Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 7)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 09222

LINDA HUDSPETH	Plaintiff
v
SCHOLASTIC CLEANING & CONSULTANCY SERVICES PTY LTD	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13-16, 19-23, 26-30 NOVEMBER 2012, 3-7, 10-11DECEMBER 2012, 13-15 OCTOBER 2014.
DATE OF JUDGMENT:	20 NOVEMBER 2014
CASE MAY BE CITED AS:	HUDSPETH v SCHOLASTIC CLEANING & CONSULTANCY SERVICES PTY LTD (No 7)
MEDIUM NEUTRAL CITATION:	[2014] VSC 542

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ACCIDENT COMPENSATION - Negligence - Workplace injury - Whether defendant negligent or in breach of statutory duty - Whether contributory negligence - Assessment of damages - Watts v Rake (1960) 108 CLR 158 considered - Pain and suffering damages - Pecuniary loss damages – Vicissitudes.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff in 2012	Mr JB Richards SC with Mr ADB Ingram	Clark, Toop & Taylor
For the Plaintiff in 2014	Mr AG Uren QC with Mr ADB Ingram	Melbourne Injury Lawyers
For the Defendant	Mr WR Middleton QC with Mr SD Martin	Minter Ellison

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Issues.................................................................................................................................................... 2

Liability Evidence at trial................................................................................................................. 3

The plaintiff.......................................................................................................................... 3
Dr Cubitt............................................................................................................................. 10
Mr Dohrmann.................................................................................................................... 11
Mr Michael Schadel........................................................................................................... 19
Frances Harris.................................................................................................................... 22
Barbara Hudspeth............................................................................................................. 27
Brendan Watson................................................................................................................. 27
Russell Saunders................................................................................................................ 28
Mark Siwek......................................................................................................................... 29
Keith Jenner........................................................................................................................ 30

Liability findings............................................................................................................................. 31

Was Scholastic negligent?.......................................................................................................... 31
Did Scholastic breach its statutory duties?.............................................................................. 47
Contributory Negligence........................................................................................................... 50

Damages............................................................................................................................................. 57

Damages evidence at trial.......................................................................................................... 58
The plaintiff........................................................................................................................ 58
Stephen Hudspeth............................................................................................................. 65
General practitioners......................................................................................................... 68
Mr de la Harpe................................................................................................................... 72
Mr Turner........................................................................................................................... 74
Mr Khan.............................................................................................................................. 76
Mr Dooley........................................................................................................................... 79
Mr Brazenor........................................................................................................................ 82
Mr Jonathon Bare............................................................................................................... 85
Dr Mitchell.......................................................................................................................... 85
Dr Thomas.......................................................................................................................... 86
Mr Huson............................................................................................................................ 87
Dr Kaplan............................................................................................................................ 88
Mr Plover............................................................................................................................ 89

Pain and suffering....................................................................................................................... 90
Applicable principles........................................................................................................ 91
Application to the evidence............................................................................................. 97

Pecuniary loss damages........................................................................................................... 106
Exigencies................................................................................................................................... 109

Conclusion....................................................................................................................................... 110

HIS HONOUR:

Introduction

On 27 April 2005, school students vandalised a soap dispenser in a boys’ toilet block at a Catholic regional secondary college. The plaintiff, the school cleaner, discovered the mess they made and injured her back when cleaning it up. The plaintiff, who had emigrated from the USA, had previously injured her back and undergone back surgery on two occasions in Texas.

When the trial commenced the plaintiff sought damages from three defendants. The first defendant was her employer Scholastic Cleaning and Consultancy Services Pty Ltd. The plaintiff worked for Scholastic as a cleaner. Scholastic had a contract to clean the school owned and operated by the second defendant. The school contracted with the third defendant ISS Hygiene Services Pty Ltd to provide equipment and consumables within the school’s toilets. During the course of the trial, ISS Hygiene compromised its disputes with the plaintiff and remaining defendants and on 30 November 2012, I dismissed the plaintiff’s claim and the contribution proceedings with no order as to costs. The plaintiff’s remaining claims in the proceeding that went to verdict were for damages for negligence, breach of statutory duty and occupiers’ liability.

On 11 December 2012, a jury returned a verdict of no negligence and no breach of statutory duty following a 21-day trial that commenced on 13 November 2012. In accordance with the jury’s verdict, I entered judgment for the defendants with costs and dismissed contribution proceedings between the defendants

The plaintiff appealed and successfully contended that by reason of statements made by the school’s counsel in closing address, the jury ought to have been discharged without verdict. On 6 February 2014, the Court of Appeal pronounced its reasons for judgment[1] allowing the appeal and setting aside the judgment for the defendants. The Court of Appeal remitted the proceeding to be determined by me based on the evidence already led in the trial before the jury and such further evidence as I rule may be admitted. The Court of Appeal also reserved to me the costs of the trial in November/December 2012.
[1]Linda Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd and The Roman Catholic Trust Corporation for the Archdiocese of Melbourne [2014] VSCA 3.

Shortly prior to the hearing of the remitted proceeding, the school compromised its disputes with the plaintiff and the first defendant. On 13 October 2013, I dismissed the proceeding against the school and the contribution proceedings between defendants with no order as to costs.

The plaintiff and Scholastic (who I refer to as the defendant or the employer) conducted the remitted proceeding on the basis of the evidence adduced before the jury, together with some updated medical reports and an updated report from an actuary.

Issues

Leaving aside the issue of costs, the issues that remained in the proceeding between the plaintiff and her employer were these:

(a)Was there any negligence on the part of Scholastic Cleaning Services Pty Ltd, its servants and/or agents that was a cause of injury to the plaintiff?
(b)Was there any breach of statutory duty on the part of Scholastic Cleaning Services Pty Ltd, its servants and/or agents that was a cause of injury to the plaintiff?
(c)If yes to either of the preceding questions, was there contributory negligence on the part of the plaintiff that was a cause of the said injury?
(d)If yes to the preceding question, by what percentage is it just and equitable that the total loss and damages to the plaintiff should be reduced, having regard to her own share in the responsibility for the said injury?
(e)What is a fair and reasonable sum to compensate the plaintiff for pain and suffering and pecuniary loss and damage?

Liability Evidence at trial
The plaintiff

The plaintiff started working with the defendant in August 2002. There was a team of eight cleaners at the school. Her initial supervisor, Cheryl Steiner inducted the plaintiff, ticking off the items covered on a checklist and the plaintiff signed an employment application in her presence. Ms Steiner gave the plaintiff a document entitled ‘Job Description’ that she did not recall.

When completing the employment application, the plaintiff told Cheryl Steiner that she had had back surgery in 1997 and 1998. When Ms Steiner asked if that was over and done with, she replied, ‘everything’s fine, closed out’. In October 2002, the plaintiff experienced some pain in her right hand, arm and shoulder. She told Cheryl about it. The plaintiff’s back pain did flare up from time to time. She might have missed a day or two of work here and there as a result but she worked all the time. Cheryl Steiner, left in November 2002 and the plaintiff was appointed the supervisor at the school.

The plaintiff described the ordinary requirements of her job. She started at 2.30 pm. As a supervisor she had control of additional buildings, the administration building the hospitality building. She would clean P block and then go to I block where she would clean the toilets, refill the toilet paper, clean the urinal and hand trough. Another cleaner, Paul, mopped the floor. Then she would clean the administration building, trying to finish cleaning at 6.00 pm. Upon completion of her work, she locked the back gate, set the alarms, and locked the front gate. She finished work mostly about 6.30 pm but sometimes she worked over time. She had seven people under her supervision. The plaintiff also worked for Rowles & James for a few hours a week at a retirement complex. This was a relief position and it was not constant work throughout the year. The plaintiff described her work as:

hard, a physical job with lots of walking, bending, vacuuming and mopping. It was very repetitive.

The cleaners reported issues to the school through the Red Book, the cleaners’ action book for communication between the cleaners and the school, mostly the maintenance staff. Not everything went into the Red Book. Verbal instructions and written loose notes were exchanged between school employees and cleaners.

There had been issues with vandalism at the I block toilets. There was a hole kicked in a wall, a door was unhinged, fires had been started using toilet paper. Students had burned soap dispensers, broken toilet seats, and spread Vegemite on toilet seats. The plaintiff reported vandalism incidents to Mark Siwek, the business manager, and if he was not there, to Russell Saunders, his assistant. She also reported the vandalism to the defendant. The plaintiff’s area supervisor was Frances Harris. She communicated frequently with Mrs Harris and would call her to report to her anything that was ‘really serious’.

On the day of the incident, 27 April 2005, Mrs Hudspeth had cleaned the hospitality block and she had cleaned P block prior to going to the I block toilets. P block was a drama and musical room. When she got to the I block toilets, at about 4.00 pm there was soap everywhere. She said:

WITNESS: I just stopped in my tracks; I couldn’t believe what I was looking at. I had never seen so much soap in one place - not one place but in one room. I just walked around and looked at it; I had never seen anything like it. There was a huge pool of it – there’s a drain in the centre of the room and there was a big huge pool of this blue-ish green it looked like, I’m not 100 per cent certain on that colour, but it looked blue-green. It was in the toilet stalls, it was in the toilets, it was slung all over the urinal, in the hand trough. I just never seen anything like that before. That really was the icing on the cake.

The plaintiff went straight from the toilet block to find Mark Siwek and she came across Russell Saunders. She took him to the toilet block. Mr Saunders went in and said to her ‘Oh my’ or, ‘Oh God’ or something similar. He was dumbfounded. It was a big mess and the plaintiff told him it was going to take a while to clean up. Mr Saunders shrugged his shoulders and left her to it.

After that conversation, the plaintiff rang Frances Harris and told her, ‘We have got a big mess here’. The plaintiff told Mrs Harris that there was soap just everywhere in boys’ toilet block. Mrs Harris said she would come around later, but the plaintiff should do the best she could at the time to clean it up. The plaintiff agreed and started to clean up the spill. She decided to use a mop and bucket and had to go and round up a mop because she does not normally mop floors. Her own words describe the task:

I got a mop and a bucket and headed back to I block and just tried to figure out how to do it. I worked at trying to mop it up but the more I mopped and tried to get the soap out of the mop, it just - the amount of foam and lather that soap produces was phenomenal. I just didn’t know how to get it out of there but I just kept mopping and trying to - water and stuff because it wasn’t draining down the drain, it was just foaming up everywhere. The mop had the water trough full of foam from the amount that was just coming out of the mop.
What sort of mop was it you found to use?---It seemed like it had a really tall handle, the pole of it and it’s - the best way I can describe it, I’ve seen a sheep that looks like it has dreadlocks but the ropes are not that thick like dreadlocks, they are just ropes that hang down off this mop and they were probably that long and the mop was heavy, full of water and soap. I had never seen anything like that before.

The mop bucket had a foot pedal close to the rollers and the mop was pulled up through the rollers. This rinsing process was not working well as the suds were increasing. The plaintiff began to doubt that she had the right equipment to deal with the spill. The floor surface was slippery and she said she was very careful and worried about going over, losing her balance. She then tried the tap to wash the excess soap out of the mop but it got more foamy and spread further over the floor. She tried to work behind the mess but once the soap was diluted with water there was no way to avoid it. She didn’t know how to clean it up and the mop was heavy, tall and awkward. Using the mop required quite a bit of force particularly when using the bucket or trying to rinse it under the tap.

The plaintiff had been cleaning the area for 30 to 45 minutes before the accident and she described what happened when she sustained her injury:

As I said, there was a huge puddle of this stuff. I was just trying to get some of it up and pick it up. The floor was really wet and the soap was all over it because it was draining out of the mop as I was putting it into the urinal. I turned the tap on and it just kept lathering and I went to step up on the urinal step itself and when I did that, it just happened so fast. I just kind of tried to plant the mop, tried to brace myself and I kind of - I can’t tell you exactly. I went backwards, I twisted. Part of me was still facing - the bottom half of me I think was facing this way and I twisted back this way to keep from hitting the floor. I was using the mop to try and just plant it. I didn’t know what to do. I was just grasping. Immediately prior to the slip I was trying to pick it up and put it into the urinal to turn the tap on and to run the water over it. I probably picked it up with both hands and went to put it in and as I was falling, slipping, that’s when I let go with both hands and tried to grab this wall and plant the mop. I had to heave it. I just picked it up with everything I had and put it across.

There was a slight downward slope of the step towards the urinal and the step was very slippery, covered in soap and water. When she slipped and twisted, she struck the wall of a toilet cubicle. She said she felt a sharp pain right in her back along her hip and thought she had pulled a muscle when she twisted. She didn’t think it was her back, meaning her lower spine where she had surgery in the USA.

The plaintiff continued to clean the area as well as she could and Frances Harris arrived between 6.00 and 6.30. By the time she spoke to Frances Harris her back and hip were hurting, having become painful as she finished the clean-up. She told Francis Harris that she thought she had pulled a muscle in her back.

After the incident, the plaintiff wrote a note to Keith, the maintenance man at the school, in the Red Book. She thought she wrote it on 27 April, and dated it 28 April as she knew that was when he would see it. The note read, relevantly:

Hi Keith, yesterday the boys in I block toilet poured a litre and a half of soap on the floor. I cleaned it the best I could. Would you please check it and see if it’s slippery in there. If it is, ask Pamela to make an out of order sign. I will hose it down again tomorrow. Mark and I have discussed this, thanks.

There is an acknowledgement dated 29 April signed by Keith, ‘Seems okay’.

The plaintiff was feeling sore overnight. She took Mersyndol. On Thursday, although her back was feeling pretty sore, she went to work. During the course of her shift on Thursday, she visited the I Block toilets and saw another huge mess of soap everywhere:

I went and got Mark this time, he was back, and I asked him if he knew about what had happened in I block toilets. He said no. I said, “Russ didn’t tell you”, he said no and I told him, “You need to come look at this”, and I told him what happened the previous day, me twisting my back, all of it, and I wasn’t happy because they had done it again and I asked him if we could - if I could just shut it down because I wasn’t going to clean it again that night because we had spent so much time or I had spent over an hour cleaning it the first time. I said, “We don’t have that kind of time to devote to one area or something else is not going to get cleaned”, and he agreed, he said, “That’s fine”, so I asked him if I could put an out of order sign up and he said, “That’s fine, you can do that”. So when Frances came around again we put an out of order sign up.

The plaintiff’s back was hurting on Thursday night but she thought it was just a pulled muscle. She went to work again on Friday. On Friday, the cleaners used a hose to hose the soap into a much bigger drain. The plaintiff said this method of cleaning up the soap spill was much better.

Cross-examined for the defendant the plaintiff said that when she started her employment, she did not meet the directors, Barry Steffenson and Michael Schadel, or Mrs Harris. She didn't recall the general induction with Cheryl Steiner or the induction booklet, although she had seen one before her injury in the cleaners room, after she became the site supervisor. She did not recall the job description but agreed that she had signed a copy. She accepted, although she couldn't recall it, that she had seen and signed the job description.

During the trial period, the plaintiff’s back was sore, but not unmanageable, because she had never done that kind of work before. Her back did not compromise her ability to work.

The plaintiff was asked about a statement that she had made to WorkCover investigators on 7 June 2005. The plaintiff did not dispute the content of the statement or that her recollection of the events was then much better.

Counsel explored the mechanism of the slip. The plaintiff said:

As I was stepping up to the urinal, I don't know that I had my foot on the step, but I was going towards stepping up, the action to do that, either got over balanced too far as I leaned back to step up and I just felt like I was fixing to fall. I don't recall how I was over balanced but I know it was the water and the soap on the floor that caused me to my balance I was standing all in it. I don't recall whether it was my left or right foot that slipped. I believe I had the mop in my left hand.

The plaintiff did not recall which foot lost traction but she did not fall to the ground. On the right side, maybe to the centre of her back, she struck the cubicle wall as she was falling backwards. She did not feel any pain immediately but shortly after she felt a catch in her lower back and she thought she had pulled a muscle. The step up to the urinal was about 8 inches to a foot high and about the same in width.

The plaintiff agreed that she did not mention in the June 2005 statement either the injury to her hip or her first conversation with Mrs Harris, but she maintained that there was a pulling pain between her hip and her back. She affirmed that when she took him to the toilet she asked Russell to tell Mark and then she called Frances. Frances told her to do the best she could. She thought the vandalism on this occasion was a cleaning job not a maintenance job and presumed that Russell had agreed with that assessment. It would have taken too much of Pauls’ time if she had asked him to help her.

The cross-examiner pressed the plaintiff about whether she had called Frances on two occasions, firstly, before she started cleaning and later when she finished cleaning. She rejected the suggestion that she should have told Keith about her back in the Red Book entry. Counsel’s proposition to the witness was that injury to her back occurred because she slipped on the urinal step because of the soap as opposed to injuring her back while engaged in the task of mopping.

The plaintiff, when cross-examined for the school, maintained that she had always given a consistent account of what occurred over the relevant three days. The cross-examiner strongly challenged that answer. First, the plaintiff agreed that she had attended the school with Mr Dohrmann (a retained expert) and fully canvassed with him what had occurred between Wednesday and Friday. Mrs Hudspeth said she gave Mr Dohrmann an accurate account of what occurred. When taken through the assumed facts in Mr Dohrmann's report, the plaintiff agreed there was inconsistency between what Mr Dohrmann had recorded and what she had told the court. She explained that Mr Dohrmann was in error, not her.

Next, the plaintiff rejected Russell Saunders’ denial that he went to the toilet block with her. Then the cross-examiner turned to the Red Book entry, taking the plaintiff through it line by line. The plaintiff became uncertain whether she wrote the entry on the 27^th and dated it the 28^th. The entry referred to Mark and the cross examiner told the plaintiff that Mark would say that, it being seven years ago and doing his best, Mark believed he did not go to the toilet block on the Thursday. The plaintiff was not certain that Mark went to the toilet block on the Thursday night; suggesting she may have told Mark in his office about what happened on the Wednesday, and that Russell had seen it, when seeking Mark’s agreement that she declare the toilet block out of order following the second soap incident. Keith Skinner’s entry in the Red Book was dated the 29^th and the cross-examiner put that this was inexplicable when the plaintiff had reported that the second spill on the Thursday had not been cleaned up. The plaintiff stated that on the Friday when she went to work, the door was open, the padlock had been removed, she didn't know where the sign was, and there was a soap mess on the floor that was hosed out that evening.

The plaintiff agreed that Paul would have had a bucket and mop, and there was an opportunity to summons assistance but the plaintiff didn't think she needed help just to mop up the soap. She didn't anticipate the magnitude of the task. Once she started, she just got stuck into finishing it. On the Friday, when the second mess was cleaned up, another person assisted with the water hose. It enabled them to push the soap outside into a drain. This was a lot quicker and she felt physically able do it.

The plaintiff again explained to the cross-examiner the mechanism of her slip and contact with the wall:

WITNESS: I don't know how it happened exactly. If I felt like I was falling, it just all happened so fast. I was stepping up to rinse the mop out and I tried to catch myself falling backwards is what I felt, I guess, because I tried to plant the mop so I could not fall.
COUNSEL: Did you have the feeling that you were over-balancing? --- I don't know - I guess that's how you put it, I just lost balance with it or the floor was wet.
COUNSEL: What caused you to lose the balance? --- I don't know.
COUNSEL: Might you have missed the step? --- No, I didn't trip on the step or anything or slip off of the step, I don't recall doing that.
COUNSEL: You didn't slip off the step? --- No.
COUNSEL: When you felt like you were over-balancing, did you have both feet up on the step? --- I don't think so.
COUNSEL: Were you in the process of stepping up? --- I think I was.
COUNSEL: Did your foot slip forwards or backwards? I know it's hard for you to think back on it now, but if you can? --- It was just in the blink of an eye, it all happened so fast and you are trying to - you are saying what just happened, you know, and collect yourself and you've still got a job in front of you and it just felt like I pulled a muscle. I don't know - I really can't explain it any better than that.
COUNSEL: Are you sure you slipped instead of just lost some balance? --- I felt like I slipped. In my mind today, I felt like I slipped.

The cross-examiner returned to the issue of the sequence of events on the first evening. The plaintiff stated that that she came across the mess, she left the toilet block, went to get Mark but found Russell, took him back to the toilet block where he just came in, saw it, made the remark and she told him it was going to take a while to clean the mess up and then he left. She didn't speak to him in his office. She then she phoned Mrs Harris, told her about the mess and she just said, ‘Do the best you can, I'll be there later’. Mrs Harris did not offer any help or give any instruction. The plaintiff was looking at the mess as a cleaner: ‘It was a mess, I had to clean it’. She did not expect that Russell would have gone about cleaning it. If there was to be any assistance with cleaning it, it had to come from her employer.

Dr Cubitt

Dr Cubitt is a mechanical engineer engaged by the plaintiff's solicitors who measured and reported on the floor surface in the toilet block. He measured what he described as the slope-corrected coefficient of friction using a pendulum friction measurement device in accordance with an Australian Standard. He concluded that the floor, when soapy, was highly slippery. It tested with a very low slip resistance. He measured the slope of the step at the urinal at 4 degrees and the step height at 150 millimetres. He considered the risk of a person slipping on soapy inclined tiles adjacent to the urinal to be high.

Mr Dohrmann

Mr Mark Dohrmann was a professional consulting engineer with qualifications in mechanical engineering who had worked in the field of occupational health and safety since 1976 principally as a professional expert witness. He was asked by the plaintiff's solicitors to provide a report about risks of injury in the plaintiff’s work place, which he inspected. Mr Dohrmann was instructed by the plaintiff’s solicitors in writing and by the plaintiff when they both inspected the school. When Mr Dohrmann started to tell the jury what he assumed to be the facts of the incident in which the plaintiff was injured, the plaintiff’s counsel interrupted and diverted him by quoting extensively from the plaintiff’s evidence in court. Following a successful objection, the witness returned to explaining his assumed facts as reported for the purposes of expressing his opinion. Quickly, it emerged that there was confusion about the correct dates.

Mr Dohrmann had assumed that the plaintiff had gone to the toilet block on the afternoon of 26 April 2005 and there observed one soap dispenser torn off the wall above the wash basin, its contents spilt on the tiled floor. She had seen the extent of the mess, locked the toilet, reported it to the business manager, Mark, and placed an ‘out of order’ note on the door. She had also reported the matter to the assistant business manager, Russell, and recorded her observations in what was called the Red Book.

Mr Dohrmann assumed that the following day, 27 April, the plaintiff returned to the same toilet bock and found the door opened, the note missing, and liquid soap still all over the floor. A second soap container had now disappeared from the wall and there was more liquid soap spilt about the tiled floor than there was the previous evening. She said the mess was everywhere and it had the appearance of deliberate vandalism. She again reported it to the same assistant business manager and she telephoned her supervisor, Frances Harris. She was instructed by Frances Harris to clean up the mess in toilet area as best she could.

Mr Dohrmann then described what he assumed she did:

She attempted to clean the floor surface herself because Paul had other things to do and he was mopping up, and as she was mopping up the area near where the missing soap dispenser had been secured, one of her feet forward on the soapy surface causing her to begin to fall backwards towards a cubicle wall on which she struck her back, feeling immediate pain in the lower back.

Mr Dohrmann’s report stated that he had understood that the soap dispensers had been fitted perhaps six months earlier and he said that the plaintiff told him that she had previously seen evidence of vandalism on the soap dispensers during the few months over which they had been installed (as apparently stated in paragraph 4.24 of his report). However, in the witness box Mr Dohrmann said, and repeated twice at counsel’s invitation, that the plaintiff had said that she had not previously seen any evidence of soap dispenser vandalism. This second version was plainly not what was written in the report being followed in the court room.

Mr Dohrmann considered the soap dispenser was the wrong choice for the school toilet. Mr Dohrmann said the plaintiff was placed at risk of injury by the defendant in the dangerous conditions produced by the liquid soap on the floor, which she was directed to mop up. He said there were measures which both the defendant and the school could have taken to prevent exposing the plaintiff to risk. They were, first, fastening the dispenser securely to the wall; secondly, by providing cakes of soap; thirdly, by better and closer supervision for the plaintiff, by a system which meant that the plaintiff's immediate supervisor would guide her in the event of an unusual situation reported to them, a system which required the plaintiff to stop and report problematic situations and ones where the supervisor would, where appropriate, attend and assist or even say, ‘Lock it up, don't go there’. He said both the defendant and the school should not have required the plaintiff to enter a slippery area until it was hosed out or prepared to a safe condition.

In cross-examination, the defendant’s counsel established that Mr Dohrmann had a one hour conversation with the plaintiff at the school and had been provided with a quantity of written material by the solicitors. Questioned about the two versions of his report that were in circulation, Mr Dohrmann described one as a draft copy and the other as a file copy. Mr Dohrmann examined them both and he then said:

Right. If you would just bear with me for a moment, I do have two reports, each dated 9 April 2010. They both have the same [paragraph] 4.12 on them, Thursday, the 27th of April. The report I just referred to as a draft in fact is not. It's a more recent rewriting by me of this report, or these two reports following the reading of a statement which I got the other day which clarified and recollected me as to the order of events, which is where we are discussing at the moment. I have that too.

At the end of this answer, Mr Dohrmann was actually referring to a third version of his report which was yet to be discovered by the cross-examiner. Mr Dohrmann had two copies of the same report of the same date with a different paragraph 4.24. Asked which was correct, he went to his notes in his file that read ‘No prior observation of loose or torn dispenser’.

Mr Dohrmann said he had discovered the anomaly during the lunch adjournment. He did not know when he made the alteration to clause 4.24. Initially, he could not explain it. Pressed, Mr Dohrmann said that it was a typographical error; a disingenuous response. Counsel pointed out why and Mr Dohrmann then said he would always amend a draft report until he was satisfied that it says what he wanted to say. Again asked about when the changes were made, Mr Dohrmann said probably on the same day because both copies have the same date; at best a matter of deduction not recollection.

Mr Dohrmann then revealed to the jury that in the preceding week before giving evidence he had been given a statement by the plaintiff that included a chronology of events. When he took it all on board he realised that if the chronology were true, his assumptions were ‘out of line’ in several areas. He denied that the plaintiff’s solicitors had been in contact with him, but he couldn't quite remember whether he got a telephone call, it was possible.

Counsel explored some comparisons between Mr Dohrmann's notes and his reports, particularly about the sequence of events. In his report, Mr Dohrmann had assumed that on the first day, the plaintiff had gone in, seen the mess, attempted to clean it, or whatever she did, without accident and then locked the door and left. When questioned, Mr Dohrmann didn't know whether she had cleaned the floor on the first day. He said, ‘Well, yes, I did find out about her cleaning the floor but I haven't found out properly about days one, two and three and as to which days were cleaning days’. He could not say when the plaintiff had phoned her employer on day one. Mr Dohrmann stated, once taken to the note that he had written at the school on the back cover of his file, that his record of what the plaintiff said about how she first went about the task of cleaning the toilet block was that she tried to hose it out on day one.

The following morning, counsel asked Mr Dohrmann whether he had any note supporting his assumption that the plaintiff had been directed to mop up the dangerous conditions produced by the liquid soap on the floor. His handwritten notes made no reference to the word ‘mop’. He said the source material for that statement was his memory but without a written record, he withdrew the use of the word ‘mop’, so far as that direction was concerned.

Mr Dohrmann recorded the plaintiff’s instructions about the exchange with Frances Harris as being that there was an interchange with Frances and encouragement to proceed with the cleaning. He said that he did not acknowledge in his report that he had some difficulty with the plaintiff in putting together the chronology. His usual practice was to wait until the solicitors tell him that there is a factual inaccuracy in what he has recorded.

Mr Dohrmann considered that the cleaner had a responsibility to look into the way in which fixtures were fixed to walls in the school and that the cleaner could have said to the school a concern about the dispensers because of the risk of vandalism. Despite Mr Dohrmann standing by the version of his report that stated there was no previous evidence of vandalism, he maintained that cleaners would ordinarily examine the wall, assess the capacity for fixtures to be ripped it and have either opened the soap dispensers or asked for them to be opened to make sure that the soap was going to stay where it was meant to be. He said a responsible employer should look at every fixture and fitting where there was obviously the possibility of risks arising like soap being spilt.

About his suggestion that cakes of soap be supplied instead of liquid soap, Mr Dohrmann knew nothing of the commercial arrangements between the school and the cleaners. Mr Dohrmann explained that the issue of better and closer supervision was about communication with supervisors. He suggested the appropriate directive was that the plaintiff should not have been required to enter a slippery area until it was hosed out, probably but not necessarily by the employer. It was open to the school to take that on.

Mr Dohrmann explained that, in the past, he may have offered his services on a no win, no fee basis and he agreed that the suggestion was unanswerable that, on that basis of remuneration, he would have an interest in the outcome of the case.

Mr Dohrmann confirmed to counsel for the school that he adhered to the Expert's Code of Conduct. He said he had electronically signed his report (the first version) and that his office staff sent it out to the solicitors. That published report would not have been described as a draft but he would have expected the solicitors to have read it carefully and come back to him if there were errors. The solicitors didn't do that but he had changed the draft in any event.

Mr Dohrmann didn't know whether he communicated to the solicitors that he had made changes and he conceded that he had put two different versions of the same document into circulation. Mr Dohrmann said that it was only during his evidence in chief on the preceding day that he had discovered his office had sent out two different reports.

Mr Dohrmann recollected that the plaintiff had told him of various forms of vandalism, and that the students ‘were naughty boys who broke things’. He didn't make a written note of those instructions. Mr Dohrmann conversed with the plaintiff’s senior counsel[2] after the plaintiff’s cross examination when he learned that ‘he had his facts wrong’ and that Mr Richards SC would send him the plaintiff’s statement that set out the proper chronology. Mr Dohrmann thought that he was simply undertaking the normal solicitor’s role of verifying his assumed facts. The plaintiff’s senior counsel invited Mr Dohrmann to reconsider the plaintiff's instructions about what had happened and the order of events, but Mr Dohrmann did not think he was suggesting or requesting that he alter his report. Mr Dohrmann prepared a third version of his report, sent it off and was awaiting directions on what to do with it.
[2]Who was another senior counsel, not senior counsel appearing before me on the remitted proceeding.

Mr Dohrmann was asked about a yellow Post-It note located on his file that appeared to record instructions about appropriate amendments to reflect the ‘correct’ sequence of events. Mr Dohrmann agreed that he amended the report on instructions received after the plaintiff had given her evidence. He accepted that he was directed to alter the facts that he was taking into account, but he wasn't told to change any opinion. He was prepared to make the alteration because it didn’t affect his opinions.

Amongst the written material that had originally been provided to Mr Dohrmann was an affidavit sworn by the plaintiff that set out the circumstances of the accident, which he said he had read. Mr Dohrmann accepted that the third report reflected the changes that had been recorded on the yellow Post-It note, with deletions to the statement of assumed facts. He signed it, acknowledging it as true and correct, and sent it through to the solicitors. Mr Dohrmann considered that when acting in this way during the trial, he was observing the Expert's Code of Conduct.

Mr Dohrmann acknowledged that he understood an order had been made for witnesses to leave the court and that they not communicate about the evidence that was given in court. He didn't turn his mind to that issue when talking to the plaintiff's legal representatives. He recalled that counsel said to him that he could not speak to him about the evidence.

Mr Dohrmann was then cross-examined about matters relevant to the case against the school that are not relevant on this remitter, save that Mr Dohrmann explained that his suggestion that the school could have better supervision, was directed to better supervision of cleaners, not supervision of students. He suggested there could have been someone at the school that the cleaner could have recourse to, to complain or to get help if needed, or to close up the toilet and arrange for it to be cleaned later when they had worked out a safe way of doing it. Finally, counsel took Mr Dohrmann back to the entry in the Red Book which Mr Dohrmann agreed was not consistent with what he recorded as the assumed facts.

At this point in the narrative, I pause to record that I reject Mr Dohrmann’s evidence in its entirety. The defendant was informed by the analysis of Mr Dohrmann’s evidence by Whelan JA in the Court of Appeal’s judgment[3]. Nonetheless, the defendant submitted that I ought to accept Mr Dohrmann’s evidence in part in support of its submission impugning the credit and reliability of the plaintiff. I informed the parties at the outset of the remitted hearing that Mr Dohrmann’s evidence was before the court, notwithstanding that subsequent events might support the conclusion that it should not have been admitted at all. I informed the parties of my view about the reliability of Mr Dohrmann, yet the defendant pressed the submission. For this reason, I will state my reasons for rejecting his evidence.
[3]Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Anor [2014] VSCA 3, [87]–109], [112]–[146].

At trial, cross-examining counsel used Mr Dohrmann’s evidence against the plaintiff on the assumption that Mr Dohrmann accurately recorded what she told him were the circumstances of 27–29 April 2005. I do not accept that there is any validity in that assumption and I accept the plaintiff’s response that Mr Dohrmann had it wrong. The explanation for any inconsistency or conflict between the assumptions of fact recorded by Mr Dohrmann and the plaintiff’s evidence is that Mr Dohrmann was incompetent in analysing the material in his brief, in recording an oral instruction from the plaintiff and in preparing his report.

Watching Mr Dohrmann’s evidence unfold before the jury was like watching a train wreck. I was persuaded that Mr Dohrmann’s evidence was unreliable because he was not frank with the court about the circumstances in which any version of his report was created, particularly the third version. His responses were disingenuous. I considered that Mr Dohrmann well understood why the plaintiff’s counsel was not permitting him to read from his report to state the assumptions on which his opinion was based. He knew that the third version of his report dealt with that very issue.

Mr Dohrmann’s proper position would have been, at the first available opportunity, to inform the court that he had prepared a third version of his report on instructions from the plaintiff’s legal team, and to state that he based his opinion on different instructions from the assumptions set out in the earlier versions of his report, because that was the truth. Alternatively, he could have responded that the evidence of the plaintiff put to him by counsel was not consistent with what she told him at the school when they inspected the toilet block. He could have stated that he could express an opinion on the basis of what counsel was then putting to him, but his obligations to the court required him to reveal that his assumptions about what occurred were, in a significant part, based on what the plaintiff directly said to him at the school. Mr Dohrmann gave neither of these responses.

Not only did Mr Dohrmann not properly record his instructions, as cross-examination about the comparison between such notes as he had written on the back of the file cover and his report demonstrated, but from the outset he was briefed with an affidavit sworn by the plaintiff that was largely consistent with her evidence at trial. Apart from his say so, there was no evidence that Mr Dohrmann read that affidavit. I consider that he had not properly reviewed and understood his instructions. At one point in his evidence, Mr Dohrmann said that he had a ‘lot of trouble putting the order of events in’ and if there was any error it was his ‘not hers’.

Further, Mr Dohrmann adopted a very casual practice about verification of his assumptions. His instructing solicitors could, he said, review his report, as if it was a draft although not actually marked as such, and suggest amendments which he would readily make. In breach of the Expert Code, the different versions of his report in evidence did not reveal his source of information in support of amendments. The first two versions of the report were indistinguishable save for the different detail in the text that could only be discovered on close analysis. The fact that the reports were dated the same day and not marked as drafts, or as amended, or with particulars of further instructions, mislead the court.

By his own paperwork, Mr Dohrmann also mislead himself. He was all at sea before the jury when searching for an explanation for the two versions of the report revealed during his evidence in chief. I am satisfied that Mr Dohrmann had no idea at all about the circumstances in which two versions of his report bearing the same date came into existence, and his attempts to explain the differences and answer which version was correct were speculative. An expert observing the Code would have conceded that he had no explanation for the discrepancies and would need to make further inquiries. Because of his failure to adopt that response, Mr Dohrmann left the jury with a potentially very damaging impression that the plaintiffs legal team did not ask him to reconsider his report until after the plaintiff had been cross-examined. No attempt was made by the plaintiff’s legal team during the remainder of the trial to correct any misconceptions or misunderstanding that might have arisen from Mr Dohrmann’s evidence.

Having observed his evidence and subsequently analysed it with care following an application to discharge the jury during final addresses, I am persuaded that his evidence was evasive and at times not honestly given. He speculated when he didn’t know an answer and although he did display confusion and bewilderment at times, he remained committed to the objectives of the plaintiff’s legal team. In particular, Mr Dohrmann lacked an impartial commitment to inform the court of all matters relevant to the expression of opinion evidence irrespective of the interests of a litigant, or more particularly in this case, the litigant’s legal advisers. He breached the expert code of conduct in a number of respects, but principally by acting as an advocate for what he perceived the plaintiff’s counsel wanted from him in evidence.

Mr Michael Schadel

Mr Schadel was a co-owner and director of the defendant. He had no personal knowledge of the accident on 27 April and only obtained his knowledge from others after the event. He produced various relevant documents that are referred to elsewhere. Within about two days of the accident he had spoken to the plaintiff herself. He had no knowledge of liquid soap in the I block toilet at the school prior to the incident.

Cross-examined by counsel for the school, Mr Schadel explained that whenever the company obtained a new cleaning contract, new cleaners would be employed and inducted. Mr Schadel was satisfied from the documents completed by the plaintiff that she was an appropriate employee, and physically fit to undertake the work. Explaining the routine that applied in the case of a spill, Mr Schadel said:

If it was a large spill which was caused by vandalism, they would report that first to the business manager, to the school, who would then either talk to maintenance, or if it was part of maintenance to clean it up, or it became part of Scholastic to clean it up. If it was part of Scholastic, depending on whatever the damage was, they would just - basically, if it was in the toilet as we are talking about, it would be hosed out.

Mr Schadel agreed that many consequences of vandalism would be maintenance for the school’s attention, while others, such as a spill of liquid on the floor, would be matters for the cleaner. Mr Schadel agreed the ‘Safety at Scholastic’ document classified a spill in the category of a hazard to be cleaned up immediately.

The plaintiff had authority to direct any one of the other cleaners at the school to assist her to clean something up. She also had full authority to use all of the equipment at the school. If she had any doubt about it, she should have communicated with the area supervisor whose responsibility it was to go out and assist. Mr Schadel said that the supervisor would normally discuss with the cleaner how best to go about cleaning an unusual situation and if it was very bad, instruct that the area be locked up and it not then be cleaned.

The defendant’s protocol if a cleaner came across a slipping hazard was set out in the slips, trips and falls section of that document, and the cleaner, and in particular the site supervisor, should assess what should be done and who could handle it. If a cleaner/the plaintiff felt she needed assistance, she could get it and if she felt that it could not properly be cleaned up, she could lock up the area. The site supervisor would report back to the area supervisor, who was a person trained and experienced in cleaning schools, or if she was uncertain how to proceed, seek instruction before proceeding.

Mr Schadel stated that the area supervisor was trained in cleaning different situations and that it was appropriate for the site supervisor to seek instructions from her about the safe way to go about any particular task. Mr Schadel did not want his employees tackling a task that exposed them to a risk of injury or in a manner that was inappropriate. Whether a cleaner could be left to his or her own devices in what they were doing depended upon the personal skills of the individual.

Mr Schadel was not aware that there was a problem with vandalism at this particular school, although there was vandalism at every school. He agreed that upon discovery of the liquid soap mess, the first thing that the plaintiff should have done was to contact the school’s business manager, who could step in and give directions in relation to the spill. Mr Schadel agreed that it was the business manager’s responsibility to make a judgment on whether vandalism was an issue for maintenance people or for the cleaners, because excessive cleaning duties attracted an extra charge. When asked what advice he would give about a spill of soap all over the floor and whether he would tell them first to stop until he had come and had a look at it, Mr Schadel said that he would get the cleaner to explain the situation, what was there, how bad it is, and then make a judgment. He would suggest a cleaner could hose out a soap spill.

He agreed that it would be inappropriate to expose employees cleaning the floor to an obvious risk of danger and would want the area supervisor to discuss the safe way of going about cleaning up the spill. Mr Schadel would not want an employee walking over the soapy floor trying to mop it and would prefer to have the soap hosed out first before anybody walked on it. Mr Schadel explained that damp mopping and wet mopping techniques explained in the manual and the processes that are followed in undertaking those tasks would not be appropriate for a situation where there was a lot of liquid soap on a floor. A mop would not be an effective cleaning method because the cleaner could not rinse out the mop.

He stated that the proper instruction that he would have given was:

Depending on the situation, if it has to be done now and I’m not there, I’m on the other side of Melbourne, I would just instruct them, normally, hose it out, do what you can and then we would follow up. If there’s any extra time involved, then that’s my problem. I’ve got to adjust her pay or their pay to suit the situation but if it’s got to be cleaned, it’s got to be cleaned.

Mr Schadel agreed that manual handling tasks must be assessed prior to any task being undertaken and that part of the risk assessment included looking at the environmental conditions. Asked whether a risk assessment about cleaning a floor covered with liquid soap would identify that there would be a risk of slipping if the person mopping the floor is to walk to the floor whilst mopping it, he replied:

Depending on the surface and what footwear they have got. If they have got the correct footwear and you’ve got the right surface, then it minimises the slip factor.

He agreed that a risk assessment would reveal that the way to deal with the spill was to get all the soap hosed out off the floor before somebody walks on it.
Frances Harris

Mrs Harris was employed at Scholastic for 12 years, initially as a cleaner but mostly as a supervisor. She was responsible mainly for another College, but supervised the school. She explained that the defendant terminated the employment of Cheryl Steiner some years ago.

Mrs Harris described the process of induction of a new employee and identified the exhibited documents as part of the package handed to an employee. Copies of the Working Safely at Scholastic and the Cleaner’s Induction and Training Guide documents were kept in folders on site in the main cleaners’ room. Those two documents were shown to cleaners who were encouraged to read them, to take them home and study them but also to refer back to them if there was ever an issue.

Although Mrs Harris was the area manager, her boss Mr Schadel also did what she did. The company’s office was in Nunawading, about 20 minutes from the school by car. By April 2005 the plaintiff was the site supervisor at the school working from 2.30 to 6.30 pm. Mrs Harris described the plaintiff’s general responsibilities, and she said that her relationship with the plaintiff was very good. She had obtained work for the plaintiff at Rowles & James, a company that she managed.

Mrs Harris’ memories of the events of 27 April 2005 were very vague. She remembered that there was an incident with the soap dispenser because the plaintiff called her and told her there was a big spill in the I block toilets. She recalled a telephone conversation with Mrs Hudspeth during the afternoon but could not recall the time or whether she had had one or two conversations. She remembered that she attended the school later that day, around 6 pm, because of a phone call from Mrs Hudspeth.

When she attended the school, she conversed with Mrs Hudspeth. She believed the plaintiff had cleaned up the mess ‘and she did say that she had done something and had felt a catch in her back’. Mrs Harris believed it to be true that this had happened while the plaintiff was cleaning up the mess. She did not recall inspecting the toilet. She did not believe that she attended the school the following day. She did not remember a telephone conversation with Mrs Hudspeth the following day. She did attend on the Friday, believing there was another incident with soap dispensers in the same toilet the night before.

Prior to April 2005, Mrs Harris had not heard that the plaintiff had surgery to her lumbar spine in America and did not know that she had any back problems.

Counsel put to Mrs Harris some options that she might have said when told about the spill. They were: ‘Can you clean it up by yourself’, and, ‘Go and get another cleaner and the two of you can clean it up’, and, ‘If it can’t be managed by the cleaning staff tonight, lock it up and we will have a think about how it’s going to be cleaned up and then we will clean it up at some later time’. She agreed that they were essentially the options open to her but she cannot remember what advice if any she gave to Mrs Hudspeth.

Mrs Harris believed that Mrs Hudspeth was an extremely conscientious site supervisor who could be relied on. She would have thought that, being the person she was, the plaintiff could handle the decision herself, that is, choose one of those three options. That was a judgment she would make for herself. Mrs Harris did not think it important to go down and take control.

Mrs Harris’ attendance at the school on the Friday night (the 29^th) could have been routine because the school is on her way home, or she may have been asked to attend, but the plaintiff would have been there to permit her access. She does not remember seeing Mrs Hudspeth on the Friday, but possibly did. She can recall that there was, on the night after the incident, another spill of the same sort in the same toilets but she did not believe that Mrs Hudspeth had cleaned up that second spill, rather she had locked down the toilet block.

She agreed that the initial soap spill was a unique experience for both Mrs Hudspeth and for her. She could not remember any similar vandalism at the school with soap prior to that night. She agreed that there was vandalism in every school in different forms. Some are the cleaner’s role to clean up, some are matters for maintenance. Soap spills, she said, were a matter for the cleaner.

When cross-examined for the plaintiff, Mrs Harris agreed that she did not now know if Mrs Hudspeth rang to ask for instruction about the mess. She did not now know if Mrs Hudspeth rang before or after she had cleaned it up, but she agreed that when she spoke with Mrs Hudspeth for the first time about the problem, the plaintiff was telling her there was a mess, not that there had been a mess, on the floor. She did not recall saying that Mrs Hudspeth should just do the best that she could at the time to clean it, but she might have.

Counsel questioned Mrs Harris about cleaning up the mess using a mop and bucket. Asked whether that was a good way to go about it, Mrs Harris responded:

WITNESS: Well, now I probably know different but as a first time thing, probably we did the best we thought at the time.
COUNSEL: She was left having to do the best she could at that time?---Yes.
COUNSEL: We have had evidence from Mr Schadel that the way to deal with a spill of liquid soap is to hose it out so you are not walking on the soap; could that have been the better way of doing it?---I truly don’t know. I never had to do it so I don’t know.
COUNSEL: The plaintiff says she was left to just do the best she could?---M’mm.

COUNSEL: As the job was in front of her, might that be so?---That is.
COUNSEL: She said the more she used the mop and bucket to try and remove the liquid soap, the more it foamed up?---With liquid soap it would.
COUNSEL: So it was not a good way of doing it?---With soap and water together, I don’t know if any way is really a perfect way.

Mrs Harris agreed that excess amounts of soap and water are not a good combination. The floor, she imagined, would become very slippery.

Counsel put to Mrs Harris her 7 June 2005 statement in relation to the events of the day. She agreed that her memory in June 2005 of the events was then much better. Counsel took Mrs Harris through a number of propositions set out in that statement and she agreed that those statements represented her recollection in June 2005. Mrs Harris accepted the following statements as correct. She agreed that in that statement she said that Linda had called her in the afternoon to advise her that there was a very big mess in the male toilets and she agreed that what she was saying was that Mrs Hudspeth had advised of its existence of the mess before she cleaned it up. Linda also told her that she informed Russell of the vandalism and showed him the mess. She said she possibly did say, ‘Do the best you can, I’ll be down later’ and when she attended at the school and was talking with the plaintiff as she went around the school grounds locking up, Mrs Hudspeth told her that as she was cleaning the liquid soap she had slipped and felt a catch in her back.

Mrs Harris agreed that in that statement she said that the plaintiff had called her on the Thursday and advised her that liquid soap was again on the floor in the same toilets, that she was upset and would talk to the business manager about closing off the toilet area as she did not have enough time to finish the clean-up. On the Friday when she attended at the school, the plaintiff advised her that even though she had put an out of order sign on the toilets the previous evening, someone had taken it off and unlocked the doors and the students had been using the toilet all day with the liquid soap still on the floor.

Mrs Harris said in that statement that she noticed Linda was limping and favouring her back. She asked if she was okay and Linda said something along the lines that she was experiencing pain in her back. She received a call from Linda’s husband the following Sunday, advising that Linda would not be coming back to work due to severe back pain. She said in the statement that the plaintiff called her on the Monday morning when she said her back was giving her grief and when she stood up she felt the pain shooting down into her buttocks and legs.

Mrs Hudspeth came to work the following Wednesday for two hours but was in pain, left early to visit the doctor and that was the last day that she worked. Mrs Harris had been speaking to the plaintiff on a weekly basis and had visited her and could see that she was experiencing pain with her back, from the way she carried herself. Mrs Hudspeth completed a claim form.

Although Mrs Harris stated in the June 2005 statement that Linda did have a pre-existing back injury, ‘but I do not know the details’, she said that was something Linda told her after the accident. Linda’s work was not affected by this previous back injury and if Mrs Harris had not later been told, she would not have noticed.

Mrs Harris did not know at the time to tell Mrs Hudspeth to hose the soap out, as Mr Schadel had suggested he would have told the cleaner. She did not know how Mrs Hudspeth would go about doing her best. In hindsight she agreed it would have been helpful for her if she had rung Mr Schadel to ask what could have been done in the situation. She said, ‘using a mop and bucket with water and soap was not a good combination’.

Counsel concluded cross examination by asking:

At the time Mrs Hudspeth rang you, did it not occur to you that the liquid soap on the floor might be posing a hazard to her if she tried to clean it up?---I don’t know what I thought at the time. Obviously, I didn’t realise or I would have supported her in a different way. I don’t know.

Barbara Hudspeth

Barbara Hudspeth was a teacher’s aide and the former wife of Stephen Hudspeth. The defendant had employed her until about 2006, and she cleaned the J block. She described her induction by Frances Harris when she commenced work. She played a role in getting Mrs Hudspeth the job at Scholastic because her ex-husband came to her and asked if she could help out. She said she did not know about Mrs Hudspeth’s prior back injury, only discovering about it afterwards.

Barbara Hudspeth described hoses with a twisting nozzle being available to clean a toilet floor. She said they were not high pressure hoses. She had not observed anything of the events of 27 April, and only came to know about that afterwards when Frances Harris told her about it. She said that vandalism was a problem at the school that affected the work of the cleaners. There had been other occasions when liquid soap had been thrown all over the floor and, despite representations, the vandalism continued. The school took their time to do anything effective about soap spills but it had stopped eventually, long after Mrs Hudspeth was injured.

Brendan Watson

Until he left at the end of 2006, Mr Watson was the deputy principal of staff at the school. He was responsible for staffing, for industrial relations, for human resources management and for occupational health and safety. Mostly, his evidence was not relevant to the case between the remaining parties in this proceeding, however the defendant sought to rely upon certain aspects of it.

Mr Watson held a Graduate Diploma in Human Resource Management and Industrial Relations, which covered occupational health and safety. He had a Masters Degree of Human Resource Management and Industrial Relations, and a Masters of Business Administration, and all of these degrees had units of study in occupational health and safety. He had also completed a five day training course.

Mr Watson provided a general reference addressed to ‘To whom it may concern’ about the defendant’s performance of its cleaning contract. The reference was favourable and included a statement that the defendant had very clear training manuals that had been provided to and reviewed by Mr Watson. He based his opinion expressed in the reference on that review.

Russell Saunders

Mr Saunders absolutely would have remembered the soap spills had they happened two days running. He again said he had no recollection of attending the toilets and saying, ‘Oh my’ or, ‘Oh God’ and hearing Mrs Hudspeth say to him, ‘It's going to take a while to clean this up’, or, ‘I'll do the best I can’ and he didn't know if any action had been taken to identify the culprit or seek recompense for the damage. He could not recall any significant event relating to soap dispersed all over the male toilet in the I block in April of 2005. Mrs Hudspeth did not report to him that a soap dispenser had been damaged by fire. Had that occurred, he would have gone to one of the leadership groups at the school, and talked to Mark about it but he didn't recall doing any of that. He would have taken a report about fire extremely seriously because of the consequences.

He had no recollection of following up on a fire in that toilet block but he did say it wasn't a part of the school that he regularly visited. He couldn't recall that Mrs Hudspeth had told him that she had had a slip or a fall in the I block toilets and he didn't think that the degree of vandalism in the toilets was very high. Mr Saunders had been present at the meeting of the health and safety committee on 14 May 2003 and confirmed from the minute of that meeting that there was a request from students for refillable soap dispensers, which were later fitted.

Taken to the reference Mr Watson had provided for Scholastic, Mr Saunders agreed with Mr Watson's sentiments about Scholastic, although he said he himself had not seen the training manuals.

Mr Saunders left the school in May 2005 and was first asked to recall the events of April 2005 in about 2010. He accepted that it was appropriate for the plaintiff, upon discovery of such a mess, to go and seek out Mark, and that if he wasn't there, to speak to Mr Saunders. Mr Saunders saw the plaintiff in the office quite a bit, so she could have spoken to him, but he didn't recall being shown the soap on the floor.

Mr Saunders accepted if there was soap on the floor, it was going to be slippery. He didn't know when foaming soap was introduced and whether it was available in April 2005. He had never heard the suggestion that for the price of about $200 some lacquer could be put across the step to a make it more slip resistant.

Mark Siwek

He didn't recall a soap dispenser being in a bag in his office. He explained that ISS Hygiene managed the hygiene at the school. They serviced the toilets by maintaining the quality of the toilets; they looked after the qualities of the water tanks and the sanitary bins. They supplied and refilled the soap dispensers. He didn't have any training in hygiene products and neither did his staff. He said:

The school relied to the expertise of ISS in this regard.

He was shown an ISS document, an account deletion request for the removal of 14 soap dispensers. It was dated 1 November 2005 with the notation to reinstall the soap dispensers next year. Mr Siwek explained that this was to reduce the cost of the hygiene contract, as the unit cost of the dispensers was $75, so there was a total saving of $1,050.

The soap dispensers were no longer maintained or installed in the boys' toilet to stop the misbehaving by unidentified boys vandalising the soap dispensers and he said they had since been replaced without further problems to that extent. When Mr Madder asked Mr Siwek some questions, he agreed that ISS fills up the soap dispensers but he couldn't comment about the price of the soap dispensers. He said ISS would replace them as part of its contract and they were filled every four weeks, ISS being paid quarterly in advance. He couldn't comment on pre-2005 soap dispenser issues.

He said the contract with ISS was re-signed in May 2005 on the same terms as before. A further 32 soap dispensers were installed at some point after the contract was re-signed. Cleaning up a spill of liquid soap on the floor would be a risk and within his duties. He would want to know about it and he would want it rectified.

Mr Siwek said there was no allocated yard duty for the I block toilets after hours and the school had no system for detecting if there was vandalism, say involving a large soap spill in I block toilet, between 3.30 and 4.00 in the afternoon. Mr Siwek did not believe Russell spoke to him about a spill in the toilets on the 27th but it was possible this could have occurred and his recollection had failed with the passing of time. Mrs Hudspeth could have sought him out about the spill but on 27 April he was with the auditor. He didn't recall speaking to her on 28 April. If there was something dangerous, he would have remembered it. He can no longer remember any conversation with Mrs Hudspeth due to the effluxion of time. He did not accept there was a significant degree of vandalism throughout the college or that there was regular graffiti. He said on occasions there would be obstructions thrown into the toilets but he said this was very insignificant.

Taken to the message for Keith in the Red Book, ‘Mark and I have discussed this’, Mr Siwek did not remember this discussion. He said it was possible he may have forgotten.

Keith Jenner

Mr Jenner did not recall reading the relevant entry in the Red Book, but agreed he must have because he had answered it. He expected he would have read the note at about 7.40 am on 29 April. He would have gone into the toilets and run his feet over the floor to check that it wasn't slippery. He would have concluded that and returned to write, ‘Seems okay’ in the book. If he had found the floor covered in soap he would have put an out of order sign on the door so it could not be accessed and would have written, ‘Still slippery, please address’ in the Red Book for the cleaners and would not have left the toilet open to be used by the boys. If there had been an out of order sign on the toilet block when he had arrived to unlock it, he would have investigated the toilet and checked the Red Book.

Mr Jenner located a hose hanging in the cleaners' cupboard in the disabled toilet near I block that could have been used in the boys' toilet attached to the tap above the urinal.

Mr Jenner checked the Red Book every day and responded when he checked it. Looking again at the note, it was not significant.

He just saw it as a request from the cleaners that he check the floor and he did.
Liability findings
Was Scholastic negligent?

The defendant accepted that it owed the plaintiff a duty of care as her employer and that the standard of care required was to use such care as is reasonable in the circumstances to ensure that its employees were not injured. The contest at trial was whether there was any breach of that duty. The defendant contended that the plaintiff’s case was based on three particulars of negligence; failing to provide a safe system of work, inadequate supervision, and failing to provide a safe place of work, although many more insignificant particulars had been given. The defendant sought to draw comfort from the absence of an allegation that that the plaintiff was inappropriately trained by the defendant. The defendant submitted that the plaintiff’s account of the incident was too uncertain for the court to be satisfied that there was negligence.

The duty of an employer, recently restated by the High Court in Czatyrko v Edith Cowan University,[4] is:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.

[4][2005] HCA 14; (2005) 79 ALJR 839 at 842-3, [12].

The defendant characterised the soap spill as extreme, because it fell outside the scope of its manuals and training programs. The defendant submitted that the plaintiff devised the method of cleaning up the spill without consulting her supervisors, who would have advised her to adopt a different method of cleaning. In Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd,[5] when applying the general statement of principle from Czatyrko, Ashley JA added an observation that is presently pertinent. Even in an extreme case, an employer’s duty to provide a safe system of work is not discharged by leaving it up to its employee to devise the system.[6]
[5][2006] VSCA 63.
[6]Ibid, [9].

As Osborn JA explained in Pasqualotto v Pasqualotto,[7] in McLean v Tedman,[8] Mason, Wilson, Brennan and Dawson JJ said:
[7][2013] VSCA 21, [18]-[19] (citations omitted).
[8](1984) 155 CLR 306.
The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.
The duty of care that an employer owes to an employee may vary according to the particular susceptibility of an employee to injury. If the employer knows that the employee has a predisposition to injury then the employer must take special precautions to avoid that injury.
The latter issue of the defendant’s knowledge of the plaintiff’s predisposition to injury was in issue in the trial, but so too was the former issue. The defendant submitted that the plaintiff was negligent in taking up a mop and bucket to clean up the spill, but an employees’ inadvertence in that respect was no answer. If there was a foreseeable and significantly inherent risk taking up a mop and bucket to clean up the spill, then, as the majority observed in McLean v Tedman:[9]
In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence. The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.
And later,[10] the court added:
More recently, in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, the Court in its unanimous judgment said (at p 873):
The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task.[11]
[9]Ibid, 311 (citations omitted)
[10]Ibid, 312.
[11]See also Kiriwellage v Best & Less Pty Ltd [2013] VSCA 355.

The plaintiff submitted that the issue of negligence could also be approached in the manner suggested by the New South Wales Court of Appeal in Dib Group Pty Ltd t/as Hill & Co v Cole.[12] In that case, the worker was employed by a labour hire company and, in the proceeding, an occupier unsuccessfully sought contribution from the employer. The employer was in breach of its duty of care but the breach was not causative on the injury. Examining the scope of an employer’s duty, Basten JA stated:[13]
[12][2009] NSWCA 210
[13]Ibid, [25].

The authorities ... suggest that matters relevant to the scope of an employer's duty to take reasonable care for the safety of its employee can often be identified by reference to the following questions:
(1)Did the circumstances which gave rise to the employee's injury require some antecedent conduct on the part of the employer which was not taken?
(2)If so, did the conduct fall within the scope of the obligation -
(a)       to provide proper and adequate plant and equipment;
(b)       to engage reasonably competent workers or contractors, and
(c)       to provide a reasonably safe system of work?
(3)If so, and the circumstances were within the immediate control of the employer, did the employer fulfil those requirements, either itself, or through its employees, agents or contractors?

[28][1994] HCA 4; (1994) 179 CLR 332, 350.

In Seltsam Pty Ltd v Ghaleb,[29] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:
[29][2005] NSWCA 208 [103].

(a) In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b) The Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c) The Court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.[30]

[30]See also Crown Insurance Services Pty Ltd v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-659; [2005] VSCA 218.

Ipp JA explained the interaction of the Malec and Watts v Rake principles. His Honour said:[31]

What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
As was pointed out in Newell v Lucas, the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.

[31][2005] NSWCA 208 [104]-[108] (citations omitted). Followed in NSW in Varga v Galea [2011] NSWCA 76 and Ridolfi v Hammond [2012] NSWCA 3 and in Victoria in Smith v Gellibrand Support Services Inc [2013] VSCA 368.

There is a close relationship between this issue of proof of a relevant pre-existing injury and evidence that forms the basis for an allowance for the vicissitudes of life. The distinction was explained by the Court of Appeal in Smith v Gellibrand Support Services Inc.[32] The appeal concerned the adequacy of a Watts v Rake charge to the jury. The Court of Appeal was satisfied that the evidence did not establish with a reasonable measure of precision what the pre-existing condition was at the time of injury and what was its probable future development and progression. Accordingly, the plaintiff’s pre-existing back condition was put to the jury as one of a series of conditions bearing on the risk of vicissitudes affecting the plaintiff’s future earning capacity. Each of the conditions that the defendant contended ought to be taken into account as relevant vicissitudes were sufficiently established on the evidence for this purpose. It was then a matter for the jury to determine what if any account should be taken of these matters. The court analysed the authorities that I have already referred to.[33]
[32]Ibid.
[33]See also Winston v Roach [2003] NSWCA 310.

Application to the evidence

The defendant adduced no medical evidence in chief at trial. It admitted before the jury that it had evidence from an occupational physician, a neurosurgeon, an orthopaedic surgeon, and a psychiatrist. None of these witnesses were called and no explanation was proffered for why they were not called. The plaintiff submitted that I should draw a Jones v Dunkel inference that these doctors would not support the defendant’s submissions on quantum, particularly its submission based upon Watts v Rake principles.

I am satisfied that the plaintiff could not work because of her American injury between 1996 and 2000, but there is no evidence supporting the submission that she was unable to work due to the consequences of the American injury after she emigrated in August 2000. I accept the plaintiff’s evidence that her workers compensation claim had ‘closed out’ and that her back was no longer symptomatic. Although she did not work, she was not able to do so because of her immigration status. She only obtained permanent residency and the right to work after she re-married and before she started with Scholastic. Although the medical evidence was to the effect that the arthrodesis in the USA failed to achieve a sound bony union, the surgery had achieved a resolution of her 1996 injury. The critical issue was whether that unsound partly fused lumbar arthrodesis was bound to fail.

The defendant submitted that although the plaintiff claimed to have ‘come good’ the medical evidence was otherwise. In particular, the defendant relied on the attendances on Dr Carter in 2002 and 2004, described above. The CT scan in 2002 reported:

laminectomies at L4/5, grade 1 spondylolisthesis at L4/5 and sciatic and lower limb symptoms which would be attributable to the L4/5, L5/S1 discs… [he would attribute the pain] to the protrusion and pressure on the nerve.

The flare up in symptoms was significant, described as ‘a flare up of lower back pain, left sciatic pain, right lower limb pain which could be coming from the protrusion pressing on the nerve from before’.

I accept the opinion of Mr de la Harpe that there was a significant issue with the plaintiff’s lumbar spine that was independent of the injury suffered in April 2005. The orthopaedic specialists described her lumbar spine as supported by a fibrous union that lacked the structural strength that a proper fusion should have provided and which was ultimately provided by the surgery in 2006. The CT scan in 2002 showed a reasonable amount of bone mass from the American surgery but also that it was incomplete. The CT scan in July 2005 revealed adjacent segment disease at L5/S1. The consensus of orthopaedic opinion was that American surgery failed of its own accord and did not achieve the desired outcome of a solid bony fusion of the plaintiff’s lumbar spine, which, in that condition was aggravated by the trauma of 27 April 2005. I accept that the evidence established with an appropriate measure of precision what the plaintiff’s pre-injury condition was.

However I do not accept that the defendant established that the plaintiff’s poorly fused lumbar spine was bound to fail or when that might have occurred. I was not persuaded that the consensus of the orthopaedic evidence was that the pseudoarthrosis would necessarily fail. The defendant relied firstly on the evidence of Mr de la Harpe who opined that the effect of the trauma on 27 April 2005 was that the injury had aggravated her pre-existing degenerative condition and her pre-existing incomplete union and caused it to become more symptomatic. He accepted that adjacent segment disease in the lumbar spine of a person with a failed fusion may come to a degenerative state, rejecting the cross-examiner’s suggestion that it was a likely development. Such deterioration is seen over the long term but whether a lumbar spine becomes symptomatic or whether something needs to be done was a different question. Counsel put the proposition directly.

COUNSEL: Is it likely that it would have become symptomatic in time having regard to the state of that arthritic change that observed in the MRI scan? --- With or without the injury you mean?
COUNSEL: Yes? --- It's very difficult to say whether it would become symptomatic or not…
COUNSEL: Given the failed nature of the surgery on the first occasion and what I think you express is a failed union on the second occasion, it would likely become symptomatic with the passage of time? --- Not necessarily. We would certainly see degenerative changes on serial scans, if you like. Whether it becomes symptomatic or not, we don't know why some of them do become and why some don't. Often there's been a traumatic trigger.

Counsel returned to the issue, but Mr de la Harpe did not necessarily agree that it was only a matter of time before the plaintiff would become symptomatic. In his view increased degeneration did not necessarily translate into symptoms. He declined to translate the prospect that the plaintiff would have come to the surgery in the absence of any incident on 27 April 2005 into a percentage. The surgery on 11 March 2006 was not undertaken because it was inevitable, but in the context of the plaintiff’s presentation and history, to try and improve her quality of life. Mr de la Harpe resisted counsel’s attempt to pin him to a numerical assessment of the risk that the plaintiff would have found herself in the like position absent the trauma on 27 April 2005. All he would say was that there was a risk that adjacent segment disease may have become symptomatic in the future. He would not give a percentage risk or ascribe any number.

Mr de la Harpe did agree that cleaning was an inappropriate vocation for a person with a failed lumbar fusion. Doing physical work increased the risk of having further surgery but he had no history that physical work escalated her back pain. Mr de la Harpe did not regard the history given by Dr Carter as evidence of escalating risk. He emphasised that the occurrence of the accident on top of the type of physical work that the plaintiff was doing increased her chance of needing revision surgery. It was the injury that significantly increased her risk of further surgery, emphasising that she fell, hyperextending her spine, which dramatically escalated her symptoms that failed to settle with conservative management.

Mr Turner said:

We confirmed that the fusion wasn’t solid. We confirmed that there were a lot of arthritic changes in the facets joints at the L3-L4 level and part of the laminectomy was partly to ensure that we could identify where the screws were going to make sure that they ended up in the right spot, but also to confirm that none of the nerves were actually being pinched.

He also said:

These problems have been largely resolved by the surgery and the ongoing problems represent chronic pain syndrome.

Mr Turner did not necessarily think the surgery would have had to be done regardless of the operation. If she was severely symptomatic, then yes, but if she had only intermittent issues, she may not have required further surgery. In his opinion, the joint was not fused before the accident and the purpose of the March 2006 operation was to fix what had gone wrong with the US operation. However, Mr Turner said there is no way of knowing whether this surgery was required without the accident and there was no real certainty that it was required, simply a possibility that she could have required it, not a real prospect.

Mr Khan said that the diagnosis before Mrs Hudspeth’s March 2006 operation was that the accident at work had disrupted the pre-existing degenerative spondylolisthesis at L4-L5 level and caused flare up in the facet joint arthropathy and pre-existing asymptomatic degenerative changes bilaterally at the L3-L4 facet joints. The need to have the fusion at L3-L4-L5 in March 2006 was consistent with the disruption and flare up from the accident.

The injury in April 2005 caused the tear of the acetabular labrum in the left hip. Mr Khan disagreed with Mr Brazenor’s opinion that the need for further surgery proceeded from the failed fusion itself, not from the temporary exacerbation. Mr Khan rejected as a hypothetical statement Mr Brazenor’s opinion that revision surgery was highly likely regardless of the incident.

Mr Dooley said that Mrs Hudspeth sustained a lumbar spine strain involving some musculo-ligamentous damage and probably some aggravation of a pre-existing pseudoarthrosis at L4-L5 of her spine in April 2005 but all of her ongoing symptoms in the lumbar spine cannot be explained. The severity of her ongoing pain symptoms is not consistent with the degree of organic injury. She did not suffer any alteration in the spine structure in April 2005. She did not sustain a labral tear in her left hip in the accident, which was normal degenerative change.

Mr Brazenor did not believe that the incident as described was capable of severe and irreparable exacerbation of Mrs Hudspeth’s condition that would require the double front and rear fusion that she had. The need for the surgery and the consequent symptoms proceeded directly from the failed US fusion.

I am not persuaded that if the plaintiff had not suffered the injury in April 2005 there is evidence with some reasonable measure of precision of the future consequences for the plaintiff of her pseudoarthrosis, both in terms of the nature of those consequences and of the prospect of their development. The defendant has not discharged this evidentiary obligation, and based on the evidence as a whole in assessing the plaintiff’s damages, I make no specific allowance by a discount for any prospect of the plaintiff requiring the surgery that she had in March 2006 because of her pseudarthrosis, independently of the April 2005 accident.

The possibility of revision surgery absent the accident was largely hypothetical. The plaintiff had enjoyed an active lifestyle for nearly 5 years following her recovery from the US surgery, and for half of that time she was working as a cleaner. In the absence of a more specific assessment than that provided by Mr de la Harpe, Mr Turner and Mr Khan, the possibility of symptomatic adjacent segment disease or the need for revision surgery for her pseudarthrosis must properly be assessed as bearing on the risk of vicissitudes affecting the plaintiff’s future prospects.[34]
[34]Malec v Hutton (1990) 169 CLR 638, 645.

For these reasons, I do not accept the defendant’s submission that the failed US surgery was to a significant degree productive of the symptoms of which the plaintiff has complained since April 2005. Not only is it not inevitable that the plaintiff would have required the surgery she underwent in 2006 but the evidence does not persuade me that the prospect of revision surgery was more than a hypothetical possibility. Further, I am not persuaded that the accident simply accelerated the plaintiff’s complete disablement from the US surgery. At its highest, all that the defendant established was that in considering the vicissitudes of life, this plaintiff faced a possibility that she may have developed back pain symptoms from her pseudarthrosis that became unmanageable and indicated revision surgery.

The defendant submitted that when the plaintiff before the jury sought pain and suffering damages in the range $350,00-$450,000, she amalgamated all of the consequences of the failed surgery and her other injuries to her knees and shoulders. Making proper allowance for the injuries for which the defendant could be held responsible and the exigencies, particularly the inevitable prospect of revision surgery the appropriate sum for pain and suffering damages was no more than $150,000. On the other hand, the plaintiff submitted that the proper assessment for pain and suffering damages was $400,000.

I reject the defendant’s contention that the plaintiff’s submission must include all of the plaintiff’s pain and suffering arising from all her injuries and conditions. The plaintiff tendered an updated report from Dr Mitchell at the remitted hearing. Following a consultation in November 2013, Dr Mitchell reported that the plaintiff presented with severe pain in both shoulder joints but worse on the right, which he considered a frozen shoulder. She complained of pain and swelling in her right knee and pain in both hips, much worse on the left side. Dr Mitchell concluded that degenerative changes in her hips were secondary to her original injuries and her knee was possibly a separate issue. The incidence of frozen shoulder could be related to diabetic neuropathy, an unconfirmed diagnosis noted by others. Dr Mitchell also reported that the plaintiff was doing relatively well with her stimulator, undertaking a pain management program and having intermittent injections in various joints. Subsequent assessment ruled out inflammatory arthritis, her stimulator was reprogrammed in search of a better result for her left hip, and she submitted to further radio-frequency treatment.

Dr Mitchell confirmed that the plaintiff is suffering from widespread neuropathic pain, sacroiliac joint pain and bilateral hip joint pain, with some articular cartilage damage and subcortical cysts in the left hip. It is probable that she will require some form of definitive treatment of her hip joint at some stage. It will require ongoing radio frequency neurotomies of her sacroiliac joints. Dr Mitchell confirmed his opinion that the accident in April 2005 remained the source of these injuries. He also confirmed that the plaintiff continues to be unable to work and struggles to look after herself. The plaintiff’s lack of mobility significantly affected her capacity to do household chores, self-care and enjoy any recreational and social activities.

The defendant submitted that Dr Mitchell’s report evidenced the natural progression of the degenerative process from the plaintiff’s original injuries in the US. No proposition was put to Dr Mitchell in cross-examination to support this submission and I do not accept it. The defendant contended that the bulk of the injuries now referred to by Dr Mitchell are outside the scope of the pleading. However, the plaintiff pleaded the injuries on which she relied. Save for Mr Brazenor, the unanimous medical opinion was that there had been a lower back injury of significance on 27 April 2005. That is the first of the plaintiff’s pleaded injuries. I am satisfied that the accident on 27 April 2005 caused the second pleaded injury to the plaintiff’s left hip. The plaintiff gave evidence of pain extending into the left hip joint on a number of occasions and I prefer the evidence of Mr Khan that there was an explanation of sufficient trauma to cause such an injury in the plaintiff’s description of her slipping and twisting action to that of Mr Dooley. Further, I accept the evidence that widespread neuropathic pain emanating from a significant lower back injury can complicate the diagnosis of a hip injury. The evidence of Dr Kaplan well supported the third category of injury, the plaintiff’s psychological reaction to her injury. I have set out the evidence of the pain and suffering consequences of these injuries and it is on that evidence that my assessment is made.

Having regard to the totality of the medical evidence and in particular to the evidence of the plaintiff and her husband, I assess the plaintiff’s pain and suffering damages in the sum of $350,000. In reaching that assessment, I have taken particular regard of the following matters. First, I am persuaded that the plaintiff made a good recovery from the initial injury in the USA and the subsequent surgery that was performed. While I accept that the plaintiff was disabled and suffered significant pain for a considerable time, she ultimately made a good recovery and became asymptomatic. The active lifestyle that she pursued once she immigrated to Australia reinforced that conclusion. I am persuaded that the plaintiff did not initially work in Australia because of her immigration status and that her attendances on her general practitioner between 2004 and the accident are consistent with a successful recovery, in terms of symptoms and function, from that surgery. Although the plaintiff experienced episodes of symptoms, these episodes were infrequent and appropriately managed. The plaintiff was pain free and not taking any drugs for at least six months prior to the accident.

The plaintiff underwent an unusual procedure, being operated on consecutively by two specialist orthopaedic surgeons performing a posterior and anterior fusion. I am satisfied that the plaintiff suffered complications and difficulties post-operatively. Her condition had developed into high levels of pain and lack of mobility following the accident, which precipitated the advice to her that she has this surgery. Notwithstanding that the surgery was technically successful, her pain levels have remained. The plaintiff had left hip surgery in July 2007 and is likely to need further surgery for that injury in the future.

As I stated when discussing Watts v Rake, in assessing damages for pain and suffering I have considered the possibility of later deterioration in her pseudarthrosis and to the possibility of degenerative adjacent segment disease.

The plaintiff is substantially medicated and I have already described her medication regime. It is reasonable to infer from this regime utilising morphine-based medications that the plaintiff suffers a high degree of debilitating pain and has now done so for approximately 9½ years since the accident. Further, the plaintiff has had to endure repeated radio frequency neurotomies, joint injections, the spinal stimulator, and other procedures. The plaintiff’s evidence, that of her husband and of her current GP, Dr Agaskar, all confirm that the plaintiff continues to experience a very high degree of debilitating pain.

I have set out above the evidence of the impact on the plaintiff’s life of her injury and her pain levels, which I accept. She has lost the capacity for employment, the ability to derive enjoyment from social interaction with co-workers. Her mobility is significantly constrained. She has lost her capacity for sexual relations. She no longer can engage in social and recreational activities that she particularly enjoyed such as an outdoor lifestyle and an interest in gardening. The plaintiff spends large periods in bed and uses crutches or a walking stick for mobility. Her weight has increased by more than 30%.

The defendant challenged none of these pain and suffering consequences in cross-examination. I am persuaded that these pain and suffering consequences are directly attributable to the injuries that the plaintiff sustained on 27 April 2005. The defendant submitted that there was no clear anatomical explanation for the continuance of the plaintiff’s pain. However, the preponderance of the medical evidence, which I prefer, is that the plaintiff’s pain is real and genuinely experienced by her as a chronic pain syndrome. The onset of the plaintiff’s chronic pain syndrome followed the surgery of March 2006 and was caused by the accident.

Although the plaintiff recently complained of pain and swelling in her right knee, which may in all the circumstances, be discounted, there is no suggestion that the arthroscopy of her right knee was unsuccessful. I am unpersuaded that the defendant has established any alternative cause for other injuries. The suspicion of inflammatory arthritis has been rejected and there is no evidence confirming the possible diagnosis of diabetic neuropathy. The defendant failed to discharge an evidentiary onus to show that any of these other conditions beyond the plaintiff’s pleaded injuries can be attributed to some other cause. Moreover, the defendant has not demonstrated the plaintiff’s prognosis in respect of such conditions. At its highest, the issue of further non-compensable injuries was not demonstrated to be a matter of distinct possibility although I will consider those matters when assessing the vicissitudes and future exigencies that the plaintiff faces.

Pecuniary loss damages

The principal issues in respect of pecuniary loss damages were retirement age, whether the plaintiff could have obtained better employment and the proper allowance for exigencies. Before turning to those issues, I state my finding that the plaintiff has been incapable of working at all since the accident in April 2005 and remains wholly incapacitated. I bear in mind that some orthopaedic surgeons assessed her as capable of light clerical duties on a part-time basis achieved by a graduated and monitored return to work. I do not accept such assessments as anything more than a reflection of their views that the plaintiff should not be in pain or on narcotic painkillers following technically successful surgery. As I have stated, I accept that the plaintiff suffers a high degree of debilitating pain appropriately medicated. Mr Hudspeth accurately assessed the plaintiff’s employment prospects. She will not work again.

The defendant submitted that realistically the plaintiff would not have worked beyond 60 and she turns 59 on 14 December 2014. The defendant submitted that I should reject the notion that the plaintiff may have worked to 67 or beyond or found other more remunerative employment as was reflected by adjusted instructions given to Mr Plover. It may be that the solicitor’s original instructions to Mr Plover to assume retirement at 65 and continuing employment as a cleaner were not based on specific instructions from the plaintiff and were given before the plaintiff’s instructions about her intentions and her efforts to find alternative employment were taken. In all but exceptional cases, I would not be inclined to draw that inference. Notwithstanding that there were exceptional features in the performance of the plaintiff’s original legal practitioners in this case; I do not draw that inference.

Mr Plover’s first report was dated 16 September 2010 and correlated with updated particulars of loss dated 20 September 2010. The trial of the proceeding was set for 14 October 2010. It is inconceivable that her solicitors a month out from the trial would not have taken the plaintiff’s instructions concerning pecuniary loss. The plaintiff changed her mind about her employment and retirement options since the first trial. I accept that the plaintiff may have been uncertain about Australian practices. I also accept that the plaintiff wanted to work and enjoyed working. There was no reason for her to give up work. Mr Hudspeth rejected the suggestion that he was about to retire, to become a ‘grey nomad’. He intends to work until his late 60’s and his employer has no policy of a compulsory retirement age. The plaintiff submitted that the trend, in policy terms is, towards encouraging employees to work to a later age, but that submission was not based in evidence. I am unable to find that policy to be applicable in cleaning or similar work. I do not accept that such a policy is the reason that Mr Plover altered his calculations. The plaintiff’s solicitors instructed Mr Plover to alter his calculations.

I remain unpersuaded that the plaintiff was likely to continue in employment beyond the age of 65, even if her husband had continued to work. The plaintiff’s life prior to the accident was active, with many interests, and she was likely to have moved to an active retirement. By age 65, her local friendship group would have grown, reducing the social attraction of working and possibly introducing peer pressure in favour of retirement. She has children and grandchildren in the USA. However, I am also unpersuaded by the defendant’s submission that the plaintiff would have retired at 60. The pressure to retire before 65 would most likely have come from the plaintiff’s lower back, but that, for reasons already given, is a matter warranting a greater discount for contingencies and will be taken into account in that way. I find that the plaintiff, but for the accident, would have worked to her 65^th birthday.

The plaintiff’s evidence about seeking alternative employment does not persuade me that it is probable that she would have found another job in a different field, although I accept that it is possible. There was a prospect of advancement in her employment with the defendant but the evidence about that prospect was vague. The plaintiff was a site supervisor, well regarded by her employer and by Mrs Harris. The evidence will not support a specific finding and in accordance with the principles in Malec v Hutton and I am unable to quantify that possibility. However, I am persuaded that the plaintiff’s enthusiasm for work and for improvement in her employment support a possibility of advancement to higher remuneration with less manual labour. As such, this possibility is a positive countervailing consideration to the negative prospect of deterioration in her pseudoarthrosis that I will take into account in assessing a proper discount for exigencies.

Mostly, possible calculations of the plaintiff’s economic loss expressed by Mr Plover in his updated reports of September 2014 were based on assumptions that were not established, namely retirement at 67 and improvement in her employment conditions after six months, that is, by October 2005.

Working from her tax assessments, the defendant contended that her taxable income at 30 June 2005 was $14,716 per annum or $253 net of tax per week. Her weekly statutory superannuation entitlement was $27.63 per week. The evidence of Mr Plover, the actuary was that her wage at 30 July 2012 would have been $371 net. The defendant increased the gross wage by 3% per year to bring the figures to 30 July 2014, contending that her present net weekly loss was $406. At 30 July 2014, her weekly statutory superannuation entitlement was $40. The defendant submitted that these amount be averaged and multiplied by 492, the number of weeks from the accident to the date of the remitted hearing. Wages ranged from $253 to $406 (average $330) and superannuation entitlements from $27.63 to $40 (average $33.81). Thus before vicissitudes, the past lost wages was $162,360 and the lost superannuation entitlements was $16,634.52.

This submission may be compared with Mr Plover’s evidence at trial and with part of his updated September 2014 report. In September 2014, Mr Plover estimated the plaintiff’s past lost earnings and superannuation to 13 October 2014 at $189,000. This assessment excludes any allowance for residual earnings. I find that the plaintiff has not received any earnings since the accident, apart from WorkCover payments that are disregarded. I prefer Mr Plover’s evidence to the defendant’s submission and I assess the plaintiff’s past economic loss at $189,000.

Mr Plover assessed the adjusted net weekly earnings that the plaintiff would have been receiving as a cleaner on 13 October 2014 at $417.80. Discounted by 6% from age 58 to retirement at 65, future loss of earnings (exclusive of superannuation contributions) was $125,300, before exigencies. Mr Plover did not calculate the plaintiff’s future loss of superannuation contributions from October 2014 to age 65. His calculation to retirement at age 67 was $14,100. In October 2012, his calculation to retirement at age 65 was $14,750 and to age 67 was $18,000. Taking all of these figures into account, I assess the plaintiff’s future pecuniary loss at $136,500.

These assessment exclude exigencies to which I now turn.

Exigencies

In Club Italia (Geelong) Inc v Ritchie[35] the Court of Appeal accepted that, in Victoria, as a rule of thumb, the discount for vicissitudes of life in personal injury cases is usually of the order of 15% while emphasising that each case depended on its own facts.
[35](2001) 3 VR 447, 464 [57].

In assessing the extent to which damages are to be discounted, the court is required to take into account a range of possible future occurrences both adverse and favourable to the plaintiff, having regard to the evidence. The contingencies that are usually considered include sickness and accident, loss of, or improvement in employment prospects, or the chance of some other misfortune (or fortune) that may appear in the circumstances. Further, a long prospective period for an assessment, or where the plaintiff’s future prospects are not illuminated by evidence of opportunities past and present, may warrant a larger contingency.

The evidence in respect of relevant considerations has been noted above. The plaintiff accepted that a greater discount was warranted in the circumstances and suggested 20% for future loss only, with no discount for past loss. The defendant contended for 30% at trial but at the remitted hearing submitted a sliding scale for discounting future pecuniary loss starting at 5% if loss was calculated to retirement at age 60 through to 40% at aged 65.

Beyond the issue of the susceptibility of the plaintiff’s pseudarthrosis and adjacent segment disease to aggravation or deterioration other than due to the accident, the evidence in respect of the vicissitudes affecting her past loss was scant. In August 2012, the plaintiff had a right knee operation but whether she would have lost time off work beyond her sick leave entitlement was speculative. Before the jury, the plaintiff submitted that a discount for vicissitudes was appropriate but, on remitter, counsel contended that there was no evidence to conclude that the plaintiff would not have continued in employment through to retirement. While that conclusion might be open in relation to the plaintiff’s right knee operation, the other factors that I have referred to justify the submission originally made to the jury. I reject the plaintiff’s submission that past loss should not be discounted for exigencies.

In the circumstances, I am not persuaded either by the plaintiff that there should be no discount applied to past economic loss or by the defendant that the discount rate should be greater than 20%. Past loss is not a certain calculation. While it is appropriate to apply a greater than standard discount for vicissitudes principally due to the plaintiff’s pre-existing condition, the evidence does not support the defendant’s contentions in this respect. I am satisfied that a discount for vicissitudes should be made and I will apply a discount factor of 20%.

Conclusion

I assess the plaintiff’s damages in the following sums:

(a) Pain and suffering damages - $350,000.

(b) Pecuniary loss damages - $260,400.

a total of $610,400.

I will hear from counsel in respect of interest, costs, and appropriate orders.

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[2014] VSC 542

20 NOVEMBER 2014