Firth v AAPC Properties Pty Ltd
[2023] VCC 546
•13 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-19-05189
| GLORIA MARTHA MARY FIRTH | Plaintiff |
| v | |
| AAPC PROPERTIES PTY LTD | First Defendant |
| and | |
| QANTAS AIRWAYS LIMITED | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 26 May 2021; 11 November 2022 (view), 14 November 2022; 30, 31 January and 1 February 2023 | |
DATE OF JUDGMENT: | 13 April 2023 | |
CASE MAY BE CITED AS: | Firth v AAPC Properties Pty Ltd and Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 546 | |
REASONS FOR JUDGMENT
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Subject:NEGLIGENCE
Catchwords: Industrial accident – civil onus – negligence
Legislation Cited: Civil Procedure Act 2010; Evidence Act 2008
Cases Cited:Czatyrko v Edith Cowan University (2005) 214 ALR 349; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; McLean v Tedman (1984) 155 CLR 306; Kozarov v State of Victoria (2022) 273 CLR 115; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Chapman v Hearse (1961) 106 CLR 112; Wyong Shire Council v Shirt (1980) 146 CLR 40; Anedda v Horsey [2019] VSC 729; Briginshaw v Briginshaw [1938] HCA 34; Linke v Linke [2019] VSCA 210; NOM v Director of Public Prosecutions (2012) 38 VR 618; Browne v Dunn (1893) 6 R 67; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr D Nguyen | Hounslow Lawyers |
| For the First Defendant | Mr S Smith KC with Ms K M Manning | Wisewould Mahony |
Table of Contents
Preliminary
The hearing
The Plaintiff’s evidence
Background
The incident
Re-examination
What the Plaintiff told her family
Ms Naidu
Mr Firth
Other histories
The Plaintiff’s documentary evidence
Statement of agreed measurements
The First Defendant’s evidence
Ben Krause
Cross-examination
Re-examination
The First Defendant’s documentary evidence
Interrogatories
Photograph
Melbourne Airport Health notes
The legal principles
The onus
Findings
Credit
The presence of a drum
Findings
If there was a drum against the wall, did the door recoil and hit the plaintiff on her left elbow?
The First Defendant’s case
The Plaintiff’s case
Findings
Contemporaneous histories
Dr Naik
The incident report – Form 2000
The Claim Form/Form 2000
Answers to Interrogatories
Histories to doctors about the area on which the Plaintiff’s elbow was hit
Evidence of family
Other issues – missing witnesses
Conclusion
HER HONOUR:
Preliminary
1It is not in dispute that on 24 March 2015 (“the said date”), the plaintiff suffered injury to her left elbow while working for the first defendant as a kitchen steward in the vicinity of the cool room of the Qantas First Class Lounge at Tullamarine Airport (“the premises”).
2The premises were then occupied by the second defendant. The proceedings against the second defendant were dismissed by consent on the first day of hearing.[1]
[1]Transcript (“T”) 1
3The plaintiff alleges that the first defendant was negligent and breached its duty of care to her when one of its employees left a large cooking oil container (“the drum”) obstructing the path of the cool room door (“the door”), causing to it to recoil and strike the plaintiff’s left elbow while she was opening it (“the incident”).
4It is not in dispute that a storeman, an employee of the first defendant, routinely placed drums of cooking oil in the vicinity of the door for staff to access oil for cooking. However, the first defendant denies a drum was placed against the wall in a position preventing the door opening fully and that the door recoiled, injuring the plaintiff as she alleged.
5A breach of the Manual Handling Regulations was also alleged but there was no evidence or submissions made in this regard.
6The Particulars of Injury included injury to the left elbow, left arm and shoulder, an ulnar neuritis of the left elbow, a traumatic medial epicondylitis of the left elbow, aggravation, acceleration and exacerbation of degenerative changes in the neck, depression, anxiety and pain and suffering.
7The plaintiff claims damages for both pain and suffering and loss of earning capacity.
8For the plaintiff to succeed in this proceeding, her version of the incident circumstances must be accepted.
9The first defendant denies the plaintiff suffered an elbow injury in the circumstances she described. Accordingly, its case was that there was no negligence on its part that was a cause of any injury to the plaintiff. Issues of causation/foreseeability and contributory negligence were therefore not argued.
10The first defendant’s case is that the incident did not happen as the plaintiff asserts and that she could not make out the occurrence of the incident in the way she describes. Firstly, because it was physically impossible for it to have happened that way. Secondly, it was contradictory and inconsistent with contemporaneous accounts of what had occurred. Thirdly, it was entirely inconsistent with the work practice in the lounge that there could have been a drum in the location she asserted it to have been.[2]
[2]Transcript 2 (“2T”) 218
The hearing
11The hearing commenced on 24 May 2021 via Zoom with the consent of both parties. With various delays related to the COVID pandemic, the hearing finally concluded on 1 February 2023.
12The proceeding was originally set down as a jury trial but ultimately proceeded as a cause due to the difficulties conducting a jury trial in Melbourne with the plaintiff giving evidence remotely via Zoom in New Zealand due to her fear of travelling during the pandemic.
13The trial initially ran for three days via Zoom but was adjourned part heard, given the plaintiff’s concern that she was unable, on Zoom, to properly demonstrate how the incident happened.[3]
[3]T174
14The matter was then listed for an administrative mention on 30 June 2021. A number of further administrative mentions followed later that year and in early 2022.
15On 16 February 2022, the matter was listed for hearing on 16 May 2022. That date was vacated as the plaintiff sought an adjournment to allow time to decide whether she would require shoulder surgery and to obtain any necessary additional medical material regarding this condition.
16On 21 June 2022, the matter was refixed for hearing on 14 November 2022 with the plaintiff to give evidence remotely.
17A view of the premises was conducted on 11 November 2022, in the absence of the plaintiff. The parties agreed on a range of measurements carried out at that time.[4]
[4] Table at paragraph 112 of this judgment
18Cross-examination of the plaintiff via Zoom from New Zealand resumed three days later. On that date, the plaintiff was suffering from COVID and was clearly unable to give evidence. Accordingly, the hearing was adjourned to 30 January 2023 when the plaintiff’s evidence recommenced via Zoom. Evidence was also given via Zoom by the plaintiff’s husband, Warren.
19It was obvious from an early stage that due to her concerns about COVID, the plaintiff was never likely to travel to Melbourne to complete her evidence, despite the first defendant’s desire for her to do so. In those circumstances, although less than ideal, the plaintiff finished her evidence via Zoom in an effort to promptly complete the hearing, given the COVID-related difficulties to that time.[5]
[5] Civil Procedure Act 2010, s47(3)(a)
20The plaintiff’s daughter, Lorna Naidu, and medico-legal orthopaedic surgeon, Mr Ash Moaveni, gave viva voce evidence in Melbourne.
21The first defendant called its former sous chef, Ben Krause.
22A number of medical reports and other documents were tendered. I have read all the tendered material.
The Plaintiff’s evidence
Background
23The plaintiff was born in July 1951 in South Africa. She is now aged seventy-one.
24She presently resides in Leeston in New Zealand with her husband, Warren, in a home they built in 2011 while they were living in Australia. They moved there in 2015.[6]
[6]T43
25After completing secondary school, she did some clerical work and then studied hairdressing. She then worked as a hairdresser and, in 1978, went to London, where she also did hairdressing and worked as a hotel chef.[7]
[7]T45
26While in London, she met Warren, and they married in December 1978. She went with him to live in New Zealand in February 1979. She then managed a hairdressing salon and worked as a restaurant chef.[8]
[8]T45
27Their eldest daughter, Lorna, was born in December 1981. Her two other daughters, Valeria and Helen, were born in September 1984 and August 1988 respectively.[9]
[9]T46
28While in New Zealand from 1979 to 1985, the plaintiff worked part time teaching hairdressing in the evening and sometimes did hotel work. She went to South Africa between 1985 and 1988, where she operated her own hairdressing salon. She returned to New Zealand in 1988 and stayed for three years. During that time, she continued hotel work, before going back to Cape Town in 1991.
29The plaintiff and her husband moved to Australia in 2008 because their daughter, Helen, was doing her internship and they wanted to see their grandchildren in Melbourne. They did not intend to live in Australia for the rest of their lives but intended to do so in New Zealand.[10]
[10]T44
30After coming back to Australia in 2008, Warren obtained work. The plaintiff had a few hotel jobs but chose to work with the first defendant because the airport was near her home.[11] She was interviewed by Rodney Bowden, the executive chef, and was ultimately offered a full-time job.[12]
[11]T48
[12]T49
The incident
31There were significant difficulties with the plaintiff giving evidence via Zoom from her home in New Zealand. She did not have the benefit of the technical assistance that would have been provided had she given evidence in a solicitor’s office. Initially, she did not have a hard copy of the relevant documents and struggled to view them on the screen from Melbourne. Her evidence as to the incident circumstances was disjointed and, at times, very hard to understand.
32The plaintiff worked mainly in the First Class Lounge where she was employed as a kitchen steward. She would arrive at work about 3.45am, having been dropped off by Warren as she did not have a licence.[13]
[13]T51
33On the said date, she was to start work at 4.00am, and was the first person in the First Class Lounge that day. Her job was then to turn on all the stoves and start making orange juice. The oranges were in crates on the right side of the cool room, and she was to take them from the fridge to the machine in the kitchen.[14]
[14]T52
34That morning, there were three stacks of cooking oil drums near the cool room door stacked 3-2-1. The two drums in the middle stack were uneven, and one was a bit forward.[15]
“I opened the door and the - drums that - the two there hit the end of door there and back onto me.
[I]t slammed into my hand and I’ve just came back out of the cool room … I wasn’t full in the cool room.”[16]
(sic)
[15]T56
[16]T58-59
35It did not require much force to open the door.[17] She opened the sliding door with her right hand, moving it to the left. She moved out after opening the door –
[17]T58
“… and it just spring back and hit my arm, my left arm, my elbow.
I’ve just opened it very quick and it just spring back, but the drum has hit it back to me.
…
I moved out … I had my one foot clinging to the fridge and I just got out of it as quick as I can when it hit my arm … I can’t remember. I think my right foot, I normally go in with my right foot.
…
[After my elbow was hit] I came out and I noticed that the - the drum, the second one, had hit the second one because it was put, ah, something that shouldn’t happen was put unnecessary, uneven. So, that’s why the door hit it.”[18]
(sic)
[18]T59-61
36One drum was right at the back, and one was a bit forward, not pushed evenly on top of each other. The door hit the bottom drum.[19]
[19]T61
37The door hit “directly into my elbow but behind the elbow it pulled the pain through because it hit the elbow”. It was like getting an electric shock.[20]
[20]T63
38She then went and spoke to one of the waitresses who came in, got her a napkin and put some ice on her elbow. She then had to wait to go to the doctor.[21]
[21]T64
39When she spoke to the waitress, someone came in about a quarter to five on another shift. She was not 100 per cent sure, but she thought it was the chef who worked in the business lounge whom she normally helped. He asked her: “Haven’t you got anything done?” She replied she could not – “I couldn’t. My arm is – this is what happened.”[22]
[22]T64
40The executive chef, Rodney Bowden, was the next to come in and speak to her about her arm. The executive chef always comes in at 6 o’clock.[23] Between these two conversations, she just sat on the crate holding her arm. They did not want to give her any pain tablets until she saw the doctor. When asked whether she described to Mr Bowden what had happened, she simply answered “Yes” but gave no details.[24]
[23]T64
[24]T65
41He told her to go to the Airport doctor. She did not report it to anyone else before going to the Airport doctor – “We have to tell the executive chef.”[25]
[25]T65
42She was so drowsy and could not remember if one of the staff members went with her to the doctor. She then had to sit and wait for the doctor to come; he normally arrives at 7.00am.[26] While waiting for the doctor, although she was not 100 per cent sure, Erin Kenny came in. She was the manager of Accor in the office and in charge of all complaints. She was very helpful. She was not the plaintiff’s boss. Rodney Bowden was her boss. Erin came into the surgery, and she spoke to the plaintiff before she saw the doctor.[27]
[26]T65
[27]T66
43The plaintiff was given a cortisone injection and a sling and was told she could not go back to work, so she went back to the lounge “out of courtesy” to tell Rodney she had the doctor’s letter. She had spoken to him before she saw the doctor. After telling him she could not work, he said: “That’s okay. If you have to go home, you have to go home and just look after yourself.” She then went straight home on the bus.[28]
[28]T68
44She did not even know how she wrote on the Claim Form as she was in so much pain. She signed the form, as did Erin Kenny. She agreed she had written “fridge door slam into elbow”. She could not believe it was her writing on the form.[29]
[29]T68
45The plaintiff took a series of photographs at the premises after the incident.[30] One photograph[31] showed plastic curtain strips hanging from the top of the fridge doorway. She confirmed the 3-2-1 layout of the drums and that the two middle drums were stacked unevenly and the bottom one was right against the door.[32]
[30]Photograph at PCB 237 showed a different stacking arrangement 3-3-3-1
[31]PCB 238
[32]T82
46She was injured when:
“I opened the fridge door and put a step to walk in, and I was hit by the sliding door that hit the drum, the bottom, the middle drum at the bottom; it hit the drum and it pulled back to me.”[33]
[33]T84
47She answered “no” when asked “had any part of your body gone into or through the plastic strips when you were being hit”. The door did not open fully on this occasion as she was going in.[34]
[34]T84
48When the door hit the drum, it came back and hit her elbow – “about halfway through when I was in the cool room.” The door bounced back, indicating with her foot, “just about that much”. She agreed she was indicating about 15 centimetres – “the door it was a very little opening for me to go in …. it hit me hard.”[35]
[35]T85
49When the door hit her, the movement of it restricted the width of the entry into the cool room “just with my feet, my feet are in … About I would say, about less than a foot.” Not much of the doorway was left for her to get in.[36] She agreed there was not much of the doorway left open when the door came back – “It was not wide enough for me, for my body to go into the fridge.”[37]
[36]T86
[37]T87
50Before this day, she had not had any difficulties walking through the doorway because she always went in there in the mornings. Prior to this day, she had not experienced any problems with the door rebounding into the doorway. She confirmed, after she was struck, she looked to see where the drums were, because she was shocked what hit her. She had not noticed anything unusual about the drums before she was hit.[38]
[38]T87
51In cross-examination, she confirmed she had a very good recollection of what had happened on the said date.[39]
[39]T108
52When taken to the discrepancy between her Answers to Interrogatories and her viva voce evidence as to the position and number of drums, she meant the door hit the second drum, not the one furthest from the cool room. It was definitely the second one.[40]
[40]T112
53She did not have any recollection of speaking to Ben Krause on the morning, because she was so confused with her arm, and she was worried. It “could be” she did speak to him, when told he was going to give evidence about a conversation at about 9.30am that morning and that he filled out the incident form in her presence. She then said she did not even remember seeing him because she was not herself because of pain tablets “but if he said I seen him, I’m sure he’s honest he would say I seen him”.[41]
[41]T115
54The plaintiff attended Dr Naik at Melbourne Airport Health on the morning of the incident at 8.36am, who recorded:
“While trying to lift an orange basket accidentally hit her left elbow to an open fridge sliding door.
Has pain and swelling around the left elbow.
Had iced it this morning.”
55When told the contents of this note, she meant to say she went to go in to get the oranges and the door struck her. She was in so much pain and she had had two tablets that morning.[42]
[42]T116
56She was then asked about the incident form (Form 2000) completed on the morning of the incident, relating to an incident in the Qantas First Class Lounge in the kitchen area.
57In that form, a short description of the incident was “knocked elbow while lifting milk crate”. The nature of injury was “strain or sprain of the upper limb elbow”. It occurred in the galley/kitchen. The body stress involved was pushing, pulling, and carrying.
58She did not remember describing the incident in those terms. She knew she went into the cool room. She never took the crate out at all.[43]
[43]T117
59She put her hands up about the width of her head to show how far the door had moved back after it struck the drum. She agreed it was 15 centimetres.[44] She was not sure it was 50 centimetres (18 inches) from her shoulder to shoulder.[45]
[44]T117
[45]T118
60She agreed she said she stepped in, or took a step in, with her right foot and that her left foot had not moved at all, and so the left side of her body had not moved at all – “No”.[46]
[46]T119
61In response to the suggestion that it was impossible to strike her left elbow if the left side of her body had not moved at all, she said:
“No, I put my - no, I put my feet in and my, my left side went - tried to go in.”[47]
[47]T119
62She then said:
“My body did move towards the door, when I put my right foot my side of my left shoulder body did move but not fully in the fridge, just move where the door is that hit me.”[48]
(sic)
[48]T120
63When it was suggested she just said the left side of her body did not move at all, she said:
“No, my left side of my body was against the door that hit me … When I put my right foot forward, automatically when you move forward your right foot your left-hand – body will move by the door, not inside the fridge or outside, just by the door that hit me.”[49]
(sic)
[49]T120
64In response to the suggestion that if the door struck the second drum, the door would not be very much more than a foot open before it rebounded, she responded:
“I only remember when it hit me and afterwards when I look to see what happened.”
(sic)
65She then agreed the only thing she could remember was that she hit her elbow on the door.[50]
[50]T124
66It was put to her:
“… if the door hits the second drum and it’s not much more than a foot open, that’s not even wide enough for you to get your body through the open door, is it?”
to which she responded:
“No, I did – my body could go – my foot went in, I opened, my foot went in and my shoulder was against the sliding door that hit me.”[51]
[51]T125
67When it was again suggested that it was impossible to put her body through the opening of the door before it ricocheted, she responded:
“Yeah, because I know I never went in. I was hit and I came out, I just put a step back and I got out, but I did look, definitely looked to see how did this happen … It did hit my elbow … it hit that drum.”[52]
[52]T125
68The door hit the outside of her elbow, not the inside. It never hit the inside.[53] When it was suggested that on repeated occasions, she told doctors that she had been hit on the inside of her elbow, she confirmed she had not been hit on the inside. She told them she had pain inside, but the outside was hit.[54]
[53]T126
[54]T126
69She agreed that if she was asked what she was doing when she was injured, she would not say anything about the orange crate because she had not picked it up. She would say something like, “walking into the cool room”.[55]
[55]T133
70It was not right that she knocked her elbow on a stationary door or that she had opened the door, gone in, grabbed an orange crate, and on the way out, the inside of her elbow struck the cool room door. She did not get the crate; she would have had to get on a step stool to climb up.[56]
[56]T136
71The histories[57] were wrong because she just said, “went in to get it”, was going in to get the crate and she never took it out, because she had to get a step stool to get them down.[58]
[57]The GP’s note, the incident report/Form 2000 and the Claim Form
[58]T137
72There were two drums. The bottom one was against the wall and the other one was slightly in front overlapping. The top one was more forward.[59]
[59]T56
73A 5-second film was shown of the door being pushed into the drums. The film was taken by expert witness, Dr Culvenor, whose report was not relied on. It was suggested to the plaintiff the film showed it took 3 seconds for the door to hit the second drum.[60]
[60] T157
74While this film was not tendered, cross-examination in relation thereto and the plaintiff’s responses are so intertwined with the evidence of the incident that it is somewhat artificial to exclude them from the evidence.
75When it was put the door rebounded very quickly, she responded:
“It just happened in my hand and I was just shocked when one foot - and I got out.”[61]
[61]T158
76She agreed it was a pretty small space when you are looking at the film when the door hits the second drum. She did not say she could walk her whole body through that space – “I put my foot in and it hit my left elbow and I walked out.”[62]
[62]T160
77It was put there was not a space she could walk into:
“It is a space, ah, I put my foot in and it hit my hand, it was a space that I could go in.”[63]
[63]T160
78She agreed she never got into the cool room. Her whole body was not in.[64] Her right foot was a bit in, a bit out – “so my arm was against the sliding door”.[65]
[64]T161
[65]T162
79She disagreed that the video made it impossible for the door to have recoiled and struck her left elbow because the door had not even cleared her left shoulder – “It hit my right shoulder … my left elbow … my hand was just there (indicating).”[66]
[66]T163
80Counsel for the defendant tried to demonstrate, having put her right foot forward, how the plaintiff somehow contorted her left arm to put it into the door opening. She responded:
“Yes my left hand was walking to the cool room and then it hit the elbow.[67]
…
[67]T164
I wish I was there and I could stand and show you how it happened to me - It’s a pity I’m not there in Melbourne because I could show you.”[68]
[68]T167
81It was obvious there were difficulties with the plaintiff giving evidence via Zoom about the mechanism of injury.[69] I acknowledged her repeated concerns in this regard and adjourned the case until she was able to come to Melbourne to complete her evidence.[70]
[69]T168
[70]T173
82After many administrative mentions, the hearing was to recommence in May 2022 but was adjourned as the plaintiff was considering left shoulder surgery. The hearing was to resume on Monday, 14 November 2022, having had the view the preceding Friday.
83The plaintiff gave very limited evidence on 14 November 2022 as she was then suffering from COVID.
84Mr Firth measured the distance from the plaintiff’s elbow to elbow as 50-51 centimetres.[71]
[71]T9
85Cross-examination resumed via Zoom on 30 January 2023.
86The plaintiff agreed the oil drums would be delivered no later than 3.00pm, given the storeman’s program.[72] Sometimes the chefs would go and fetch them.[73] She also agreed the cool room door would be opened on many occasions between the time that the drums were left and when she started work the next day.[74]
[72]2T24
[73]2T25
[74]2T26
87She would not move a drum. She would go to one, open it and get out the oil she needed.[75]
[75]2T27
Re-examination
88The plaintiff could remember there were marks on the cool room door caused by the drums. Around the time of the incident, she had seen a big mark on the door, but she was not aware of those marks before the incident.[76] When she saw the marks on the door, they corresponded to the oil drums that were stacked there.[77]
[76]2T29
[77]2T30
89She could not remember talking to Erin at the surgery. She could have.[78]
[78]2T35
90She could not remember the doctor typing anything when she was at the clinic.[79]
[79]2T37
91She took a step with her right foot at the same time she was opening the door with her right hand.[80]
[80]2T38
92When asked where her body did go as she opened the door, the plaintiff stated:
“It was just a little - my elbow was on the door, I opened the left elbow and I was outside but my feet was inside.”[81]
(sic)
[81]2T45-6
93When asked where her body was when the door struck her, she said:
“My body was – I can’t remember – my body was just about to go in.”
94And when asked, “Was any part of your body in the cool room?”, she responded:
“A little part of my body, not the whole body … Just by my elbow, just by my elbow, it just happened so quick.”[82]
[82]2T46
95Her elbow was –
“… in front of my body when there sliding door came - I pulled the door and I walked in and then the door came and hit my elbow just there.”[83]
[83]2T46
96Counsel for the plaintiff described:
“It seemed to me that the plaintiff had her upper arm, her left … arm directly in front of her body and her left elbow crooked at an angle of about 45 degrees.”[84]
[84]2T46
97When asked whether that was how her elbow was when it was hit by the door coming back, she said:
“… it happened so quickly, I didn’t expect this to happen. I pulled the door, I pushed the door because I’m quick and I had steel capped shoes, and just went in and had the door came and hit me, and I went flying colours and I just – I was out. So I can’t – to be honest it was just so long – it happened so quick.”[85]
[85]2T47
98Doing the best she could in terms of remembering what part of her elbow or what her arm was doing, she said:
“Well, when - I opened the door with my left, I was about to go into - when I pulled - pushed the sliding door with my right hand and then I was going to go in to the door, and I put my - my left hand went first and my foot before I could go in, and then it hit me.[86]
…
[86]2T47
It just happened so quick, I just pulled the door not realising – it never happened before and it just (indistinct) into me and hit by elbow.”[87]
[87]2T48
99She did not observe any obstruction from her entering the doorway before she was hit by the door:
“I didn’t know that is going to happen. If I only knew it I wouldn’t have went into the cool room.”[88]
What the Plaintiff told her family
[88]2T52
Ms Naidu
100The plaintiff rang Ms Naidu on the day of the incident. She was crying and said she had been hit by a freezer door, hurting her arm, and she was in pain. The freezer door hit her shoulder and elbow.[89]
[89]2T118
Mr Firth
101The plaintiff told Mr Firth she opened the Accor fridge door with her right arm, she may have taken a small step with her right foot and was hit on the left elbow by the door when it recoiled from the drum, about a 20-litre drum. She was not carrying anything when the incident occurred. She had pain primarily in her elbow but some pain from her wrist to her shoulder. There was a small mark on her elbow where the door hit her.[90]
[90]2T57
102She explained to him exactly what happened. She told him she was hit by the sliding door when it recoiled from the drum.[91]
[91]2T73
103He denied that they had discussed her viva voce evidence. He had heard people ask her questions about handling a crate. He and the plaintiff have been talking about this on and off now for the last six to eight years.[92]
[92]2T74
104She would have told him that the reason why she was going to the fridge was to get a crate. She did not have anything in her hands at all when she opened the door.[93] She could not recall which drum the door recoiled off.[94] He remembered she possibly put her foot a couple of inches in the doorway. She said nothing about what had been happening with the left side of her body while she was possibly putting her right foot forward a couple of inches.[95]
[93]2T75
[94]2T76
[95]2T77
105The only thing that had gone through the door was her elbow and right foot.[96] His understanding was that the left side of her body did not move.[97]
[96]2T78
[97]2T79
106In re-examination, he confirmed, as he understood it, when it was hit by the door, the plaintiff’s arm was right in the way of the door.[98]
[98]2T79
Other histories
107Save for the airport GP, subsequent medical examiners consistently reported the plaintiff told them she injured her left elbow when the door recoiled after hitting a drum.
108Most examiners thought the medial side of the plaintiff’s left elbow had been struck despite her evidence that the door struck her on the outside, on her funny bone. No point was taken by the first defendant in this regard relating to causation in a medical sense. However, this point was one of a number relied on by the first defendant in its attack on the reliability of the plaintiff’s account of the incident.[99]
[99] 2T192
The Plaintiff’s documentary evidence
109The plaintiff signed a Worker’s Injury Claim Form on 26 March 2015, two days after the incident. Erin Kenny signed on the employer’s behalf.
110The “Incident & Worker’s Injury Details” set out the injury was to the left elbow when “fridge door slam into elbow”. The task she was doing when she was injured was “orange crate”. The injury occurred at 4.35am on 24 March 2015. The injury condition was reported to Rodney Bowden.
111The plaintiff also completed a Claim for Impairment Benefits in relation to her left elbow/left arm on 5 August 2016. She described the injury/condition occurring when a fridge door slammed into her left elbow.
112The following measurements were taken by the parties at the view at the premises on 11 November 2022.
Statement of agreed measurements
Object Measurement Height of 2 x oil drums stacked atop one another 74 centimetres Width of fridge door opening from impact with second column of drums, when the first column of drums is contacting the U‑shaped barrier 46 centimetres Width of fridge doors 89 centimetres Width of internal fridge door frame 75 centimetres
The First Defendant’s evidence
Ben Krause
113Mr Krause is currently employed as a process worker and was previously employed by the first defendant as a chef at the premises. His second stint of work there was from 2013 to 2014, when he was employed as a sous chef.
114On the said date, his superior was executive chef, Rodney Bowden. He would be the most senior staff member in Mr Bowden’s absence.[100] When Mr Bowden was not at work, he had a responsibility for dealing with injury reports.[101]
[100]2T132
[101]2T133
115He knew the plaintiff, who was employed as a kitchenhand, and they both worked in the area that serviced the First Class Lounge.
116He confirmed, at 9.30am on the said date, he sent the following email to Jason Drennan, Michael Charlton and Erin Kenny, copied to Rodney Bowden:
“Good morning,
FYI Gloria knocked her elbow this morning while lifting a crate out of the cool room.
She is fine. She went to see the airport doctor who has said she is fit to return to work but can’t life (sic) anything over 3 kg today.Please find below the form 2000.
Thank you,
Ben.”
117He had received an email from Qantas (the second defendant) on that date, at 9.26am which acknowledged a Form 2000 had been submitted setting out:
“Incident Level F – First Aid Case / Insignificant Injury
Short Description of the Incident* Knocked elbow while lifting milk crate
Description how the incident occurred: While lifting a crate out of the cool room, Gloria knocked her elbow against the cool room door.”
118He completed the Form 2000 online in Qantas’ private intranet at 9.26am, so once it was completed it was automatically sent to the named people at Qantas who he did not deal with. He circulated that same incident report to the people nominated at the top of the email.[102]
[102]2T134
119An “Injury to personnel/near miss” form – a “Form 2000” – completed by him on 24 March 2015 set out the injured person’s name as Gloria Firth. The time of occurrence was 04:45 hours, with a rostered duty start time of 04:30am and finish at 12:30pm.
120The incident occurred in the Qantas First Class Lounge in the kitchen area. A short description of the incident was “knocked elbow while lifting milk crate”. The nature of injury was “strain or sprain of the upper limb elbow”. It occurred in the galley/kitchen. The body stress involved was pushing, pulling, and carrying.
121It was noted that the initial treatment was with a doctor at Melbourne Airport Health.
122It was reported to Rodney Bowden. There was no witness noted.
123The detailed description how, what, when and why was:
“Lifting a milk crate out of the cool room. While lifting a crate out of the cool room, Gloria knocked her elbow against the cool room door.”
124The corrective action proposed was, “Staff training”, with “More care to be taken. Staff are reminded to ask for assistance when lifting awkward objects. Staff advised to take more care when lifting objects in the cool room.”
125The supervisor’s name was Rodney Bowden, and the form was completed by Ben Krause.
126Mr Krause has no independent recollection of completing this report. He had a general routine when a report of injury was made. Wherever possible, a particular worker would do it in his presence. He would sit in an office space or somewhere within the kitchen with that person.[103]
[103]2T135
127He was working at the same time as the plaintiff on the said date on the early morning shift, probably having started around 6.30am. 4.45am – the time of the occurrence of the incident on the form – was before he started work.[104]
[104]2T135
128From his recollection, he was not able to say who he received that information from, it would only be speculation.[105] He did not witness the incident. He had no recollection of speaking to anyone other than the plaintiff about the incident. He did not remember talking to her and did not really have a memory of that day. As much as possible, just to get the most accurate information, his usual practice was to complete the form in the presence of the particular worker making the complaint.[106]
[105]2T135
[106]2T136
129It was a digital online form, and he would tap away and put the information straight into the document. It was his usual practice to do that in one hit, and he would hopefully have been talking to the person involved at the time. He would not have to send it off to anyone. He agreed that if someone told him something he would put that in the form.[107]
[107]2T137
130As he did not have a recollection of completing the Form 2000, he could not remember where he was when he did it. He had no memory of going back to that area or looking at anything or doing anything. He could not remember who gave him the information or where he was when he received it. He just could not remember the day. It was a long time ago:[108]
“I could attest to the fact that if staff came to me and they are injured, I would assess their injury, see what first aid they needed, or a doctor or that sort of thing. That would be my first priority. Second priority would be just looking at their work space and what they told me were the mechanisms involved in their injury and I would – I’m not trained in OH&S to assess a workplace but I would have just looked … [and if] something’s boiled over, it’s an electrical fault, something’s off its hinges or it was just human error … .”[109]
[108]2T144
[109]2T144
131The First Class Lounge opened a little bit after 6.00am and closed to customers about 11.30pm to 12.00am, depending on the season. Staff would be onsite about 4.30am until about midnight.[110]
[110]2T138
132The oil tins sit outside the cool room in an area on one side where there is a long u-shaped pole. These tins are used to stock oil, both for the fryers and general cooking. The store person, an employee of the first defendant, is responsible for the delivery of the tins.[111] One storeman worked from 6.30am until 2.30pm and the other 7.00am until 3.00pm. The latest time they would attend to a delivery of tins outside the cool room was early afternoon, 12.00pm, 1.00pm or 2.00pm – something like that. The loading dock at the airport shut at midday so there would not be any more deliveries after that.[112]
[111]2T138
[112]2T139
133In the ten-hour stretch from the time the tins were deposited until midnight, the fridge door would be used once every five or ten minutes. There were multiple staff going in and out. No particular staff had the responsibility to take oil from the tins.[113]
[113]2T139
134They would always try to have one drum of oil that had a tap on the side so small amounts of oil could be easily accessed. They are 20-litre drums and quite heavy. The tapped drum would be the one for decanting small amounts of oil out of.[114]
[114]2T139
135There were two deep fryers of around 9 litres each, requiring 8 litres of oil in total. A 20-litre tin of oil would be taken to fill both fryers. Staff would be encouraged to decant the remaining 2 litres into the tapped drum.[115]
[115]2T140
136Once a tin was empty, the best practice would be to put it on the opposite side of the door from the drums containing oil.[116] The empty tins would be filled with the dirty oil, which would then be taken away by the storeman.[117]
[116]2T143
[117]2T143
137The metal hoop would protect the tapped drum. That tapped drum would not be moved unless it was empty. Generally, the tapped drum was kept full because it would have the residue of the other drums in it.[118]
[118]2T142
Cross-examination
138He could remember that the plaintiff was very enthusiastic about work and was a very hard worker and competent. She continued to work at the premises for nine months after the incident.[119] He was more than happy that she was hired and would hire her again if he had the choice. If asked to write a report, he would write a very positive one, both as to her willingness and competency about her job.[120]
[119]2T145
[120]2T146
139He had no idea the plaintiff had any knee problems. He could not remember her going back on light duties after the incident or any problems she had at that time.[121]
[121]2T146
140The plaintiff was employed subject to his supervision. He made a report for the first defendant in the email to Jason Drennan and others. He would tell his employer through sending the Form 2000 to Qantas.[122]
[122]2T147
141Erin Kenny was the human resources representative in Melbourne. He could not remember speaking to her about the incident.[123] He did not know whether she remained in human resources while she was still with the first defendant. He could not remember when she left, but he did not believe, from memory, that she was there up until the pandemic. He does not have any memory of speaking to anyone about this event on the day.[124]
[123]2T147
[124]2T148
142Mr Bowden did not complete the Form 2000 as Mr Krause did not believe he was working on the day.[125] The entry “RODNEY BOWDEN” next to the heading “Reported to” on the form, meant that Mr Krause picked up the telephone and called him. That was how he read the form and was how he filled it out. He would have called Mr Bowden as a practice with any kind of incident in the kitchen when he was not there. Mr Bowden always liked to get a phone call.[126]
[125]2T148
[126]2T149
143Asking the injured person to whom they reported the incident did not sound like something he would usually ask when filling out a Form 2000. He could not remember if the plaintiff came to see him with a medical certificate or told him what restrictions she had at that time.[127]
[127]2T150
144Before he left in 2019, oranges were stacked in milk crates on top of themselves in a corner in the cool room. He could not remember how high the crates would be up when the plaintiff accessed them.[128] He could not remember how the plaintiff would have moved if she was walking out of the cool room with a crate of oranges in front of her.[129]
[128]2T152
[129]2T153
145He was probably first asked to recall this incident when he finished up with the first defendant sometime after 2019.[130]
[130]2T153
146He would like to say they changed the deep fryers maybe three or four times a week, so that was at least three or four drums that they would go through in a week, plus cooking on top of that.[131]
[131]2T154
147When the order for drum oil was filled, the storeman would bring up all the drums that were ordered and place them outside the cool room. He disputed that at times there would be nine or ten drums placed there. “That was a lot of stock.”[132] That would be very unusual. He would attest that six would be the maximum they would have there.[133]
[132]2T155; Photograph at PCB 237
[133]2T155
148If he was stacking six drums, he would stack them in three rows of two. He thought the photograph showing a stack of three drums would be unusual stacking and “someone was having a bit of fun”.[134] Tapping the third high drum on the pile was a bit high and would be higher than waist height.[135]
[134]2T156; Photograph at PCB 243
[135]2T157
149Once you tap a drum and empty it, it does not stay with the other drums.[136] Only drums with some oil or full drums are in the stack.[137]
[136]2T158
[137]2T161
150There was nothing stopping the bottom drum being pushed right up against a wall. You are not going to mis-stack the top drum. It will just slip and fall, and the drums do not stack very well unless they are perfect.[138]
[138]2T163
151He agreed there were marks on the door equal to the ribs of the drum where the door was rubbing against the drum as it goes backwards and forwards. He agreed that if the drums were against the wall, then the door would be stopped by the drums.[139]
[139]2T163
152They would not have one person in the kitchen by themselves. His understanding was that a chef and a kitchenhand would both start at the same time. The odds were that the chef would be in the cool room first.[140]
[140]2T174
153He did not disagree the plaintiff’s first job would be to do the orange juice. On a usual morning, there would possibly be three or four other chefs. The second kitchenhand would not start until a bit later.[141]
[141]2T175
154The chef uses the oil for the fryers. Deep fryers are usually done in the evening. The kitchenhand would be the absolute last person to finish off at night.[142] The chefs would clean their own benches and worktop, and the kitchenhands would do all the washing up, cover the crockery and glassware, and then do the floors last thing. If it was busy, the chefs might be “jumping around” them while the kitchenhands are trying to get stuff swept.[143]
[142]2T176
[143]2T177
155There is not a fleet of cleaners. The kitchenhands do the floors last thing at night. He agreed spilling oil is a big problem.[144]
[144]2T177
156He does not know where Mr Bowden is. He has not spoken to him for a number of years, but he was still executive chef during the pandemic.[145] He remembered Erin but does not know where she is now. He did not know if the sous chef was the person to check if all drums were being properly stacked.[146]
[145]2T177
[146]2T178
Re-examination
157If the fryer had been filled, the empty tin would have been put on the right and if there was anything left in it, it would have been decanted into the tapped drum.[147]
[147]2T178
158If the chef had filled a drum in the evening, he would have a need to go into the cool room after that, just generally sweeping and mopping the cool room, putting stock away, rotating, cleaning the shelves, that sort of thing, taking temperature checks as well as parts of the food safety program.
159The chef should do the dusting and mopping of the cool room. After they have done the deep fryer, they have got to clean, take a stocktake and do a temperature check.[148]
[148]2T179
160If the chef and kitchenhand arrived at the same time, odds are the chef would go first into the cool room, because the kitchenhand would go to their dish machines. The chef would go into the kitchen, turn the stuff on in the kitchen and start pulling stuff out from the fridge – this was an educated guess at best.[149]
[149]2T179
161The drums would hit the door if they were not stacked correctly. You can see the marks on the door, but he was not aware of that causing any problems, other than marks on the door.[150]
[150]2T180
162He had no memory of being told by the plaintiff any restrictions she may have had.[151]
The First Defendant’s documentary evidence
[151]2T180
Interrogatories
163The second defendant interrogated the plaintiff on 14 January 2021 and the following answers were provided by her on 15 February 2021.
164Interrogatory 7 – On the day of the accident:
(a) “How many oil containers were present?” – “7”;
(b) “How were the oil containers configured?” – “They were stacked up in two rows”;
(c) “Where was the Oil Container positioned in reference to the other oil containers?” – “The oil container furthest away from the cool fridge was obstructing the cool fridge door’s opening pathway”;
(d) “How long had you noticed the presence of the oil containers?” – “The oil containers have been there since I started work. This was the first time in my experience that any of the oil containers were obstructing the cool fridge door’s opening pathway.”
Photograph
165There was a photograph showing a side-on view of the cool room, indicating some plastic curtains on the top of the cool room doorway.[152]
[152]PCB 78; 2T181
Melbourne Airport Health notes
166A note of the plaintiff’s attendance on Dr Naik at Melbourne Airport Health on the morning of the incident at 8.36am read:
“While trying to lift an orange basket accidentally hit her left elbow to an open fridge sliding door.
Has pain and swelling around the left elbow.
Had iced it this morning.”
167On examination, there was swelling around the left elbow. Flexion and extension were painful.
168Management was rest, analgesics, and modified duties:
“Discussed the risk of being overweight and having high cholesterol – Risk of heart attack, stroke, DM, joint pain, back pain, gallbladder problem, kidney problem, psychological effects.”
169The reason for the visit was “WorkCover” and a letter was written regarding TAC and VWA Certificate of Capacity.
The legal principles
170As the employer, the duty owed by the first defendant to the plaintiff is well established. It was defined by the High Court in Czatyrko v Edith Cowan University:[153]
“… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”[154]
[153](2005) 214 ALR 349 at 353
[154](ibid) at 353, paragraph [12] (citations omitted). See also Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 at 12, paragraph [21]
171In discharging its duty of care, “the employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system”.[155]
[155]McLean v Tedman (1984) 155 CLR 306 at paragraph [12] per Mason, Wilson, Brennan and Dawson JJ
172The High Court, in Kozarov v State of Victoria,[156] restated this fundamental principle:
“Victoria’s duty was ‘not merely to provide [that] safe system of work,’ but to ‘establish, maintain and enforce such a system’, taking account of Victoria’s power, as employer, ‘to prescribe, warn, command and enforce obedience to [its] commands’…”[157]
[156] (2022) 273 CLR 115
[157] Ibid at paragraph [83] per Gordon and Edelman JJ
173As the Court of Appeal stated in Southern Colour (Vic) Pty Ltd v Parr,[158] in order to determine whether the defendant breached its duty of care to the plaintiff, it is necessary to correctly identify the relevant risk against which a defendant was alleged to have failed to take adequate steps to protect the plaintiff.[159]
[158][2017] VSCA 301 at paragraph [53]
[159]See also Chapman v Hearse (1961) 106 CLR 112 at 120-21
174The relevant risk in this case is the cool room door recoiling and hitting the plaintiff if it hits an oil drum, placed against the wall, when the door is being opened.
175It was not disputed, if this occurred, the risk of injury was reasonably foreseeable by a person in the first defendant’s position.
176The Court is then required to consider what a reasonable person would do by way of response to the risk.
177In Wyong Shire Council v Shirt,[160] Mason J stated, in a passage that has been consistently applied:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”[161]
[160](1980) 146 CLR 40
[161](ibid) at 47-48
178It was not in dispute, although no expert evidence was ultimately called, that a reasonable response was to install an inexpensive, simple guard to prevent the drums being placed against the wall.
179The only issue for determination in this case is whether the incident occurred in the circumstances described by the plaintiff – whether there was a drum obstructing the door, causing the door to recoil and hit her left elbow as she was entering the cool room.
180If it is accepted the incident happened in this manner, the first defendant did not dispute that there was negligence on the part of its employee/s in leaving a drum over the tracks on which the door opened, that the plaintiff suffered an injury to her left elbow in those circumstances and that such injury was reasonably foreseeable.
The onus
181Section 140 of the Evidence Act 2008 sets out the civil standard of proof as follows:
“(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.”
182In relation to the standard of proof, Zammit J, in Anedda v Horsey[162] stated:
“The considerations set out in sub-section 140(2) reflect the principles discussed by Dixon J in Briginshaw v Briginshaw:
‘[W]hen the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’[163]
As the Court of Appeal stated in NOM v DPP:
‘While a fact finder may take into account a number of considerations for the purposes of informing the statutory standard of proof under s 140(2), he or she must take into account the three specified considerations set out in s 140(2)(a)-(c). While these do not include all the considerations Dixon J proffered as informing the civil standard of proof in Briginshaw, it is open to the fact finder under s 140(2) to take into account additional relevant matters to those specifically identified, such as the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged.
…
Accordingly, whether it be by virtue of the common law or s 140, the civil standard of proof subject to the principle in Briginshaw is the relevant conceptual standard to which a fact-finder must satisfy him or herself in proceedings of this nature. Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found.’”[164]
[162][2019] VSC 729 at paragraph [22]
[163] (1938) 60 CLR 336 (“Briginshaw”) (Dixon J) at 361-2; Linke v Linke [2019] VSCA 210 at paragraph [112]
[164] (2012) 38 VR 618 at 654-6 (emphasis added)
Findings
Credit
183Counsel for the plaintiff submitted that the plaintiff was a hard worker who was respected by her employer. It is not in dispute she suffered injury at the premises on the said date.[165]
[165]2T217
184It was submitted the plaintiff was a truthful witness, with an impeccable work record, who gave a description of events that occurred in the early hours of the morning as she was entering the cool room and that she has been consistent where she has given that description and where it has been said to be from her.[166]
[166] 2T255
185Counsel for the first defendant made limited submissions in relation to the plaintiff’s credit, dealing mainly with her various accounts of the incident circumstances and her general lack of recollection in relation thereto.
186It was suggested to the plaintiff that the true account of the incident circumstances was the contemporaneous history given by her to Dr Naik and Mr Krause, and the description of the incident in the Claim Form. Further, her answer to the tendered interrogatory indicated she was unsure of the position of the drums.
187It was submitted the “change” in the plaintiff’s evidence in re-examination was a credit point, with her appreciating that if no part of her left body had moved, the incident would be impossible, and that she revisited and recounted that story in favour of one where her arm was going in “this very strange unnatural … unfeasible manner”.[167]
[167] 2T188
188In my view, the plaintiff’s evidence about how the incident occurred was very vague and, at best, largely a reconstruction of the events which she appreciated as the case went on was required to have occurred for her to succeed. On her version of events, until she was re-examined, it was unlikely she could have suffered any elbow injury if the door in fact recoiled as she alleged.
189Mr Krause was the only other witness on liability. I accept that he was a very impressive witness and very straightforward. He discussed the system of work and what would happen if best practice was followed. He was certainly not advocating on behalf of the first defendant.[168] While he may have been wrong regarding the number of drums in a stack, there was otherwise no significant attack on his evidence and, in any event, this issue was not relevant to my determination.
[168] 2T195
190He was a very credible witness and while having no recollection at all of filling out the Form 2000, his usual practice was to complete the document with the injured person present.
The presence of a drum
191For the plaintiff’s case to succeed, first, I must be satisfied that there was a drum in the position she described, hindering the movement of the door.
192It was not in issue that that an oil drum placed close to the wall, where the plaintiff described, would prevent the door opening and cause it to recoil.[169]
[169]2T222
193However, the first defendant’s general proposition was that there was no evidence of a situation where the drums had just been moved and placed in that position. Even if they had been, that they could be not an impediment to anyone else before the plaintiff opened the door at 4.45am.[170]
[170]2T207
194Further, it was submitted it was inexplicable why a drum would be in the position the plaintiff described. The last drums had been put near the door by the storeman at about 2.45pm the day before. The kitchen was operating until midnight and during that time people would go into the cool room – every five to ten minutes. On Mr Krause’s analysis, there were sixty to eighty openings of the door in that time.[171]
[171]2T139 and 2T203
195Mr Krause also explained that the drums are for two purposes: first, to fill the deep fryer, in which 18 of 20 litres is poured into the fryers, and two, the usual practice is to decant the other 2 litres into the tapped bin and then place the empty bin in the far side of the aisle, about a metre and a half from the cool room, so it can be used the next day for the dirty oil.[172]
[172]2T203
196It was submitted, in all probability, if someone has used a drum to fill a fryer, a drum could no longer be put in a hazardous position because it had been emptied and put on the far side. But, even if that was not the case and someone had picked it up and used it to fill up the fryer and then placed it back, as Mr Krause said, the chefs particularly have to access the cool room a number times, going in there to clean, check stock and do temperature checks after emptying or filling of the fryer.[173]
[173]2T203
197Even if someone had placed a drum there, impeding the door, after they had used it to fill a fryer, there were still going to be multiple uses of the cool room after that, and someone was going to come across that hazard. It made no sense that the drum would have been in the position the plaintiff described. The chefs would have used the door right until the end of the night.[174]
[174]2T204
198It was also submitted the position of the top of the two middle drums was important, because Mr Krause’s evidence was both bins – each weighing 20 kilograms – would sit flush to each other because otherwise they would topple over. That made the plaintiff’s description of the settings of the bins, where one was skew if to the other, implausible. The top one would topple if it was in that position.[175]
[175] 2T206
199While it was conceded this point was not central to the case, it was submitted it just again demonstrated how inherently implausible the plaintiff’s explanation was.[176]
[176]2T206
200Counsel for the plaintiff submitted Mr Krause’s evidence of the chefs being the last people in the cool room area at night, having tidied it up, was just that of a practice[177] – “But what happened and what was the last movement that night, whether they were cleaning up spilt oil, we don’t know.”[178]
[177]2T240
[178]2T240
201A practice does not exclude a possibility. It is not as if in fact there was a practice where a drum could not be placed there. It was further submitted, “It is not as if in fact it was a situation where somebody comes along and does an inspection and the last thing is shutting the door and they couldn’t do anything after that. … There is no evidence it wasn’t there …[or] couldn’t be there.”[179]
[179] 2T241
202While the evidence was that a drum would seldom be the position the plaintiff described because of the chef’s usual cleaning regime, there was nothing to say that later someone has handled the drums.[180]
[180]2T241
203While it was conceded it did not impact on the incident, Mr Krause was clearly wrong on the positioning and number of the drums, and that impacted on the credibility of his description of the practise. He was clearly wrong on that and it was not a “matter of reservation”.[181] It was submitted Mr Krause’s evidence in this regard was not consistent with what would be logical in the circumstances.[182]
[181]2T253
[182]2T254
Findings
204Taking into account all the evidence, I do not feel an actual persuasion of the existence of the fact in issue – that a drum was in the position the plaintiff described. The onus is clearly on the plaintiff to prove her case, on the balance of probabilities, and it is of no moment that there was no evidence the drum was not there, as counsel for the plaintiff submitted.[183]
[183]2T242
205In my view, it is unlikely that there would have been any drum obstructing the path of the door when the plaintiff first started work on the said date, being the first to commence work at the premises.
206As Mr Krause explained, and the plaintiff agreed, the usual practise was for the storeman to leave the last oil drums near the cool room no later than 3.00pm. The door would have been opened many times from then until 12.00pm when the kitchen closed. During that time, no one else had a problem with the door hitting the drum.
207Mr Krause’s evidence that the practise was, at the end of the working day, about midnight, the chefs would clean up the area of the cool room, going in and out of it on many occasions. Had there been a drum obstructing the passage of the door at that stage, it would not have been possible for the door to be opened without the drum having to be moved.
208There would be no need for any drum to be moved after the kitchen had closed, because no staff in the kitchen would need oil or need to fill the fryers.
209The plaintiff’s evidence was that she did not move the drums, she just got oil out of a stationary drum. It is likely that this would also be the case with other kitchenhands working at the premises.
210In any event, as Mr Krause explained, there would be little need to move a drum in the middle stack which the plaintiff alleged was unevenly stacked. The system was to tap the top drum on the stack nearest to the metal handle to access oil. If the fryers needed to be filled, they required 18 litres of oil from a 20-litre drum. To fill the fryers, the chef would take the whole drum and empty it into the fryers and decant the remaining 2 litres into the tapped drum on the third stack from which kitchen staff accessed smaller quantities of oil. The empty drum would then be put on the other side of the door, making it less likely the middle drum would be moved or that there would be a need to move it.
211While there may have been some marks on door where it had rubbed against drums, as Mr Krause acknowledged, there had been no other problem with the door. Further, before the said date, the plaintiff had not experienced any problem getting through the doorway because of any obstruction by a drum.
212Significantly, despite the plaintiff’s account of the incident circumstances, there is no evidence that after the incident, she complained to anyone at the premises or pointed out to them the drum that had hindered the movement of the door and then caused it to recoil onto her.
213In those circumstances, there was no evidence by any co-worker of the position of the offending drum immediately after the incident.
214Had Mr Krause been told of the drum causing injury to the plaintiff, having first assessed any injury, the likelihood is that he would then have looked at the mechanisms involved in the injury and inspected the incident area.
215In this case however, having described the incident in the Form 2000 as having occurred when the plaintiff was “Lifting a milk crate out of the cool room. While lifting a crate out of the cool room, Gloria knocked her elbow against the cool room door”, his proposed corrective action was “Staff training”, with “More care to be taken. Staff are reminded to ask for assistance when lifting awkward objects. Staff advised to take more care when lifting objects in the cool room.” This was not a response to an incident involving a drum blocking the passage of the door.
If there was a drum against the wall, did the door recoil and hit the plaintiff on her left elbow?
The First Defendant’s case
216Even if it was accepted the drum was in the position alleged by the plaintiff, which was disputed, counsel for the first defendant submitted it was unlikely the incident occurred in the manner she described.
217As the plaintiff agreed, her width elbow-to-elbow is 51 centimetres. The width of the door opening from when the door makes contact with the second row of drums is 46 centimetres – 18 inches.[184] Her body cannot physically fit through that opening.[185]
[184]2T184
[185]2T185
218To fit through that opening, she would need to somehow twist the left side of her body into the opening for there to be contact with her elbow. In the first version of the transcript, the door rebounded at about 15 centimetres after it struck her elbow, thus narrowing down to 31 centimetres (about a foot, and she is 20 inches’ wide).[186]
[186]2T185
219Her evidence was that her right foot moved forward slightly, and her position was the left side of her body did not fit at all; however, she subsequently sought to retract that and gave a different explanation.
220It was submitted the plaintiff’s normal mechanics are that she put her right foot forward. She was not going to be shifting the left side of her body at all, and for her to have moved the left side of her body, she was engaging in some sort of mechanism, as demonstrated, which was entirely unnatural.[187]
[187] 2T185
221In re-examination, moving her left arm, the plaintiff put it out directly in front of her body and crooked her elbow at about a 45-degree angle. When she put her foot forward,[188] no part of her body had penetrated the plastic strips which effectively was the door opening. Those strips are pretty well flushed in the inside of the door.[189] It is a matter of physical impossibility if her right foot is a couple of inches in but has not perforated the strips.[190]
[188]2T84
[189]CB 78
[190]2T187
222At best, her right foot is somewhere within the doorframe. Even in the way she demonstrated it, if her knuckles had not perforated the plastic strips, the door is not going to strike her elbow.[191]
[191]2T188
The Plaintiff’s case
223Whilst the first defendant relied on the plaintiff’s width from shoulder to shoulder and the dimensions of the doorway, the plaintiff could move sideways, getting through a gap much less than the width of her body and shoulders.[192]
[192]2T223
224Counsel for the plaintiff agreed that the plaintiff did not describe a moving left arm until re‑examination, but asked, “but what is she doing? She’s opening the door with the right hand, she’s going to go into a room which has got a curtain, and the edge of the door is some distance out from the curtain.”[193]
[193]2T224
225In response to my question, “but … if she’s not moved anything, if she has only moved her right foot which was her evidence … [how can there be an impact]?”, counsel responded the plaintiff had said “I moved out when I got hit,” “which was said to be out of the cool room.[194]
[194]2T225
226In evidence-in-chief, the plaintiff had said she was not fully in the cool room. It was submitted it is consistent with somebody who is moving a door with their right hand to go through the curtains, that they would be moving their left hand forward to go to the curtains.[195]
[195]2T249; however, there was no evidence the plaintiff touched or went through the curtain
Findings
227Taking into account all the evidence, I do not feel an actual persuasion of the existence of the fact in issue – that the incident occurred in the circumstances the plaintiff alleged.
228Consistently, her evidence was that, as she opened the sliding door with her right hand, pushing it to her left, the only part of her body which she moved (into the cool room/path of the recoiling door) was her right foot.
229She answered “no” to whether she moved her left foot or the left side of her body when asked in cross-examination, and her position was clear in this regard.
230It was only in re-examination, she described how she had somehow twisted her body, placing her left elbow at right angles in the way of the closing door and, as a result, suffered injury to the outside of her elbow/funny bone when the door recoiled on her.
231Also, the dimensions of the door and the plaintiff’s own width of 50 centimetres and the distance left with the recoiling door, made the injury, in the circumstances described by the plaintiff, with the level/lack of left-sided movement she consistently described, implausible.
232There was only an 18-inch gap into which the plaintiff would have had to have moved her body sideways to the left to put her arm in the way of the oncoming door and, in my view, this was unlikely. The contorting position described only in re-examination was also unlikely to have occurred.
233It is even more difficult to accept the plaintiff’s final version of the incident given in re-examination which was more helpful to the plaintiff’s case – moving her left arm into the doorway – because even then, she often fell back to her ultimate position on a number of occasions that it just happened so quickly “I don’t know what happened”.[196]
[196]2T192
234A number of relevant examples were cited by counsel for the first defendant in this regard.
235When it was suggested to the plaintiff that she could not possibly fit her body into such a narrow space, she answered, “I don’t really notice when the door hit so I don’t really – I can’t really say, I didn’t really notice when it hit me”.[197]
[197]T124
236When it was suggested that if the door ricocheted it was just over a foot open and it was narrower than her body, she responded “I don’t know, it just happened so quick, I’m sorry”.[198]
[198] T125
237After counsel for the first defendant demonstrated the plaintiff’s most recent description of the incident mechanism, having her left elbow crooked at an angle of about 45 degrees, she said, “it happened so quickly, I didn’t expect this to happen”.[199]
[199] 2T192
238It is clear that the plaintiff could not remember most of what actually happened, saying repeatedly, “it all happened so quickly”.[200]
[200]2T52
Contemporaneous histories
239The plaintiff gave a different version of the mechanism of injury when she saw the general practitioner and completed the incident form on the morning after the incident.
240Counsel for the first defendant relied on the contemporaneous versions of the incident given to Dr Naik at the Airport clinic, Mr Krause in the incident form/Form 2000, and the plaintiff’s own Claim Form which were submitted to be inconsistent with the plaintiff’s viva voce evidence as to the incident circumstances.[201]
[201]2T193
241It was submitted the plaintiff could not really give any satisfactory explanation why there were three contemporaneous records indicating she was injured when coming out of the cool room.[202]
[202]2T203
Dr Naik
242The plaintiff saw Dr Naik at 8.30am, within four hours of the incident. The history recorded was:
“While trying to lift an orange basket, accidentally hit her left elbow on an open fridge sliding door.”
243Counsel for the first defendant submitted this described mechanism of injury was very explicit.[203] There was no mention of the drum and the recoiling door. It is a history likely to be given by the plaintiff, and although not word for word, is not a matter of impression.[204]
[203]2T194
[204] 2T231
244Counsel for the plaintiff submitted what was on the doctor’s certificate was his “impression” and that a doctor does not write down things verbatim.[205] It was also submitted later medico-legal histories were accurate and consistent.[206]
[205]2T230, 232
[206]2T234
245While I accept that Dr Naik would not have written down verbatim what the plaintiff told him, the account recorded by him was clear and at odds with the plaintiff’s evidence during the trial. In my view, it goes beyond an impression.
246While I accept that later medico-legal histories are consistent with the plaintiff’s evidence, that does not address the problem with this history, which made no mention of a drum or a recoiling door.[207]
[207]2T231
The incident report – Form 2000
247Counsel for the first defendant submitted the document has a regularity about it. Mr Krause, in Mr Bowden’s absence, filled it in on the Qantas intranet and sent it off.[208] While he just had no recollection of it at all, Mr Krause’s usual practise was to complete the document with the injured person present.[209]
[208]2T196
[209]2T199
248It was submitted it is “pretty irresistible” that the source of the information for the form is the plaintiff. Mr Krause did not start work until 6.30am. He did not witness the incident and when the incident form set out the incident occurred at 4.45am, the only person who could have given that information is the plaintiff, as also would be the case with the description of the incident lifting a crate out of the cool room.[210]
[210]2T200
249Further, the version of the incident in the form was entirely consistent with the report to the general practitioner an hour earlier.[211]
[211] 2T201
250However, counsel for the plaintiff submitted there were three possible sources for the incident report: the doctor’s certificate, Rodney Bowden, and Erin Kenny.[212]
[212]2T218
251It was submitted that Mr Krause did not speak to the plaintiff, and he just completed the Form 2000 on the basis of what was contained in the medical certificate.
252However, while counsel for the plaintiff submitted the plaintiff did not speak to Mr Krause, this was clearly wrong. She said she might well have, and she cannot remember.[213]
[213]2T255-6
253I accept that the incident report was completed by Mr Krause after the plaintiff attended the doctor. Although she said she could not remember, she did not deny this interview took place.[214]
[214] T115
254I also accept Mr Krause completed the Form 2000, as that was his job in Mr Bowden’s absence. Further, Mr Bowden was copied into Mr Krause’s email, which was also sent to Ms Kenny that morning, suggesting he was not the person who completed the form.
255The likelihood is that the plaintiff was present when the form was completed, as there is no other explanation how Mr Krause could know of the time of the incident which was not on any document from the doctor.
256I reject the submission by counsel for the plaintiff that, somehow, the initial history to the general practitioner, which was said to be just the doctor’s impression, was somehow transposed directly onto the Incident Report without the plaintiff being interviewed.
257It was not put to Mr Krause that he filled out the Form 2000 in this manner. It is no answer to say that there was no need to cross-examine Mr Krause on this issue, because he had no memory of the incident. This significant proposition should have been put to him in cross-examination, and was not, offending the rule of fairness in Browne v Dunn.[215]
[215](183) 6 R 67
258Mr Krause was not given a chance to respond to this proposition, and the first defendant was not given the opportunity to call any additional evidence which may have been available. It remains a matter of submission and totally speculative in nature. In any event, there was no evidence that Mr Krause was provided with any documentation from the doctor or of any reason why any clinical note would have been provided to him.
259Significantly, Mr Krause, when describing the practice when an incident was reported to him, said it would have been likely he would have made some enquiries as to what had happened at the incident site.
260An incident which consisted of “knocked elbow while lifting milk crate” would not have required any further investigation by him. Had the plaintiff mentioned the involvement of a drum, his practise would have been to look at the mechanisms involved in the injury.
The Claim Form/Form 2000
261In the Claim Form, the “Incident and worker’s injury details” set out the injury was to the left elbow when fridge door slammed into elbow. The task doing when she was injured was “orange crate”. The injury occurred at 4.35am on 24 March 2015. The injury condition was reported to Rodney Bowden.
262Counsel for the plaintiff submitted the Claim Form was particularly significant, as it was the only document that the plaintiff completed.[216] The claim was accepted where the incident was described as “fridge door slamming into elbow”. There was no challenge to the incident circumstances described. The fact of injury was admitted, and the insurer paid.[217] There was no challenge to the plaintiff’s compensation claim.[218]
[216]2T221
[217]2T222
[218]2T226
263Counsel for the first defendant submitted that evidence tied up with the Claim Form is again inconsistent with the contemporaneous history. The plaintiff’s description “fridge door slammed into elbow” was ambiguous and equally consistent with her elbow just hitting the door. The use of the phrase “orange crate” is strongly indicative that that was what the plaintiff was doing and told Mr Krause and the general practitioner.[219]
[219]2T202
264In my view, the description of the incident in the Claim Form can be read as consistent with the plaintiff’s current account of mechanism of injury in a limited way. It can also be read in the way counsel for the first defendant suggested. The claim was for statutory benefits, and it is not in dispute the plaintiff injured her left elbow at work.
265Significantly, in cross-examination, the plaintiff agreed that she would not describe the crate if she was asked what she was doing when she was injured. She agreed that she would say something like “walking into the cool room” because that was correct.[220]
[220] T133
266In those circumstances, the Claim Form does not assist the plaintiff’s case to any significant extent.
Answers to Interrogatories
267Finally, as counsel for the first defendant submitted, the plaintiff’s Answer to Interrogatory 7 was inconsistent with her viva voce evidence as to the number of drums and the position of the drum the door hit.
Histories to doctors about the area on which the Plaintiff’s elbow was hit
268While this issue was not taken up with medico-legal witness, Mr Moaveni, or relied on by the first defendant in terms of causation, counsel for the first defendant submitted it was relevant, because it was another example of the plaintiff’s uncertainty/lack of recollection of how she was injured.
269In this regard, there were a number of examples of the plaintiff reporting to doctors that her elbow was struck on the medial/inside rather than anterior/outside.[221]
[221] Dr Snyman, Dr Rawston, Mr Malone and Dr Frayne
270Counsel for the first defendant submitted being hit on the medial side was a physical impossibility on the plaintiff’s version of the incident and the only way it could happen was if she was coming out of the cool room.[222]
[222]2T193
271While I accept that the plaintiff’s evidence on this issue was somewhat unclear, it is not a significant factor in my findings in this case. In any event, the plaintiff explained that she told doctors she had pain inside, but the outside of her elbow was hit.[223]
[223]T126
Evidence of family
272The plaintiff’s case was not really advanced by the evidence of her family members as to what she told them about the incident circumstances.
273While the plaintiff did tell Warren she had been injured in the incident, I do not accept that she gave him the detailed account he described – that she was not carrying anything, where her feet were positioned et cetera.
274As counsel for the first defendant submitted, his evidence indicated he had spoken to the plaintiff about the way the incident needed to have happened for her case to succeed.[224]
[224]2T188-189
275Ms Naidu gave a much less detailed account and more credible account of her conversation with the plaintiff. The plaintiff telephoned her on the day of the incident. The plaintiff was crying and said she had been hit by a freezer door, hurting her arm, and she was in pain. The freezer door hit her shoulder and elbow.[225]
[225]2T118
Other issues – missing witnesses
276As the first defendant failed to call Erin Kenny and Richard Bowden, counsel for the plaintiff sought an inference that their evidence would not have helped the first defendant’s case.[226]
[226]Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916
277It was submitted it would be presumed Erin Kenny, as the human resources person, would have been asking the plaintiff questions about the incident when she came to see her at the medical centre, although the plaintiff does not remember. Further, Erin was named in the Claim Form as the name of employer contact.[227]
[227]2T219
278While Erin may have spoken to the plaintiff in the doctor’s rooms, after the incident, the plaintiff being “not 100% sure”[228] and “could not remember, could have”,[229] there is, however, no evidence what, if anything, the plaintiff told her about the incident circumstances.
[228]T66
[229]T35
279As counsel for the first defendant submitted, if the plaintiff had told Erin what had happened, consistent with her version, it would be expected that they call her to corroborate that, but the plaintiff gave no evidence about that, and “you cannot fill gaps in the plaintiff’s case”.[230]
[230]2T199
280Further, counsel for the first defendant submitted any inference is unfounded. Erin Kenny is also no longer an Accor employee, and Mr Krause said she finished up sometime before the pandemic. In any event, she is not in the defendant’s camp. In the relevant sense, she is an ex-employee, and it would be quite open to the plaintiff to call her.[231]
[231] 2T197
281While the first defendant’s case is that Mr Bowden was not present and Mr Krause acted in his place on the morning, the plaintiff’s evidence was she spoke to Mr Bowden before and after the incident.
282There is, however, no evidence of what, if anything, the plaintiff said to Mr Bowden about the incident circumstances. Her evidence is that she spoke to him after the incident happened. She did describe to him what had happened,[232] but counsel then did not go further and ask her what she said to him.
[232]T65
283The exchange was then:
Q:“And, after speaking to him and telling him you couldn’t work, what did you then do?---
A:He said, ‘That’s okay’. If you have to go home, you have to go home and just look after yourself and make sure you rest’.”[233]
[233]T68
284There was no evidence that either Ms Kenny or Mr Bowden were told by the plaintiff how the incident occurred. In both cases, it is not a situation where any inference can be drawn.
285Further, of note, both Mr Bowden and Ms Kenny were forwarded the Form 2000 on the morning of the incident, setting out the incident occurred when the plaintiff “knocked elbow while lifting milk crate”.
Conclusion
286In summary, taking all these matters into account, I am not satisfied that the plaintiff’s case has been proved on the balance of probabilities. I am not satisfied that any drum was blocking the door and that incident occurred in the manner described by the plaintiff.[234]
[234]Evidence Act, s140
287I am not required to find an alternative factual basis for negligence as no other allegation was made. It may be, as counsel for the first defendant submitted, that what has happened is that the plaintiff has gone into the cool room to retrieve a crate and while exiting, has struck her elbow against the door of the cool room, and that is the cause of the injury. Predictably, counsel for the plaintiff took issue with this proposition, submitting there was no consistency in this alternative.[235]
[235]T251
288Having rejected the plaintiff’s version of the incident circumstances, it is not necessary to consider negligence, causation and reasonable foreseeability.
289The proceeding must be dismissed.
290Having found no negligence, I am not required to consider the issue of damages.
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