Flynn v Australian Postal Corporation
[2005] QDC 247
•16 August 2005
DISTRICT COURT OF QUEENSLAND
CITATION: Flynn v Australian Postal Corporation [2005] QDC 247 PARTIES: MARSHA FLYNN
Plaintiffv
AUSTRALIAN POSTAL CORPORATION
Defendant
FILE NO: 526/04 PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane
DELIVERED ON: 16 August 2005 DELIVERED AT: Brisbane HEARING DATE: 4, 5 & 6 May 2005 JUDGE: Dearden DCJ ORDER: Judgment for the plaintiff against the defendant in the sum of $267,719.18.
CATCHWORDS: PERSONAL INJURY- Postal delivery contractor – Occupational health and safety procedures – training – safe lifting policies - manual lifting – overfilled and overweight mail flutes – schedule of past care - severe degree of disability - referred pain – breach of duty – risk of injury – neck and back pain – past economic loss – future economic loss – special damages – reasonably foreseeable
Workplace Health & Safety Act 1995 s 30
Cases cited:
James v McCarthy [1958] QWN 32Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19
Wyong Shire Council v Shirt (1980) 146 CLR 40
COUNSEL: Mr C Newton for the plaintiff
Mr G Handran for the defendant
SOLICITORS: McNamara Garrahy for the plaintiff
Clarke & Kann for the defendant
[1] The plaintiff, Marsha Flynn, seeks damages for personal injury arising from an incident which occurred on 28 March 2001(“the incident”) when Ms Flynn was performing duties as a postal delivery contractor at the Australia Post depot (“the depot”) at Venture Drive, Noosaville. Ms Flynn suffered from a protrusion of the L4-5 disc of her spine on or after 28 March 2001, which caused ongoing permanent symptoms and a severe degree of disability. Despite back surgery for the disc protrusion on 7 March 2003, Ms Flynn continues to be severely disabled and unfit for all forms of work, with a poor prognosis for the future.
THE EVIDENCE
Marsha Flynn - Background[2] Marsha Flynn worked as a postal delivery contractor at the Noosaville depot of Australia Post from 1 November 1991 until she ceased work on 28 February 2003. For a fixed annual fee, paid in monthly instalments, she (and other contractors in a similar position) would attend at the Noosaville depot each week day, sort mail, then deliver that mail, utilising their own transport. As a contractor, Ms Flynn was responsible for all her own expenses, including her own tax, workers’ compensation, vehicle costs and other expenses.
[3] At the time she injured her back on 28 March 2001, Ms Flynn was a vigorous and physically active 55-year-old woman who played competition squash at masters level, tennis, golf, cycled and took responsibility for all the maintenance of the household she shared with her de facto partner, Frank Milat and her son, Michael Flynn. Her job as a postal delivery contractor also involved physical activity, and she described herself as a person who could not sit still and needed to be doing things.
[4] Ms Flynn’s health problems prior to March, 2001 included back pain (which she attributed to overtraining for the 1990 Noosa triathlon and which resolved itself without further treatment after the triathlon) and a painful right knee in 1995, which subsided after six months of not playing sport (in particular, squash).
[5] Ms Flynn’s de facto partner, Frank Milat, was also working as a postal delivery contractor in 2001, as well as working part-time in real estate. Ms Flynn and Mr Milat were struggling financially at the time and Ms Flynn would assist Mr Milat with part of his deliveries (after Mr Milat had completed sorting the postal items for his run) to enable him to get to his second job in real estate.
[6] Both Ms Flynn and Mr Milat worked from adjoining desks at the Noosaville depot. They were part of a group of 16 or 17 postal delivery contractors working at that depot. The depot also utilised employed postal delivery workers. When Ms Flynn sat at her desk, she had Mr Milat on her right-hand side and another contractor, Ian McGillivray, on her left-hand side. Both Mr Milat and Mr McGillivray gave evidence in this trial.
[7] On a typical day, Ms Flynn (and the other postal delivery contractors) would arrive between 6 and 7am. On her desk would be grey trays full of letters (“A-class mail”) and corflutes (plasticised cardboard boxes known within Australia Post as “flutes”) full of magazines and non-standard articles (“B-class mail”) would be stacked around her desk on the floor. Depending on whether or not it was a busy time, there would be between two and six flutes of B-class mail on the floor waiting to be sorted at the start of the day.
[8] Ms Flynn commenced her working day by sorting the A-class mail into pigeon-holes at her desk. The purpose of this process was to sort the mail into street order for her postal run, which she delivered on a motor bike. Once the A-class mail was sorted, she would then start sorting the B-class mail. Ms Flynn and the other mail contractors were all supposed to have chair-high trolleys by their desks so the flutes of B-class mail could be placed in the trolleys for sorting. There was never a trolley available at her desk in the morning. Her desk was closest to the night sorters, who also needed trolleys, so if trolleys were going to disappear, hers (and those of Mr Milat and Mr McGillivray) went first.
[9] Flutes were regularly overfilled and too heavy. Ms Flynn complained to both Merv Rose (depot manager) and Moira Gleason (night sorting supervisor) but although the night sorters were spoken to after complaints (which were regular) were made, the problem of overweight flutes soon reappeared and was never fixed for long, at most for some days.
[10] In addition, despite complaints made to Mr Rose about the absence of trolleys, no system was ever put in place which ensured that Ms Flynn had ready access to her own trolley in the mornings when she came in to sort mail.
Marsha Flynn – The Injury
[11] On 28 March 2001, Ms Flynn went into work as usual in the morning, sorted the A-class mail that was sitting on her desk then dealt with the redirection forms and similar tasks. She subsequently turned her attention to the flutes of B-class mail which were on the floor. She did not have a trolley at the time. She went to pick up a flute to put it on her chair because it was too difficult to bend and sort the mail contained in the flute from its position on the floor.
[12] Ms Flynn says that when lifting the flute, she turned and tried to lift it, but probably did not bend at the knees as she did so. As she lifted the flute, she experienced a dreadful pain in the right lumbar region of her back. She got the flute about an inch off the ground, dropped it back on the ground, yelled out and then sat back down in her chair.
[13] Ms Flynn states that the depot manager, Mr Rose, came running over, picked up the flute she had dropped and put it on Ms Flynn’s desk. Mr Rose then made a comment that he had told the night sorters not to overfill the boxes, and after pulling out some of the magazines from the flute on the desk, he left. Mr Milat and Mr McGillivray came over and the flute was taken to a set of scales where it was weighed at 23kg. [I note that both Mr Milat and Mr McGillivray gave evidence that the items taken out of the flute by Mr Rose were returned by them to the flute before it was weighed.]
[14] After a rest of 15 minutes or so, Ms Flynn carried on with her duties. As there was no-one who knew her run and could help her, with assistance, either from Mr Milat or someone else, she transported her sorted mail to her motorbike and then continued to carry out her postal deliveries on that day.
[15] Ms Flynn completed an Accident Report Form[1] provided to her by Mr Rose. Although she was not sure whether she filled the form out the same day as her injury, or the next day, it was substantially completed by her, signed by her and dated 28 March 2001 (the date of the incident). Critically, it refers to the injury as a “muscular strain in back” which occurred “while lifting a box of ‘B’ class mail which weighed in excess of 20kg”. The Accident Report Form (at paragraph 13) notes “Merv Rose” as a witness and includes not only his name but also his private address.
[1] Exhibit 45
Marsha Flynn - The Aftermath of the Injury
[16] Ms Flynn continued to work at Noosaville depot after 28 March 2001. She had continuous pain in her lower back. She had difficulty bending and lifting the flutes, and would ask Mr Milat (or someone else if he was not there) to lift things for her. After a couple of months, her neck was getting very sore. She had no-one to fill in for her, but she did not want to leave her job and so she continued on as long as she could.
[17] Ms Flynn’s son, Michael Flynn, had been doing some part-time work for her prior to 28 March 2001. She increased the amount of delivery work Michael Flynn was doing, arranged for Mr Milat to take back the part of his run that she had been doing for him, and actively searched for a relief worker. After some months she located Rex Cunningham, who took over her job at one stage full-time for two weeks so she could rest her back completely. This did not fix her back problem and within a couple of weeks, she finally went to her doctor to discuss the back problem. By the time she saw her general practitioner, Dr Spall, on 27 November 2001, her symptoms included continuous back pain, pins and needles, numbness, pain down her legs and a painful neck.
[18] Ms Flynn acknowledges that she also visited Dr Spall on 6 April 2001 and 28 June 2001, and visited another doctor in Dr Spall’s practice (Dr Norman) on 23 May 2001, and on each of those three occasions sought medical advice in respect of health issues unrelated to her back pain. Ms Flynn says that she did mention the back pain to Dr Spall in passing as she was leaving his surgery on 28 June 2001 (although there is no reference to this in Dr Spall’s medical notes[2]). Ms Flynn states that throughout the period from 28 March to 27 November 2001 she continued to believe that the back pain was a muscular problem and that it would repair itself.
[2] Exhibit 49
[19] After visiting Dr Spall on 27 November 2001, and being referred by him to physiotherapy (which did not work), Ms Flynn finally started to realise that she could not continue to work, given her medical condition. She subsequently made an application on her insurance policy, and employed Michael Flynn, as well as Mr Cunningham, to do the deliveries while she continued sorting with the assistance of fellow mail contractors. By 1 July 2002, Ms Flynn had arranged for Mr Cunningham to take over the Eumundi section of her run full-time. Ms Flynn would attend the depot in the morning and sort the Doonan section of the run, which was very small, and Michael Flynn would deliver this mail. This arrangement (with Mr Cunningham undertaking the Eumundi section of the run and Michael Flynn undertaking the Doonan section of the run) continued until the end of February 2003 when Ms Flynn finally surrendered her contract to Australia Post. At that time, all of the money she was receiving from her insurance payments was being utilised to pay Mr Cunningham and Michael Flynn and she was making no profit.
[20] Throughout the period from November 2001 until early March 2003, Ms Flynn consulted a range of medical professionals and attempted various treatments including physiotherapy, hydrotherapy, acupuncture, Bowen therapy and massage. None of this treatment worked, and on 7 March 2003 she had back surgery for a protruded disc which was performed by Dr Ryan at the Mater Hospital, Brisbane. The surgery was not successful. The back problem continues to the present, with some days being satisfactory and some days being terrible.
[21] The only relief Ms Flynn has secured from her back pain since the original incident was in October 2004, when a series of injections of a drug called Neurontin provided by Dr Scott Masters relieved not only her back pain but also her neck pain. Because the treatments were expensive and her finances were limited, Ms Flynn ceased the treatments with Dr Masters in March 2005. She indicated a willingness to resume that treatment if she had the funds. She also indicated a willingness to undertake hydrotherapy and to attend a pain management clinic if funds were available.
[22] Ms Flynn has required home help and care since 28 March 2001. This care and assistance has stabilised, as at the date of trial, at a level of three hours per week. Ms Flynn attempted to return to work in real estate, but on her only attempt she lasted four hours before having to leave because of the pain in her back. She has been unable to resume the active sporting life she enjoyed before 28 March 2001.
[23] Ms Flynn is adamant that she was never given training by Australia Post management suggesting flutes should be no more than a specified weight. She understood that flutes were to be no more than 16kg, but has no idea where she heard that information. Ms Flynn is adamant that she never received any occupational health and safety directions or instructions about manual lifting or handling prior to 28 March 2001. Ms Flynn also states that she never attended any workshop, group meeting or briefing where manual lifting or handling matters were discussed, nor did she receive any relevant occupational health and safety documentation. She had no recollection of seeing a “Safe Lifting Tips” poster at the depot prior to 28 March 2001.
[24] Ms Flynn states that she had personally complained to Mr Rose (depot manager) and Ms Gleason (night sorting supervisor) about overweight flutes, and was also aware of complaints made by other postal delivery contractors. Neither her complaints about overweight flutes nor the unavailability of trolleys appeared to have resulted in any effective change to the system of work for postal delivery contractors at the depot prior to 28 March 2001.
[25] Ms Flynn accepted that there was a period since the accident when her left shoulder was sufficiently painful that she would have needed help to undertake her job as a postal delivery contractor. The help she would have needed would have been with sorting the mail because she was still able to drive while suffering from the shoulder injury. The period when she would have needed help would have been for some three months, and the cost of assistance would have been in the order of $200-$250 per week for a period of three months.
Moira Gleason
[26] Ms Moira Gleason worked for the Noosaville depot of Australia Post as a supervisor and team leader from Easter 2000 until 17 March 2003. During the first half of that period she worked as supervisor of the night sorters. By the time she gave evidence at this trial, she had left Australia Post and had moved back to her home town of Rockhampton where she was working as a stock controller.
[27] Ms Gleason was responsible for a team of night sorters who sorted both A-class mail (letters) and B-class mail (anything larger than an A4 letter) for some 20 postal delivery contractors and 15 employed postal delivery officers who delivered to the areas of Cooroy, Coolum, Perigian, Eumundi, Noosa and Tewantin. Ms Gleason, while working in the night sorting supervisor role, arrived around 10.30pm for a shift that started at 11pm, would clean up and fix up for the commencement of that shift, then would undertake a follow-up for one to one-and-a-half hours after the shift formally finished at 7.30am.
[28] Contractors would start to arrive from 5am, to find trays of A-class mail on their desks and flutes of B-class mail stacked on the ground beside their desks, or on a trolley (if there was one there and it was not already full).
[29] Ms Gleason was aware of a weight limit of 16kg applicable to flutes, mail bags or trays of mail. This limit, she said, had come from management, and she and other sorters had watched team videos and been given written literature on weights and lifting.
[30] Ms Gleason said that although there were adequate numbers of flutes most times, there were shortages at times and this meant that mail would be left on the sorting frames. Although there were supposed to be trolleys at every position occupied by a contractor or employed postal delivery worker, Ms Gleason states that these trolleys were regularly taken for other purposes and not returned.
[31] Ms Gleason said that in 2001 the Noosaville depot was cramped, congested and too small for the increasing volume of mail being processed there. There were particular problems with monthly publications such as Austar and RACQ magazines. Although some flutes had a “Do Not Fill Past This Line” marking, overfilled and overweight flutes were a constant problem and the cause of regular complaints. Ms Gleason’s duties included sorting as well as supervising and she had little time available to randomly check the weight of flutes to enforce the 16kg weight limit.
[32] Ms Gleason stated that team briefs, when conducted, always included the night sorters and the employed postal delivery workers, but the contractors were dealt with differently and were not invited to such meetings.
[33] Although Ms Gleason accepted that, as a supervisor, she would have had the Australia Post Operational Health and Safety Policy and Procedures Manual for Manual Lifting available to her, she had never read it. She had never seen the “Safe Lifting Tips” poster. She sought to respond to complaints about overweight flutes, but felt that she never had enough time to adequately supervise such problems with the night sorters. Ms Gleason specifically recalled receiving complaints about overweight flutes from Ms Flynn. Any flutes that Ms Gleason weighed as a result of complaints were always found to be over 16kg in weight.
[34] Ms Gleason accepted that she had received specific manual lifting training. In particular, she was aware of the importance of keeping a straight back, of bending at the knees, and of assessing the size, shape and weight of a load before lifting it. She could not, however, recall when she received this training.
[35] Although Ms Gleason was night sorting on the date of Ms Flynn’s accident, she neither saw nor heard the incident.
Ian McGillivray
[36] Ian McGillivray worked as a postal delivery contractor at the Noosaville depot from October 1999 until June 2002. He had a run in the Doonan area. He was working at the depot at the same time as Ms Flynn.
[37] Mr McGillivray recalled that a normal working day commenced with between four and 12 flutes of B-class mail scattered around his desk, which he would sort once he had sorted the A-class mail (letters) into street order on the run. Once all mail was sorted, he placed it back into flutes and took it to his car for delivery.
[38] Mr McGillivray says there were numerous problems at the Noosaville depot, mainly revolving around the attitude of management to contractors. Mr McGillivray had specific problems with insufficient trolleys, getting flutes down from the “rocket launcher” (sorting rack), overloaded flutes (in particular when Austar and RACQ magazines were being delivered), and getting support from Australia Post generally if there were any difficulties with his run.
[39] Although Mr McGillivray complained regularly, both to the night sorting supervisor and to the depot manager (Mr Rose), about the number, weight and placement of flutes, as well as the lack of a designated trolley, none of these complaints ever had any effect. Mr McGillivray was also present when other contractors complained constantly about the weight of flutes and the lack of trolleys.
[40] Mr McGillivray was never given any direction or instruction by Australia Post about safe lifting, never saw an Australia Post manual on safe lifting, and never heard the issue discussed at any contractors meeting. Mr McGillivray had some recollection of seeing a “Safe Lifting” poster in the motor bike room, and a vague recollection of seeing the same poster at the stamping desk. Although he had not received any training or instruction from Australia Post on manual lifting, Mr McGillivray’s background as a storeman had resulted in him being taught how to lift and carry properly.
[41] Mr McGillivray recalls that he was standing no more than 10 feet from Ms Flynn and talking to Mr Rose when Ms Flynn suffered her back injury. Ms Flynn, who had been chatting to Mr McGillivray and Mr Rose, went back to her desk, bent over to lift up a box and yelled out “Ow, my back”. He heard Ms Flynn then say that she had hurt her back, and Mr Milat, Mr McGillivray and Mr Rose all went over to see if Ms Flynn was alright. Mr Rose lifted the flute onto the desk and pulled off the top 25% of the mail, placing that mail on the desk, before telling Ms Flynn to fill out an Accident Report Form. As soon as Mr Rose left, Mr Milat and Mr McGillivray replaced the mail that had been removed by Mr Rose from the flute and took it to the scales where it weighed 23kg.
[42] Mr McGillivray did not recall going to a briefing in December 2000 when manual lifting was discussed, and says he can recall no more than two briefings during his time as a contractor with Australia Post, the contents of which had little relevance to him. Mr McGillivray stressed that if asked to attend a briefing, he would go to it.
Jayne Brackenrig
[43] Jayne Brackenrig worked for Australia Post from 1993 to August 2004. For the last six years of that period, she was a night sorter at the Noosaville depot. While working for Australia Post, she got to know some of the contractors working out of the Noosaville depot, including Ms Flynn.
[44] Ms Brackenrig had been advised that there was a 15kg weight limit which applied to the flutes used by night sorters to sort B-class mail. Ms Brackenrig said that the 15kg limit was breached whenever Road Ahead, Austar, or any of the large monthly magazines came out because of a shortage of flutes. Ms Brackenrig recalls discussing this problem with her supervisors. In particular, there were problems with mail being delivered to the depot in overloaded flutes which required two people to lift them.
[45] Ms Brackenrig was responsible for sorting the mail for the contractors. The filled flutes would be taken by trolley to the contractors’ desks. The trolleys would be grabbed from wherever they were available, including Ms Flynn’s trolley, which was close by because of the proximity of her desk to the night sorters.
[46] By the time the contractors arrived in the morning, the A-class mail had been sorted and the B-class mail was in the process of being sorted. There was a lot of movement in the workplace. There would, on average, have been three or four flutes sorted by Ms Brackenrig and placed at the Eumundi desk.
[47] Ms Brackenrig recalls being given directions about not overloading the flutes from both the night sorting supervisor and the delivery manager. Ms Brackenrig recalls that the issue of overloading flutes was mentioned once or twice a year.
[48] Ms Brackenrig was working at the Noosaville depot close to Ms Flynn’s desk the day Ms Flynn was injured. Although Ms Brackenrig did not see the incident, she heard Ms Flynn say that she had hurt her back.
[49] Although Ms Brackenrig was the recipient of complaints about overweight flutes from postal delivery contractors, she told those complaining to talk to management about the shortage of flutes and trolley because she (Ms Brackenrig) was not able to solve the problem. In fact, Ms Brackenrig says that overweight flutes were a problem that continued right through until she left her employment with Australia Post in August 2004.
[50] Ms Brackenrig was never required to check on the weight of flutes and in any event, she says, it was not possible to tell how heavy a flute was, regardless of whether it was full or not, because of the varying weights of the individual items of mail in a flute.
[51] Ms Brackenrig accepts that it was possible that she attended a briefing on manual handling techniques in December 2000, but she does not recall seeing a “Safe Lifting Tips” poster until the end of 2003 or in 2004. She recalled the poster being in the lunch room, but accepted that it may also have been on the wall over the stamping desk. There were, she says, a lot of different things all over the walls at the depot.
[52] Ms Brackenrig said that it was mainly the male night sorters who would overload the flutes, but accepts that she too was guilty of overloading flutes. In the last two years of her employment at the depot, Ms Brackenrig says that she would warn contractors about heavy flutes.
Frank Milat
[53] Frank Milat was, at the date of trial, a real estate agent and had been the de facto partner of the plaintiff, Ms Flynn, for nearly 10 years.
[54] Mr Milat gave evidence that, prior to Ms Flynn’s injury on 28 March 2001, the two of them led an active life. Most of their friends were squash players. They played masters squash at State and national level. Ms Flynn and Mr Milat would play squash on Thursday nights at Cooroy, and on a monthly basis would go away on squash tournaments for the weekend. They used to bike ride with friends on Sunday mornings. Ms Flynn would also play tennis, cricket, touch football and competed in a Triathlon in 1991.
[55] As at March 2001, Mr Milat (who had previously owned his own real estate business) was working as a real estate salesman, trying to get back on his feet, and was also working as a postal delivery contractor at the Noosaville depot. Mr Milat stated that the family coped with these three jobs by Ms Flynn starting sorting at the depot around 5 or 5.30am, Mr Milat starting at 6am, getting out of the depot by 9 or 9.30am, with Ms Flynn and her son, Michael Flynn, undertaking some of Mr Milat’s deliveries so that he could get to work as soon as possible in his real estate business. Their long-term aim at that time was that Mr Milat would once again be successful in real estate.
[56] Mr Milat recalls being present at the Noosaville depot on the day the accident occurred. He says that he had completed sorting the letters and was in the process of sorting his B-class mail, when he heard a scream, turned around and saw Ms Flynn straightening up and letting out a scream. Mr Milat did not see Ms Flynn trying to lift the flute, and first became aware of a problem when he heard Ms Flynn scream. At this stage, the depot manager, Mr Rose, was about 10 feet away, talking to Mr McGillivray, another postal delivery contractor who worked near Ms Flynn and Mr Milat. Mr Milat states that Mr Rose came over and got the flute Ms Flynn had been lifting, put it on the table and started pulling things out of it and putting them on the table while saying words to the effect, “Bloody sorters, they were told not to stack these so high.” Mr Rose also said something to Ms Flynn to the effect that she did not pick the box up the correct way in that she did not bend her knees. Mr Milat and Mr McGillivray then put back into the flute the things that had been taken out by Mr Rose and took the box over to the scales at the door to the driveway, where it weighed 23 kg. Mr Milat recalls Ms Flynn finishing her deliveries on the day of the accident.
[57] Subsequent to the accident, Mr Milat recalls Ms Flynn talking regularly about her back and describing it as sore.
[58] Mr Milat was a postal delivery contractor with Australia Post for a period of three years. He was adamant that over that time he had not been invited to attend at any meeting or arrangements where he was given any directions about safe lifting habits. In particular, although he recalls attending one or two contractors’ meetings, it was his clear recollection that safety issues were not brought up at those meetings.
[59] Mr Milat was aware of an Australia Post policy of a 16kg limit for flutes of mail, but he could not recall how or where he became aware of that policy. Although he had not personally made any complaints about flutes being too heavy, he had been present when other contractors had made complaints about the flutes being too heavy. In addition, generally, when he arrived at work, although three or four flutes would be stacked on top of each other beside his desk, more often than not there was no trolley available to him. Mr Milat did not consider that a trolley would have made much difference to his own personal work practice because (as he described himself) he was “pretty healthy” and did not have as much trouble with overloaded flutes.
[60] Mr Milat had never seen Australia Post’s Occupational Health and Safety Policy Manual and never knew of its existence. Mr Milat never attended any group session nor received any personal instruction on manual handling policies. He did not recall ever seeing a “Safe Lifting Tips” poster although he conceded that it may have been on a wall somewhere. Mr Milat was never part of any process called a “team brief” where lifting issues were discussed.
[61] Mr Milat, on an unspecified date about 6 weeks after 28 March 2001, took a camera to work and photographed flutes on a sorting frame[3]. These photographs clearly show flutes which are overfull.
[3] Exhibits 36A and 36B
[62] Mr Milat said that in respect of domestic duties prior to March 2001, he helped out from time to time with the dishes but otherwise did very little work around the house. After March 2001 he took over many of the household responsibilities which had previously been undertaken by Ms Flynn. Mr Milat confirmed that the hours claimed in a document entitled “Schedule of Past Care”[4] was a conservative but realistic assessment of his changed contribution to household chores between March 2001 and the date of trial. Mr Milat stated that, as at trial, he was contributing a minimum of three hours per week of current care for Ms Flynn, which he would not have provided otherwise.
[4] Exhibit 42
[63] In August 2001, Mr Milat surrendered his postal run contract to Ms Flynn. Ms Flynn surrendered her postal run contract and then, over time (because it was clear that she was not able to cope), Ms Flynn started getting Mr Cunningham involved, was receiving insurance payments, and then ultimately surrendered the postal run contract she had inherited from Mr Milat.
[64] Mr Milat was aware that since giving up the postal run Ms Flynn had tried real estate (having completed a course), but lasted only one day because she was in too much pain from sitting in a chair answering phones. Mr Milat saw no realistic possibility of Ms Flynn getting even a part-time job in real estate.
[65] Mr Milat gave evidence that Ms Flynn had, since 2001, tried once or twice to play squash but was unable to play because she was in too much pain. Ms Flynn was unable to swing a golf club, had attempted short bike rides but got frustrated when her back became sore, and consequently, life had become a lot slower. Mr Milat and Ms Flynn watched more television, did not do as much as they used to do, but would still try and walk along the river and go and see people, although this was not being young and active as he and Ms Flynn were before her accident.
[66] Mr Milat gave evidence that their intimate relationship, which had been “very active” and in which they had had “a lot of fun”, was now “just the act”[5].
[5] T p164
[67] Mr Milat does not recall any briefing, meeting or other conversation with Mr Rose in which lifting techniques were explained to contractors. Mr Milat never received any help from Mr Rose himself; he does not recall Mr Rose ever helping Ms Flynn, nor does he recall ever seeing Mr Rose help any other contractor.
[68] Mr Milat went to Malaysia with Ms Flynn in 2003 for a nine-day holiday at a hotel on the beach at Penang where, he recalls, half the time would have been spent sitting around the pool.
[69] Mr Milat went to Europe with Ms Flynn for a long-planned six weeks’ holiday in 2004. Ms Flynn took cortisone to make the trip bearable.
[70] Mr Milat said that Ms Flynn currently still reached up and down to grab saucepans, although very slowly and very carefully, and did sometimes help Mr Milat with shopping, although she did not carry any of the bags. Ms Flynn would occasionally grab things at the supermarket. Ms Flynn was (as at date of trial) trying to paint, as a hobby, at a table in the shed at the back of the house.
Stephen Hoey
[71] Stephen Hoey, a practising occupational therapist, provided a report dated 17 March 2005[6]. Mr Hoey formed the conclusion that Ms Flynn had the following occupational restrictions:
[6] Exhibit 22
§decreased tolerance for long periods of sitting, standing or walking;
§unfit for lifting general loads greater than 10kg;
§precluded from heavy or repetitive lifting below waist height;
§restrictions with forward bending (stooping) or twisting;
§restrictions holding the head, neck and shoulders in fixed postures.
[72] Mr Hoey’s report concluded that Ms Flynn was unfit for her former employment as a mail contractor. Given her Grade 8 education, her background in low and semi-skilled, often physically demanding occupations (from which Mr Hoey considered she was now precluded), and her lack of recent experience with more sedentary clerical, sales or service occupations, together with her history of lumbar surgery and a compensation claim, Mr Hoey formed the opinion that Ms Flynn was “precluded from commercial employment.”
[73] Mr Hoey also concluded, on the basis of his examination, that Ms Flynn had a need of three hours assistance per week with domestic chores and the like which, if provided on a commercial basis, would incur a cost of some $18.10 per hour - a rate of care based on the award rate for a contract cleaner which it is noted had increased between the date of Mr Hoey’s report (17 March 2005) and the date of trial (5 May 2005). Relevantly, the award rate for a casual hourly cleaner as at 5 May 2005 was $18.79 per hour[7].
[7] Exhibit 48
[74] Mr Hoey attested to having studied, at both an undergraduate and post-graduate level, the assessment of pain and the impact of pain upon a person’s capacity for day-to-day living and work tasks. Mr Hoey considered that the “gate control” theory of pain would explain why there was a two-month delay between Ms Flynn’s injury (on 28 March 2001) and her experiencing pain in her neck. Mr Hoey expressed the opinion that where a person was experiencing neck and back pain, if the back was sending stronger and more frequent neural impulses to the brain, then the brain would interpret the pain as coming only from the back, but once the back pain had subsided, then the person could interpret both neck and back pain.
[75] Mr Hoey conceded, in cross-examination, that Ms Flynn had worked in physically demanding occupations during her lifetime and persons with such occupations could complain of back pain.
[76] Mr Hoey expressed the opinion that it was foreseeable that work conditions would cause an injury to Ms Flynn, which arose because she was an older worker, who was perhaps untrained in lifting a weight from below waist that was above the “flag fall weight”. Mr Hoey stated that the bending technique described to him by Ms Flynn in respect of the particular box which was the subject of the incident on 28 March 2001, was an incorrect technique. Mr Hoey explained the concept of a “flag fall weight” as being a weight of 20kg or above which should be examined closely by employers for its risk to employees. Mr Hoey’s report[8] expressed the opinion that it was “foreseeable that the working conditions [as described to him by Ms Flynn] would cause injury [which] would likely have been avoided with simple, low-cost changes to the work environment.”
[8] Exhibit 22
[77] Mr Hoey explained the concept of “downstream effects” of a weight as being the multiplying factor where a weight was either away from the body or on the ground and down, which multiplied the force by 10, 20 or 30 times the weight of the initial object and transferred all of that force straight to the lower back. In short, Mr Hoey said, whether or not a particular weight would be dangerous to pick up would depend on the instruction/training that the person had on how to pick up the weight, with the major risk factors being if the person was leaning forward, the weight was on the ground away from them, and if they were twisting at the same time.
[78] Mr Hoey accepted that a shoulder injury, to which, in his view, women over 40 were predisposed, would make it difficult for a person in Ms Flynn’s position to carry out physically demanding jobs such as lifting boxes.
Dr Alan Searle
[79] Dr Searle, a consultant orthopaedic surgeon, provided two reports dated 5 August 2003[9] and 8 April 2004[10].
[9] Exhibit 19
[10] Exhibit 20
[80] Dr Searle’s report dated 5 August 2003, concluded that “the injury at work on 28/3/01 caused the protrusion of the L4-5 disc and the ongoing symptoms from this are permanent and cause a severe degree of disability. She was improved by the operation [by Dr Ryan on 7 March 2003] but at this stage [5 August 2003] the improvement has not been maintained.”
[81] Dr Searle’s report dated 8 April 2004 confirmed that the plaintiff’s “work-related injuries include disc protrusion with surgery, aggravation of cervical spondylosis, and capsulitis of the left shoulder. The ongoing symptoms from these are permanent and cause a severe degree of disability. The symptoms and disability will gradually increase with the passage of time.”
[82] Dr Searle formed the view that given that there was an 18-month or more gap between the date of injury and Ms Flynn developing a shoulder problem, it was more probable than not that the shoulder injury was not related to the original incident.
[83] In respect of Ms Flynn’s neck injury, Dr Searle took the view that this was a referred pain problem caused by a prolonged and severe back injury which had caused the pain to spread up to the neck. Dr Searle expressed a view that the relief from pain for two weeks that Ms Flynn had experienced in both her back and her neck from injections of cortisone and anaesthetic into her spine in 2004, was a classical effect of treatment on referred pain.
[84] Dr Searle accepted that X-rays of Ms Flynn’s spine confirmed that there was some degeneration, but considered that the degeneration was having no effect on Ms Flynn until the injury on 28 March 2001. Dr Searle stated that a person (such as the plaintiff) whose X-rays indicated significant degeneration would not necessarily have that degeneration reflected in their activities. In particular, Dr Searle noted that Ms Flynn, despite the spondylosis in her spine revealed by her X-rays, was not inhibited or prevented by any symptoms in the region of her spine from, pre-accident, being a very physically active woman playing a lot of sport.
[85] In cross-examination, Dr Searle conceded that a person who suffered an injury as described by Ms Flynn, could be expected to have pain persisting over time. However, Dr Searle said that a burning pain resulting from a prolapsed disc, although very common at the time of the injury, could happen much later, varying from patient to patient, at any time from the next day to six months later.
[86] Dr Searle indicated that the particular action most likely to cause a prolapse of a spinal disc was a rotation movement at the same time as a flex or extension movement, particularly with a weight in the hands. Dr Searle accepted that a prolapsed disc could be caused by something as innocuous as picking up a cotton wool ball.
Mark Thompson
[87] Mark Thompson, a chartered accountant practising with the firm Vincent’s Chartered Accountants, provided two reports in respect of economic loss suffered by Ms Flynn. Those reports were dated 12 June 2003[11] and 5 April 2005[12]. Counsel for the defendant did not, in any significant way, challenge the conclusions contained in those reports.
[11] Exhibit 24
[12] Exhibit 25
MISCELLANEOUS MEDICAL EVIDENCE
[88] The report of Dr Bill Ryan, dated 11 March 2003[13], notes that with respect to Ms Flynn, he performed “a laminectomy at L4 and L5 [which was] extended laterally to dorsally decompress the L4, L5 and S1 nerve roots [and] the disc prolapse at L4/5 was excised.”
[13] Exhibit 10
[89] Dr Ryan noted further that the “findings at operation were or marked lumbar spinal stenosis at L4/5 accompanied by a right-sided L4/5 disc prolapse.”
[90] The report of Lee Ng, occupational therapist, dated 14 October 2003[14], concluded (in the light of Ms Flynn’s grade 8 education, working history in low and semi-skilled, often physically demanding occupations, and her occupational restrictions [as a result of her injuries]) that she was (as at 14 October 2003) commercially unemployable. That view was confirmed by Stephen Hoey, occupational therapist, in his report of 17 March, 2005.[15]
DEFENDANT’S EVIDENCE
Mervyn Rose[14] Exhibit 21
[15] Exhibit 22
[91] Mervyn Rose gave evidence that he had been employed with Australia Post since 1980 and was the Delivery Centre manager at the Australia Post depot at Noosaville from 1998. In particular, he was the Delivery Centre manager at Noosaville as at the date of Ms Flynn’s accident on 28 March 2001. Mr Rose had known Ms Flynn for quite a while as a postal delivery contractor delivering mail in the Castaway Waters, Doonan and Sunshine Beach areas.
[92] Mr Rose was responsible for ensuring all policies on workplace health and safety were followed at the Noosaville depot. Australia Post had policies on manual lifting. Team briefings were delivered separately to night sorters, postal delivery officers and contractors. The briefings were not compulsory for contractors although they were encouraged to attend. Mr Rose stated that contractors would generally be given a notice on their desk a day or two before a briefing, as well as a verbal reminder, and copies of the actual briefings were kept in a Team Brief folder. However, no roll of attendees was kept. Mr Rose claimed to have delivered a team briefing in December 2000 which (among other things) covered lifting techniques and posture[16]. Mr Rose also gave evidence that he had displayed a poster entitled “Safe Lifting Tips”[17] in front of the date stamping table at Noosaville depot from late 2000.
[16] See Exhibit 38 – copy of team brief in relation to safety and health
[17] Exhibit 39
[93] Mr Rose gave evidence that while working as the Delivery Centre manager up until March 2001, Ms Flynn did ask for his assistance on occasions to lift parcels from the parcel sorting area.
[94] Mr Rose claimed that there were designated trolleys for all postmen (sic) and contractors which had the mail service run number stuck on the handles. He said that he would assist staff to find a spare trolley if their trolley was not at their table.
[95] Mr Rose claimed that he had seen contractors combining flutes of mail containing Road Ahead or Austar magazines into fewer flutes for space reasons, to give themselves room for working.
[96] Mr Rose gave evidence that his first recollection of the incident involving Ms Flynn on 28 March 2001 was when Ms Flynn came to his office, standing at his door, around mid-morning on that date. Ms Flynn told him that she had hurt her back. Mr Rose gave her a P400 Incident Report Form which he believed she filled out at the time in his office. He identified the completed incident report from 28 March 2001[18] as the form completed by Ms Flynn. Mr Rose said that he would have completed the form and on the following day spoken with Richard Henry, then the Health and Safety representative, and would also have left a note for the night sorter in charge to undertake checks to make sure that flutes were not being overloaded.
[18] Exhibit 45
[97] Mr Rose gave evidence that over the next week after the incident, he would possibly have done some checks on the flutes that had been sorted to make sure they weren’t being overloaded. These checks would have involved visual checks and he would have selected a couple of flutes at random just to put on the scales to check the weight. Such checks would be undertaken probably once every two or three weeks. Mr Rose did not keep any record of the checks being performed but said he would separate any overweight flutes into two flutes before putting them back.
[98] I note that much of Mr Rose’s evidence about the incident and its follow-up was prefaced with the words “I would have” and appears in my view to be substantially an ex post facto reconstruction of relevant events rather than a direct memory of those events.
[99] Mr Rose recalls Ms Flynn coming to see him about employing someone else to give her a hand with the contract service within a couple of months of the incident.
[100] Mr Rose gave evidence that Australia Post operated on a weight guideline of 16kg. He said that that information about the weight guidelines was freely available to contractors and other persons that worked at the depot. There was a rule of thumb that flutes should not filled past the handles at the end of the white flutes and there were some flutes in the system at that time that had black lines marked on the box, level with the handle holes.
[101] Where Mr Rose saw staff carrying mail rather than using trolleys, he would remind them that trolleys were there to be used.
[102] Mr Rose said that there was no set time for briefings with contractors. Occasionally breakfasts would be held for a staff member leaving, reaching 20 years of service or for Christmas, but these were generally social gatherings of all staff members and safety issues were not officially discussed. Mr Rose gave evidence that in a 12-month period there would have been six or seven briefings which, in addition to lifting information, would discuss matters relating to contractors using motor cycles and persons reversing out of their driveways.
[103] Mr Rose claimed that there was no difference in his treatment of employed staff (postal delivery workers and night sorters) compared with contractors.
[104] Mr Rose gave evidence that with the night sorting staff and the postal delivery workers (i.e. employed staff) there were more regular briefings, possibly on a fortnightly basis.
[105] Mr Rose conceded in cross-examination that the first time he had been asked to sit down and seriously think back to the incident concerning Ms Flynn was in late 2004. He had looked at the P400 Incident Report[19], but had not reviewed his Team Briefing Folder[20] prior to giving a statement to solicitors for the defendant.
[19] Exhibit 41
[20] Exhibit 53
[106] Mr Rose accepted in cross-examination, that although it was his recollection that there were six or seven contractors’ meetings a year, he had no records to show whether or not particular contractors attended those meetings. [My review of the Team Briefing Folder [21] appears to indicate that there were contractors’ briefings on 6 January 1999, 26 July 2000 and 13 December 2000. It would appear that it was only at the contractors’ briefing on 13 December 2000 that any reference was made to manual handling issues. Interestingly, in the light of Mr Rose’s assertion that all postal delivery workers and contractors had their own trolleys, in the notes of the contractors’ meeting on 6 January 1999 there is an entry which states “Trolley for every round coming”.]
[21] Exhibit 53
[107] Mr Rose accepted that it was his responsibility to ensure that Australia Post was a safe working place for all people in the Noosaville depot, including contractors, and that it was also his responsibility to impart Australia Post’s occupational health and safe lifting policy to contractors. Mr Rose said that the relevant policy in respect of safe lifting, could be found in Australia Post’s Occupational Health and Safety manual. Mr Rose confirmed that Exhibit 37 (Occupational Health and Safety Policy – Australia Post 5 November 1998) was one portion of Australia Post’s safety manual.
[108] It was put to Mr Rose, in cross-examination, that neither Ms Flynn, Mr Milat nor Mr McGillivray had received any direction or instruction from him on manual handling or safe lifting procedures. Mr Rose’s response was to state that he believed he conducted a briefing with contractors in respect of manual handling just prior to Christmas 2000, and that, to his knowledge “all contractors were there”[22]. However, he was unable to offer any documentary support for this assertion, given that no rolls were kept of attendances by contractors at briefings.
[22] T p196
[109] Mr Rose accepted that he had never set up a staff manual handling project team as referred to in paragraph 5.1.2 of the Occupational Health & Safety (“OHS”) Policy[23]. He also accepted that there was never a manual handling assessment undertaken at the Noosaville depot to determine what was a reasonable weight (in the particular circumstances of the depot) or what could be done to limit the risk of back injury to persons working at that depot.
[23] Exhibit 37, p5
[110] Mr Rose was not sure what the reference to “downstream effects of [a] increased weight” meant in the OHS Policy[24]. Mr Rose said that he believed the 16kg limit referred to in the OHS Policy was a guide, and he was unable to comment on how that weight might be affected by downstream effects (i.e. how and where the load had to be picked up). He was also unable to offer an opinion as to whether, in particular “downstream” circumstances, a load of less than 16kg might be the appropriate level for the task. He stated that he was not qualified to comment on such a proposition.
[24] See pp 15-16 of Exhibit 37 & T p197
[111] Mr Rose did not accept that he had ever received complaints from night sorters about a shortage of flutes. He claimed that although the quantities of flutes at the depot would vary throughout the night, depending on how many were used before the next truck came in with bulk deliveries of mail, there were always sufficient flutes. Mr Rose was adamant that he never saw nor received a complaint about an occasion when the depot was short of flutes.
[112] Mr Rose stated that postal delivery officers started work at 5.45am and contractors had a specified start time in their contracts which, for most, was 6am, although a lot of contractors did come in earlier which caused some disruption with the night sorters. Mr Rose accepted that between 6 and 7.30am (when the night sorters finished) all of the trolleys would have been in use because it was a very busy period. Mr Rose did not, however, accept that there were times when he could not provide a trolley upon request and claimed that he would have made alternate arrangements to free up a trolley if a person really needed it.
[113] Although Mr Rose did not accept that it was a regular problem for at least some of the contractors that there was a shortage of trolleys, he did accept that when the night sorters required another trolley, the trolleys they would have used would have come from the working bays where Ms Flynn, Mr Milat and Mr McGillivray worked because those bays were closest to the frames being used for sorting by the night sorters. Mr Rose claims that he redesignated a number of trolleys, including one with Ms Flynn’s run number on it, and he did not accept that there was a problem with insufficient trolleys.
[114] Mr Rose did accept that the contractors and the employees were quite different groups of people and, in particular, that if there was a problem, the union representing the postal delivery officers (who were employees) would quickly respond, which was a relevant factor in dealing with that group of the workforce at the depot.
[115] Mr Rose accepted that working space was a problem at the Noosaville depot, and the centre was struggling to deal with the expansion of work as the population increased in the area serviced by the depot. The expansion in population created both volume and space problems for the depot.
[116] Mr Rose was adamant that he was not a witness to the incident involving Ms Flynn and claimed that in hindsight he had put his name in the wrong spot at paragraph 13 of the Incident Report Form[25]. He stated that the writing of the name “Merv Rose” in paragraph 13 did not appear to be in his handwriting but conceded that the address and phone number immediately underneath it were in his handwriting. He still asserted, despite this concession, that he had no recollection of seeing the incident and specifically denied placing a flute on Ms Flynn’s desk, making a comment about night sorters overfilling flutes, and throwing magazines out of the flute onto Ms Flynn’s desk.
[25] Exhibit 45
[117] Mr Rose conceded that there were occasions when the flutes could have been overloaded and that as a result he received complaints from contractors, but could not recall any specific occasion on which Ms Flynn had complained.
[118] Mr Rose accepted that the night sorting supervisor also had to sort mail which meant that they were not able to constantly supervise the sorting. Mr Rose claimed that if contractors had made complaints to Ms Gleason (who was the night sorting supervisor at the time of the incident), such complaints had not been brought to his attention by Ms Gleason.
[119] Mr Rose accepted that he had never given Ms Flynn any individual direction about proper lifting techniques or the lifting of heavy flutes.
[120] Mr Rose confirmed the base contract price, for mail service number 2004 (the run being undertaken by Ms Flynn when she ceased working for Australia Post) commencing 3 March 2003, was $49,506. However, as he explained, there was an agreed escalation clause which increased the contract price by $20 per delivery point (i.e. per new house) per annum. [It was placed on the record by counsel for the defendant[26] that the contract price, as at the date of trial, was $56,021.41 inclusive of GST.]
[26] T p212
Dr William Maitland
[121] Dr Maitland is a qualified medical practitioner who also undertakes an alternate-type therapy known as “Bowen therapy”. This is a method of treating the body causing a vibration which caused healing, the mechanism of which, Dr Maitland said, was not understood.
[122] Dr Maitland recalled treating Ms Flynn in January and February 2002, but had no recollection of the detail of that treatment other than the very brief entries contained in his notes[27]. Dr Maitland accepted that he had not taken any comprehensive history and in particular, was unaware whether or not Ms Flynn’s chronic low back pain was work related. Dr Maitland saw his job as seeing people who came in with pain and trying to remove it.
[27] Exhibit 52
Dr Gregory Nutting
[123] Dr Gregory Nutting, an orthopaedic surgeon, provided a report dated 16 March 2004[28]. Dr Nutting’s report concluded (relevantly) that Ms Flynn was “a 57-year-old woman who injured her back in a relatively innocuous movement some three years ago. One year ago she underwent surgery in the form of laminectomy, diskectomy and rhizolysis and has had very little improvement in her symptoms.” Dr Nutting expressed the view with respect to Ms Flynn’s neck symptoms that “obliquely, one could say that she was forced to adopt an attitude which meant postural strain on the neck, but this should have been short-lived.” With respect to the shoulder symptoms he stated that he “would not accept that the shoulder condition has been brought about because of adaptation to back pain” and concluded (with respect to both the neck and shoulder symptoms) that he would not assess “any permanent impairment in either the neck or the shoulder relative to the incident of 28 March 2001.”
[28] Exhibit 50
[124] Dr Nutting concluded, with respect to “the lumbar discomfort, with the subsequent performance of a laminectomy and the persistence of radicular symptoms following surgery” that he would “assess Ms Flynn as DRE lumbar category IV, with a 20 percent impairment of the whole person, on the basis of instability on examination”, although he did note that a “certain degree of impairment (although unrealised)” predated the incident in question, leading him to conclude that “5 percent of Ms Flynn’s permanent impairment [should be apportioned] to pre-existing degeneration and 15 percent to the incident of 28 March 2001 and its sequelae.” Dr Nutting did consider that “the alleged incident [on 28 March 2001] contributed significantly [to Ms Flynn’s presenting symptoms] in that Ms Flynn had no history of any problems prior to the incident.”
[125] Dr Nutting gave evidence that the cause of a prolapsed disc could be a simple as bending, rotating, coughing or sneezing, but that it was most commonly caused by flexion (bending forward) and rotation. In that context, he considered that the flexing was as much of a problem as the actual weight of the object being picked up.
[126] Critically, Dr Nutting gave evidence that if the pain from an injury was continuing or indeed increasing over time, this could be explained by a process where the fibrous structure of the annulus of the disc gave way partially at first but then the fault became exploited over time. This, in his view, would best reconcile Ms Flynn’s medical history (involving an initial incident after which Ms Flynn kept working) with the history of pain persisting over two months or more. Dr Nutting drew a compelling analogy with the ply in a radial ply tyre. He stated that the initial incident would have involved one or two of the “plies” giving way, associated with a sudden discomfort which was not all that dramatic over the next short period of time, and then as that fault became exploited and became a protrusion over a period of time, it would have resulted in the annular tear (a prolapsed disc). This would, he stated, explain how Ms Flynn was able to continue on working without opiate analgesia after the initial incident, although still with pain.
[127] In Dr Nutting’s view, Ms Flynn did not suffer a gross disc protrusion at the time of the incident. He did not believe she would have been able to keep working, and would have had to access significant medical or paramedical help immediately.
[128] Dr Nutting accepted that the history provided by Ms Flynn of an immediate acute pain problem which worsened over time, with a significant delay in seeking medical treatment, was something he saw not infrequently, because patients assumed a pain was going to go away and continued to put up with it.
[129] Dr Nutting did not consider that Ms Flynn’s neck injury was a result of referred pain from the lumbar region and described such a mechanism as “just not anatomically possible”[29]. In addition, Dr Nutting saw no particular significance in Ms Flynn’s undergoing nerve block treatment and obtaining relief in the neck area at the same time as gaining relief in the lumbar region where the nerve blocks were administered. However, he conceded that the continual splinting of the spine with Ms Flynn’s muscles could have caused discomfort to her neck, which would not be an injury but a reaction to an injury.
[29] T p224
[130] In cross-examination Dr Nutting accepted as a “very legitimate explanation” that Ms Flynn, who had been very physically active, had become very sedentary and her musculature would be much less useful, a consequence being that some degenerate area of her spine (the degeneration of which was clear on X-rays of Ms Flynn) might become symptomatic because of the back injury. In particular, Dr Nutting considered that resting or decreasing activity over time was likely to have caused weakness and wasting, and consequently contributed to the neck pain.
[131] Although Dr Nutting did not accept that the fact that Ms Flynn had had brief periods of pain respite in her neck as well as in her low back because of steroid and anaesthetic injections indicated a physical connection between the two problems, he accepted that there was some connection, whether mental or physical, between the lower back pain problem and the neck problem.
[132] Dr Nutting gave evidence that there was a significantly increased risk of injury where there was a combination of flexion (bending of the back), rotation (which was more likely to put force on the disc) and the preparation of muscles for a weight, a significant portion of which was unexpected. Dr Nutting also accepted that another important factor was the shape and nature of an object with the distance of the object from the body increasing the consequences of the weight.
[133] Dr Nutting did not accept that it was possible for Ms Flynn to have injured her shoulder at the same time as her back.
FINDINGS OF FACT
[134] Having carefully considered the evidence, I find (relevantly) the following:
(a)that on 28 March 2001 Ms Flynn, not having a trolley available to her at the time, went to pick up a loaded flute on the ground beside her desk. In doing so she failed to bend her knees and turned as she tried to lift it;
(b)as she lifted the flute, she experienced pain in the right lumbar region of her back, dropped the flute back on the ground (having lifted it about an inch), yelled out in pain and then sat back down on her chair;
(c)the depot manager, Mr Rose, came over, having been nearby when the incident occurred, placed the flute on Ms Flynn’s desk, made a comment about the night sorters having been told not to overfill the flutes, and then removed some of the magazines from the flute onto Ms Flynn’s desk;
(d)Mr Milat and Mr McGillivray then placed those magazines that had been taken out of the flute by Mr Rose back in the flute, took the flute to a set of scales and it weighed 23kg;
(e)Ms Flynn returned to her duties some 15 minutes later and continued to carry out the duties of a postal delivery contractor on that day and for some months subsequently;
(f)Ms Flynn completed an Accident Report Form on 28 March 2001, provided to her by Mr Rose, and Mr Rose completed various parts of the form (as supervisor) but also included his private address in that part of the form which noted him as a witness;
(g)Mr Rose was unable to explain why he had been nominated as a witness on the P400 Accident Report Form filled out by Ms Flynn, other than to state that he had put his name in the wrong spot. Mr Rose accepted that the address and phone number immediately under his name at paragraph 13 of the form was in his handwriting. It is perhaps not surprising that Mr Rose’s recollection of the relevant events was poor, given that the first time he had been asked to address the relevant issues (in terms of preparation of a statement) was in late 2004[30]. In the circumstances, therefore, I have no hesitation in preferring the evidence of Ms Flynn, relevantly corroborated by the evidence of Mr Milat and Mr McGillivray in respect of the incident and Mr Rose’s involvement in that incident. Relevantly, I reject the evidence of Mr Rose where it conflicted with the evidence of Ms Flynn in respect of the incident;
(h)Ms Flynn, despite ongoing pain and difficulties in bending and lifting, continued to carry out her duties as a postal delivery contractor, and (despite consulting her general practitioner, Dr Spall, and a colleague of Dr Spall’s on unrelated matters on three separate occasions between 28 March 2001 and 27 November 2001), did not finally (and formally) seek treatment in respect of the lower back injury until 27 November 2001;
(i)I reject the evidence of Mr Rose in which he claims that he regularly briefed contractors in respect of manual handling issues. I reject his evidence asserting there was never (relevantly) a shortage of flutes or trolleys. I understand that Mr Rose may well (as an ongoing Australia Post employee) have felt defensive about working conditions in the Noosaville depot up to 28 March 2001. However, I find the evidence of Ms Flynn, Mr Milat and Mr McGillivray, considered in the light of the corroboration of Ms Gleason and Ms Brackenrig, credible, reliable and persuasive. It is clear, in my view, that the depot’s manual handling practices at the time were unsafe, as a result of a shortage of trolleys, a shortage of flutes, cramped working conditions and a failure to supervise and enforce Australia Post’s own OHS guidelines (in particular, in respect of the 16kg weight guideline). As a consequence, contractors (in particular, Ms Flynn) received little or no guidance, training or instruction in manual handling. Combined with the obvious danger of overloaded flutes, about which management clearly failed in their responsibility to enforce the weight guidelines, the only issue is not that Ms Flynn’s injury was foreseeable (it clearly was) but how Australia Post managed to avoid even more such foreseeable injuries among employees and contractors.
[30] T p191
THE LAW
Duty of Care[135] It is common ground that the plaintiff cannot rely on the statutory breach pleaded in respect of s 30 of the Workplace Health & Safety Act 1995. It is, however, clear from Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19 that the defendant owed a duty of care to the plaintiff arising both from the defendant’s position as an occupier of the land on which the plaintiff was injured, as well as the contractual relationship, pursuant to which the plaintiff carried out part of her postal delivery duties (sorting postal items in preparation for delivery) at the Noosaville depot of Australia Post[31]. There is, therefore, in my view, a relationship not that far removed from an employment contract.
[31] See paragraph 24, per Gleason CJ, McHugh, Kirby, Hayne and Heydon, JJ in Thompson vBreach of Duty
[136] As in Thompson v Woolworths (Queensland) Pty Ltd[32], the essential issue in the case before me concerns “not the existence or general nature of the duty owed by [the defendant to the plaintiff], but whether there was a breach of duty.”
[32] Supra at paragraph 28
[137] I consider that the defendant failed in its duty to comply with its own Occupational Health and Safety Policy and Procedures[33]. I find that there was a failure to comply with paragraph 5.1.2[34] which stated that “workplace managers should provide all staff and contractors with information about the reasons for the [Manual Handling Policy], setting up of staff manual handling project teams [contractors can be involved], how it will operate, and how the outcomes will be handled.” Mr Rose admitted that he had never complied with this requirement of the policy[35].
[33] See Exhibit 37 – Occupational Health and Safety Policy and Procedures for the Prevention of[34] p5 of Exhibit 37
[35] T p197
[138] Paragraph 5.1.3 of the Manual Handling Policy envisaged setting up a project team of staff from the local workplace, including contractors, “to assist the manager to identify work activities within the workplace with a high risk of injuries from manual handling, and to recommend practical solutions for their control, take into account factors such as severity, frequency and cost.”[36] The evidence of Mr Hoey[37] was to the effect that he had been involved in such projects at Australia Post depots at Gold Coast and Beenleigh. No such process took place at the Noosaville depot.
[36] Paragraph 5.1.3 of Exhibit 27 at pp 5-6
[37] T p124
[139] The following matters arising from the evidence of Mr Rose are significant:
(a)It was only after Mr Rose had completed giving evidence that his team briefing folder was produced. This folder indicated (at best for Mr Rose) that there had been three contractors’ briefings in the two-year period prior to 28 March 2001 (contrary to his assertion of six or seven such briefings annually)[38] and the only reference at any contractors’ briefing to manual handling issues was the briefing held on 13 December 2000. What is clear from the evidence of Mr Rose is that there was no requirement for contractors to attend briefings, and no roll was ever kept as to which contractors attended briefings.
(b)It is clear that despite Mr Rose’s position as depot manager, he was unfamiliar with the contents of Exhibit 37[39], was equivocal in acknowledging that it was part of his job to impart that policy to contractors[40] and he did not understand the significance of the 16kg limit or the relevant issues requiring a review of that limit for particular tasks[41]. Mr Hoey’s report[42] concluded that the working conditions which caused Ms Flynn’s injury could have been avoided with “simple, low cost changes to the work environment”.
[38] See T p193
[39] The Manual Handling Policy
[40] T p194
[41] T p197
[42] Exhibit 22
[140] I conclude that the defendant failed in its duty to comply with its own Manual Handling Policy and procedures, failed to put in place a system to properly supervise and ensure that the policy was complied with, failed to properly bring the matters contained in the Manual Handling Policy to the attention of contractors (in particular the plaintiff) and as a consequence, clearly breached the duty of care to ensure that risk of injury or illness was minimised, which the defendant accepted was the relevant duty owed by it to the plaintiff[43].
[43] See paragraph 7(b) of its Amended Defence
[141] I accept the evidence of the plaintiff that she did not receive any, or any appropriate, advice, training or supervision in respect of the plaintiff’s Manual Handling Policy and, therefore, was not (and in the circumstances, could not have been) aware of the potential dangers of the way in which she was lifting flutes filled by the defendant’s employees.
[142] I accept that there was a failure on the part of the defendant (through its responsible employee, Mr Rose) to properly impart to all contractors (including the plaintiff), whether by way of contractors’ briefings, personal briefings, advice or otherwise, the fact that the plaintiff was clearly not complying with the defendant’s Manual Handling Policy (to her potential detriment).
[143] I refer to the analysis of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, in which he stated:
“In deciding whether there has been a breach of 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 the class of person 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.”[44]
[44] pp 47-48 per Mason J (as he then was, with whom Stephen and Aicken, JJ conferred)
[144] In short, it is clear that there was a significant risk of injury (recognised by the defendant’s own Manual Handling Policy[45],) the inconvenience of taking alleviating action was, in relative terms, not that high[46] and the process for doing so was prescribed by the defendant’s own Manual Handling Policy[47].
[45] Exhibit 37
[46] Exhibit 22
[47] See Exhibit 37
[145] It is clear that the following steps could have been taken by the defendant but were not:
(i)appropriate education and training of the plaintiff in respect of manual handling;
(ii)adequate education, training and supervision of night sorters to ensure flutes were not over-filled and/or overweight;
(iii)ensuring that there were sufficient flutes to enable the night sorters to adequately carry out their duties (without over-filling flutes);
(iv)ensuring that there were adequate numbers of trolleys so that each contractor and postal delivery employee had their own trolley, as well as there being enough trolleys available in the depot for night sorters (and any other staff who required trolleys) to utilise trolleys without depriving contractors and postal delivery employees of their own trolleys;
(v)ensuring that there was sufficient space for individual contractors to ensure that they could adequately store flutes prior to and while sorting their mail.
[146] In summary, it is clear that a duty was owed by the defendant to the plaintiff, and that duty was clearly breached. The plaintiff suffered injury as a direct result of the breach of the defendant’s duty.
CONTRIBUTION
[147] The defendant applied before me in the District Court applications jurisdiction for leave to amend its defence to plead contributory negligence. That application was refused by me on 28 April 2005 and my reasons for that decision are set out in detail at pages five and six of the relevant transcript.
[148] The defendant seeks, in this trial, to re-open the issue of contributory negligence, despite my refusal of the application to amend the pleadings. I do not accept that the authority cited (James v McCarthy [1958] QWN 32) entitles the defendant to go behind my ruling refusing the application to amend the pleadings. However, to ensure the matter is clearly and adequately dealt with, I find that the defendant failed to adequately direct, instruct or teach its contractors proper manual handling techniques, and failed to correct bad manual handling practices utilised by the plaintiff. In those circumstances, and given the failure of the defendant to properly ensure flutes were not overweight, I find that there was no contributory negligence by the plaintiff in respect of the incident on 28 March 2001.
QUANTUM
[149] Ms Flynn’s counsel, Mr Newton, accepted that the plaintiff’s shoulder injury was not connected to the incident and therefore played no part in the calculation of quantum (other than as an appropriate discounting factor in respect of past economic loss).
[150] I consider that the prolapsed disc at L4/5 suffered by Ms Flynn was directly causally linked to the incident on 28 March 2001. A more difficult question is whether the neck injury suffered by Ms Flynn, which did not manifest itself for some two months after the incident, was also causally linked to the incident. It was submitted by Mr Newton, on behalf of the plaintiff, that there were four possible explanations, each of which, on the balance of probabilities, would establish a causal link between the incident (and subsequent lower back injury), and the neck injury namely:
(1)Ms Flynn’s neck was injured in the accident and the delay of some two months in experiencing neck pain was explicable by the gate control theory of pain[48];
(2)the neck pain was referred pain from the back and Ms Flynn’s experience of having obtained relief from the neck pain at the same time she received relief from the back pain from injections provided by Dr Scott Masters
(3)the back injury caused abnormal posture and/or tension which resulted in Ms Flynn’s neck getting tight and suffering neck pain; and
(4)that Ms Flynn, a woman in her mid-50s with age-related degeneration (confirmed by X-ray) was able to cope asymptomatically with that degeneration until her muscle tone decreased (as a result of her back injury) and her neck then became symptomatic.
[48] See evidence of Stephen Hoey at T p134
[151] I accept that, on the balance of probabilities, any one of the competing explanations set out above could (and, in my view, would) explain Ms Flynn’s neck pain and would link that neck pain to the incident on 28 March 2001. I therefore find that Ms Flynn suffered injury to her lower back and also to her neck, arising out of and causally linked to the incident, and she is therefore entitled to damages, although I accept that the major component of Ms Flynn’s injury and damages was the lower back injury.
Pain, Suffering and Loss of Amenities of Life
[152] I accept the submission on behalf of the plaintiff that the incident has resulted in Ms Flynn being converted from a physically active woman with a happy home and social life, who enjoyed her employment, into a person who is incapable of partaking in any of her pre-incident sporting activities and one who lives with daily pain.
[153] In all the circumstances, taking into account both the neck injury and the lower back injury, I consider the appropriate award for pain, suffering and loss of amenities of life to be $40,000.
Past Economic Loss
[154] I accept that the appropriate calculation of past economic loss is as set out in the supplementary report of Mark Thompson, Accountant, Vincent’s Chartered Accountants,[49] with a 10% discount which I am satisfied takes account of:
(a)The fact that the assessment was based on a significant understatement of the relevant contract price since March 2001, which, as at trial, was established as $56,021.41 inclusive of GST[50];
(b)The acknowledgement that for a period of three months in or about late 2001 Ms Flynn would have had to pay $250 per week for assistance with sorting mail, as a result of the shoulder problem which it is accepted (and I have found) was unrelated to the incident; and
(c)My view that the proposed discount of 10% allows for all contingencies, including some payments by Ms Flynn to her son, Michael Flynn, pre-incident.
[49] Exhibit 25
[50] T p212
[155] I find the appropriate figure for past economic loss at $79,732, discounted 10%, a total of $71,658.80, with interest on that amount at 5% for a total of 3.4 years, being $12,199.
Future Economic Loss
[156] Mr Handran, counsel for the defendant, made no effective attack on the evidence of Mr Thompson and in particular, on the forensic accountant’s report[51] on which the plaintiff relies in the calculation of her damages. I adopt the submission of Mr Newton that the appropriate discount for contingencies in the circumstances would be 20%, given the degenerative condition of Ms Flynn’s back and the relatively remote possibility of employment on an occasional part-time basis. In choosing that level of discount, I also take into account the possibility that Ms Flynn may have retired earlier than age 65. Accordingly, in reliance on Mr Thompson’s report[52], and in particular based on the matters set out at paragraph 9.0-9.6, I consider the appropriate figure for future economic loss, discounted at 20% for contingencies, to be $111,355.20.
[51] Exhibit 25
[52] Exhibit 25
Health Insurance Commission Refund
[157] By reference to Exhibits 28 and 29, given that the relevant legislation requires the full amount properly incurred for accident injuries to be refunded, I find the appropriate figure at $5,664.80.
Special Damages and Out-of-Pocket Expenses
[158] Exhibit 40 is a schedule which comprehensively particularises the relevant expenses. This figure was not challenged by the defendant’s counsel and I find the following items claimable:
Travel $2,038.00 Pharmaceutical $553.83 Medical Gap payments $5,924.95 Miscellaneous expenses (wheat bag and motel accommodation for medical treatment) $90.95
TOTAL: $8,607.73
I allow interest on that sum at 5% for a period of 4.1 years ($1,764.58).
Past Care
[159] By reference to Exhibit 42 and the calculations provided by Mr Newton, I accept Ms Flynn has shown a total of 1,145 hours of “past care”, and I accept that the rate claimed of $16 per hour is conservative[53]. I calculate this item at a sum of $18,320 and interest calculated on that sum at 5% for a period of 4.1 years amounts to $3,755.60.
[53] See evidence of Stephen Hoey at T p125
Future Care Claim
[160] I refer to Exhibit 43 and accept that the plaintiff will reasonably require assistance, on average, three hours per week. I accept that the appropriate rate for calculation is $18.10 per week (a figure that actually understates the current cost of providing relevant care)[54]. I calculate the relevant figure for future care, based on a suggested period of 20 years, discounted on the 5% tables, at $36,185.52.
[54] See Exhibit 48 (Wage line update)
Future Expenses
[161] I refer to Exhibit 41 and adopt its conclusions, subject to the concessions made by Mr Newton in submissions, which results in the following assessments:
(a) pain management clinic $7,000.00 (b) physiotherapy $100.00 (c) home traction kit – cervical spine $60.00 (d) home traction kit – lumbar spine $500.00 (e) medication (based on further life
expectancy of 26 years)
$11,100.00
(f) cortisone nerve block injections (discounted
for present payment)
$1,200.00
(g) hydrotherapy (discounted on the 5% tables) $5,500.00 (h) remedial massage (5 years discounted on
the 5% tables)
$2,315.00
(i) travel expenses (globally claimed at an
amount of $2,500)
$2,500.00
TOTAL: $30,325.00
I have then discounted the sum of $30,325.00 at 40% to take account of the various issues (as submitted on behalf of the plaintiff) including:
(a)an acknowledgement of the possibility that the plaintiff might or might not undergo each and every of the particular treatments referred to, given the limitation of success in the past with some of them;
(b)the reality that some of the ongoing claims are calculated on life expectancy and the further the claim goes into the future, the more likely it is that issues such as the back degeneration may count for some of the costs.
(c)the possibility that the plaintiff may not continue with some of the treatments, given that they are likely to provide temporary relief only;
(d)it is noted that the proposed discount of 40% sits on top of discounts in respect of individual items in Exhibit 41.
I find the appropriate discounted figure to be $18,195.00.
CONCLUSION
[162] Having assessed the plaintiff’s claim, it is clear that the claim, exclusive of interest, is in excess of $250,000. Were it not for the applicable jurisdictional limit, I would have awarded judgement to the plaintiff, exclusive of interest, in the sum of $295,422.65. I therefore find that the plaintiff is entitled to judgment in the sum of $250,000 plus the relevant interest components allowed on my actual assessment, namely:
Interest on past economic loss $12,199.00 Interest on special damages and out-of-pocket expenses $1,764.58
Interest on past care expenses $3,755.60 TOTAL: $17,719.18
[163] I order judgment for the plaintiff against the defendant in the total amount of $267,719.18.
[164] I invite submissions from the parties on the costs.
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Woolworths (Queensland) Pty Ltd
Manual Handling Injuries – issued by Australia Post 5 November 1998
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