks. He said he took that on board but that it did not alter his opinion. It was suggested to him that because Mrs Damjanovic did a range of tasks, that was sufficient in terms of rotation. He disagreed. He said some of the hazardous tasks identified were being done for more than two hours over a shift. An employee such as Mrs Damjanovic would keep coming back to the same tasks. He said the aim was to rotate away from duties which were hazardous and caused a risk of injury.
42 Mr Contoyannis said that he did not find any evidence that the employer had attempted to minimise the risk of injury in the work process. Working in pairs could constitute a form of risk control.
43 A number of witnesses were called on behalf of the defendant. Ms Tania Hluschko had been employed by Bayview Eden for sixteen years.[5] She was an executive housekeeper and supervisor. She had worked in the industry for thirty years.
[5]As at the date of the first trial, February 2016
44 The Bayview Eden was a six-floor hotel with 192 rooms. There were 32 rooms on each floor. That included two larger rooms or suites on each floor. There were three types of rooms: the suite, king-size room and two-bedded room. Over the years from 2003 to 2010, there were about twenty-four room attendants. That was still the situation in 2016. Six of those employees were permanent, and eighteen casual.
45 Ms Hluschko described Mrs Damjanovic as a good worker and good cleaner. She said she was quick.
46 The cleaners would generally start at 8.00am and have a break at about 10.00am for fifteen minutes. Lunch was a 12 noon and then a further break at 3.00pm. The workers would meet in the staff room during breaks. There were three supervisors plus herself. Mrs Damjanovic took the breaks and attended the staff room.
47 The permanent workers would work on the one floor. They would be allocated seventeen rooms on that floor. The other rooms on the same floor would be divided amongst the casuals. Twenty-five or so minutes per room was allowed. That was adequate to clean the rooms. The cleaning needed on any one room would depend upon the guests. Some barely used the room, and others used it extensively.
48 Mrs Damjanovic worked on the fifth floor over the period from 2006 to 2010 when she was a permanent. At the beginning of the working day, Ms Hluschko would allocate the rooms to be cleaned. On one day, for example there may be the need to clean only half the rooms on the fifth floor; however, one way or another, Mrs Damjanovic would do seventeen rooms.
49 On weekends, people might not want to be disturbed and would put a privacy sign out. To Ms Hluschko’s knowledge, Mrs Damjanovic did not have any problems completing a job. She would usually finish her rooms earlier than the designated time. On occasions, she asked to go home earlier. On an occasion, Mrs Damjanovic asked for a Sunday off to go to church. Occasionally, workers were not able to finish their rooms within time. On those occasions, the girls who had finished their work earlier would help. The supervisors would check the room, and help out on occasions if someone was behind.
50 Ms Hluschko denied that Mrs Damjanovic came to her and asked to change her hours on Fridays and Mondays to six hours. She accepted that the cleaners had to place rubbish from the rooms in plastic bags and take them out, but they were not heavy. She said it was not necessary to lift up mattresses, the sheets could be slid underneath. She said there was no need for vigorous shaking of the doonas. She said all the beds had wheels. Making the bed was a simple task. The floor under the beds did not have to be vacuumed every day but rather on a weekly or fortnightly basis. She said the system for cleaning the bathroom floor was to spray it and then use your leg to wipe the floor with a cloth. Another employee, Dehlia, delivered the linen to the floors.
51 She accepted Mrs Damjanovic may on occasions have had to go to another floor to get the linen. She said it was not necessary to move the cabinet containing the television in order to vacuum under it. It was too heavy for the room attendants. Likewise, the chest of drawers would not be moved. It may be necessary to move the armchairs but they were not very heavy. The bedside tables would not have to be moved except if there was a spring clean. The vacuum cleaner that was used would fit under the table and chairs.
52 In 2001, Fiona Watt was the health and safety representative. When shown the completed Hazard Identification Work Sheet,[6] Ms Hluschko did not recollect the document. She did not recollect being involved in a risk assessment, but accepted that the work was physical at times. It was difficult to have two room attendants working at the same time, as some were slower and some were faster.
[6]Exhibit C
53 There was a briefing every morning to talk to the room cleaners. It was their opportunity to raise any issues. There were no mops provided as mopping was not necessary. Bins were introduced to help remove the laundry. These had wheels. The same system was in place in 2016 as it had been throughout the course of Mrs Damjanovic’s employment.
54 Ms Watt said the cabinet depicted in the first photograph of exhibit 1 contained a television. Some of the cabinets in other rooms were smaller, half the size of that, but were still too heavy to lift.
55 Ms Hluschko said that twenty-five minutes was enough to do the rooms, even with breaks, replenishing the trolley and putting the rubbish out.
56 She accepted there was an obligation to look at whether or not work involved manual handling including hazardous manual handling. She could not remember filling out any forms in that regard. She could not recall sitting down and going through the work; that was performed by room attendants to see whether it involved hazardous manual handling. In the sixteen years she was there, she had never been involved in any form of hazard identification. She said she was always looking to improve the work that was undertaken.
57 She was taken to the completed Hazard Identification Work Sheet.[7] The form indicated that employees had reported pain or significant discomfort with their back or arms. She said she was not aware of that. If there were complaints, they were not passed on to her. If she had been aware of any report of complaint to that effect, she would have done something about it.
[7]Exhibit C
58 Ms Hluschko said that she guessed the risk of hazardous manual handling could be reduced if the number of rooms the permanent workers were required to clean were reduced from seventeen. She accepted that the risk to workers would be reduced if they worked in pairs. The bin for the linen laundry items was introduced after Mrs Damjanovic’s injury. That would have made it easier for the girls. She disagreed that a mop and bucket would reduce the risk as there would be water dripping and the surface would become hazardous. She said every bed in the hotel had wheels on it. She accepted that the risk assessment carried out in 2001 was deficient.
59 Evidence was given by Ms Meena Kumari, a housekeeping supervisor at Bayview Eden. She was one of two supervisors at the hotel. She had been employed there for twenty-one years. She had a second job working at another hotel, and would clean seventeen rooms in a shift there. She was in charge on Saturdays and Sundays at the Bayview Eden.
60 Ms Kumari said Mrs Damjanovic was a good worker and completed her tasks quickly. She finished her work within time. Ms Kumari would on occasions help other workers complete their tasks. She did not recall helping Mrs Damjanovic.
61 There were breaks in the day: a tea break at 10.00am, a lunch break at 12 noon and an afternoon break at 3.00pm. Mrs Damjanovic took those breaks with everyone else. Everyone gathered in the staff room.
62 Generally, she said the work was not that hard once you got used to it. You became tired but then the next day you were over it.
63 As to moving furniture, it was only necessary to move the beds, which had wheels, and sometimes vacuum at the back of the beds. Otherwise, the furniture was not moved. The cabinets containing televisions were too heavy to move. You would push the beds into place using your knees. The whole room had to be vacuumed and that sometimes involved moving the chairs and vacuuming under the table. The table and chair shown in exhibit 2 were the same in every room. It was easy to move the chair for vacuuming.
64 Ms Kumari said it was not appropriate to use a mop and bucket to clean the bathroom floor as water would get everywhere. She did not receive complaints when she was supervisor from any employees because seventeen rooms had to be cleaned in a shift. Mrs Damjanovic never complained to her.
65 Ms Kumari was cross-examined. The weekends were busier than other days. The busiest days were Friday, Sunday and Monday. Mrs Damjanovic would do her rooms very quickly, and Ms Kumari would tell her to slow down from time to time. She knew what she was doing; no one had to check her work. The cabinets containing the televisions were too heavy to move. The smaller cabinets were light, and could be moved. She was unaware whether Mrs Damjanovic moved them. In order to vacuum under the beds, it would be necessary to move the beds. The trolleys were introduced to move the linen bags to make the job easier. There was about twenty minutes to do the room. Some rooms were very clean and it might take ten minutes. In the bathroom, the cleaners are now given squeegees, but they are rarely used.
66 Evidence was given by Ms Fiona Owen. She was the payroll officer at the Bayview Eden and had worked there over twenty years. In 2001, she was the Human Resources manager, and had involvement in occupational health and safety. She was shown exhibit “C”: that was her handwriting. She could not recall the circumstances which led her to fill out the document. It was part of the job to look at ways to get better equipment and make the job easier, quicker and more efficient. She could not recall filling out any forms such as exhibit “C”. They did a lot of manual handling assessments across the hotel.
67 Ms Owen agreed the company would be required to keep the documentation. She worked for a period as a cleaner, and was able to complete seventeen rooms, although it was a physical job and the cleaners were on their feet all the time.
Evidence – damages
68 Mrs Damjanovic first suffered pain between her shoulder blades, neck, left arm and down the arm to the fingers in late 2009, early 2010. She went to see Dr Sheriff, her general practitioner, in March 2010.
69 Dr Sheriff sent her for x-rays and she was off work for a week, and returned on light duties. She made a WorkCover claim.
70 Mrs Damjanovic found the light duties difficult, but kept working until November 2010. At that point she said she was in too much pain and ceased work.
71 She was referred by Dr Sheriff to a number of specialists, including Mr Kavar, a neurosurgeon, and Mr Hunt, an orthopaedic specialist. Both discussed the possibility of surgery to her neck and/or the shoulder. She decided against surgery. She was also referred for physiotherapy.
72 Mrs Damjanovic enjoyed her work, and the friendships it brought.
73 She was prescribed various medication, including Lyrica, Endep and Panadol.
74 As of February 2016, Mrs Damjanovic indicated the areas of pain as being to the left side of her left arm, left shoulder and side of the neck, with cramping to the muscles. The pain was present all of the time but varied in severity. She got spasms to the left side of her face and neck. She said her vision was affected. Her sleep was poor and she could not sleep on her left side. As a result, she felt tired during the day.
75 As at February 2016, Mrs Damjanovic’s husband assisted with the heavier domestic duties. He did the gardening. A neighbour helped with the cooking. She did the shopping, although her husband helped. She was able to carry light items. She previously enjoyed gardening.
76 Since she was off work, Mrs Damjanovic has had problems with headaches. She also suffered depression after she arrived in Australia as a result of an accident to her brother. The depression has continued until February 2016. She takes antidepressant medication for the condition. Her headaches came on after she had problems with her shoulder and arm. She also had problems with headaches as early as 2004. She admitted she had some lesser problem with pain in the side of her face before the workplace injury.
77 As at February 2016, Mrs Damjanovic saw her general practitioner each three months. Some time back it was each month. She stopped taking Panadeine Forte twelve months before as it was affecting her stomach. Since then, she has taken Panadol.
78 In cross-examination, Mrs Damjanovic accepted that she had made no attempt to find work since she had left the defendant. She found it too difficult. After she originally complained to Tania and was put on light duties, she could not continue. The pain caused her to stop work. The pain was in her shoulder and neck. As at February 2016, the pain was actually better than it had been before. She had less spasms in the neck. She had a weakness in her left arm and has no strength. She also has pain into her neck and side of the face, including the jaw. She uses a nerve stimulator. She has some problems with her right arm because she is over-using it to compensate for the left.
79 From time to time Mrs Damjanovic had problems with her lower back, with stiffness. Those problems went away.
80 Mrs Damjanovic said she could not read or write in English. She had limited language skills. She has no computer skills. When she left work, she was told by Dr Sheriff that she was unfit to go back to any work.
81 Evidence was given by Mrs Damjanovic’s husband, Branko. He said his wife enjoyed her work with Bayview Eden. She complained of shoulder and neck pain around late 2009. He assisted with massages. As of February 2016, he did all the heavy housework at home. Mainly, he did the cooking. Sometimes neighbours helped. The couple could not sleep together as she woke up during the night.
82 Evidence was given by Mrs Damjanovic’s treating general practitioner, Dr Sheriff. He commenced treating Mrs Damjanovic in March 2010. At that time, she complained of a one-week history of a painful neck, left arm and left deltoid pain. She said she had never had that before. She worked as a housekeeper for Bayview Eden. There was a past history of Depression. He ordered an x‑ray and ultrasound of the left shoulder and prescribed anti-inflammatory medication. She described housekeeping to include cleaning and making up rooms, including beds, cleaning the toilets and handling detergents. He provided her with a week or so off work and for her to return on modified duties. He referred her to Mr Lyons, an orthopaedic surgeon. An ultrasound of November 2011 showed calcific tendinosis of the supraspinatus tendon. There were no obvious tears to the tendon. There was also subacromial bursitis with impingement. A steroid injection was suggested.
83 Dr Sheriff said calcific tendinosis was a repetitive strain-type injury, where the shoulder is required to undertake excessive movement. The area becomes calcified over time. The MRI scan of July 2010 also showed there was a superior labral anteroposterior (SLAP) tear or lesion. The capsule of the shoulder became torn because of the type of movement involved. The findings on the MRI scan would account for Mrs Damjanovic’s shoulder pain.
84 In the neck area, a CT scan of December 2010 showed significant C5-6 disc degeneration with an associated disc bulge with foraminal stenosis. There was impingement of the exiting C6 nerve root. This was a wear-and-tear-type injury where the discs at C5 and C6 had become worn.
85 Dr Sheriff thought that the injury to Mrs Damjanovic’s shoulder was consistent with the work duties. The SLAP lesion was traumatic. As to the degenerative disease in the neck, that can be accelerated by people who undertake labour-orientated work.
86 When Mrs Damjanovic’s evidence as to her work duties was provided to Dr Sheriff,[8] he said that the description of the duties involved laborious work which had to be finished in a specified time. He thought there was a relationship between that work and her developing problems in her shoulder and the neck. The neck problem was an aggravation of underlying degenerative disease and would have made it worse. The sensation in Mrs Damjanovic’s fingers was caused by the SLAP lesion in her shoulder and carpal tunnel.
[8]T160-161
87 Dr Sheriff referred Mrs Damjanovic to Mr Lyons, and also Mr Kavar, a neurosurgeon, in 2011. He raised the possibility of a C5-6 discectomy. He also referred her to Mr Hunt in 2012, an orthopaedic surgeon.
88 In relation to Mrs Damjanovic’s neck and left arm condition, Dr Sheriff thought she had no work capacity as at February 2016 and that has been the case since 2010. He thought it was unlikely that situation would change. He prescribed her Lyrica for neural pain. It was at a high dose. He prescribed Endep, both as an antidepressant and for pain management. As to the future, he thought the only additional form of treatment was for chronic pain management.
89 In cross-examination, Dr Sheriff accepted that there was no specific incident conveyed to him by Mrs Damjanovic as causing the neck, left arm and shoulder problems. As at February 2016, Mrs Damjanovic was still suffering from depression, and he had referred her to a psychiatrist, Dr Kaplan. Dr Sheriff admitted he did not receive a history of prior headaches and a brain CT scan. Dr Sheriff thought that Mrs Damjanovic was suffering a Chronic Pain Syndrome, but explained that meant chronic physical pain that could not be treated by a range of modalities. He was still of the view that she had pathology both in the neck and shoulder to explain the pain.
90 Dr Sheriff made reference to other conditions from which Mrs Damjanovic was suffering, including facial muscle spasm and temporomandibular joint problems. These could be caused by chronic pain and stress. He was unable to explain some of her symptoms. He said the degenerative process in her cervical spine was contributed to by her work. In September 2011, Dr Sheriff noted that there was wasting in Mrs Damjanovic’s shoulder girdle area.
91 Evidence was given by Professor Richard Bittar, neurosurgeon. He first examined Mrs Damjanovic in August 2014, when she complained of neck and left shoulder pain. She also had pain down the left arm and sensory disturbance in the left hand, together with headaches. She described relatively heavy physical work as a housekeeper at Bayview Eden, which included lifting mattresses, making beds and carrying bags of rubbish, which were often heavy. The work was high-paced. Interscapular pain between the shoulder blades began in late 2009, and in early 2010, she began to develop significant pain in her neck, left shoulder and arm, together with pins and needles into the left hand. She was treated by a hand surgeon for Carpal Tunnel Syndrome.
92 In association with her neck pain, Mrs Damjanovic complained to Professor Bittar of left-sided occipitocervical headaches which deteriorated in late 2010. During 2011, the cervical pain became worse, going up into her head, as did the pain and sensory disturbance going into her left arm. He said an MRI scan of her neck of April 2011 at C5-6, showed she had a disc osteophyte complex causing stenosis of the canal, as well as bilateral foraminal stenosis. He said the findings on the MRI scan correlated accurately with her symptoms and provided an explanation for her pain, including the distribution of pain. The disc osteophyte complex meant a combination of a disc prolapse leading to extra bone formation. The pattern of pain behind her shoulder blades and down her left arm was consistent with disc osteophyte complex at C5-6. He said it was a text-book presentation.
93 Professor Bittar concluded that Mrs Damjanovic had aggravated cervical spondylosis with neck and arm pain. He said the cervicogenic headaches were related to that spondylosis. He further thought there was some left shoulder pathology, but that was not within his area of expertise. He thought her employment with Bayview Eden was a significant contributing factor to her cervical spine problems. He said it was difficult to say exactly when the disc prolapse occurred, but the process had started some time before the pain came on. He thought there was a clear and direct relationship between the heavier work she was doing and the symptoms in her neck and arm.
94 Professor Bittar described the injury as very serious, with the symptoms being present whenever she used her neck or arm. Given her education and past work history, it would be very difficult for her to secure any employment, and even if she did, she would likely experience a flare-up of pain. He did not think there would be any realistic change in her symptoms into the future. There had been the prospect for cervical surgery at an earlier time, but now, five or six years down the track, that prospect was lost.
95 In his subsequent report, Professor Bittar noted bilateral facial tics, but could not say what was causing them. They would often come about after trauma or chronic pain. He thought there was a reasonable chance they were related to her work injuries. He confirmed after the second examination that Mrs Damjanovic had no capacity for suitable employment.
96 In cross-examination, Professor Bittar accepted he did not have a history that Mrs Damjanovic had severe headaches requiring a CT brain scan from 2004 to 2010. A person’s perception of pain can be affected by whether or not they are depressed. He explained that symptoms of twitching and jerking could be explained on neurological grounds and may not be something an orthopaedic surgeon was familiar with. It may suggest a psychological component. He did not think the psychological issues dominated the clinical picture. He said it was not uncommon to see patients whose symptoms included pain going into their ear and face. He did not receive a history that there was any specific event which set off her pain symptoms in 2009 but, rather, it came about as a result of heavy and repetitive work activities.
97 Professor Bittar said that when Mrs Damjanovic returned to work on lighter duties, and her symptoms flared up, it was an indication that the aggravation of the degenerative condition in her cervical spine was due to her work duties. There was no sign of abnormal illness behaviour on the occasions when Professor Bittar saw her.
98 Evidence was given by Mr Justin Hunt, treating orthopaedic surgeon. Mrs Damjanovic was referred to him by her general practitioner on 1 May 2012.
99 Mr Hunt received a history that Mrs Damjanovic had sustained injury on 12 March 2010 in the course of her employment. She experienced symptoms in the neck region, as well as pain in the left upper limb. She was concerned about the ongoing nature of the symptoms. She had previously seen a surgeon, Mr Frank Lyons, who was a shoulder specialist. He noted Mrs Damjanovic had suffered a SLAP tear or lesion to the shoulder joint. There was calcification of the biceps tendon. The shoulder had developed calcific tendonitis in addition to the SLAP tear. He thought the pain in her shoulder and radiating down the arm followed the path of the biceps tendon. In addition, he said Mrs Damjanovic was suffering neck pain radiating down into the trapezial area and on to the left side.
100 Mr Hunt noted Mrs Damjanovic had a cervical spine injection performed on 12 May 2011 which did not provide lasting relief from her symptoms. Mr Lyons had provided subacromial injections into the shoulder without effect. Physiotherapy treatment had helped. He noted changed sensation in the left index finger, thumb and long finger. He noted advanced wear at the C5-6 segment on radiological investigation. An MRI scan of May 2012 showed –
“… a large disc osteophyte complex at C5-6 posterior indents the cord and results in moderate central canal and severe bilateral neural exit foraminal stenosis.”
101 Mr Hunt said the symptoms complained of were consistent with the pathology, both in the shoulder and the cervical spine. There was compression of the exiting nerves at C5-6 to explain the change of sensation in the fingers. When the tasks Mrs Damjanovic had to undertake were explained to him,[9] he said the cervical spine injury was consistent with those activities. He said that the headaches she described may or may not be related to a cervical disc prolapse. He considered surgery to the neck involving a decompression of the relevant discs and a fusion procedure. He did not recommend it to her but told her that that could be undertaken if the condition was to progress.
[9]T307-308
102 In respect of the shoulder, his clinical assessment indicated she had an impingement syndrome, rotator cuff tendonitis and subacromial bursitis in addition to a SLAP tear. Her work with Bayview Eden was likely to have aggravated the degenerative change, both in the shoulder and neck. Given she still suffered symptoms to those areas in 2013, then the contribution of the work injuries was still present.
103 When he saw her in 2012, Mr Hunt thought she had no capacity for her pre-injury employment, or any alternative employment. He thought that her domestic and daily activities were limited, both by neck and shoulder pain and restriction. This extended even to a capacity to walk.
104 Mr Hunt accepted that given he had not seen Mrs Damjanovic for four years, the opinions he expressed were based upon his findings four years back. He did not see the significance of a history relating to headaches as that was not the area that he was concentrating on. When asked about functional or abnormal illness behaviour, he said the symptoms Mrs Damjanovic exhibited were consistent with clinical examination, and the pathology. He did not detect any signs of overreaction. He said a SLAP tear was not necessarily a result of a traumatic event, but may be related to repetitive type activities.
Credibility of the Plaintiff and the Defendant’s liability witnesses
105 The principal evidence as to Mrs Damjanovic’s tasks, and the way she was required to carry them out in the course of her employment with Bayview Eden, was given by Mrs Damjanovic and two of the defendant’s witnesses, Ms Hluschko and Ms Kumari.
106 There were a number of areas where there was a conflict on the evidence. All agreed Mrs Damjanovic was a good worker, got through her assigned tasks quickly and efficiently, and was well regarded within the company. The defendant’s witnesses said that although the work was physical and required the workers to be on their feet during the day, there was no particular rush about cleaning seventeen rooms, and twenty to twenty five minutes was sufficient time. Mrs Damjanovic said she had to work very quickly in order to get through the tasks, which were demanding and repetitive. Further, Mrs Damjanovic described particularly heavy aspects, including moving bags of rubbish out of the rooms and to a another area, lifting the beds and the mattresses when making the beds, having to move heavier items of furniture in order to vacuum underneath, including cabinets, bedside tables and beds, and cleaning the bathroom floor down on her hands and knees. Further, she said linen items and towels were heavy and had to regularly be brought into the rooms.
107 To the contrary, Ms Hluschko and Ms Kumari said there was not any significant amount of heavier lifting. The larger cabinets containing televisions were too heavy to lift. The best way to mop the bathroom floor was to use a rag and, standing on one leg, move it around the floor, the bags of rubbish were only rarely particularly heavy, and the beds could be moved using one’s knees.
108 Having considered the evidence, there were no major credit issues put to Mrs Damjanovic. It was suggested that she had not made a full disclosure of headaches that she had before she suffered her neck and shoulder injury, but I did not regard this as a significant credit issue. It appeared to me that generally, she gave her evidence in a forthright manner and attempted to answer questions in cross-examination responsively.
109 Mr Curtain, on behalf of the defendant, was critical of Mrs Damjanovic in respect of the evidence of complaints she alleged she made to her supervisor. She said[10] she complained to Ms Hluschko that the work was difficult and as a result wanted to reduce her working hours on Fridays and Mondays.[11] Ms Hluschko denied there was any request to change her working hours.[12] Mrs Damjanovic said in evidence that the pain commenced towards the end of 2009, beginning of 2010.[13] In cross-examination, she said that she had complained of pain in her shoulder before 12 March 2010. This, said Mr Curtain, was inconsistent with the evidence of the general practitioner, Dr Sheriff,[14] that she attended his clinic on 13 March 2010 with a one-week history of painful neck and left arm. However, I do not see this as being a significant credit issue. Mrs Damjanovic was uncertain as to the precise date of the onset of pain.
[10]T99, L3
[11]T99, L22
[12]T349, L19
[13]T102, L5
[14]T156, L28
110 It is clear Mrs Damjanovic had a strong work history. She came to Australia in 2002, and within ten months had obtained employment with Bayview Eden, despite limited English language skills. She remained working there until she left by reason of her injuries. Further, she was described by Ms Hluschko and Ms Kumari as a hardworking and efficient cleaner, and very honest. These matters bode in favour of her being a credible witness.
111 Similarly, there were no significant credit issues involving the evidence either of Ms Hluschko or Ms Kumari.
112 It was difficult for all four witnesses to give precise evidence of what had occurred, now many years ago. Mr Curtain made a submission that there was an obvious compensation factor to motivate Mrs Damjanovic to give the evidence she did about the demanding nature of her tasks. I did not detect anything of this nature from reading the transcript evidence and I assessed her as a reasonably honest witness giving a fair account of her work duties.
Analysis – liability
What were Mrs Damjanovic’s work tasks?
113 Having considered the evidence of Mrs Damjanovic, and the defendant’s liability witnesses, I am satisfied that in the course of an eight-hour shift, Mrs Damjanovic was required to clean seventeen rooms on the fifth floor of the Bayview Eden. Given the environment in which she worked, it was undoubtedly important that the rooms be cleaned promptly and to a high standard.
114 Most of the rooms were of the same size, although two were larger. There was either one or two beds in each rooms. On some days, particularly around the weekends, the work was busier.
115 There was little disagreement generally as to Mrs Damjanovic’s tasks. There were, however, five areas of conflict. Both Ms Hluschko and Ms Kumari said there were wheels on all of the beds, which assisted in their movement to enable cleaning or changing of sheets. Mrs Damjanovic said there were only wheels on some of the beds. Further, Ms Hluschko said it was not necessary to lift the mattresses to any significant extent in order to change the sheets. She said the sheets could be “slid” under the mattress. Mrs Damjanovic said it was necessary to lift the mattresses and sometimes the beds.
116 Mrs Damjanovic said there were heavy items of furniture which had to be lifted and moved in order to vacuum the floor. The defendant’s witnesses said it was impossible to lift, particularly the heavier items, and it was not necessary to vacuum under them.
117 Mrs Damjanovic said the bags of rubbish which had to be transported to a central location on her floor were heavy and she often had to drag them on the carpet. The evidence by the defendant’s witnesses was generally they were not heavy.
118 There was a conflict as to the appropriate way to clean the bathroom floor. Mrs Damjanovic said she got down on hands and knees. Ms Hluschko said the cleaning was undertaken by standing on one leg and using a rag with the other to clean the floor.
119 I am satisfied that Mrs Damjanovic’s first task was to place the rubbish in plastic bags to be delivered to a central point on the floor. I accept that on some occasions, there was not a lot of rubbish to be cleared, but on other occasions, there was. I accept Mrs Damjanovic’s evidence that on occasions, the rubbish was such that she had to drag it along the floor to the central rubbish point when the bags were heavy. I accept that she found this a difficult task on the occasions when it was heavy. She was largely left to her own devices as to how this rubbish was managed. I prefer her evidence to that of Ms Hluschko and Ms Kumari that she encountered difficulties with the heavier bags. Probably because she was a good worker, she was not supervised, and the fact that she found some difficulty dragging the bags meant there was a failure on the defendant’s part to properly supervise her so that she carried out her tasks with the least risk of injury.
120 The next task involved making up the beds. I am satisfied from Mrs Damjanovic’s evidence that this had to be done almost every day and involved different sized beds and, in some rooms, more than one. I am satisfied this required Mrs Damjanovic to lean across in order to ensure the sheets and doonas were properly fitted to the beds. It is difficult to envisage a process when making up a bed to a high standard that there was not a requirement for the mattress to be lifted. To even partly lift a mattress on a large bed is no easy task. It required Mrs Damjanovic to bend in a forward position which, I accept from the evidence of Mr Contoyannis, placed an extra strain on her spine. While both Ms Hluschko and Ms Kumari said that it was not a particularly difficult task and the sheets could be “slid” under the mattress, I prefer the evidence of Mrs Damjanovic that the task was demanding and required her to work in an awkward posture.
121 There was a dispute upon the evidence as to whether the beds had wheels or not, but even accepting the majority of the beds had wheels, that did not alter the fact that the making up of the beds which involved the movement of the mattress, was an arduous task. Again, if Mrs Damjanovic was performing this task contrary to the way preferred by her supervisors, then that was a reflection of the failure by the defendant to provide appropriate supervision.
122 Further, the Hazard Identification Worksheet[15] referred to an assessment of the tasks undertaken in October 2001. The evidence of all the liability witnesses was that the cleaning and housekeeping work in the rooms had not changed over a long period of time. It is reasonable to infer that the tasks were much the same in 2001 as in the years after that, up until 2009. That worksheet referred to, in relation to beds, a requirement of bending the back forwards and sideways by more than 20 degrees. There was also the requirement to reach forward when smoothing the doona, and to squat or kneel while making the bed. The assessment referred to lifting mattresses to tuck in sheets which were said to involve “high force” while in an awkward posture.
[15]Exhibit C
123 Mrs Damjanovic was required to supply towels and linen which was provided by another employee. The used linen was taken to a chute. Mrs Damjanovic said that sometimes she was required to go and get more linen when the supplier with which she had been provided ran out. I accept this involved a certain amount of physical effort, picking up the linen and placing it within the rooms. According to the evidence of Ms Kumari, trolleys were introduced after Mrs Damjanovic suffered her injury, to make the task easier, as it was hard to move the linen bags.[16]
[16]T409-410
124 Mrs Damjanovic’s evidence was that she was required to move various items of furniture, some of them heavy, in order to vacuum underneath. These included chairs, tables, bedside tables and television stands. The evidence of both Ms Hluschko and Ms Kumari was to the effect that the more substantial items could not be moved as they were too heavy. It is clear from some of the photographs[17] that some of the heavier items of furniture in the rooms could not be moved. However, I accept there were a range of other items, including small cabinets and chairs, which had to be moved in order for the carpet to be vacuumed. While not the most arduous of tasks, nonetheless I accept Mrs Damjanovic was required to move these items in order to properly clean the carpet. I accept the evidence of the defendant’s witnesses that the larger cabinets could not be moved.
[17]Exhibit 1
125 In relation to the bathrooms, Mrs Damjanovic complained that she would squat and kneel while cleaning the tiled floor with a rag and cleaning fluid. The evidence of Ms Hluschko and Ms Kumari was that that was done by an employee standing and using their feet. This would seem to me to be a somewhat perilous way to clean the floor, with the risk of slipping with the weight on one foot alone. I accept the evidence of Mrs Damjanovic that she cleaned the bathroom floor while on all fours and that in that bent-over position, the work was taxing. If indeed the system of work was to stand on one leg and use a rag, then that system was not properly conveyed to her.
Speed and repetitive nature of the duties
126 Of significance, in my view, is the fact that Mrs Damjanovic was allocated seventeen rooms to clean in an eight-hour shift. Allowing half-an-hour for lunch, and a further half-an-hour for toilet and other breaks, would leave approximately seven hours. But that was not the end of the matter. It would be necessary for Mrs Damjanovic to move from one room to another, sometimes encountering a room where the occupants were still present, taking rubbish to a central deposit point, and obtaining and removing linen. The arithmetic would indicate that realistically Mrs Damjanovic would have something between twenty and twenty-five minutes, more likely closer to twenty minutes, for the cleaning of each of the seventeen rooms. On any view, it was a job which required Mrs Damjanovic to work at a fast and efficient pace. Mr Contoyannis said that this pace would cause “alarm bells” to ring. In fact, I am satisfied that it was only because Mrs Damjanovic was a conscientious and efficient worker that she was able to undertake all of these tasks within the time allowed.
127 Again, the Hazard Identification Worksheet[18] is telling. The tasks identified by Ms Owen in 2001 in the bathroom and bedroom refer to the cleaning as requiring repetitive or sustained application of force, awkward posture and movement. The various tasks identified in the document refer to the tasks involving bending of the body to various different degrees, fast movements, awkward postures and the use of high force.
[18]Exhibit C
128 Not only were the duties required to be performed quickly, but they were clearly repetitive. While in the course of the cleaning of one room, the tasks changed, some of which were no doubt light, and some significantly more arduous; however, given Mrs Damjanovic was required to clean seventeen rooms, she was immediately required to go on to the next room and perform those same tasks. By the end of the day, the tasks had been performed on many occasions over the eight-hour shift.
Steps available to the Defendant to reduce the risk of injury
129 Mr Contoyannis gave evidence of a range of steps which were available to the defendant to reduce the risk of injury.[19]
[19]T252-7
130 Those steps were:
(i) Carry out a proper risk assessment and audit of the workplace duties;
(ii) Put control measures in place to reduce or eliminate the risks involved;
(iii) Encourage the employees to report workplace problems;
(iv) Provide training in manual handling and hazard identification;
(v) Rotate the workers;
(vi) Have available to the plaintiff and to other workers, a second worker to assist with the heavier tasks including moving furniture and restocking the linen trolley;
(vii) Providing better supervision of the workers in their duties.
131 Further, it was open to the defendant to reduce the number of rooms which had to be cleaned in any one shift, or to increase the number of employees, such as having them work in pairs. The evidence of Ms Hluschko was that such a system did not work, as a pair of workers may not work at the same pace, or there may be disagreements between them as to what was to be done. However, that is no good reason to not change the system when there was a risk of injury involved. If, as Ms Kumari said in evidence, there were other hotels who required cleaners to work on the same number of rooms,[20] then those hotels also required its workers to work at too fast a pace.
[20]T389
132 Further, if indeed Mrs Damjanovic was required to lift various items of furniture from time to time in order to vacuum the bedrooms, which I accept she did, then her failure to follow the system suggested by Ms Hluschko and Ms Kumari not to lift items of furniture was an indication of a failure to properly supervise her, or enforce a safe system of work. I accept the submissions of Mr Mighell, counsel for Mrs Damjanovic, that, to a significant extent, Mrs Damjanovic was “left to her own devices” in respect of many of the tasks she was required to perform.
133 There was also the option to the defendant to rotate the duties which Mrs Damjanovic was required to carry out. I accept the evidence of Mr Contoyannis in that regard.[21] The rotation of duties does not involve doing different tasks in each room and then moving on to another room and doing the same tasks. The proper rotation of duties meant the sharing of arduous load placed upon a worker by having other employees assist. There was the option for, at least for a period, Mrs Damjanovic to only do lighter duties in one room and then move to another, and then on an alternative day or days, do the heavier duties, or some similar system.
[21]T254
134 A trolley was introduced in respect of the linen items, after Mrs Damjanovic suffered injury. In order to avoid the risk of injury by having to drag or carry heavier bags of either rubbish, or of soiled linen, there ought to have been trolleys available to avoid having to drag the bags along the carpet.
135 There is a discrepancy on the evidence as to whether Mrs Damjanovic reported either her injury, or any difficulty she was having with the tasks, to Ms Hluschko or any other of the defendant’s employees. Ms Hluschko and Ms Kumari denied that occurred. Mrs Damjanovic said that she did complain. However, according to the hazard identification worksheet, as early as 2001, employees had reported pain or significant discomfort to the back or arms as a result of the tasks being undertaken. The notation would indicate there was more than one employee and the pain or discomfort were to the same areas from where Mrs Damjanovic was suffering. This makes the denial by Ms Hluschko and Ms Kumari of complaints by Mrs Damjanovic and other employees difficult to accept, given they were both long-term employees of the defendant. While generally I found them to be reasonable witnesses, and do not suggest that they were giving false evidence, rather they could not recall such complaints being made.
Causation
136 All of the medical evidence called from Dr Sheriff, Professor Bittar and Mr Hunt was to the effect that the duties undertaken by Mrs Damjanovic in the course of her cleaning, aggravated the underlying degenerative condition in her neck and caused an injury to her shoulder. Further, Mrs Damjanovic, as at the date of the first trial, was still suffering from the work-related conditions, and that was likely to persist into the foreseeable future.[22]
[22]See Plaintiff’s Submissions – paragraph 9, pages 7-8
137 The defendant did not contend otherwise, and I am satisfied there is a clear causal relationship between her work tasks, and the onset of injury, or aggravation of underlying degenerative condition.
Negligence – the Defendant’s contentions
138 Mr Curtain relied upon two principal contentions. The first was that I ought to prefer the evidence of Ms Hluschko and Ms Kumari as to the nature and difficulty of the tasks which Mrs Damjanovic was required to undertake. I have dealt with this proposition when considering Mrs Damjanovic’s work tasks.
139 The second contention was that there was no evidence, either from the medical experts, or Mr Contoyannis, the biomechanist, that, had any of the risk control measures suggested by him been implemented, then the plaintiff would not have suffered injury, or that there would have been a reduced risk of injury. It follows, said Mr Curtain, that the plaintiff could not prove the causative relationship between the defendant’s failure, that is the failure to provide the plaintiff with an alternative system of work, and her injuries.
140 Mr Curtain relied upon the decision of Duma v Mader International Pty Ltd,[23] in particular, the passage of Tate JA:[24]
“In summary, at trial the appellant submitted that the respondent had breached its duties under regulations 13, 14 and 15 by failing to conduct a risk assessment or by failing to provide alternative tools or an alternative system of work that either would have eliminated, or reduced so far as is practicable, the risk that the appellant would be injured while tightening bolts. His primary position was that the task constituted hazardous manual handling for which the respondent had failed to carry out a risk assessment as set out in reg 14. The respondent conceded that no risk assessment had been carried out. The appellant also argued that the respondent had failed to control the risk of musculoskeletal disorders as set out in reg 15. For this to be the basis for establishing that a breach of the regulations caused the appellant’s injury, he was required to show that there were other practicable alternatives that would have reduced the risk of injury that should or would have been adopted had a risk assessment been performed, and the failure to do so was a cause of injury. … .”
(Mr Curtain’s emphasis).
[23](2013) 42 VR 351
[24]At paragraph 23
141 While her Honour’s comments were specifically directed towards the issue of statutory breach, they had, said Mr Curtain, the same application to breach of duty in the industrial setting. In other words the onus was upon the plaintiff to prove that the alternative systems said to be available to the defendant to carry out the work, if implemented, would have resulted in a reduced risk of injury and that the failure to implement those systems was a cause of the plaintiff’s injury.
142 Mr Curtain contended that that failure offered a complete defence either as to the allegations of negligence, or breach of the Regulations. It is clear that the passage referred to was in fact her Honour summarising the submissions of the appellant (plaintiff).
143 The High Court in Swain v Waverley Municipal Council,[25] considered the evidence of the existence of alternative systems of work. McHugh J said:
“The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there ‘must be’ a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk.”[26]
(my emphasis).
[25](2005) 220 CLR 517
[26]At paragraph 40
144 His Honour went on to consider cases relating to the practicability of providing alternative systems of work.[27] He said:
[27]Vozza v Tooth & Co Ltd (1964) 112 CLR 316; Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362
“In some cases, common knowledge or common sense is all that is required to prove a reasonably practicable alternative. In other words, the plaintiff may be able to discharge the evidentiary onus of establishing a practicable alternative without the benefit of technical or expert evidence. In Maloney v Commissioner for Railways [NSW],[28] Barwick CJ said that evidence of the practicability of the proposed alternative course or safeguard ‘is essential except to the extent [that it is] within the common knowledge of the ordinary man’. Similarly, in Tressider v Austral Stevedoring and Lighterage Co Pty Ltd,[29] the New South Wales Court of Appeal said that in some cases:
‘[N]o more than common knowledge or common sense is necessary to enable a judge or jury to perceive the existence of a real risk of injury and to permit the tribunal of fact to say what reasonable and appropriate precautions might appropriately be taken to avoid it.’
Where the case involves a technical or complex operation or service, however, it is likely that the plaintiff will not have a case to go to the jury without leading technical or expert evidence as to the existence and practicability of the suggested alternative. Where the issues involve ‘technical knowledge and experience’, the plaintiff must provide evidence as to what the defendant ought to have done. The question cannot be determined by the application of common knowledge, and a jury cannot decide the issue on the basis of its own ideas as to what the defendant ought to have done. Thus, a mere allegation that a precaution is practicable is insufficient where the evaluation of whether or not the precaution is practicable involves issues of technical knowledge and experience.”[30]
[28](1978) 18 ALR 147
[29](1968) 1 NSWR 566 at 568
[30]At paragraphs 44 and 45
145 I am satisfied from these passages in Swain there is no obligation upon a plaintiff, when an alternative safer system of work is suggested, to prove by evidence, expert or otherwise, that had that system been adopted, it would have reduced or eliminated the risk of injury. What McHugh J said was that save in cases where suggested alternative work systems are technical or complex, common sense or common knowledge may be sufficient to establish the availability of an appropriate alternative system of work. That, in my view, is a long way short of Mr Curtain’s proposition that, absent expert or other evidence, the plaintiff’s case must fail.
146 In Bennett v Minister of Community Welfare,[31] Gaudron J said:
“Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred. In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that: ‘when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm’. In practice, it is not always necessary to enquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a: ‘breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty’. And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury. … .”[32]
[31](1992) 176 CLR 408
[32]Bennett at 420-421
147 In Duma,[33] Neave JA said:
“Clearly, the breach of an occupational health and safety regulation, no matter how unrelated to the occurrence of the injury, cannot automatically establish a presumption that the injury was caused by that breach. However, in many circumstances, such a breach will give rise to a strong inference that the breach of statutory duty was a cause, if not necessarily the sole cause, of the injury.
If such inferences could not normally be drawn, even plaintiffs who were injured in the context of egregious breaches of occupational health and safety regulations would be met with the very high burden of establishing the precise aetiology of the injury they suffered. This would create particular difficulties for plaintiffs who, because of psychological trauma suffered as a consequence of the injury, could not recall the precise sequence of events which preceded it. Similar difficulties would be faced by plaintiffs who suffer injury in the context of having performed repetitive tasks over a considerable period, where the employer has not satisfied occupational health and safety requirements designed to avoid the occurrence of such injuries. Too great an insistence on the need to demonstrate the mechanism of the injury to a fine degree would permit defendants to unfairly escape liability for injuries suffered by plaintiffs, despite blatant negligence or breach of statutory duty.”[34]
[33]Supra
[34]At paragraphs 2 and 3
148 Tate JA, later in her judgment, said:
“The jury was entitled to conclude, on the evidence most favourable to the respondent, that Dr Short’s evidence did not demonstrate that there were a number of alternative methods that were safer than the method employed by the appellant when he was injured. Each of the alternatives canvassed carried risks of injury to an operator. While it was not necessary for the appellant to establish with certainty that any particular alternative would have been adopted by the respondent, if it had carried out a risk assessment, the fact was that on the evidence each of the alternatives exhibited potential danger. This undermined the conclusion which was necessary for the appellant to establish, namely, that adoption of one or more of the alternatives would have been safer and would have been likely to have led to the appellant avoiding injury. The appellant was unable to make out this case.”[35]
[35]At paragraph 72
149 Seen in this light, Duma does not stand as authority for the contention suggested by Mr Curtain. There is an obligation upon a worker, in particular in a breach of Manual Handling Regulations’ case, to establish that there was a reasonable alternate system of work available. However, it is not authority for the proposition that once such an alternative system is proffered, that there must be clear evidence of an expert or other nature that had that system been adopted, there would have been no injury, or a reduced risk of injury to a worker.
150 The Victorian Court of Appeal has recently confirmed that in determining whether reasonable and appropriate precautions were taken by a defendant to avoid the risk of injury, a court ought to apply common sense and common knowledge.[36] While those cases referred to the Court relying upon common sense and common knowledge as to the existence of a risk and the reasonable and appropriate precautions to avert that risk, the principle is no less applicable to the issue of whether an alternative system of work would have reduced the risk of injury.
[36]Southern Colour (Vic) Pty Ltd v Parr & Anor [2017] VSCA 301 at paragraph [58]; Greater Shepparton City Council v Clarke [2017] VSCA 107 at paragraph [108]-[109] and referring to Neill v NSW Fresh Food and Ice Pty Ltd (supra) at 368
151 A clear example is a case is where a worker suffers injury by placing his hand in unguarded machinery. It is a matter of common sense that had a guard been in place, the risk of injury would be vastly reduced. At the other end of the spectrum, there are other cases where the alternative system of work was of such complexity, or technicality, or where it was attended by such uncertainty as to whether it offered any real safer prospect, that expert evidence would be necessary. The present proceeding is not one of those cases.
152 There are many cases in the industrial setting where alternative systems of work are, as a matter of logic and clear inference, capable of reducing the risk of injury. For example a person undertaking manual handling on a production line at high speed would have a lessened risk of injury if he or she worked at half the pace, or lifted half the weights. It could not be expected of a plaintiff to call evidence (as was noted by Neave JA in Duma) which so finely examined the aetiology of injury as being able to determine that one hundred repetitions of a certain task would cause injury, but fifty would not. It would be impossible to call evidence, either from medical specialists or biomechanists who could say with precision that if a certain repetitive or arduous task was done or not done, or was done at a lesser frequency, or involved lighter weights, that a worker would not suffer injury. At best, all that could be said would be that if the various steps taken to provide an alternative system of work which, as a matter of common sense or inference from the medical evidence, showed that there was a reduced risk of injury. In my view, no more precision, in a case such as this, is needed. To require a plaintiff to call the evidence as suggested would be inherently speculative and impractical. It would require expert opinion on a hypothetical outcome for which there could be no verification.
153 The issue is further highlighted by cross-examination of Mr Contoyannis.[37] It was put to him that in order to eliminate all risk of injury, any duty undertaken which might expose a worker to forces which could result in musculoskeletal injury would have to be eliminated completely from the workplace. That would be entirely impractical.
[37]T262
154 In a case such as this, where there is clear medical evidence of the causative relationship between the tasks undertaken by the plaintiff’s in the course of her cleaning duties, and the injury to her neck and shoulder, combined with the evidence of Mr Contoyannis that there were a range of alternative duties or systems available for the defendant to utilise, it is clearly open, either as a matter of common sense or common knowledge or as an inference to be drawn from the evidence, that had those steps been taken, there would have been a reduction in the risk of injury to the plaintiff.
155 For these reasons, the defendant’s contention should be rejected.
156 Mrs Damjanovic undertook tasks which in the circumstances and as a matter of objective assessment carried a foreseeable risk of injury. There were alternatives systems of work available to the defendant which would have reduced the risk of injury. A reasonable employer in the position of the defendant would have implemented those systems, and taken steps to avoid that risk. That was not done. The defendant was in breach of the duty it owed the plaintiff
Statutory breach
157 The plaintiff pleads a breach of the Regulations both as a particular of negligence, and as a separate statutory cause of action.
158 By PART 3.1, the Regulations require that an employer must identify any risk to an employee of musculoskeletal injury involving hazardous manual handling. Once identified, the risk must be eliminated or reduced so far as is practicable. It was not argued the physical tasks undertaken by Mrs Damjanovic were not “hazardous manual handling” as defined in Regulation 1.1.5.
159 The only evidence that any hazard identification assessment was undertaken was that done by Ms Owen in October 2001.[38] The assessment identified a range of tasks involving “repetitive or sustained postures, movements or forces”. Those tasks were said to be undertaken over a whole shift for more than two hours. Lifting or manoeuvring the mattresses was said to involve high force. On the final page, the assessment identified that there was a risk of musculoskeletal injury involved in the assessed tasks.
[38]Exhibit C
160 There was no evidence that as a result of that assessment in 2001, that any control measures were taken to eliminate or reduce the identified risks. Ms Hluschko, in evidence, accepted that for that reason, the risk assessment was wholly inadequate.[39]
[39]T384, L13
161 Ms Owen could not recall undertaking the risk assessment. While it is clear, at least in 2001, an assessment was made, there was no evidence as to any steps taken to address the identified risks. Even on the basis of that one assessment, the defendant was in breach of the Regulations.
162 Nor was there any evidence that any further risk assessments were undertaken. Even although the Regulations do not specify the regularity with which assessments ought to be undertaken, and even accepting the cleaning duties would appear to have changed little over the years since 2000, nonetheless it is difficult not to accept that further risk assessments ought to have been undertaken.
163 The defendant did not contend it had failed to observe the requirements of the Regulations. Again, Mr Curtain’s contention was that there was no evidence that had the defendant undertaken a risk assessment and taken the steps suggested by Mr Contoyannis to eliminate or reduce the risk, that Mrs Damjanovic would not have suffered injury or would have been at reduced risk of suffering injury. For the reasons set out above, that contention is rejected.
164 As a result, I am satisfied there was a breach of the Regulations, and that that breach was causatively related to the plaintiff’s injuries.
Analysis – damages
165 There were three medical witnesses called to give evidence: the plaintiff’s treating general practitioner, Dr Sheriff; a treating surgeon, Mr Hunt, and consultant neurosurgeon, Professor Bittar. There was no medical evidence called on behalf of the defendant. I am satisfied that as a result of her work duties, Mrs Damjanovic suffered two principal injuries.
166 The first was an injury to her cervical spine. I accept she had pre-existing degeneration in the spine, in particular at C5-6, but that was asymptomatic up until the time of her workplace injury. The work aggravated the underlying degenerative condition to the discs at the C5-6 level, and facet joint arthritis. Professor Bittar described a “C5-6 disc osteophyte complex”. I accept there is some compromise of the nerve roots at the C5-6 level giving rise to referred pain into the non-dominant left arm and hand. I accept the evidence of Professor Bittar and Mr Hunt that the pathology shown on radiological examination accurately reflected and accounted for her physical symptoms in and around the neck area.
167 The condition was sufficiently serious, at least at one point, for the possibility of a C5-6 discectomy, although that did not go ahead. Further, as a result of the cervical disc injury, I accept Mrs Damjanovic has suffered an increase in the incidence of headaches which have required medical treatment and medication.
168 Further, I accept Mrs Damjanovic further suffered an injury to her left shoulder in the nature of rotator cuff tendonitis, and subacromial bursitis with a SLAP tear to the shoulder area. It was likely she had underlying degenerative change to the shoulder, but the work activities made the condition symptomatic.
169 Professor Bittar described the injuries as very serious, leading to symptoms being present whenever Mrs Damjanovic moved her neck or arm. She is a relatively young woman of now fifty-four years, and faces ongoing symptoms in the neck and shoulder area, and referred symptoms into her left arm into the indefinite future.
170 There was some reference in the medical material to a carpal tunnel injury, but it is not, in the scheme of things, a major issue.
171 I further accept that she has suffered a reactive psychological disorder manifesting in anxiety and depression as a result of the chronic pain. In the overall scheme of things, the psychological reaction is not particularly significant.
172 Although there was underlying degenerative change to Mrs Damjanovic’s neck and shoulder regions, I do not accept the argument advanced on behalf of the defendant that with such change, Mrs Damjanovic would have eventually gone on to suffer symptoms in those areas, or a restriction in her work capacity, absent her duties for Bayview Eden. There is no medical evidence to that effect.
173 As a result of these injuries, I accept Mrs Damjanovic suffers relatively constant pain in the neck and shoulder, exacerbated, depending upon the activities in which she is involved. These injuries have required conservative treatment over the years, in the nature of physiotherapy, medication and some injections into the neck and shoulder. I accept that currently, she takes medications including Lyrica, Endep and Panadol. I accept that her sleep is affected, in particular when she turns over in bed at night.
174 She is restricted in a range of the heavier domestic activities, and her husband does most of these.
175 I accept her injuries have resulted in the loss of her employment, which she found not only satisfying and rewarding, but through which she developed social relationships. While surgery both to the neck and shoulder were considered at an earlier time, there is no treatment presently available which is likely to lead to a reduction in her symptoms, save possibly for some assistance through a pain rehabilitation course.
176 In the circumstances, it is appropriate to assess pain and suffering damages in the sum of $235,000.00.
177 In respect of loss of earning capacity, I accept that with Mrs Damjanovic’s work record and the fact that she enjoyed her employment, it was likely that she would continue working for Bayview Eden, or some other like hotel, to retirement age. Many of the permanent employees worked there over a considerable time and it was clear she was well liked and appreciated by her supervisors.
178 The evidence of all of the doctors called – Dr Sheriff, Professor Bittar and Mr Hunt – was to the effect that, as a result of her injuries, Mrs Damjanovic was not able to continue in her employment past November 2010 when she left Bayview Eden.
179 The parties have agreed Mrs Damjanovic’s net income as at the date she left employment was $700.00 net per week. It is not contested that the past loss of wages totals $298,497.00. I am satisfied that Mrs Damjanovic has had no capacity for previous or other employment from 2010 through to the present time.
180 I am satisfied it is appropriate to accept that had she remained in employment absent her workplace injuries, Mrs Damjanovic would have worked to age sixty-five. I further accept from the evidence of the doctors to whom I have referred that she had no work capacity as at February 2016, and that situation is likely to persist into the future. She is a woman of limited English and employment experience. In Australia, she has only ever worked as a cleaner in the Bayview Eden. Given her age, training and work experience, and the injuries from which she suffers and will continue to suffer, I am satisfied that she has no capacity for employment, and that the situation will continue until age sixty-five.
181 She is, thus, entitled to damages for economic loss based upon what her salary would have been at the present time: $750.00 net per week, upon the multiplier to age sixty-five. Mr Mighell, on behalf of the plaintiff, contended for an allowance for vicissitudes at 15 per cent. Mr Curtain, for the defendant, suggested 30 per cent. Given Mrs Damjanovic had worked for the Bayview Eden since shortly after her arrival in Australia and it was a job which many workers stayed on for a long period of time, I believe it is realistic to assess that she would have remained working at the hotel. Even accepting her tasks were arduous and that she had underlying degenerative disease both in the neck and shoulder, there was the prospect that her employment might finish before sixty-five years of age. Taking account of that prospect, it is reasonable to assess vicissitudes at 20 per cent.
182 I will hear from the parties further as to the appropriate orders.
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