Forward v Keyros Pty Ltd - [2002] WADC 98

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FORWARD -v- KEYROS PTY LTD [2002] WADC 98

CORAM: O'SULLIVAN DCJ

HEARD: 11 DECEMBER 2000

DELIVERED : 22 MAY 2002

FILE NO/S: CIV 2250 of 1998

BETWEEN: JUNE ANNE FORWARD
Plaintiff
AND
KEYROS PTY LTD
Defendant
SINCLAIR KNIGHT MERZ
Third Party

Catchwords:

Negligence - Employer's liability - Security guard operating boom gate - Insufficient evidence of any defect in the gate - Credibility - Claim dismissed

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos
Defendant:     Mr M W Odes QC
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Leonard Cohen & Co
Defendant:     Kott Gunning
Third Party                   :     No appearance

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

Nil

Case(s) also cited:

Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jones v Bartlett (2000) 176 ALR 137
McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191
Nair v Health Administration Corp & Anor (1994) A Tort Rep 81-312
Phillis v Daly (1988) 15 NSWLR 65
Somadaj v Australian Iron & Steel Limited (1963) 109 CLR 285
Stewart v Government Insurance Office of New South Wales (1996) 39 NSWLR 531
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

O'SULLIVAN DCJ: The plaintiff claims to have suffered injury while working for the defendant as a security guard at the Newman Power Station Project. She seeks damages and both liability and quantum are in dispute. The third party proceedings are not before me.

The plaintiff's background

The plaintiff was born on 2 July 1957 in the United Kingdom and came to Western Australia as a child. She went to High School at Kwinana and left halfway through Year 9. She married for the first time in 1976 and for the second in 1984, after moving to South Australia. In 1986 she and her husband moved back to Western Australia and lived and worked in Perth and Mandurah and in the north-west until they separated and divorced in about 1992. The plaintiff married Mr Jeffrey Forward in 1995 and I was told that she has now separated from him.
The plaintiff has three daughters who were born in 1976, 1979 and 1987. She has worked in a variety of occupations including factory worker, receptionist, service station attendant, shelf stacker and barmaid. In April 1994 she was living in Newman and obtained employment there at the Red Sands Tavern. At the end of that year she successfully applied for a job as a security guard with the defendant which trades under the name Port Hedland Security, but she did not take up the position because her husband was transferred to the Granny Smith mine at Laverton. In February 1995 she joined him there and worked as an ore sampler until the middle of 1995 when she returned to Newman to commence working for the defendant. At that time a new gas‑fired power station was being built and the defendant was contracted to provide security services on the construction site which was being managed by the third party.

Injury

The plaintiff commenced working for the defendant at the end of July 1995. Her duties were to operate the boom gate controlling access to the site and to record and control the movement of vehicles in and out. The boom of the gate was made of round steel pipe of differing diameters. It was suspended on a pivot on a steel post and it was counterweighted. The plaintiff's task was to raise and lower the gate as vehicles came in and out and she did this working 12 hour shifts by day or night. She says that by September or October 1995 she began to experience pain in her neck and right arm. In October she took two weeks off to get married and upon her return to work she said that her neck and arm symptoms became worse and she attended upon her general practitioner, Dr Ittermann, who referred her to an orthopaedic surgeon, Dr Lim at Port Hedland.
Dr Lim wrote to Dr Ittermann on 21 December 1995 stating as follows:
"Thank you for referring the above patient whom I saw in my Clinic on 20th December 1995 at Port Hedland Hospital.
She is a housewife and was previously involved in a motor vehicle accident, sustaining a fracture of the right lower limb, femur, tibia and fibula. The tibia was treated with surgical fixation. Her leg has been good with full function.
Her neck has been aching off and on for the last four years but progressive since April 1995. This is associated with pain down the forearm and numbness in the right hand, especially of the thumb, index and ring finger. Night pain is quite severe, keeping her awake. Medication consists of Panadeine Forte (4 tablets at the most), Valium nocte, Naprosyn and Normison.
She had a limited range of flexion of her cervical spine to 75%, extension 50%, lateral rotation to the right 60% and lateral rotation to the left 75%. There is some tenderness at the C5 area. A full range of movement of the shoulder is present. There is some sensory alteration over the C6 distribution. Muscle power and reflexes were intact.
X‑ray indicated C5-6 disc degeneration. There was no obvious encroachment of the inter‑foramina.
She has cervical spondylosis, especially of C5-6 level with referred pain and nerve irritation of the C6 distribution.
A cervical collar has been prescribed which she is to wear as per symptoms and may even sleep with it. She must continue with isometric exercises of her cervical spine. The anti‑inflammatory medication is to be continued.
Should her symptoms fail to settle, she would best be seen by a Neurosurgeon and I would suggest Mr Bryant Stokes for assessment and for further management.
At this stage, I have not made a further appointment for her to be seen and she is discharged to your care."
The plaintiff's symptoms did not settle and after consulting Dr Ittermann again she was referred to Mr Bryant Stokes, whom she saw on 7 February 1996. On 8 January 1996 Dr Ittermann certified her as partially fit to work subject to not lifting weights of more than 2 kilograms and avoiding repetitive bending On 12 January 1996 she was certified unfit for any work for four days. On 15 January 1996 she tendered her resignation. However she said that she nevertheless remained at work intending to quit on 4 February 1996, just prior to her appointment with Mr Stokes. She had a day off on 2 February 1996 and at that time she said that she was in severe pain and collapsed at home. She was admitted to the Newman Hospital where she remained until 7 February when she flew to Perth to see Mr Bryant Stokes.
In a letter dated 26 February 1996 Mr Stokes wrote:
"I saw June Forward when you admitted her under my care to St John of God Hospital on the 7th of February, 1996. I note the history that intermittently over a number of years she has had some vague neck discomfort but that over the last few months prior to the commencement of her neck pain which was approximately six weeks prior to me seeing her she had been lifting a heavy admission boom gate in the course of her employment and this she was doing several times per day. She stated that her neck became increasingly sore and when I saw her in hospital she was in extreme pain with a very stiff neck and with radiation of pain down the right arm in what sounded like the right C6 dermatome distribution.
Apart from the severe restriction of neck movements there were no positive neurological signs although I thought there may have been a little bit of minimal biceps weakness.
I arranged for her to have a cervical myelogram and CT scan and this investigation showed some degenerative changes at C5/6 and also a possible very small shallow disc protrusion at C5/6.
I treated her with traction and bed rest and arranged a facet joint injection at C5/6 and C6/7 and relieved her pain dramatically.
I have asked her now to undertake a swimming programme and to strengthen her neck muscles and will review her in the future.
Currently I think there is not much doubt that the activity that she did at work produced the situation in which she found herself with an acute exacerbation of neck pain."
Mr Stokes next saw the plaintiff on 30 March 1996 when he certified her unfit for work again and arranged for her to undergo MRI scanning and facet joint injections. It was his view that she suffered from disc degeneration at the C5/6 level but he did not then consider that she was an appropriate candidate for surgery. That remained his opinion throughout 1996 and 1997 when he reviewed the plaintiff from time to time. On 19 January 1998 he wrote to Dr Ittermann stating:
"I reviewed Mrs Forward on the 15th January, 1998. Her MRI scan certainly does confirm the presence of a significant disc protrusion at C5/6 and that does fit clinically with the distribution of her pain.
I felt at this stage we should give her a further six months of conservative treatment and if she then does not show significant improvement then I believe anterior cervical fusion at C5/6 should be carried out which at least then would deal with her problem and she would be left with whatever residual deficit she had after that procedure. I have discussed this issue with her and I will review her again in six months time.
Certainly, at the moment I don't believe she is capable of working and would support the views of Professor Andrew Harper."
On 7 May 1998 Mr Stokes again wrote to Dr Ittermann stating that he had advised the plaintiff that the only way she could be helped was by anterior cervical fusion and that she was considering it. On 19 October 1998 Mr Stokes wrote to the plaintiff's solicitors stating as follows:
"Mrs June Forward has undergone anterior cervical fusion at C5/6 and recent x‑rays have indicated the graft is fusing satisfactorily. I last saw her on the 24th September 1998 when she was certainly making slow improvement. Her headaches that she had had prior to her surgery has much improved and so has the arm pain and particularly the cramping pain in her right arm although she was still getting some of those symptoms. Generally she was significantly better and she is to be reviewed by me in two months time. Currently she is not fit for her employment."

The plaintiff's claim

The plaintiff's claim is in negligence and for breach of contract and breach of statutory duty. Twenty seven particulars of negligence and breach are pleaded and they include allegations that the boom gate was unsafe to operate; that it should have been repaired and that this was not done; that it was not correctly counterbalanced; that the plaintiff was required to operate it when it was too heavy for her and that there was a failure to warn or to adequately warn the plaintiff of the dangers of continued and repeated operation of the boom gate over an extended period of time. All of these allegations are denied but it is admitted that the plaintiff suffered an injury as a result of operating the gate. There were, in fact, workers' compensation proceedings arising out of the plaintiff's complaint and a finding to that effect was made on review.

The boom gate

The gate was removed at the end of the project but photographs of it in position at Newman were tendered. The photographs show that the boom was supported by a truss extending from the pivot for over half of its length which was said to be about 5 metres. They also show that when the boom was raised it could be brought to a near vertical position. When that was done the counterweighted end would rest against the support post. A chain then could be used to secure the boom in an upright position.

Operating the gate

The plaintiff said that when a vehicle pulled up at the gate she would approach the driver to check that he had the appropriate pass to gain entry to the site. She would have a clipboard containing paper and pen which she would use to record appropriate details about the vehicle and occupants. When she first started she would hold the clipboard under her arm and the pen in her mouth when raising the gate but later she would drop the clipboard onto the ground or onto a chair near the pivot post before proceeding. She would approach the gate and take hold of it by the truss at a point just to the pivot post side of the stop sign. She would bend down and take hold of the bottom rail of the truss with both hands. She was asked and said:
"You would bend down?---Yes.
Take hold of the lower brace in question?---Yes with both hands, lift it in an oomph because it was like weight lifting. You'd have to get it to a certain height then you would have to change your grip.
…
There would be an initial oomph to get it started as you described?---Yes.
And start raising it?---It needed a force to raise, yes sir.
…
What happened then?---I would then get it to a certain height requiring more force. I would then lift again in another jerk movement, apply my hands to it and then I would have to walk down to where the counterweight side was in order to raise the boom to the … vertical position.
All right. Whilst you were walking back towards the counterweighted section were you progressively lifting the boom gate?---Yes sir, that's correct, progressively lifting.
…
Once you have got it to a position as high as you could, that was when the vehicles were meant to pass through?---Well no sir. You would have it straight up and down and in order for that you would have to be standing there with your right arm above the rest of your body forcing the weight to keep it there because it was very heavy to come back down on you. Unless you stood there holding that weight you couldn't do that.
…
Whilst you were there holding it in that position is that when the vehicles were obviously supposed to go through?---That's correct.
…
Once a vehicle had gone through, what did you then do?---Then I would continue to walk – I would then begin to walk backwards with my hands above my head bringing the boom down. I found that particularly heavy because you had weight coming down at you. So the procedure was to walk to the – back to the position of the middle so that I could get the balance right and then I would lower the boom to its position. We were not allowed to bounce that gate or have it drop at all. Any movement it had to be placed.
So how did you find the whole exercise of raising, holding the boom in position then lowering it again?---Heavy work sir and difficult."
The plaintiff gave evidence that when she commenced working for the defendant Raeleen Watson, another security guard employed by it, told her that she was never to drop the boom nor push down on it so that it sprang up. She also said that she was not permitted to chain the gate in an upright position except on one occasion when there was a big concrete pour on and it was necessary to allow concrete trucks through one after the other. Otherwise she said, "You had to lower and lift the boom per vehicle that entered that site." She would do this for 12 hours a day working a roster of six day shifts followed by six night shifts with three days in between. After October 1995 the site became busier and she would have to lift the boom about 150 times per shift.
The plaintiff also said that as time went on the boom of the gate started to sag and this made it more difficult to lift. She said of the effort involved that it was:
"More of an oomph; like weight lifting sir. More of an oomph; much more difficult, much more harder and awkward and a lot heavier, definitely heavier."
She was asked and said:
"How was it more awkward Mrs Forward?---Well the fact that it was lower to the ground was more awkward sir.
Can you explain that please?---Well with the boom actually instead of being horizontal and sagging it was closer to the ground so you were having difficulty, I was becoming a weight lifter sir … ."
Raylene Anderson commenced working for the defendant as a security guard while the plaintiff was on her honeymoon in October 1995 and she met her upon her return. She said of the gate:
"I didn't find it very easy at all to operate. … I would have to walk halfway up and bring it up and use two hands to push it up."
Ms Anderson is 5 feet 1 inch tall. She said that it was a strain to push up and quite difficult to hold the boom in a vertical position. She said:
"If more than one vehicle was going through we had to put a chain around … I'd use my knee to hold it there to put the chain around but there was a lot of strain lowering the gate."
Mrs Anderson said that, "you weren't allowed to let [the gate] drop." As for raising it, it was her practice to bounce it up.
Ms Anderson also said that when she commenced working on the gate she would have had to lift the boom between 30 and 50 times in the course of a shift. As time went on the number of lifts required increased and on one occasion she counted 286 vehicle movements through the gate during her shift. She was also asked and said:
"Now you have described the difficulty with holding the gate in position and lowering it in terms of the frequency with which you had to do that during a shift was that a problem at all?‑‑‑Yes it was.
Can you explain that please?---Well by the end of the shift I mean when you're doing it like 200 times a day lifting it and then taking the strain, bringing it back down again I used to go home with quite severe sore shoulder and neck pain.
When you used to go home after work how were you emotionally?---Sometimes a bit distressed. My husband used to massage my shoulders.
…"
Mrs Anderson said that as time went on the boom of the gate commenced to sag. According to her it got to a point where the end of the boom was only about 8 inches off the ground. She gave evidence as follows:
"This dipping or sagging did that have any effect on the operation of lifting and holding the gate in position?---It put more strain lifting the gate.
Can you explain how please?---Because it was so much lower you would have to go all the way down and it seemed as if you were lifting the weights as well.
Were you able to bounce it in the way you have described once it got into that position?---No it was broken.
Did you make any complaints about the condition of the boom gate?---I did to Reg Overing.
Was there anything done about the gate?---No.
Anyone else do anything about the sagging in the gate?‑‑‑Neryl Beer put a piece of rubber. She'd lift it up and place it in where the pivot was to hold it upright but every time you lifted the gate it would fall out.
Is this to hold it more horizontal I think you were indicating?---To be more horizontal.
…
Did you yourself do anything about trying to rectify this sagging in the boom gate?---Eventually I saw one of the guards that went through that did welding and I asked him if he could fix the gate. He said he could so I said go and see Reg to see if it was all right if he did.
Was something welded onto it at some stage?---Yes a triangular bit on the right angle.
…
Can you recall roughly when it was that that was done?---I'm not really sure, I know it was after Christmas."
Raeleen Watson, the security guard who instructed the plaintiff when she first commenced work, gave evidence that she did not have any difficulty operating the gate. After the boom was lifted to an angle of between 45 and 60 degrees it went up of its own motion.
Ms Watson did recall that at one time the boom sagged and she said that it was shortened and some counterweights were removed "so it would sit level". She did not recall if this was before the plaintiff started work at the site.
She denied that the boom was never to be chained up and said that it was her practice to do so when there was a queue of traffic. Otherwise the gate would be down and lifted to allow individual vehicles to pass. She did not lift the gate by bouncing it and said that employees were "not really" allowed to do that.
Neryl Beer was the fourth security guard at the site and was responsible for supervising the other guards as well as for operating the gate herself. She gave evidence that the boom was not heavy to lift weighing, in her opinion, no more than about 2 kilograms. She said in examination‑in‑chief that she would use three different methods to raise it:
"One method would be from the counterweight end and I would also lift it from the middle of the boom gate near the stop sign and also from the opposite end of the counterweight end."

She also said:
"From the stop sign I would just lift it from the lower level of the boom gate. The counterweight would then take over and it would go into the upright position. From the opposite end of the counterweight I would either ricochet it or use the same method as I did at the middle of the gate."
By ricochet Ms Beer said that she meant that she would put pressure on the end of the boom and then let it go so that it would spring up. She would then push the boom up to about 45 degrees when the counterweight would take over.
Ms Beer confirmed that after about October 1995 the site became busier but it was her evidence that there were no more than about 100 vehicle movements through the gate during each shift.
Ms Beer did not recall the boom ever sagging to a point where its end was only 8 inches off the ground but she did recall that it dropped somewhat, "approximately 4 to 6 inches from the level position towards the ground". In her view the sagging did not interfere with the operation of the boom; "it just didn't look proper". She said that if the gate had not been operating properly she would have brought the matter to the attention of the third party.
Like Raeleen Watson and Raylene Anderson Ms Beer said that it was her practice to chain the boom up when there was a queue of vehicles waiting to enter the site saying that it wasn't practical to raise and lower it all the time and that: "you can control the flow of traffic by your own person. You don't need a boom gate to control it." As far as she was concerned it was an acceptable practice.
Exhibit 17A, which bears Ms Beer's name and her handwriting at the bottom, is a directive headed "All Security Personnel" and signed by Mr Overing the site safety coordinator and Mr Munro the construction manager. Paragraph 2 of that document reads: "At all times that the site main gates are open the boom gate will be used to regulate traffic onto site." The letter "A" is written by hand next to paragraph 2 and although Ms Beer was unable to confirm that it was her writing she said that she assumed that it was a reference to the plaintiff who was known as "Annie". Clearly, paragraph 2 is a directive to use the boom gate but Ms Beer denied that it was not to be chained in the upright position. She could not recall seeing Exhibit 17A before but said:
"Maybe we came to a decision after it and decided that it was okay to leave it up."
The plaintiff's husband, Jeffrey Forward, gave evidence that he himself worked at the Newman site for about six months while the plaintiff was there and that he would see her at the gate and he personally operated it on approximately six occasions. He said:
"I found the boom gate quite heavy and awkward to lift and more so to try and actually chain it in an upright position was a lot harder than I expected it to be."
He was asked and said:
"On the occasions that you tried to lift it how did you go about lifting it Mr Forward?---I tried several different ways to see if it was any easier but I lifted it from around the middle where the stop sign was and also put my full weight on the end where the ballast was on the short end near the pivot pole and found that quite hard to do too."
It was Mr Forward's view that the amount of force needed to lift the boom at a point near the stop sign "was probably equivalent to lifting a carton of beer in the air." He thought that a carton of beer weighed about 10 kilograms. He said it was harder to push the boom into an upright position as you got closer to the pivot point and that the counterweight did not hold the boom up by itself.

Expert evidence

Ian McKenzie Gibson is a consultant ergonomist who was called by the plaintiff. He did not inspect the gate but relied upon photographs of it and upon instructions received from the plaintiff. He conceded that an inability to carry out a physical inspection was a major limitation. After making assumptions as to its dimensions he concluded that it was possible that the plaintiff's injuries were caused by the operation of the gate but he could not say more. In any event that is not evidence which is necessary to support any finding which I must make because, as I have already noted, it is conceded by the defendant that the issue of causation has been determined against it in the review proceedings.
In the light of the difficulties facing him Dr Gibson's conclusion was that there was not enough quantitative data to be able to assess the degree of risk to which the plaintiff was exposed in operating the gate. However, he referred to the West Australian Code of Practice for Manual Handling and stated that the areas of risk involved in operating the gate included the action and posture required and the load characteristics of the boom.
In relation to the former it was Dr Gibson's understanding that the plaintiff was required to lift and lower the boom a great number of times and to exert a significant degree of force against it with her hands at or above head height.
As to the load characteristics the length and weight of the boom presented problems in handling due to its inertia and he considered that there would be more difficulty involved in lowering it in a controlled manner than in raising it.
It was Dr Gibson's view that the design of the boom was not adequate in that it could not be fully raised. However he agreed that it appeared that it could be brought to about 7 degrees to the vertical and that in that situation no great amount of force would be required to hold it in position.
Dr Gibson pointed out improvements and alternatives to the gate included sliding counterweights which could be adjusted to ensure that the boom balanced correctly and an electrically operated gate.
The defendant called evidence that when the gate was removed it was taken to another site at Yandi and it was contended that it was, for all practical purposes, in a condition identical to that in which it had been at Newman when it was inspected for purposes of a report from Dr Timothy Ackland, an Associate Professor in the Department of Human Movement and Exercise Science at the University of Western Australia. Dr Ackland prepared a report based upon a video and data gathered by others at his request. However he conceded that the measurements taken of the gate at Yandi as captured on video were not gathered with any great care. It was particularly apparent that the figure of 8 kilograms taken as the amount of force required to initiate a lifting of the boom by pushing down on the counterweights was not reliable. Dr Ackland noted that the operator is clearly depicted on the video resting his fingers on the boom and presumably pushing down on it to some degree. He allowed for this by assuming the downwards force exerted by the operator to be in the order of .5 to 1 kilogram and he added a further 10 per cent as a precautionary measure.
It is clear that further measurements of the force needed to lift the boom at points commencing at the end and moving in towards the pivot were also carelessly taken. If a certain weight is measured at the end of the boom principle dictates that a lesser weight would be measured at a point closer to the axis. However that was not the case as appears from the video.
It was Dr Ackland's conclusion that the amount of force required to lift and replace the boom was well within safe operating limits as outlined in the West Australian Code of Practice. The code postulates a safe weight of 16 kilograms but is subject to qualifications including the degree of repetition and the awkwardness of the lift.
Despite the difficulties in accurately measuring the forces involved counsel for the defendant submitted that I should accept that the gate was one and the same as that which was at Newman and rely upon the conclusions of Dr Ackland. I think I should decline that invitation. It is true that there are components of the gate depicted at Yandi which appear to be identical to the components at Newman but the precise gate in its condition as operated by the plaintiff at Newman has not been inspected by Dr Ackland; the data provided to him in respect of the gate was not carefully collected; the pivot post upon which it rests is manifestly different to that which was in position at Newman and it does not appear to me to be clear whether it was rebalanced or whether any other adjustments were made to the gate.
In all the circumstances, while the evidence of both experts is useful in a general sense I am unable to conclude upon the basis of any of it that the gate operated by the plaintiff did or did not pose a risk of injury.

Further evidence relating to the gate

Mr Patrick Mahon, who manages the Geraldton Building Company at Newman, gave evidence that he supervised the work of installing the gate after it was delivered to the site. The boom itself was made of pipe which Mr Mahon said was perhaps 40 or 50 millimetres in dimension. A larger pipe extending from the pivot post and upon which the counterweights were situate was approximately 100 to 150 millimetres in diameter. The counterweights consisted of flat steel plates approximately 20 millimetres thick and probably 75 millimetres wide and 200 or 300 millimetres long. Mr Mahon estimated the length of the boom from the pivot post to its end to be approximately 4 metres. He said that the boom blocked off approximately two thirds of the road. He could not remember how many counterweights were installed but he did recall that within about two to four weeks after the erection of the gate two of the counterweights were removed and placed on the ground alongside the adjacent security hut. After that he was satisfied that the gate was operating satisfactorily.
Mr David Kendall, the safety officer on the project, gave evidence that the gate had in fact been used on another site before it was installed at Newman and that adjustments were made to it by Mr Mahon or under his supervision. He said that "a minimum amount" was taken off the boom and that the number of counterweights were then reduced "to compensate for the reduction in weight". After that it appeared to be operating satisfactorily. Mr Kendall's office was between 20 and 30 metres away from the gate and he had many opportunities to inspect it. He said that he never saw the boom sagging nor witnessed it operating in an unsafe or unsatisfactory manner. He said that if he had done so he would have arranged for repairs to be carried out. There were weekly site meetings to discuss safety issues and a daily log was kept for the purpose of recording any malfunctioning of equipment. No complaint in relation to the gate was recorded in it. Daily reports of any injuries on site were also made. There is no report of any injury to the plaintiff.

Credibility

Although the plaintiff denied it Dr Ittermann gave evidence that when she first consulted him on 20 November 1995 in relation to her neck pain she did not mention the boom gate to him. He said that if she had done so he would have noted it. He did note that she complained of neck pain and pain down her right arm when driving a car.
Dr Lim also testified that the plaintiff made no mention of a boom gate to him and that is consistent with his report of 21 December 1995. Nevertheless the plaintiff gave evidence as follows:
"I explained to him quickly that my job … involved lifting a boom gate up and down allowing vehicles to enter and exit the site. I went on to tell him … that I was suffering pain."
When it was put to Dr Lim that he may have misunderstood the plaintiff he denied it and was adamant that he would have made a note. He said:
"I would definitely … my job is so important that often you get patients who've got injuries, work related injury, you have to record detailed (sic) – of what are called events because a few years down the track this will crop up again, asking for reports and they must have information to write a report. I think it's important."
The plaintiff's husband also gave evidence supporting her account and said that when the boom gate was brought up Dr Lim dismissed it as a possible cause of her troubles.
I do not accept the evidence of the plaintiff and Jeffrey Forward that Drs Ittermann and Lim were told that the plaintiff was experiencing pain when operating the boom gate and I do not accept the evidence of Mr Forward that Dr Lim dismissed the boom gate as the possible cause of her problem. I think it most unlikely that the doctors would not have made a note that the plaintiff complained that operating the boom gate caused her pain and that Dr Lim would have dismissed any thought of a possible connection between her pain and her work activities.
This finding does not, of course, lead to the conclusion that the operation of the boom gate did not in fact cause the plaintiff some injury and as I have already observed that is a matter which has been expressly conceded by the defendant in the light of the findings on review. However it does seem to me that it is surprising that the plaintiff did not complain to the doctors that operating the boom gate caused her pain if in fact that is what it did. While it might sometimes be understandable that a person does not relate a complaint to a particular activity the fact is that the plaintiff did not when she first saw Dr Ittermann and when she saw Dr Lim even though she gave evidence of the considerable effort needed to lift and lower the boom of the gate and of the pain which she experienced as a result.
The plaintiff's failure to tell the doctors when she first saw them that the lifting of the boom was a strenuous activity which caused sharp and debilitating pain in her neck and arm is all the more surprising when according to her she made repeated complaints about the condition of the gate, and of the pain she was experiencing, to her superiors including Neryl Beer and Messrs Overing & Kendall, the safety officer and safety manager for the project site respectively.
It is true that on 8 January 1996 Dr Ittermann certified the plaintiff as unfit to lift weights of more than 2 kilograms because, as he said, "… she was realising that her pain and discomfort was getting worse by lifting the boom gate at work …" but this was some six weeks or so after the plaintiff first consulted him.
The plaintiff said that she commenced complaining about the gate and her pain to Messrs Overing and Kendall just after her return from her honeymoon in October 1995.
At one point the plaintiff's evidence was as follows:
"So I take it that … you continued complaining about the pain?‑‑‑I continued … complaining about the boom causing me the pain.
So you must have been pretty angry that here you were having to lift the boom which was causing you pain?‑‑‑No I wasn't angry sir.
Why were you not angry? They were not listening to you. They were not taking notice of the fact that the boom wasn't working properly and you were having pain?‑‑‑I just wasn't angry because I hoped in all hope (sic) that they would sort it out.
After you had spoken several times to Overing and spoken several times to Kendall they did nothing about it?‑‑‑They did nothing about it but I would say I was more frustrated. I would not say I was angry. I was frustrated.
So you were frustrated because you were suffering pain by reason of the fact that you had to lift a heavy boom gate. Is that correct?‑‑‑No I was frustrated at the fact that I was lifting up a boom gate that was faulty and sagging down to the floor making my job harder and it was heavier to lift and it was more awkward to lift.
And causing you pain?---Yes.
So you certainly knew and others didn't appreciate that the pain that you were suffering at that time was caused by you lifting the sagging boom gate?‑‑‑Well, Dave Kendall referred to the matter and I would have to excuse myself in front of your Honour and other people in this room that when I told him … about the pain etc, he turned around and said 'Well, Annie, it's because you've been giving your husband too many head jobs'. Excuse me for that comment. And I was not amused. They thought it was a joke.
So surely then your frustration turned to anger Mrs Forward‑‑‑No I was just frustrated.
But after that sort of offensive comment were you not angry?‑‑‑I was upset and not amused by that sort of comment. I was taken aback with such a comment sir.
So here you were complaining regularly to everybody. The safety officers they were also the first aid officers. Is that correct?‑‑‑That's correct.
So they were supposed to be looking after you and they were just ignoring you and making offensive jokes about it. Is that what you're telling the court?‑‑‑That's in the beginning yes sir."
Mr Kendal and Ms Beer both denied that the plaintiff made any complaint of pain on operating the gate until January 1996. Mr Overing is deceased. Mr Kendall also denied making any offensive comment to Ms Forward. I have already noted that his office is near the gate and he said he saw the plaintiff and other security guards on a regular basis. As he passed through the gate he would stop to speak to them. He said that the plaintiff never complained to him of any pain nor of any defect in the gate. He did, he said, have occasion to speak to the plaintiff a number of times to tell her that she should not chain the boom up when traffic was not busy. In my view Mr Kendall's evidence should be accepted.
I turn to consider some further matters.
I have already noted that the plaintiff tendered her resignation on 15 January 1996. She wrote in a letter of that date as follows:
"Dear Bob Pearce
It is with deep regret that due to medical complications with a traped nerve and signs of deteration (sic) in (2) discs in my neck, that I am unable to fulfil my duties a hundred percent.
I therefore feel it is in mine and your companies (sic) best interest that I regretfully terminate my employment with Port Hedland Security prior to flying to Perth on the 7th of February to see a specialist. My resignation will take effect on the 4th February.
Thank you for allowing me to be one of your employees and I wish you all the best.
Would you please forward myself a reference regarding my employment and work tasks that I carried out as a safety and security guard here in Newman. I wish that circumstances could have been different but I believe manually operating the 'boom gate' was aggravating my neck condition.
Thank you for your time and I hope I have not caused too much inconvenience with my termination.
I look forward to your reply.
Yours sincerely
J A Forward"
In my view in the light of this letter a number of comments are appropriate. Firstly, it is to be noted that in it the plaintiff complains that her work duties were having the effect of "aggravating" her neck condition. And yet she said in her evidence that she had no ongoing neck pain before she commenced her employment with the defendant. Secondly, the letter makes no claim that her repeated complaints about the operation of the gate and the effect upon her had been ignored. In my view that is surprising. Thirdly, if her condition was as bad as she claims it is also surprising that she specified the 4th February 1996 as the date from which her resignation was to take effect.
According to the plaintiff she showed this letter to Neryl Beer who was "quite disappointed … because of the short staff" and asked her if she would stay on working night shifts. The plaintiff said:
"I accepted that proviso (sic) on the fact that she would chain up the gates sir or at least have the gate fixed so it wouldn't cause the amount of force that I required. If it was at least fixed it would relieve some sort of force. She promised me that she would see to it that the boom would be chained that I didn't have to lift that boom …"
The plaintiff said that while she did work night shifts the gate was not chained up and she continued to have difficulties raising and lowering it. Nevertheless she persisted until 2nd February.

I have already set out Dr Lim's report of 21 December 1995 in which he noted that the plaintiff's neck had been "aching on and off for the last four years". The plaintiff denied saying that to Dr Lim but nevertheless admitted telling a number of medical practitioners that she had had neck pains in the past. She said in evidence she had only had pain on a motorcycle trip in about 1992, in April 1995 on a long trip by car to Leeman and on another car trip to her daughter in November of that year. However Mr Stokes stated in a report dated 26 February 1996 that there was a history of intermittent neck pain "over a number of years".
Other doctors were not told of her previous neck problems even though they would have been concerned to enquire. Dr Andrew Harper for example, stated in a report dated 15 December 1997 that prior to July 1995, when the plaintiff commenced working on the boom gate "she was perfectly fit and had no neck symptoms, upper back pain, lower back pain or arm symptoms." Dr Silver wrote in a report dated 29 January 1998 that when the plaintiff saw him on that day:
"She specifically stated she had no neck problems prior to 20 November 1995…"
I accept this evidence.
The plaintiff and Mr Forward both gave evidence to the effect that when Dr Lim asked how long the plaintiff had been suffering from neck pain Mr Forward answered that she had "been a pain in the neck for the last four years". I was invited to accept that Dr Lim must have been misled by this remark but I decline to do so. The plaintiff herself made it clear in evidence that she had had neck pain in the past and that is what she told a number of doctors including Dr Stokes. In my view Dr Lim would have been careful to accurately record what he was told.
In this case there has also been a great deal of evidence suggesting that the plaintiff has exaggerated the extent of her disability. Video tapes show her walking and swinging her right arm freely and turning her head to look around and up and down without discomfort. She is shown shaking out a garment, combing her hair and extending her right arm above shoulder level even though that degree of freedom of movement was not demonstrated before the medical practitioners who examined her.
Dr Geoffrey Gee, a pain specialist, who first saw the plaintiff in 1997 reviewed video tapes taken between 15 June and 25 August 2000 and wrote in a report dated 28 November 2000:
"The video surveillance that was undertaken in June, July and August of 2000 demonstrates that Mrs Forward was able to walk with considerable ease. She was swinging her arms consistently and this particularly applied to the normal range of movement in her right arm. There was no evidence of pain behaviours. On 16 June she again walks normally. She was seen smoking with her right hand but did not demonstrate any pain behaviours.
On 7 July she seemed to walk easily and used her right arm normally. She appeared to be searching for something on the ground before being approached by a security man. She was bent over for some time with her neck well flexed. Again there was no evidence of any pain behaviours. Between 7 and 11 August Mrs Forward was able to undertake a range of normal activities. It was during this time that she was conversing with a female companion that she demonstrated that she had an excellent range of cervical movement.
This applied to both flexion and extension and rotation with movements to the left and right. She did not appear to have any restriction to the movements of her arms.
The video surveillance of 24 August 2000 appears to be totally out of context with the video surveillance taken at all previous times. The day that she attended her consultation with me appeared to be dramatically different from the previous surveillance. There were considerable abnormal pain behaviour with splinting of the arm, the glove, the requirement of the taxi driver to open the doors for her.
Her presentation of 24 August where she presented with poor posture, hunched shoulders and a failure to move the right arm at any time during the consultation seemed consistent with the video surveillance but totally inconsistent with all of the other video surveillance that was undertaken in relationship to Mrs Forward.
The abrupt change in her activities that were demonstrated on the day that she attended her consultation with me would raise considerable concerns to the validity of her presentation and examination on 24 August. The very dramatic status that was demonstrated by the behaviours in the video surveillance on 24 August would raise significant concerns as to whether Mrs Forward is deliberately exaggerating her symptoms and clinical status on the day of her assessment with me."
When Dr Andrew Harper examined the plaintiff on 22 September 2000 he found that her neck moved very little and she tended not to make any use of her right arm. Having seen the video he conceded that there was a dramatic difference between her presentation to him on that day and to her neck movements as captured on film. He was asked and said:
"In fact it was almost a different person that you saw on the videos to the person that you saw in your rooms from a physical point of view?---From the physical point of view, yes. I mean the person I saw in my rooms was the person with the black shirt on 24 August. I did not observe the movements that were demonstrated prior to that in my rooms."
While Dr Harper expressed reservations about the extent to which a video tape might selectively depict the range of movement of which a person is capable he nevertheless expressed surprise at the level of movement of the plaintiff's neck and head as shown on the videos.
Other medical practitioners expressed opinions of a similar kind. Dr Anderson, a pain specialist, who saw the plaintiff on two occasions but only examined her physically on one in January of 1999 stated, after seeing the videos: "I would certainly find it difficult to fault her function. She seemed to be functioning very adequately."
Mr Nick Batalin, orthopaedic surgeon, commented on the videos in a report dated 28 November 2000 as follows:
"In summary the two extensive surveillance video tapes taken over considerable periods of time did not show any evidence of major handicap or disability in relation to this patient's neck. In fact it supported the indirect and what I consider to be more reliable methods of clinical assessment which I used in initial assessment on 14.04.98. Whereas there is radiological and MRI evidence of incontrovertible and what I believe to be long‑standing pre‑existing degenerative changes in the cervical part of the patient's spine such degenerative changes are far more likely to have occurred following a push bike versus car accident in 1969 rather than be the result of lifting a boom gate whilst working as a security officer in 1995. The surveillance video clearly shows that the patient continues to show a good range of voluntary and involuntary head and neck movements and it is difficult to reconcile that with the gross restriction of head and neck movements which she demonstrated in the formal setting. This suggests tendency to maximise her disability."
A similar opinion was expressed by Mr H Schaeffer, consultant neurosurgeon.
When the plaintiff was confronted with the video evidence she sought to explain the difference in her presentation between that depicted and that demonstrated to the medical practitioners upon whom she attended by saying that she had not taken any medication before seeing the doctors. She did not tell any of them that she had not done so because she saw no reason to and she did not tell her counsel either. She did say she had told her solicitor.
At one point in her cross‑examination the plaintiff said that she thought she lifted the gate between 100 and 200 times per shift. In fact she told Dr Harper she had lifted it 586 times and Dr Gee 500 times. She told the occupational therapist Mr Singh that she lifted it 583 times. In the course of answering questions she at various times denied these figures and sought to explain them by saying that two "lifts" were involved each time the boom was raised and lowered.
In the course of cross‑examination the plaintiff also stated that her complaints to Messrs Overing & Kendall were recorded in a diary which they kept and which she saw one night while on night shift. She said that she read that it was recorded in the book that "Annie was complaining about neck pain and the boom gate". When asked whether she had told her legal representatives about that she said that she did not recall whether she had told her counsel but she did tell her solicitor. There was no reference before me of any efforts to seek presentation of such a book.
In my view the plaintiff was an unsatisfactory witness. She was often evasive in her answers and, I find, had a tendency to exaggerate the extent of her disabilities as the video tapes and the medical evidence to which I have referred confirms. She has, in my opinion, been prepared to mislead the medical practitioners who have examined her and to deny matters when it suits her case to do so. Her claim that she told Drs Ittermann and Lim at her first meetings with them that the operating of the boom caused her pain is in my view quite unconvincing as is her evidence that she repeatedly complained to Messrs Overing and Kendall. As to the former it is simply unlikely that the doctors would not have noted her complaint if she had made it. As to the latter I have little doubt that there would have been a reference to the repeated complaints in her letter of resignation.

Liability

While it is accepted for purposes of these proceedings that the plaintiff suffered injury as a result of working on the gate that, of course, is not enough to fix the defendant with liability. Before that could be done it would be necessary to establish that there was a foreseeable risk of injury to the plaintiff and that the defendant failed to take reasonable steps to safeguard her from that risk.
In my view it cannot be said that the risk of injury here was unforeseeable but it has not been established that there was any great likelihood of harm.
The plaintiff was undoubtedly required to lift the boom frequently but that alone is not enough. The gate was of a common design and its mechanism was simple. There is nothing to suggest it was inherently dangerous to operate. In my view it has not been established in the evidence that the weight of the boom and the difficulty of lifting and lowering it was such that the defendant should have done other than it in fact did.
In my opinion there is no expert evidence pointing to the contrary conclusion. Dr Gibson, so it seemed to me, conceded that he was unable to state that the gate violated any relevant standards of safety.
The case that the gate was defective depends upon the evidence of the plaintiff herself and upon other evidence from which it is submitted that that conclusion can be drawn.
In my opinion the evidence of the plaintiff as to the weight of the boom and the difficulties which she had in lifting it should not be accepted. In my view her graphic description of the struggle she had with the gate stands in stark contrast to her lack of complaint to the medical practitioners whom she first consulted and to her stated intention expressed as late as 15 January 1996 of continuing to work until 4 February of that year.
While the certificate of Dr Ittermann which was issued on 8 January 1996 states that the plaintiff was only to lift weights of no more than 2 kilograms there is no evidence that I accept that the operating of the gate involved lifting a weight in excess of that amount.
I am unconvinced by the evidence of Jeffrey Forward that the boom of the gate was heavy. If in fact the effort of raising it was such that it could have been likened to that of lifting a carton of beer above the head I have no doubt that it would have been the subject of complaint by all regular operators of the gate.
I do note evidence of Raylene Anderson that she had some trouble with lifting the boom but I also note that she was but 5 foot 1 inch tall and the fact that one person may have had difficulty does not warrant the conclusion that the plaintiff must have. In any event I accept the evidence of Neryl Beer and Raeleen Watson that they had no difficulty.
I am satisfied that when the gate was installed by Mr Mahon it was operating in a satisfactory manner and in my view the evidence suggests that if anything occurred to make it difficult and awkward to use the defendant had systems and procedures in place to ensure that the problem would have been attended to. On all the evidence I am not persuaded that the defendant failed to act appropriately in safeguarding the plaintiff from the risk of injury.
In my opinion the plaintiff's claim should be dismissed.