Humphrey v Orthotic Technical Services Pty Ltd

[2013] VCC 132

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No.  CI-11-06100

TANYA HUMPHREY	Plaintiff
v
ORTHOTIC TECHNICAL SERVICES PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Warrnambool
DATE OF HEARING:	19, 20, 21, 22, 26 and 27 November 2012
DATE OF JUDGMENT:	17 April 2013
CASE MAY BE CITED AS:	Humphrey v Orthotic Technical Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 132

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Negligence – lifting incident – breach of Manual Handling Regulations – injury to the lumbar spine

Legislation Cited:     Accident Compensation Act 1985; Occupational Health & Safety Regulations 2007

Cases Cited:Czatyrko v Edith Cowan University [2005] HCA 14

Judgment:                Judgment for the defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird with Mr I Fehring	Drew Gleeson
For the Defendant	Mr P Elliott QC with Mr J Batten	Lander & Rogers

HER HONOUR:

Introduction

1       The plaintiff is a single mother, aged twenty-eight, having been born in March 1984.  She is the youngest of three children.  Her parents are separated and she has a number of half brothers and sisters.

2       The plaintiff was educated to Year 12 at Cranbourne Secondary School.  After leaving school, the plaintiff did a Certificate II in Business and Office Administration at Chisholm.  She pretty much finished the theory but did not go on to do the practical training required, as she got a job with Chadstone Fences and Gates, where she worked as an office all rounder for eighteen months.

3       The plaintiff then worked at Safeway for eighteen months up to January 2006.  She started work with the defendant in December 2005.  For a short time, she was working in both jobs, working up to seventy to eighty hours a week.  She then took up a permanent position with the defendant[1] at its factory premises in Seaford.

[1]Exhibit 4 – Letter of employment to the plaintiff from the defendant dated 10 April 2006 offering full-time work as an administrative assistant

4       The plaintiff’s claim in this case is that she has suffered injury to her lumbar spine and anxiety and depression as a result of lifting a heavy sheet of floppy plastic (“the incident”) at work on 22 February 2008 (“the said date”). 

5       The plaintiff’s claim is that the defendant has breached the duty of care owed to her as an employee.  She alleged that she suffered injury as a result of the defendant’s system of work and its failure to provide supervision and instruction. 

6       In particular, it was alleged that the defendant required the plaintiff to lift a heavy roll of floppy plastic (“the roll”) without any adequate assistance; failed to heed her complaint that she required assistance to lift the roll and failed to take reasonable care for her safety in the circumstances. 

7       The defendant denied negligence and alleged contributory negligence on the plaintiff’s part, in that she failed to comply with the system of work in which she had been trained; failed to seek assistance; refused the assistance which was offered to her; failed to follow instructions; performed work which was outside her normal duties without having been asked to do so; failed to comply with the defendant’s policy and failed to adhere to instructions and training properly or at all. 

8       It was also alleged by the plaintiff that the defendant breached its statutory duty to her pursuant to the Occupational Health and Safety Act and the Regulations thereunder, in particular, failing to comply with Chapter 3 - Physical Hazards, and in particular, Part 3.1, Manual Handling.

9       Sub-regulation 3.1.1(1) of the Regulations requires an employer, so far as reasonably practicable, to identify any task undertaken or to be undertaken by an employee involving hazardous manual handling.

10      Hazardous manual handling is defined as having any of the following characteristics:

(i)    repetitive or sustained application of force;

(ii)   repetitive or sustained awkward posture;

(iii)   repetitive or sustained movement;

(iv)   application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;

(v)   exposure to sustained vibration.

Duty of care and foreseeability

11      It is not disputed that the defendant, as the plaintiff’s employer, owes her a duty of care.

12      As the employer, the duty owed by the defendant to the plaintiff is set out in the joint judgment of the High Court in Czartyrko v Edith Cowan University:[2]

“… 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.  … .”

[2][2005] HCA 14 at paragraph 12

13      It is also not disputed that it was reasonably foreseeable that the plaintiff would suffer injury lifting heavy plastic alone.  The defendant had been directed by WorkSafe in 2004 to have a two person plastic handling policy directed to this manual handling concern.

Issues for determination

14      The issues which require determination in this case are therefore as follows:

(a)   Was there negligence on the part of the defendant that was a cause of the plaintiff’s injury, loss and damage?

(b)   Was there a breach of statutory duty that was a cause of such damage?

Witnesses

15      The plaintiff gave evidence.  The plaintiff’s current general practitioner, Dr Madeley, and a previous treating practitioner, Dr Stephanson, were required to attend for cross-examination. 

16      Four witnesses gave evidence on behalf of the defendant – its current administration officer, Angela Eden, former manager, Raelene Jarvis, and former employees: retired sewing machinist, Vicky Howorth, and orthotic technician, Richard Clark.

17      Both parties relied upon a number of tendered documents, which I have read.

The Plaintiff’s Evidence

18      The plaintiff’s role with the defendant was as an administrative assistant, working half the time in the office and the other half, on the factory floor, picking and packing orders.[3]

[3]Transcript (“T”) 26

19      The defendant supplied hospitals with orthotics and braces, and also plastic for moulding of casts.  Orders came in by phone or facsimile to the office and were put in a basket on the shelf beside the facsimile machine ready for picking and packing to take place. 

20      The defendant prided itself on same day delivery or the freight was free to the customer and paid by the defendant (“the policy”).  The policy was on the defendant’s website and in its catalogue.[4]

[4]T27

21      When the plaintiff started work with the defendant, she was taken through Factory A and B by Raelene Jarvis, where she was shown the shelving filled with the defendant’s products.  In cross-examination, the plaintiff disagreed she had an induction.[5]

[5]T27

22      The plaintiff was not sat down and told about safety or the priority of safety in the factory.  Initially, the only safety instruction given to her was about wearing goggles when using machinery, and there were also signs to this effect.[6]

[6]T28

23      The plaintiff was not given any instructions about lifting, nor was there any discussion about the risk of back or other injuries.  There were no signs warning about back injuries or lifting excessive or awkward weights.[7]

[7]T31

24      The plaintiff did not know about a WorkSafe investigation a year or so before she commenced work with the defendant.[8]

[8]T28

25      The plaintiff was given a four or five-page manual (“the manual”)[9] welcoming her to the job when she was made full time in April the following year.  She had to sign the back page thereof.

[9]Exhibit 5

26      The plaintiff agreed that the manual set out that the defendant “actively strives for a safe work environment” and if there was a health or safety issue, a worker was asked to please raise it with the person in charge or Ms Jarvis, and complete an incident report every time an injury was suffered.

27      The plaintiff agreed the quality of the defendant’s work was good.  In addition to the policy, its other priorities were shipping out the orders on time and not having back orders to process. 

28      The items were shipped by “Couriers Please” (“the courier”) based in Seaford, and also Australia Post.  The courier did pick ups at the factory at 8.30am, 10.30am, 12.30pm and 2.30pm, and then drove past at 5.00pm.

29      On Fridays, there was not a 5.00pm pick up, so if an order was not out by 2.30pm, it would not be processed until the following Monday.[10]  The courier took the parcels from the factory to its depot in Seaford, where the items were then sorted and went by truck to Melbourne for processing at 4.00pm. 

[10]T32

30      Ms Jarvis often reminded the plaintiff about the same day despatch.  At least once a month she discussed this issue with her.[11]  There was no discussion between them about the relationship between the policy and safety.  This issue was not discussed at any safety meeting.

[11]T33

31      The plaintiff received a first verbal warning a week or two before the said date.  That followed the defendant having to cover the $7.50 freight cost of a small foot splint ordered at 4.45pm which the plaintiff did not get out before 5.00pm because she “just was lazy”.[12]

[12]T33

32      The plaintiff was shown the handwritten order from Launceston Orthotic Services (“Launceston”) for the job she undertook on the said date (“the order”).[13]  The facsimile receipt showed the order was received at 12.07pm but that time was wrong, because the facsimile machine had not been changed for daylight savings and was an hour out, so in fact receipt was at 1.07pm.

[13]Exhibit 6 – Handwritten request for products from Launceston Orthotic Service faxed to the defendant on 22 February 2008 at 12.07pm.  Notation on the facsimile: “Please confirm receipt of fax.  Call 0413 678 817.  … Ring re freight.”  There was also a handwritten request “please leave under carport”. 

33      The plaintiff confirmed that polypropylene was the harder plastic stocked by the defendant.  It was easier to handle and did not bend.  The other plastic listed on the order was polyethylene.  It was a soft floppy plastic and called LDPE (“low density polyethylene”).[14]

[14]T35

34      The plaintiff confirmed there was an $85 freight charge on the typed invoice[15] relating to the order and if the items were not sent that day, the defendant would have to bear that cost. 

[15]Exhibit 7 - Typed invoice 20016345 for $700.70 dated 22 February 2008 to Launceston.  Steel loops and nylon touch tape, 15 sheets of polyprop, 3mms, 666 x 333, 2 sheets of polyrop 4mm, 2 x 1 metre and 1LDPE 3mm, 2 x 1 metre.  Freight $85

35      The plaintiff confirmed that on the said date, she packed four packages with matching docket numbers and she attached stickers which showed a tracking number.[16]  The plaintiff confirmed those items were collected at 3.27pm on the said date.[17]

[16]Exhibit 8 - Couriers Please tracking enquiry forms relating to the order accepted at Melbourne depot on 5 February 2008 at 7:44am

[17]T37

36      The plaintiff confirmed that after that faxed order came in, Angela Eden would have taken it out of the machine and put it in the order basket for her.  Lunch finished at 1.00pm and the plaintiff would have then gone straight into the factory to pack orders.[18]

[18]T37

37      The plaintiff then returned to the office and checked the basket at 2.00pm.  She then walked out of the office and into the back of Factory A, where Richard Clark, Christine Richards and Jeannette Clark were working. 

38      The plaintiff explained to Mr Clark that an order had come through for the low density plastic, and she asked if he could pack it while she packed the rest of the order.[19]

[19]T38

39      Mr Clark told the plaintiff that he had Leonie’s tin, Steve’s tin and he had orthotics for Paul, the owner of the defendant, to go out, and he did not have time – “could she do it?”[20]

[20]T38

40      The plaintiff described how the tins contained plaster casts of a patients’ feet from which Mr Clark made orthotic insoles.  The tins had to be on the 2.30pm courier because the patients were being fitted on the Monday.[21]

[21]T39

41      After she spoke to Mr Clark, the plaintiff had twenty minutes remaining to get the order on the 2.30pm courier, so she walked into Factory B and processed the order.  She did not see Ms Howorth on the way.  The plaintiff also did not see Ms Howorth when earlier talking to Mr Clark.[22]

[22]T39

42      The plaintiff demonstrated in the witness box the manner in which she took the 2-metre floppy plastic sheet off the shelf.  She put her two arms in front of her, slightly raised and slightly wider than her body.  She pulled out the left side of the floppy plastic sheet and then slid the left side around onto the table behind her in a single motion.[23] 

[23]T41

43      When doing so on the said date, the plaintiff described how she felt a twinge of pain in her lower back when twisting (“the initial pain”).  She then proceeded to finish packing the order. 

44      The plaintiff turned around and faced the table and pulled the floppy sheet, already on the table, from the left side.  She pulled it up to the top of the table and the right side followed, and the sheet ended up flat on the table. 

45      The plaintiff then had to roll the end of the floppy sheet over into a loop.  To get that started, she had to “use her stomach” and lie on the sheet of plastic as it was rolled, which meant her feet were off the ground.  To do this she had to use her body weight to keep rolling the plastic in a tube.  In doing so, she experienced further back pain which did not go away within seconds, as did the initial pain.[24]

[24]T42

46      There was a separate roll of plastic on the far end of the table.  After the plastic sheet was rolled up, it was sticky taped with cross tape and then the cylinder was moved to the floor and wrapped with the pull-out plastic.[25] 

[25]T46

47      The wrapping was a job normally done by Mr Clark, who is a big man – six feet two inches.  He always did the job.  The plaintiff had never done it before by herself or with anyone else.  She had not seen it done by two people, just by Mr Clark.[26]

[26]T46

48      Ms Howorth, who worked in the sewing room in Factory B, at times helped pack the flat plastic.  Ms Howorth could not see the plaintiff packing from the sewing room on the said date. 

49      Ms Howorth was not in the sewing room when the plaintiff packed the order as the plaintiff would have seen her as she walked past.  Ms Howorth would have been upstairs.[27]

[27]T49

50      The only other person in the plaintiff’s side of the factory at the time of the incident was a man upstairs above the sewing room.

51      Ms Howorth’s job on Fridays was to make morning and afternoon coffees at 10.15am, 12.15pm and 2.15pm.  At about 2.00pm, Ms Howorth would usually be in Factory A, in the staff room.

52      The plaintiff did not see Ms Howorth until after the incident when Ms Howorth put the plaintiff’s coffee at the end of the packing table and asked the plaintiff if she was okay.[28]  At that stage, the packing job was all done and ready to be invoiced.  Ms Howorth did not say anything to the plaintiff whilst she was wrapping the plastic.[29]

[28]T47

[29]T48

53      The plaintiff had not then told anyone she had been hurt.[30]  She first did so after afternoon tea, when she told Angela Eden in the office.  Ms Eden asked the plaintiff to fill in an incident form and asked her to work in the office for the rest of the afternoon.  Ms Eden then packed the last orders of smaller items.[31]

[30]T47

[31]T49

54      The plaintiff was shown a “Handling of plastic is a two person job” sign (“the sign”).[32]   The sign was not up on the said date.[33]

[32]Exhibit A – Three photographs taken of the shelving at the factory on 29 July 2012 with the sign attached to the upright

[33]T48

Cross-Examination

55      The plaintiff agreed that on occasions prior to the incident, she helped Ms Howorth with the high density plastic that did not need rolling.  Ms Howorth worked in the nearby sewing room and she would help the plaintiff to take up to three sheets off the shelf.  The plaintiff wrapped the plastic on her own and Ms Howorth just helped her lift it off the shelf. 

56      The plaintiff had been told all polyethylene plastic had to be rolled.[34]  She agreed she had been told to do some of the tasks.  She was aware the plastic sheet weighed five-and-a-half kilograms. 

[34]T60

57      The plaintiff confirmed that at the time of the incident, she was working by herself and that she believed Ms Howorth would have then been upstairs in the tearoom.  The plaintiff did not see her when she walked into where she was working. 

58      When Ms Howorth delivered the plaintiff’s coffee, the plaintiff complained to her that she had hurt herself.[35]  The plaintiff had continued working for five minutes after she was injured to finish the order.[36] 

[35]T61

[36]T61

59      The plaintiff was shown the Claim Form signed by her on 4 March 2008.[37]  She confirmed she filled it in and it was witnessed by Ms Jarvis.  The plaintiff noted on the form the incident occurred at approximately 2.00pm on the said date when her “back popped whilst rolling plastic.[38]

[37]Exhibit 1 – Worker’s Claim Form signed by the plaintiff on 4 March 2008.  Ms Jarvis completed the form for the employer and her signature was witnessed by V Howorth.

[38]T62

60      Question 25 on the form asked if there was any witness.  The plaintiff agreed she ticked “Yes” and named Ms Howorth.  When the plaintiff explained to Ms Jarvis that Ms Howorth came in just after the incident, Ms Jarvis told her to put Ms Howorth’s name on the Claim Form as she was technically a witness.  Ms Howorth witnessed the scene just as the plaintiff had finished – she “witnessed the plaintiff’s pain at the completion of packing the order”.[39] 

[39]T63

61      The plaintiff agreed that in answer to Question 23, she noted on the Claim Form that she had reported the incident to Ms Eden.  When it was suggested to the plaintiff she was now saying she reported the incident to Ms Howorth, the plaintiff explained that she wrote down Ms Eden’s name as she was the person in charge in the office who gave her the Claim Form.[40]

[40]T64

62      When it was put to the plaintiff Ms Howorth saw her wrapping the plastic on the said date, the plaintiff simply replied “That’s her recollection”.[41]

[41]T64

63      The plaintiff was shown the map in the manual and described Factory 1 to the right and Factory 2 to the left of the premises. 

64      The plaintiff disagreed that Ms Howorth had a view of what the plaintiff was doing from where she was working in the sewing room.  The plaintiff confirmed there was a wall separating the toilet and the sewing room and there was a door, like the little line she pointed out on the map, although the map was not to scale.  The little line going to the left underneath the sewing room was also a wall.[42]

[42]T66

65      The plaintiff explained she was working on the table closest to the roller door in Factory 2.  The second table did not have a roll of plastic for wrapping up the sheets, so the plastic was always rolled on the first table.  The plastic was stored closer to the top table – the map was wrong in that respect. 

66      The plaintiff did not have a conversation with Ms Howorth.  She just told her she had hurt herself.[43]  The plaintiff could not remember what Ms Howorth then said, because from there, the plaintiff followed her out to the other staff for “smoko”.  At smoko, the plaintiff told Ms Howorth again that she hurt herself pulling the plastic off and rolling it.[44] 

[43]T67

[44]T67

67      At smoko outside at 2.30pm, the plaintiff also told Ms Richards, Jeanette Clark and Mr Clark that she had hurt herself.[45]  The plaintiff agreed this was half-an-hour after Mr Clark had told her he was too busy to help her.  Those co-workers just asked the plaintiff if she was all right and, after the smoko, the plaintiff went back in and reported it to Ms Eden.[46] 

[45]T68

[46]T67

68      Ms Eden then told the plaintiff to finish the day in the office and she would pack the orders.  The plaintiff kept working until 5.00pm.  The plaintiff agreed that she filled in an incident form that day.[47]

[47]T69

69      The plaintiff was shown the Incident Report form.[48]  The plaintiff agreed she in fact completed that form on 25 February 2008. 

[48]Exhibit 9 – Incident Report form signed by the plaintiff on 25 February 2008

70      The plaintiff set out on the form that at the time of the incident, she was rolling LDPE 3-millimetre plastic.  The plaintiff noted she reported the incident to Ms Eden, whom the plaintiff agreed was in fact the last person to whom she had reported it.[49]   

[49]T69

71      The plaintiff confirmed Ms Howorth could not possibly have seen her from the sewing room at the time of the incident, as you could not see out the door from the sewing room.[50]

[50]T69

72      The plaintiff agreed with Ms Howorth that the co-workers all worked as a team, so they would help each other out and if you needed assistance you could yell out and someone would come and help you.[51] 

[51]T69

73      The plaintiff did not yell out on this occasion because Ms Howorth was not in the sewing room to ask for help.  The plaintiff did not have time to go upstairs and get her, because the order had to go out by 2.30pm. 

74      The plaintiff confirmed Ms Howorth was upstairs and to have called her, the plaintiff would have had to stop what she was doing, go upstairs and find her and return to her work area and, as a result, the order would not have been out on time. 

75      It was about 2.10pm by the time the plaintiff went out and approached Mr Clark.  She agreed the Claim Form and Incident Report were wrong where the time of the incident was said to be around 2.00pm.  [52]

[52]T70

76      The plaintiff went on to say that two people would not be able to roll plastic because of the awkwardness of it.  She confirmed she had not done that task before, but had watched Mr Clark do so.[53]  The plaintiff agreed that although it was awkward handling the plastic, she did not go and ask someone for help.[54]

[53]T71

[54]T71

77      The plaintiff denied that Ms Howorth offered to give her a hand.  She was not in Factory B and the plaintiff did not see her until she brought the coffee in after the plaintiff had finished the packing. 

78      The plaintiff did not say “No, I'll be all right” to Ms Howorth because she did not see her.  The plaintiff denied Ms Howorth said “You’re not supposed to do that” when the plaintiff took the sheet off the shelf and started to roll it on her own.[55]

[55]T71

79      The plaintiff confirmed she had mentioned to Ms Howorth that she had hurt her back once Ms Howorth put the coffee on the table and then again outside at smoko.[56]

[56]T71

80      The plaintiff knew that working on plastic was a two person job with the flat plastic but not the “polys” (floppy), because Mr Clark always did that job on his own, so it was a one person job.[57]

[57]T72

81      The plaintiff did the rest of the order on the said date on her own.  She did the rigid plastic first.  The 3 millimetre 666 x 333 sheets did not require two people, they were short sheets.  The 4 millimetre plastic was a job for two people and the plaintiff did it on her own because she had to get the order out.  She knew she should not have done it by herself.[58]

[58]T73

82      The plaintiff put the sticker tracking numbers on the items and the order.  She wrote “Ring re freight” on the order form.  She could not remember confirming receipt of the faxed order but she must have done so.  The plaintiff confirmed the order was going to Launceston and the freight cost was $88.00. 

83      The plaintiff was shown the defendant’s photograph of the sign.[59]  She could not recall signs like that affixed anywhere to the shelving for the plastic before she was injured, be it on a shelf or the table.  She did not remember having seen the sign prior to the said date.[60] 

[59]Exhibit 2

[60]T75

84      The plaintiff was taken to her Answers to Interrogatories.[61] In answer to Interrogatory 11, the plaintiff answered “Yes” to a question whether, prior to the date, she had observed signage at the premises providing for instruction for the handling of plastic sheets.  She deposed:

“I recall the sign.  It said handling plastic is a two person job.  Raelene Jarvis provided training in the job which was taught a one person or two person job.”[62]

[61]Exhibit 3

[62]T76

85      The plaintiff said this answer was not different to her viva voce evidence, as she had not seen a sign on the shelving or the table before.  The sign was in a procedure book folder in the office.   

86      The plaintiff agreed she knew there was an instruction at the premises that handling was a two person job and she knew, handling the plastic on her own, she was going against that instruction.[63]

[63]T77

87      The plaintiff was shown her affidavit in support of her serious injury application sworn in September 2010.[64]  She deposed therein that lifting the polyethylene sheet was not a job she normally did.  Ordinarily, Mr Clark did the work with the plastic.  She had never once done it on her own before.[65]

[64]Exhibit 16

[65]T78

88      The plaintiff explained that she had watched Mr Clark do the floppy plastic.  She denied her affidavit suggested she had done the floppy plastic with the assistance of someone else.[66] 

[66]T79

89      Whilst the plaintiff deposed that she asked Richard for assistance but he told her that she should do it on her own, Mr Clark actually asked her on the said date, could she do it on her own.[67] 

[67]T79

90      The plaintiff agreed there was no mention in her affidavit of any complaint to Ms Howorth or to other workers at smoko about being hurt.

91      In terms of training, Ms Jarvis had shown the plaintiff once when the first order came through after she started to work.  The defendant would get an order for floppy plastic on average once every three months.[68]  It had been explained to the plaintiff that Mr Clark did the rolling up and he did all the rolling of floppy plastic.[69] 

[68]T81

[69]T81

92      Both the high and low density plastic could be rolled up.  The plaintiff would be watching Mr Clark wrap the floppy plastic, waiting for him to finish because she was ready to wrap it in the other plastic to ship it.[70]

[70]T82

93      The plaintiff could not recall Ms Eden helping her with packing during the morning of the said date.[71]

[71]T82

94      The plaintiff told Ms Eden she was packing the plastic order when she was injured.  She did not remember Ms Eden’s response.[72]   The plaintiff could not remember Ms Eden saying, “Why didn’t you get me to help?”  The plaintiff could not remember answering, “I don’t know”.[73] 

[72]T83

[73]T83

95      The plaintiff confirmed that on occasions prior to the incident, she worked with the rigid plastic with another worker and on her own.  It did not depend on the size of the sheet whether she got help or not, and she would not always get help.  The plaintiff would often pack the plastic on her own, despite having seen the sign.[74] 

[74]T83

96      The plaintiff explained the rigid plastic was wrapped up like a present.  On occasions, she had wrapped it with Ms Eden and Ms Howorth and also had wrapped it with Mr Retschko, a director of the defendant. 

97      The whole order on the said date took the plaintiff twenty minutes.  The plaintiff did the floppy plastic at the end of the order when there were a few minutes of work left in the order.[75]  She did not get help then because she had five minutes until the courier picked up the order and she still had to invoice.[76] 

[75]T84

[76]T84

98      The plaintiff confirmed it appeared the courier did not pick up the order until 3.27pm and that there was not a courier run at 5.00pm on Fridays, as was the case Monday to Thursday.[77]

[77]T85

99      For collection, the workers packaged the boxes just in front of the factory door and the courier would open the door, scan the boxes and take them.  The plaintiff agreed the courier could come later sometimes, when it was put to her there was not any pressure about the deliveries by 2.30pm.  However, the plaintiff confirmed that was the time by which orders had to be processed on the said date.[78]

[78]T86

100     The plaintiff knew the plastic in the order was used in plaster casts.  She thought there was more urgency in that delivery because it included a cast of a patient who was actually in hospital waiting on the plastic to be moulded to them.[79] 

[79]T87

101     This particular order was not for a hospital, it was for a private small practice where the client would not have stocked up on plastic like a hospital.  She thought the client was placing an order on a Friday to get it Monday.  The notation, “Please leave under the carport” meant the delivery was actually to the client’s home address because it was urgent.[80]

[80]T87

102     Having gone for a view of the factory after the incident, the plaintiff explained the factory layout had changed.  The two tables and storage area have now moved into the other side of the other factory where the office was.  The table shown in the defendant’s photographs was the other way round, with the plastic roll at the top end.[81]

[81]Exhibit 2

103     The plaintiff confirmed that on the said date, she used both hands to pull out the sheet to go left to guide it onto the table and that was when the initial pain came, twisting around to the left.  She agreed she got further pain when she rolled up the plastic on the table.

104     The plaintiff confirmed wrapping the rigid plastic like a present.  With an order of fifteen sheets, she would take up to seven sheets off the shelf as one group and then put them on the table and wrap them.  That wrapped plastic sat on the table until the courier arrived.  The plaintiff would pack orders for Australia Post after that time but not for the courier.[82] 

[82]T96

105     The courier would know there was something to be picked up because a little sticker would be put on the factory door.  The plaintiff had put that sticker on the door indicating a 2.30pm pick up when she was doing the first round of orders after lunch on the said date before the order. 

106     The plaintiff denied she could have packed the low density floppy plastic flat as it was too floppy for the courier to handle.  Floppy plastic was always rolled.  She could not have put floppy sheets in with the two sheets of rigid plastic, because the parcel was at its weight limit with two sheets.  Low density plastic is always rolled because of its flimsiness.[83] 

[83]T97

107     The plaintiff then said she had taken low density plastic off the shelf and knew how flimsy it was.  She did so when she would get it ready for Mr Clark to roll.  The plaintiff agreed she could get the floppy plastic off the shelf onto the table on her own.[84]

[84]T97

108     Mr Clark never packed anything flat.  He only did the polyethylene.  The plaintiff would normally have done the rigid sheets with someone else.[85]

[85]T98

109     The plaintiff had lunch between 12.30pm and 1.00pm on the said date.  She did not see the order until she had completed the first round of orders after lunch.  She could not remember talking to Ms Eden about the relevant order before going out to do it.[86]

[86]T100

110     The plaintiff agreed if something was particularly urgent she was told that.  When it was suggested to her this was not an urgent order, she said it still had to go out, otherwise the policy did not apply.[87] 

[87]T100

111     The plaintiff agreed no one told her the order was urgent but the policy had been drummed into her.[88]  She agreed that if the order was urgent it would be written on it or Ms Eden would bring it out to the factory for the plaintiff to give priority.

[88]T100

112     The plaintiff had not been made aware of the WorkSafe visit and the requirement for signs, nor the defendant’s compliance with that notice.[89] 

[89]T100

113     The plaintiff did not know what time the courier came to pick up the material but the “Couriers Please” sign that she had put up in the window said “2.30pm”. 

114     The plaintiff would dispute Ms Jarvis saying that she did not tell the plaintiff that the order had to be out by 2.30pm and that goods could still go out at 3.30pm.[90]

[90]T101

115     The plaintiff confirmed the Launceston client paid the freight cost.  The cost was borne by clients a fair bit with back orders but not with items on the shelf.  The plaintiff agreed normally freight was charged.[91] 

[91]T104

116     The plaintiff agreed it was her job to do the invoice.   When she got the order form, she would have done the invoice and then gone out to pack it.  The plaintiff disagreed this was the wrong way to do the invoicing when pushed for time.  She often did the invoice first and denied Ms Jarvis had told her that was the wrong way to do it and that she should always pack things first.[92] 

[92]T105

117     It was possible the plaintiff could go to pack things and the items not be there, but MYOB had a system on it that stock counted.  It did not matter at what stage the invoice was done.

118     The plaintiff confirmed that she had received an official warning a week or two before the said date when she did not pack an item for Australia Post, which came in at 4.45pm.  That was her second warning from the defendant.  The first was about smoking, which was given to all staff.  There was termination of employment if there was a third warning.[93]

[93]T106

119     The plaintiff agreed that Ms Jarvis and Ms Eden had told her she should have assistance packing rigid plastic.[94]

[94]T108

120     In re-examination, the plaintiff described how the policy was “drummed into her,” in that at least once or twice every month, Ms Jarvis would remind her that orders were first priority and had to be out on the day.[95] 

[95]T133

121     The words “leave under the carport” suggested the order was urgent enough to be left unattended, as that the client needed it as soon as possible.[96] 

[96]T133

Damages

122     The only back problem the plaintiff experienced before the incident was caused by carrying her schoolbag.  She saw a doctor on that occasion.[97]

[97]T49

123     The plaintiff had a right leg problem with a lipoma in February 2007.  Her leg was then swollen and her right leg and foot were numb.

124     Doctors were not sure of the cause of the problem.  They said it could have been a sciatic problem or a pinched nerve.  The plaintiff’s general practitioner referred her eventually to Mr Bird in Hamilton.  Mr Bird later removed the lipoma.

125     The plaintiff had an MRI scan in Frankston in May 2007 in relation to that condition.  She did not have any symptoms of back pain at all at that time. 

126     In cross-examination, the plaintiff explained that she had forgotten about an injury whilst working at Safeway at the end of 2006.  She was then unloading a pallet of slabs of beer and had back pain for about three days.  She did not remember having time off work and she did not have physiotherapy.[98] 

[98]T92

127     The plaintiff denied the MRI scan in 2007 was for her back, and said it was her leg.  She agreed she had pain through her right leg at that time.  She did not remember it being low-back pain. 

128     The pain was from the plaintiff’s bottom down through into the back of her knee and into her foot.  The word “sciatica” was used at that time to explain what was happening to her right foot.[99]  The treatment in 2007 was only from her general practitioner.  The plaintiff was prescribed Panadeine Forte.  She had three days off work at the time. 

[99]T93

129     The plaintiff confirmed that her leg problem essentially went away with the removal of the lipoma 2007.  She still has swelling but no pain.[100] 

[100]T108

130     In re-examination, the plaintiff confirmed that she did not have physiotherapy, chiropractic treatment or time off work following the Safeway incident.[101] 

[101]T13

131     In examination-in-chief, the plaintiff described how, over the weekend after the incident, she was in quite a lot of pain.  She took some of her mother’s painkillers and spent time mostly in bed or in the shower.[102] 

[102]T49

132     The plaintiff confirmed she saw Dr Williams after the incident.  He prescribed Panadeine Forte and arranged an MRI scan.  He also recommended bed rest and physiotherapy, which the plaintiff started in March at Angus Physiotherapy.   

133     Dr Williams prescribed a number of medications, including OxyContin at one point.  The plaintiff was referred to Mr D’Urso, who advised conservative treatment.  The plaintiff was then put on Tramal, slow release.[103]

[103]T51

134     The plaintiff saw Mr Das at the Seaport Medical Clinic, Portland, after having moved in with her partner, Andrew, in late 2008 to a property at Tyrendarra (“the farm”), a small town outside Portland. 

135     The plaintiff also had physiotherapy treatment from Karen Wilde in Warrnambool on one occasion and then she started treatment with Sandra O’Loughlin.

136     In early 2009, the plaintiff was prescribed OxyContin and Mersyndol Forte by the Duff Street Medical Clinic.  She was travelling between the farm and her mother’s home in Cranbourne, attending doctors at both locations.

137     Dr Stephanson at Seaport organised a CT-guided injection into the plaintiff’s back in September 2009, from which she obtained no relief.

138     The plaintiff currently sees Dr Madeley at the Casey Medical Clinic, Cranbourne, once a month.  He prescribes Tramal, 100 milligrams, four a day, Panadol Osteo and Mersyndol, night strength.[104]

[104]T52

139     The plaintiff has only recently recommenced treatment at Angus Physiotherapy as her treater there could not work on her back during the pregnancy.  The plaintiff’s baby was born in September 2012.  While pregnant, the plaintiff’s painkiller dosage was increased and she was also prescribed quick release painkillers. 

140     The plaintiff confirmed that as a teenager, she was very active and did a lot of sporting activities.  She last played competitive netball at the age of sixteen.  Her family often went fishing and camping and they now get together at least once every two months, meeting at Tooradin to celebrate birthdays and have barbecues and go fishing.[105]

[105]T53

141     When the plaintiff was a child, she and her family played backyard sport of various descriptions and she was generally pretty active.

142     Until the December before the incident, the plaintiff enjoyed ten pin bowling competitively.  She played and trained once a week.  That had been the case for a year, having had a break before then for two years.  The plaintiff won trophies at various stages.  She had a short time off bowling when she hurt her right leg.[106]

[106]T55

143     The plaintiff can still go ten pin bowling and has done so with her nephews, but she uses a ramp to support the ball as the bowling motion hurts her back.  She shot a few hoops of basketball with her nephews and a couple of times kicked a football at the park for about ten minutes, but after that ended up having a really bad night’s sleep and had to get up and have a shower.

144     Since the incident, in 2010, the plaintiff has done voluntary work for Richard Franklin, an Aboriginal activist, including office work, diary planning, organising his speaking commitments and also arranging bookings of his band.

145     The plaintiff attempted to return to work with the defendant on one occasion in March 2008 and she was fired in April 2008 when the doctor went to put her back on.[107]

[107]T57

146     The plaintiff’s lower back pain is constant now and if she does too much housework or carries her child for too long, or does anything she should not, she ends up with a “nerve pinch” that runs from down behind her left leg.[108] 

[108]T58

147     The plaintiff needs a lot of help from her mother.  If she did not live with her mother, she would not be able to look after her two children on her own.  The plaintiff and her mother do the combined housework, cooking and shopping, but her mother does the harder work.  

148     The plaintiff can stay in the one position for half-an-hour without having to move.  She no longer goes to the pictures.

149     The plaintiff had had a couple of attempts at pain management but because she moved from Melbourne to the farm, she could attend Epworth and she could not get approval for a pain management program in Portland.  She only attended Epworth once for an initial assessment.

150     In cross-examination, the plaintiff confirmed there was a discussion about her returning to work in March 2008 after the incident but there was not really a job for her.  She had a couple of meetings with the defendant and then ceased work.[109] 

[109]T109

151     Work Able became involved about eight months later and did an assessment and suggested a job as a ticket seller at a movie theatre.

152     The plaintiff applied for real estate work and other work in administration in 2009 and 2010 but she could not do the work.  She also applied for work with a freighting company and other types of office administration work.  If she had been offered those jobs, she would have taken them.[110]

[110]T110

153     At the time of injury, the plaintiff was living at the farm with Andrew.  The plaintiff lived there for a couple of months until early 2009, when she moved back to Cranbourne.  She then moved to Heywood, where she lived for over two years in a unit.  While there, she applied for a real estate job.  She had a relationship on and off with Andrew during that time.

154     In 2011, the plaintiff returned to Cranbourne to be with her mother because of the pregnancy.  Andrew stayed at the farm.  The plaintiff was planning to go back to the farm after the birth of her first child.  She continued to see Andrew on and off whilst living in Cranbourne. 

155     The Department of Human Services ordered Andrew to live apart from the plaintiff after the children were born because of his past.[111]  The children were given to the plaintiff, but she was not to see Andrew with them.  He only has access when the plaintiff’s mother, who works full time, is present.[112]

[111]T115

[112]T115

156     The plaintiff confirmed she started an accounting course in 2009 but only did fourteen of twenty-six units.  She has looked into further study for which she could use these credits.

157     The plaintiff confirmed she had problems lifting her twelve-kilogram one year old.  She still does the shopping and travels with the children. 

158     The plaintiff does not really have much of a social life.    

159     The plaintiff was referred to Epworth and approved for physiotherapy and occupational therapy, but then moved to Warrnambool.  She did attend St John of God Frankston Rehabilitation Hospital and treatment was recommended but she was living in the country.  The plaintiff could not remember Dr Sedal suggesting pain management.[113]

[113]T121

160     The plaintiff confirmed that she could not handle strangers and did not like the concept of a group therapy session.  She was referred to Dr Vallipuram, and two appointments were cancelled.  She did not know the third had been rescheduled.

161     The plaintiff now weighs a lot less.  At one stage her weight had increased to 138 kilograms and she now weighs nearly 93 kilograms.  She has done exercises since the birth of her second child. 

162     The plaintiff presently sees Dr Madeley about monthly, and saw the obstetrician in his practice during her pregnancy. 

163     The plaintiff was on NewStart and is now on a Single Parent’s Pension.

164     The plaintiff still has contact with her family on quite a regular basis.  She had not attempted to go to the pictures since the incident.  She could not sit through a film without adjusting and shifting.  Sitting for too long starts up a pinching nerve in her back.  She can go for a two or three hour’ drive but she has to get out of the vehicle, adjust and stretch.[114]

[114]T127

165     The plaintiff confirmed she had seen a psychologist, Gillian Yee, on referral from her doctor when she felt depressed and useless being off work.  The plaintiff agreed that she had a couple of problems when she saw her but denied they were major or that there were a lot of problems.  She agreed she had improved psychologically.[115]

[115]T127

166     The plaintiff agreed she was looking at further study, hoping to retrain and get a job when her children get older.  She has a computer and she is computer skilled.  She is on Facebook. 

167     The plaintiff continues to take four Tramal a day, and did so during her pregnancy.  The medication was only swapped the week before the hearing.  Norspan patches have been added and the plaintiff also takes Panadol Osteo and Mersyndol, night strength.[116]

[116]T129

168     The plaintiff walks, but not every day.  She had physiotherapy treatment at Angus Physiotherapy once a week, using her free Medicare entitlement until the birth of her second child in September 2012.

The Plaintiff’s Medical Evidence

169     Dr Williams from the Dove Street Medical Centre provided a report dated 15 June 2008.  In his view, the plaintiff suffered degeneration of the fifth lumbar disc with no neural compression.

170     Dr Williams thought the plaintiff’s prognosis was guarded and she had not improved since the incident.  He noted the plaintiff was considerably overweight and sedentary, so those factors tended to delay recovery and give a prognosis.

171     Dr Williams thought the plaintiff’s injuries arose out of her work when she pulled plastic off a shelf and developed acute back pain.  She then twisted through 180 degrees to roll the plastic on the floor and, as she did so, she developed even more pain.  The plaintiff had two days off work and she worked for a couple more days, and had not really worked since.

172     The plaintiff described chronic pain that she rated at 3 out of 10.  She could sit for fifteen minutes and walk for up to two hours before pain became a problem.  She woke at night after two hours with back pain.

173     Dr Williams noted there was no history of spinal or neurological disorder while working for the defendant.  He then thought the plaintiff’s injuries had not stabilised.  He considered there was no likelihood of further surgery or treatment other than hydrotherapy, physiotherapy and walking.  In his view, there was not a likelihood of deterioration of the condition unless the plaintiff lifted abruptly and incorrectly.

174     On 15 July 2008, Dr Williams reported the plaintiff’s back injury had stabilised, in the sense there was no more deterioration.  He thought she may improve with physiotherapy treatment.  He noted the plaintiff was keen to return to light duties in non-physical administrative areas when she continued her rehabilitation.

175     Mr Paul D’Urso, neurosurgeon, reported on 19 June 2008, having seen the plaintiff initially on 22 May 2008.  The plaintiff described chronic back pain which she rated as 3 out of 10.  She denied leg symptoms and gave a similar history to that recorded by Dr Williams.

176     Mr D’Urso noted the history of lymphoedema.   He noted the plaintiff was then taking OxyContin, ten to fifteen milligrams a day.

177     On examination, the plaintiff had normal power in her lower limb.  Her reflexes were symmetrical and her plantar responses were downgoing and sensation was intact.  Straight leg raise was to 60 degrees bilaterally and she could stand on her heels and toes.  She could flex her spine, but only very poorly.  Mr D’Urso noted the 2008 MRI scan which demonstrated a degenerate L5-S1 disc with annular tear and no neural compression.

178     Mr D’Urso diagnosed discogenic lumbar back pain related to degenerative change and annular tearing of the L5-S1 intervertebral disc.  He recommended the plaintiff participate in a rehabilitation program with hydrotherapy under the supervision of a physiotherapist, a dietician and a psychologist. 

179     Mr D’Urso stated he would remain somewhat guarded in relation to the plaintiff’s prognosis.  He noted that at her relatively young age she had developed an injury to the disc.  She seemed to be very disabled from that, more than one would expect.  Although he had recommended rehabilitation, he suspected the plaintiff would have a degree of incapacity into the foreseeable future.

180     Mr D’Urso thought repetitive bending, lifting and wrapping had contributed to the development of the plaintiff’s symptoms.  He suspected there was a degree of pre-existing disc degeneration, but thought it was plausible the work she was performing had led to an annular tear.  He then thought the plaintiff appeared to still have a moderate degree of acute pain and he did not think her condition was stable.  He anticipated a further three months of rehabilitation would be recommended to more fully evaluate her progress.  He did not think surgery would be advisable.

181     Mr D’Urso thought the degenerative lumbosacral disc disease was likely to progress slowly throughout the plaintiff’s lifetime, noting it was an age-related process.  He noted deterioration would be accelerated by heavy physical or manual work.

182     Collette McCarthy, physiotherapist from Angus Physiotherapy, reported on 7 July 2008.

183     In terms of history, the plaintiff said she was not able to pack any further orders after the incident and remained in the office.

184     The initial consultation at Angus Physiotherapy was on 10 March 2008.  Ms McCarthy commenced treating the plaintiff on 31 March 2008 when she described ongoing lumbar spine pain affecting her sleep.

185     Ms McCarthy noted the plaintiff’s symptoms fluctuated over the next few weeks.

186     Ms McCarthy noted the plaintiff was seen by a WorkCover doctor at Cedar Court in May as part of a multi-disciplinary assessment.  She understood that doctor significantly increased the plaintiff’s morphine dosage, and recommended eight cortisone injections and encouraged her to perform regular maximum flexion by exercises.  Ms McCarthy noted that was a contradiction to the extension based program she had been undertaking, during which the plaintiff had shown some progress.

187     Ms McCarthy then noted the plaintiff would be keen to return to work in some capacity, but Ms McCarthy believed she would be unable to return to a position requiring prolonged movement, or bending or twisting.

188     Ms McCarthy believed the manner in which the plaintiff had been required to perform some of the work-related packing tasks increased her risk of sustaining a discogenic injury.

189     Mr Das reported on 22 March 2009, having first seen the plaintiff on 26 September 2008.  On examination, she was tender in the lower back and straight leg raising was to 45 degrees bilaterally. 

190     Mr Das noted on 7 January 2009, the plaintiff was complaining of neck ache radiating down the left upper limb to the fingers.  Clinically, he could not find any pathology, but requested investigations, which were normal.

191     Mr Das saw the plaintiff on 23 January 2009 and noted apparently two weeks earlier, she was exercising with a large exercise ball, fell forwards and jarred her back.

192     Mr Das noted the plaintiff went to Melbourne to see her own doctor, who organised brain and spinal cord MRI scans in January 2009.  Mr Das referred the plaintiff Dr Sedal, neurologist, in Melbourne.

193     Mr Das provided a further report in November 2009.  He then noted that the plaintiff had seen many specialists and her lower backache had not changed and was still persistent.  He noted one specialist recommended that the plaintiff attend a rehabilitation centre, but the plaintiff declined because she had a social phobia. 

194     Mr Das reported that the plaintiff saw a dietician in August 2009.  He noted her weight was 114 kilograms.  Mr Das reported that when he last saw the plaintiff in November 2009 there was no progress of her lower backache.

195     Sandra O’Loughlin, physiotherapist, reported in April 2009, having first seen the plaintiff in December 2008.

196     There were attendances on 5 December 2008, January 2009 and March 2009.

197     With respect to prognosis, Ms O’Loughlin thought it likely the plaintiff would experience ongoing symptoms of back pain with intermittent leg pain.  She thought it probable the plaintiff’s ability to carry out lifting and bending activities would be permanently restricted, and prolonged sitting would remain difficult. 

198     Accordingly, Ms O’Loughlin thought the plaintiff was permanently incapacitated for her pre-injury work.  She thought appropriate long-term work restrictions should include no sitting for longer than half-an-hour; no lifting greater than two kilograms; no bending to below knee height and no reaching above shoulder height.

199     Dr Sedal reported in May 2009, having seen the plaintiff once on 3 March 2009 at the request of Mr Das.

200     In addition to a history of the incident, the plaintiff also told Dr Sedal of a further accident with a Fitball in January 2009, after which sciatica went from going down to her knee to down her toe.  She had a repeat MRI scan which showed the disc tear had progressed to a disc bulge.

201     The plaintiff was then taking 200 milligrams of slow release Tramadol, OxyContin, Mersyndol Forte and Mersyndol Day Strength for pain.  The plaintiff reported no particular stresses.

202     On examination, there was marked restriction of back movement, and movements of the left leg were hesitantly carried out, but Dr Sedal thought this was due to discomfort rather than neurogenic weakness or paralysis.  He did not find any sensory abnormality in the legs and neurological examination of the upper limbs and cranial nerves was normal.  There was also restricted movement.

203     Dr Sedal noted the MRI scan of the brain and spinal cord showed minor desiccation and bulging of the L5-S1 disc to the left, with minor compression of the left S1 nerve root.  He noted thoracic and cervical spine scans were normal.

204     In his opinion, the plaintiff had suffered an L5-S1 disc injury in the incident and he believed that she had irritation of the left S1 nerve root, but without formal signs of radiculopathy. 

205     Dr Sedal did not consider the plaintiff’s condition to have stabilised, particularly as she had deterioration due to the Fitball incident.  He thought her prognosis would be guarded because of the prolonged period of symptoms following the incident and the treatment difficulties, which he noted.  He stated that under ideal circumstances, the plaintiff would be treated in a multidisciplinary rehabilitation centre.  He noted, unfortunately, she said she would not be able to go to such a centre because she had a phobia about being with other patients and people and could not cope. 

206     As this appeared to be the only alternative, Dr Sedal advised he would try to reproduce as many elements of such a program on a one to one basis using the staff at the local hospital.  Dr Sedal spoke to Mr Das about it and he said he would do everything he could to help.

207     Dr Sedal then thought the plaintiff was not fit for her previous work or any alternative work.  He thought, in the long term, it was likely she would never be able to do work involving lifting or straining, or work where she had to have her back in a fixed position for long periods or, alternatively, might require rotation or twisting of her back.

208     Dr Sedal thought surgery was unlikely.  Given the L5-S1 disc problems and resultant restriction of movement, he considered there would likely to be spinal impairment but that would depend on the success of treatment and any spontaneous improvement.

209     Mr Patrick Chan, neurosurgeon and spinal surgeon, wrote to Dr Hattingh on 8 October 2009, thanking her for referring the plaintiff.

210     In terms of history, the plaintiff told Mr Chan that she worked in the office after the incident.  She also told him about the Fitball incident.  The plaintiff reported her lower back pain remained constant and severe.

211     On examination, axial loading test was positive and thoracic rotation test was negative. Superficial and deep palpation both exacerbated the pain.  Differentiated straight leg raising was positive.  Whilst supine, straight leg raising test was positive bilaterally at 10 to 20 degrees.  Lower limb neurological examination revealed non dermatomal sensory reduction throughout the left lower limb.

212     Mr Chan noted the January 2009 MRI scan showed degenerative disc desiccation and bulging at L5-S1.  This was left sided and causing minor displacement of the left S1 nerve root.

213     Mr Chan thought there was no indication for neurological intervention.  He considered the plaintiff would benefit more from low stress aerobic exercise.  He had taken the liberty of referring her to Dr Vallipuram to optimise her pain management.  He thought the plaintiff would eventually require a rehabilitation program which aimed to improve her overall function.

214     Mr David Walker, physiotherapist, reported in November 2009 that he had been treating the plaintiff since May of that year.  The plaintiff had only been able to have gentle lumbar spine mobilisation and massage, which she stated had helped.  Mr Walker reported objectively, the plaintiff had not improved much but treatment enabled her to function more effectively and take fewer painkillers.

215     Mr Walker advised it would be appropriate to decrease the treatment to once a week for three months and review the plaintiff physically within that twelve-week period and possibly decrease further treatment if she was coping with it.

216     There was a physiotherapy management plan dated 4 May 2009 completed by Mr Walker.  He proposed twenty four visits over twelve weeks from 4 May to 2 August 2009.

217     Dr Hattingh reported in September 2010 that the plaintiff continued to present at Seaport with leg and back pain which proved quite difficult to manage with medication and conservative measures.  Dr Hattingh advised the plaintiff had been experiencing numbness in her left leg which caused her to have a fall in May 2010.  Dr Hattingh noted the plaintiff had started studying and that had improved her mental health considerably as she was getting quite depressed from sitting home all day.

218     Dr Hattingh thought the clinic had not gained much ground in improving the plaintiff’s chronic back pain.  She noted the plaintiff’s medication had been altered and she seemed to manage at present.  She noted the plaintiff was consulting Dr Stephanson at the clinic regarding a nerve root injection which had been suggested by a specialist.

219     Dr Stephanson, from Seaport, reported in July 2011 noting he was involved in treating the plaintiff monthly from 25 August 2010 to 12 April 2011.

220     Dr Stephanson noted, as was well documented, that the plaintiff had a chronic lumbar back complaint which resulted in daily lower lumbar back pain with associated left lower limb pain and occasional sensorimotor disturbance, probably of S1 distribution.  He noted the lower limb symptoms were more concerning and troublesome for the plaintiff.

221     During the time of treatment of the plaintiff, attempts were made to improve her analgesics and hence, her functionality.  Specifically, the addition of transdermally delivered slow-release analgesia, namely, Norspan patches, was attempted with some success.

222     As a means of further reducing the plaintiff’s pain, a localised nerve root injection of the L5-S1 nerve root was attempted, but that failed to provide any relief.

223     In addition, steps were taken to aid in weightloss with a view to also reducing the plaintiff’s back and leg symptoms and improving her functionality.  She lost 10 kilograms (100-90) during Dr Stephansons’s care.  Hydrotherapy was also initiated, as was a TENS machine, both of which had moderate benefit.

224     Dr Stephanson noted the plaintiff also developed Clinical Depression during that time with a significant contributor being chronic pain and consequent impaired mobility and functionality.  She was commenced on Lexapro with some improvement.  He then attempted to wean her off Tramadol which could at times aggravate depressive symptoms, but she moved away prior to her complete wean off being achieved.

225     Dr Stephanson noted the plaintiff, significantly, also became pregnant in February 2011 and he was able to provide information regarding her back to her treating obstetrician.

226     Dr Stephanson confirmed in examination-in-chief, that he saw the plaintiff on fourteen occasions between 25 August 2010 and July 2011.[117] 

[117]T156

227     Before Dr Stephanson first saw her, the plaintiff had seen at least two previous specialists who had recommended against surgery.  Therefore, Dr Stephanson referred her to allied health professionals, including physiotherapists.  He also sent the plaintiff to Dr Bennett for an injection, as the plaintiff had had an MRI scan which showed a small disc bulge at L5-S1, slightly encroaching on the L5-S1 nerve root.  Given she had had both back pain and left leg pain, Dr Stephanson thought it would be worthwhile trying to inject the area where the disc had prolapsed.[118]  

[118]T157

228     The plaintiff, unfortunately, did not have much improvement following the injection which was carried out in September 2009.

229     In addition to physiotherapy, the plaintiff was referred to hydrotherapy and also was provided with a TENS machine, and a dietary plan was undertaken. 

230     Dr Stephanson tried to improve the plaintiff’s pain relief and her analgesia, which he thought was inadequate.  She was on Tramadol, which was satisfactory as a painkiller, but it had the side effects of making patients feel a bit down and he was not happy to continue it indefinitely.  Therefore, he tried the plaintiff on alternative medication which had less potential for abuse.  He tried a Norspan patch and that seemed to give her a little bit of improvement, but it was only incremental and ultimately she was not happy with that level of relief and keen to return to Tramadol.[119] 

[119]T158-159

231     When Dr Stephanson last saw the plaintiff, he was a bit concerned that her limitations were getting her down.  She felt quite depressed and actually developed Clinical Depression that warranted intervention.  He prescribed some antidepressant medication, which helped her mood to some extent, two to three months before he stopped seeing her.  He could not therefore comment on her long-term benefits, but stated she did improve initially.[120] 

[120]T159

232     Dr Stephanson and other specialists had been unable to successfully manage the plaintiff’s chronic pain.  He was concerned that in the future she would need ongoing close supervision by doctors and allied health practitioners to help maintain her psychological health and optimise her physical health.  He thought her back was likely to be a very long and protracted issue that the plaintiff was going to have to battle with throughout the rest of her life.[121]

[121]T160

233     Dr Stephanson confirmed the difficulties the plaintiff had with low back and also left leg pains, with pain radiating down her left leg into her buttock, her thigh and into her calf, which he described as radicular or sciatic-type pain.  That pain was constant, and intermittently it was associated with sensory disturbance as well. He discussed the plaintiff’s analgesics and back complaint with her obstetrician when the she became pregnant just before he last saw her.[122] 

[122]T160

234     In cross-examination, Dr Stephanson agreed the plaintiff certainly does have a chronic pain condition.  He confirmed earlier referrals were essentially to neurosurgeons and their opinion was, although there was an element of pathology that could be seen on scans, they did not believe surgery would help.  He confirmed one such specialist was Mr D’Urso, who thought the plaintiff should be referred to rehabilitation in June 2008, but he understood she did not attend.[123] 

[123]T161

235     The treatment Dr Stephanson proposed for the plaintiff in Portland was to some extent like a pain management program.  However, he would have liked her to have seen a chronic pain specialist but those services were not readily available locally and were accessible to patients who were compensable or where funding was readily available, which was not the case here.[124] 

[124]T162

236     Dr Stephanson confirmed the plaintiff had also seen Mr Brownbill and she had been also treated by Mr Das in Dr Stephanson’s clinic before he took over the plaintiff’s care.[125] 

[125]T163

237     Dr Stephanson was aware Mr Das had referred the plaintiff to Dr Sedal, who recommended a multidisciplinary approach to her problems, and also that she had been referred to a neurosurgeon, Dr Chan, whom he had spoken to personally and discussed the plaintiff would benefit from more exercise and weightloss.[126] 

[126]T163-164

238     Dr Stephanson knew that Dr Chan had organised a referral to the pain management practitioner, Dr Vallipuram, and that the plaintiff did not attend, but he did not challenge her as to whether the appointments were cancelled or why she did not attend.[127]

[127]T164

239     Dr Stephanson did not know that medical expenses were paid by the insurer from the injury date until July 2011.  He knew the plaintiff had seen Dr Pilit at Epworth Hospital (“Epworth”) and attended Nathan Jones in July 2008 for one visit at St John of God Rehabilitation in Frankston.[128] 

[128]T164

240     Dr Stephanson thought it was unfair to say the plaintiff had not really had any pain management treatment because that was what he was trying to do.[129] 

[129]T164

241     The entire history Dr Stephanson received as to any previous back complaint was the first onset of back pain in 2008.  He accepted a patients’ word and essentially treated them on the history that they provided.  He had no knowledge of any back injury at Safeway or x-ray in 2005 or MRI scan of the lumbar spine in 2007.  He could not comment on the results of the 2007 MRI scan, or whether they were significant.[130] 

[130]T165-166

242     Why the plaintiff was still sore was impossible to say because the scan only showed a small disc prolapse but Dr Stephanson noted that could still cause significant pain, even though it was not big enough to warrant surgery.[131] 

[131]T165

243     Dr Stephanson was aware of the sheet of plastic the plaintiff lifted in the incident weighed 5.5 kilograms and measured 1 x 2 metres in area.[132]

[132]T166

244     Dr Stephanson agreed that the plaintiff could be categorised as morbidly obese and he knew she had weighed more before she saw him.  He agreed weight problems would certainly aggravate back pain.[133] 

[133]T168

245     Dr Stephanson used the different words, “bulge” and “prolapse” but they were the same thing.  The plaintiff told him she had left leg pain all the time and intermittently she had symptoms where the left leg would both give way and become transiently numb, lasting up to about five minutes’ duration.[134] 

[134]T168

246     Dr Stephanson did not know about any Schedule A OxyContin prescription before the plaintiff was treated by him.  He agreed that drug was addictive.  He explained Norspan patches were much less addictive; that is why he trialled the plaintiff on those rather than OxyContin.  Norspan, he agreed, was a morphine based analgesic.  The plaintiff recommenced taking Tramadol three months after the patches failed.  Dr Stephanson agreed that Tramal could be addictive.  He could not comment on the plaintiff’s current dosages of medication.[135] 

[135]T169-170

247     The plaintiff did describe she had some benefit from the hydrotherapy and TENS machine, giving her about a thirty per cent reduction in pain which Dr Stephanson described as a moderate benefit.[136]

[136]T172

248     Dr Stephanson initially became concerned the plaintiff’s mood was poor in January 2011.  He did not get a history of problems beyond her injury and related problems and he prescribed Lexapro for the first time on 20 January 2011.[137]

[137]T173

249     Dr Stephanson agreed that he actually tried to wean the plaintiff off Tramadol at one stage but she wanted to go back on it.  He did not believe she had a psychological need for it.[138]

[138]T173

250     Dr Stephanson had not conducted any tests to examine the genuineness of the plaintiff’s complaint.  On physical examination, she did have weakness in her left ankle, dorsiflexion and plantar flexion, and she had a mild weakness in that leg.  She also had an exacerbation of left leg pain upon straight leg raising, which he thought was consistent with the pain having a physical component.  He disagreed the plaintiff presented as an unhappy person with multiple complaints.  He agreed that there was a restricted range of flexion and extension as found by Mr Marshall.[139] 

[139]T175-176

251     Dr Stephanson disagreed his treatment had not given any benefit as the plaintiff had told him of some relief.  However he had not seen her later to consolidate any gains, because she moved away.[140]

[140]T177

252     Dr Stephanson agreed it was possible there could have been a number of other factors that influenced the plaintiff’s mood but he did not know what they were.  Dr Stephanson agreed that medication should be effective to treat reactive depression within six months in the ordinary sense and he would normally expect a remission of symptoms in circumstances such as the plaintiff’s back injury, but it was not always achieved.[141]

[141]T179

253     Dr Stephanson confirmed he provided certificates limiting the plaintiff’s work activity in relation to manual lifting and also prolonged sitting or standing.[142] 

[142]T179

254     Dr Stephanson had no knowledge of the plaintiff doing work, voluntary or otherwise, while he was treating her.[143] 

[143]T179-180

255     Asked whether he agreed the plaintiff had a chronic pain syndrome, Dr Stephanson said it was not a term that could be used lightly.  Essentially, if it was meant that she had developed a chronic level of pain that essentially was not able to be obviously explained by scans, he thought it was possible.  By definition, she was a chronic pain patient because she had had pain for more than three to six months.[144]

[144]T182

256     Dr Stephanson had sent other patients to pain management where the response was variable depending on the chronicity of pain and on the patient’s motivation and the quality of the specialist.  He had no concerns about the plaintiff’s motivation.  She was always punctual and complied with recommendations.  He had never requested from the defendant or its agent that there be referral and payment for a pain management course.[145]

[145]T183-184

257     Dr Oechsle, of Casey Medical Centre in Cranbourne, reported in July 2011 that she had seen the plaintiff twice in relation to her pregnancy, on 10 May 2011 and 16 June that year.  On the first visit, the plaintiff’s ongoing need for analgesics in the form of Tramal was discussed together with the safety of its use.  The second visit was a routine antenatal check and Dr Oechsle had not seen the plaintiff specifically in relation to her back.

258     Dr Madeley of the same clinic reported in July 2011. 

259     Dr Madeley saw the plaintiff twice in relation to her pregnancy and back pain on 31 May and 29 June 2011.  He noted the plaintiff had previously been seeing other doctors for management of her injury.

260     On 29 June, Dr Madeley discussed the fact that the plaintiff’s pain was worsening in association with her progressing pregnancy.  He explained to her that was a common problem for pregnant women with pre-existing back injuries due to the effect of the hormone, progesterone, which caused ligaments to loosen, a normal physiological response that allowed the pelvis to expand during birth.  Dr Madeley noted the plaintiff was taking Tramadol which had been prescribed by Dr Oechsle.

261     Dr Madeley reported on 12 November 2012 that he saw the plaintiff on 20 August when she was pregnant and she had had her baby about six weeks ago.  He noted there had been no significant change in her condition, to the best of his knowledge, since he last reported.  He noted the plaintiff had a chronic injury that was unlikely to change in the foreseeable future.  He thought, as she had recently had a baby, this also impacted on her capacity to work and she would ordinarily be on maternity leave.

262     Dr Madeley confirmed that over the last year he had been seeing the plaintiff approximately monthly.  As the plaintiff’s last visit in November, he prescribed Norspan patches and Tramadol.  He had also been providing certificates. 

263     Prior to the patches, the plaintiff had been on a slow release Tramadol and complained that her pain was not being adequately treated, so Dr Madeley  tried Norspan knowing the plaintiff had had some success with it in the past.  The plaintiff has been prescribed quick release Tramal for break through pain, but he thought the Norspan should be the primary pain reliever.

264     Dr Madeley noted because the plaintiff’s injury had gone on for a prolonged period he did not foresee any significant change.  He thought the plaintiff would require long term analgesic medication, essentially a pain management program and possibly physiotherapy for symptom relief and also she would benefit from activity modification.

265     Dr Madeley considered other medications should be considered.  He noted some of the antidepressant type medications were used for chronic pain and the plaintiff was not currently on those.  There were other pharmacological options.  Also, sometimes people try therapies, such as acupuncture and ultrasound but with a neurological problem like sciatica, the results were variable.  He considered physiotherapy would be good for short term relief.

266     The plaintiff has complained her pain has been deteriorating.  Dr Madeley noted back pain tended to be worse during pregnancy because the hormones caused a loosening of the plaintiff’s ligaments. 

267     Dr Madeley last saw the plaintiff a couple of weeks after the birth of her second child baby.  She complained that her back felt worse after the last delivery, to the extent she was taking Mersyndol, which concerned him because she was taking double the recommended dose and that could result in liver damage.

268     Dr Madeley primarily saw the plaintiff for her low back pain radiating down her left leg, like sciatica.  He confirmed she had been fairly consistent with her complaint of sciatica.

269     The plaintiff was referred to a physiotherapist in May 2012 because of complaints of persistent pain as Dr Madeley thought it was appropriate to utilise another modality to try and get some improvement.  He confirmed the plaintiff was compliant and had been agreeable and followed his recommendations. 

270     In cross-examination, Dr Madeley confirmed that Dr Oechsle at his clinic started seeing the plaintiff on 10 May 2011.  Prior to that, the plaintiff had not been at the clinic since April 2004 when she sprained her ankle.[146]

[146]T329

271     The plaintiff first attended the clinic in June 1992.

272     Between June 1992 and 14 April 2004, there was certainly no mention of a low back problem.  Dr Madeley noted that on the front page of the plaintiff’s file, a scoliosis mid thoracic was recorded but he did not know the basis of that diagnosis.[147]

[147]T329

273     There was no mention of a back problem in 1998/9 carrying a school bag.[148]

[148]T330

274     Dr Madeley first saw the plaintiff in relation to her incident injury on 9 September 2011.  By March 2012, he had seen her ten times.  He was unaware the plaintiff had previously seen Dr Williams or the Portland Clinic.[149] 

[149]T330-331

275     The plaintiff told Dr Madeley in 2011 that she had been given twelves months of physio and that treatment had ceased because WorkCover stopped funding.  He confirmed he did not think physiotherapy was helpful long term.[150]

[150]T331-332

276     Dr Madeley was unaware of the referral to Dr Sedal or Mr D’Urso.  He knew that the plaintiff had been seen by Mr Chan, neurosurgeon, who recommended low stress aerobics and referred her to a pain specialist, Dr Vallipuram who recommended rehabilitation.  Dr Madeley knew about Epworth but did not know about a referral to St John of God.[151]

[151]T332-333

277     Dr Madeley thought the plaintiff had an ongoing need for significant analgesic medication but he did not think she was addicted.  When it was suggested to him it was abnormal that her pain would increase after pregnancy, Dr Madeley disagreed, and explained the nature of chronic back injuries was that they fluctuated in severity.[152]

[152]T333

278     Dr Madeley confirmed radiology is part of the story and there are often significant pain problems with back injuries when there is little to see.  He noted the CT scan report at the time of the injection indicated a disc bulge with some minor S1 nerve root compression and that was why the plaintiff required an injection to a very precise location with anatomical target.[153]

[153]T334

279     Dr Madeley had Dr Hattingh’s records of treating the plaintiff between June 2009 and July the following year.  Dr Madeley did not have any record of an incident of back pain at Safeway or an MRI scan in 2007, but confirmed there was a very similar finding on the CT scan report of the day of the injection.[154] 

[154]T335

280     Dr Madeley noted the plaintiff’s current complaints were of left sided sciatica.  When it was suggested specialists had not found any neurological involvement in respect of the dermatomes at the L5-S1 level, Dr Madeley explained the presence of pain can indicate sciatica in the absence of hard neurological evidence.[155] 

[155]T337

281     Dr Madeley had no reason to disbelieve the plaintiff, and accepted her at her word.  He conceded it is well recognised with litigation there is potentially a component of secondary gain.[156]

Overview

566     It is not in issue in this case that it would be unsafe for the plaintiff to lift a heavy roll of plastic without assistance.  Further, in such circumstances, it is reasonably foreseeable that the plaintiff would suffer injury doing so. 

567     The large sheets of plastic, both rigid and floppy, were difficult to handle alone and the floppy plastic had its own difficulties, tending to bend when it was moved from the shelf to the packing table.[303]

[303]T241    

568     It is conceded by the defendant that lifting plastic was a two person job and that directions to that effect were given to the defendant by WorkSafe in July 2004 following an inspection that month and the issuing of an improvement notice thereafter.

569     It is not disputed that the plaintiff reported hurting her back rolling plastic on the said date.

570     The issue is whether there was negligence on the part of the defendant in the circumstances of the lifting and rolling of heavy plastic the plaintiff undertook on the said date which was a cause of her injury, loss and damage.

571     If I accept the plaintiff’s version that she requested assistance, which was refused by Mr Clark who was too busy to assist, and that she was placed in a situation that due to the urgency of the order and the unavailability of other staff, she took the task upon herself without assistance, her application succeeds. 

572     If assistance was available in circumstances where the plaintiff was aware of the danger of lifting alone and went ahead herself with that task, in the absence of urgency, her claim fails, as there has been no negligence on the part of the defendant that is a cause of her injury.

Credit

573     Before considering the specific allegations of negligence, the following are some general observations about the plaintiff’s credit and evidence.

574     In my view, the plaintiff’s uncorroborated evidence lacked credibility for a number of reasons. 

575     There were significant inconsistencies in her evidence, both in chief and during cross-examination.  In my view, her evidence did not gel very well and I do not accept she gave straightforward answers as her counsel submitted.[304]

[304]T433

576     Rather, I accept that a great deal of the plaintiff’s evidence was reconstruction, with significant matters being raised by her in cross-examination for the first time.  Further, there was no mention of these additional matters in contemporaneous documents or previous statements and affidavits of the plaintiff.

577     The most significant matter in this regard related to the reporting of the incident.

578     In evidence-in-chief, the plaintiff said Ms Eden was first person to whom she had reported she hurt her back,[305] a version consistent with the plaintiff’s Claim Form and the Incident Report.  However, in cross-examination, the plaintiff said Ms Howorth was the first person she told she had hurt her back.[306]  The plaintiff went on to say that she also told three co-workers, including Ms Howorth, at smoko, before she finally told Ms Eden.

[305]T47

[306]T 61

579     The report of injury at smoko was first mentioned by the plaintiff in cross-examination and not referred to in any previous affidavit or statement, or in any other claim-related document.

580     Ms Jarvis denied the injury was mentioned to her by the plaintiff on the said date either at the workbench or slightly later at smoko.  Mr Clark also denied the plaintiff made such a complaint at smoko.  The other co-worker at smoko did not give evidence. 

581     There were marked inconsistencies in the plaintiff’s evidence as to:-

(i)    knowledge of the sign before the said date;

(ii)   lifting floppy plastic before the said date;

(iii)   the time of the invoice was completed.

582     Initially in cross-examination, the plaintiff said she could not recall having seen the sign affixed to the shelving and that she could not remember ever seeing a sign prior to the incident.[307]

[307]T75

583     When the plaintiff’s answer to Interrogatory 11 was shown to her in which she   deposed she could recall the sign, she explained that she had seen the sign in a procedure manual, not on the shelving or on the table in the factory.

584     In closing submissions, plaintiff’s counsel conceded that the plaintiff was wrong when she said there were never signs up at the factory, describing her evidence in this regard as “one of the slipups” that she made in her evidence.[308]

[308]T455

585     Clearly contradictory is the plaintiff’s evidence as to the time at which she completed the invoice.

586     In cross-examination, the plaintiff initially described how she was under further pressure whilst completing the order as she still had to invoice.[309]  Later in cross-examination, she said she did the invoice whilst in the office at 2.00pm, knowing the order had to be on a 2.30pm run and then went and packed the order.  The plaintiff went on to say that she often did the invoice first, and she denied Ms Jarvis had told her this was the wrong way to do this task.[310]  

[309]T84

[310]T105

587     The plaintiff’s evidence as to whether she had worked on the floppy plastic before the said date is somewhat confusing and contradictory.

588     In her viva voce evidence, the plaintiff maintained she had not worked with the floppy plastic before.[311]  It was too awkward for two people to roll.  [312]

[311]T71

[312]T70

589     However, the plaintiff’s affidavit in support of her s134AB claim suggested she had worked with floppy plastic before, having deposed she had not done it alone before having mentioned Mr Clark usually did it. 

590     The plaintiff later said in cross-examination that she watched Mr Clark do this task but then said that she had taken floppy off the shelf by herself to get it ready for him to roll.  She knew how flimsy the plastic was.  She could get it off the shelf onto the table on her own.[313]

[313]T97

591     The plaintiff explained that if Mr Clark had been available on the said date, he would have rolled only the floppy plastic and that normally she would have packed the rigid sheets with someone else.[314]. 

[314]T98

592     The plaintiff’s evidence that she had not handled the floppy plastic before the said date is also at odds with the evidence of Ms Eden[315] and Mr Clark[316] that the plaintiff had done it before.    

[315]T190

[316]T291

593     These are a few significant examples of inconsistencies in the plaintiff’s account of the incident and related matters.  Generally I did not find the plaintiff to a reliable witness, confident of her recollection of the incident.  Overall, I thought she was somewhat prepared to answer questions in the way which she thought best suited her case.

Negligence

Was there negligence on the part of the defendant?

594     Counsel for the plaintiff submitted that central to the allegations of negligence was a failure to warn the plaintiff of dangers of lifting alone.

595     I accept that following the WorkSafe inspection, signs were custom made by the defendant and put up by Ms Jarvis on the shelving housing the plastic sheets.  Compliance by the defendant with the WorkSafe directive was confirmed in the WorkSafe documentation that this system was in place as at July 2004.[317]  

[317]Exhibit 15 - WorkSafe field report dated 26 August 2004

596     The preponderance of evidence is that the signage has been on the shelving and uprights since shortly after the improvement notice and has been not taken down for any extended period. 

597     Whilst some of the defendant’s witnesses thought the signs had stayed up continuously since July 2004, Ms Jarvis could recall on the said date the signage was not in place because the shelves had been moved.[318]  I prefer her direct recollection that the signage was down for perhaps four days or so at that time.

[318]T138

598     Although the plaintiff said in evidence-in-chief that she had not seen the signs before the incident, in cross-examination she conceded she had seen the signs in a folder in the office.  I do not accept her evidence that that was the only place the signs were located, taking into account the contrary position supported by all four other witnesses.

599     Significantly, plaintiff’s counsel conceded that the plaintiff was wrong when she said there were never signs up at the factory, describing her evidence in this regard as one of the slipups that she made in her evidence.[319]

[319]T455

600     The fact that the signage was not up on the said date and that situation breached the improvement notice, is not, in my view, a cause of the plaintiff’s injury, as I accept the signs had been up almost continuously since 2004.  The plaintiff would have been well aware the direction contained therein, from both the presence of the sign on the factory floor, as well as in the office folder as she claimed. 

601     I accept the plaintiff was aware of the directive not only from the signage but also from the practice at the factory and instructions given to her by her fellow employees that any plastic handling was a two person job.

602     The plaintiff admitted she knew of the directive.  She knew all rigid plastic was a two person job, initially saying this was not the case with the polys (floppy) because Mr Clark did it by himself.[320]   She knew there was an instruction that handling plastic was a two person job and going out and handling alone was against instructions.[321]  Even though she knew handling the plastic was awkward, she did not go and get help on the said date.[322]

[320]T72

[321]T77

[322]T71

603     Ms Eden[323] and Ms Jarvis[324] gave the plaintiff instruction when she commenced work as to the lifting and handling of plastic.  Ms Eden knew she would have stressed to the plaintiff it was a two person job.[325]

[323]T191

[324]T230

[325]T191

604     Further, I accept that it was common knowledge amongst the defendant’s employees since that time that the two person lifting policy was in operation at the factory.

605     Ms Eden described lifting of both floppy and rigid plastic as a two person job involving everybody in the factory.[326]  Ms Howorth detailed in her statement that all staff had been instructed that lifting plastic was a two person job.  In cross-examination, she said she thought it was “odd” the plaintiff was lifting alone on the said date.[327] 

[326]T219

[327]T300

606     Whilst counsel for the plaintiff submitted the fact that Mr Clark packed most of the floppy plastic by himself indicated the defendant’s disregard for the safety of its employees,[328] there is no evidence other than that of the plaintiff that any female employee worked on the plastic without assistance.[329]

[328]T454

[329]T83

607     I do not accept that as at the said date, the plaintiff was a “little girl”,[330]  working in “a pressure cooker” forced into undertaking an unsafe task, as her counsel submitted. 

[330]T433

608     At the time of the incident, the plaintiff had been working for the defendant for just over two years.  She was then aged twenty-three.  She was not a child.

609     Further, I did not find the plaintiff to be shy or lacking in confidence in the witness box.

610     The consensus of the plaintiff’s co-workers was that the plaintiff was a conscientious and reliable worker who had a good knowledge of her duties in the office and on the factory floor.  They expected she would take her job seriously.  She was pretty competent and knew a lot about the defendant’s business.

611     I accept that the plaintiff was well aware of and understood the lifting directive, having been instructed in relation thereto and seen signage at the premises.  As such, there was no failure by the defendant to warn or properly instruct the plaintiff as to the method of lifting that was a cause of her injury.

612     In erecting the signs and instructing the plaintiff in similar terms, the defendant had taken all reasonable steps to warn the plaintiff of the dangers of lifting alone.

Assistance

613     I am not satisfied that the plaintiff was placed in an unsafe situation due to a refusal of assistance or the unavailability thereof where she had to take to undertake an unsafe lift alone.

(i)     Ms Eden

614     There is no evidence that Ms Eden was unavailable to assist the plaintiff with the order, and I accept that she was in the office when the plaintiff undertook that task. 

615     Ms Eden had earlier that day taken the order from the facsimile machine and placed it in the basket for the plaintiff to pick and pack, like any other job. 

616     Ms Eden was not asked for any help picking or packing on the said date.[331]  The plaintiff gave no explanation whatsoever why she did not ask Ms Eden for help.  Ms Eden had helped her in the past, according to both the plaintiff and Ms Eden.

[331]T197

617     The plaintiff did not dispute Ms Eden’s evidence that she asked the plaintiff, on reporting the incident, why she had not asked for help.  Nor did the plaintiff dispute that she responded she did not know. 

618     Further, the plaintiff did not have any recollection of a conversation with Ms Eden in the office other than simply telling her she hurt her back packing plastic. 

619     Ms Eden’s version of that conversation was that the plaintiff said she thought she had hurt her back.  The plaintiff did not make a big deal of the situation and then continued her normal duties.[332]

[332]T193

620     I accept that if she had done the invoice first, as she initially said, the plaintiff would have had time to come back to the office and get Ms Eden to assist her with the last larger sheets.

621     Significantly, the plaintiff made no complaint to Ms Eden that she had been refused help by Mr Clark and was asked by him to do the job alone. 

(ii)    Ms Howorth

622     I accept that Ms Howorth offered the plaintiff assistance at the time of the incident, seeing her undertake the plastic work alone, having assisted her with plastic on previous occasions. 

623     Whilst it was put to Ms Howorth in cross-examination that she was making up her account of the incident, there was no motive or explanation offered why she would deliberately lie, nor do I find there was one.  She confirmed she was on oath and not lying, and in my view, her evidence was completely plausible.

624     The probabilities are she is telling the truth, and her evidence was not shaken on those essential features.

625     Despite extensive cross-examination, I accept that Ms Howorth was not shaken.  The attacks on her evidence were collateral. 

626     Whilst she may not have been aware Mr Clark lifted floppy plastic alone, the plaintiff’s evidence was that a floppy order occurred every three months or so.  Further, whilst Ms Howorth assisted at times rolling plastic, her focus was on her work as a sewing machinist and she did not help out as much as other co-workers.  In these circumstances, it is not of particular significance that she thought the packing job was of shorter duration than other witnesses described. 

627     In any event, in my view, these factors do not detract from Ms Howorth’s evidence that she offered help which, for some unexplained reason, was not taken up by the plaintiff. 

628     Whilst Ms Howorth said she did not become aware of the plaintiff injuring herself on the said date, she saw the lift, and the plaintiff made no complaint to her of hurting her back. 

629     In evidence-in-chief, the plaintiff said she first told Ms Eden she hurt her back, and then went on to say in cross-examination that she told Ms Howorth first, and then again at smoko with the two others.

630     Whilst it was not raised with Ms Howorth in her viva voce evidence, her signature, identical to that on her 2008 statement, appeared as a witness to Ms Jarvis’ signature on the plaintiff’s Claim Form signed on 4 March 2008, less than a week after the said date.  Ms Howorth was not cross-examined in this regard. 

631     Further, there was no mention at all in the plaintiff’s affidavit in support of her serious injury application of Ms Howorth being in attendance soon after the incident when she delivered the plaintiff’s coffee.  The plaintiff’s own evidence is that she presumed Ms Howorth was making the coffee.  She did not know where she was at the time of the lifting.

632     On the plaintiff’s evidence, the incident was the only time she had rolled the floppy plastic.  It was not suggested to Ms Howorth that she had got her days mixed up.

633     Although the evidence is somewhat unclear as to whether there was a view from the sewing room to where the plaintiff was working, I accept that Ms Howorth saw the plaintiff rolling the plastic order on the said date.

634     Consistent with Ms Howorth’s version of the incident is that her name was noted by the plaintiff on the Claim Form (although there was no mention of a witness on the incident report form completed on 25 February 2008) and also by Ms Jarvis on the employer’s part of the form. 

635     Further, Ms Jarvis noted on the employer’s part of the form that “handling of plastic was a two person operation and the injured party was offered assistance”.  Consistent with that notation, Ms Jarvis thought Ms Howorth asked to help the plaintiff.[333]

[333]T274

636     I do not accept the plaintiff’s explanation that Ms Howorth was noted on the Claim Form as a witness because Ms Jarvis directed her to insert her name as she was first on the scene after the plaintiff had hurt her back.

637     Finally, although the plaintiff denies that Ms Howorth was present when the incident occurred, her counsel argued that somehow there was still negligence on the defendant’s part, in that Ms Howorth did not actually provide assistance to the plaintiff.  I do not accept this submission.  Assistance was offered in accordance with the lifting directive and was simply refused by the plaintiff.  There was nothing further Ms Howorth could have done in the circumstances.[334]

[334]T319

(iii)   Mr Clark

638     Mr Clark’s evidence was not really challenged. 

639     Mr Clark explained how he would do the plastic job immediately if he had time, or “the girls” would leave it and when he had time, he would do it.  There was never an occasion when he could not do it or told a female to do it on her own.  There were not occasions because of time pressure when he was not able to go out and roll up the plastic. 

640     Mr Clark was not challenged on those matters or that he had always done what he had been asked to.

641     The plaintiff’s version of the conversation with Mr Clark on the said date about working on the tins was not put to him.  He was not given a chance to comment on the other work the plaintiff alleged he said he was too busy with  to help her.  Further, he it was not put to him that he had asked the plaintiff if she could do the job herself.

642     All that counsel for the plaintiff did was ask some questions about Mr Clark’s direct memory on the day, and I accept quite truthfully, he said he did not have a direct memory.

643     Mr Clark became aware that the plaintiff was injured the Monday following the said date.  It was not put to him that the plaintiff had told him at smoko that she had hurt her back.

644     If the plaintiff had asked Mr Clark for help and he asked her to do the job herself because he was too busy, it is surprising she did not mention these matters when she told him she had hurt her back when they were at smoko at 2.30pm as she mentioned for the first time in cross-examination.

645     Mr Clark is the man whom the plaintiff maintains she had asked less than half-an-hour earlier (on the revised version at 2.10) for help and asked her to do the job herself because he was too busy.   

646     It is further surprising that had the plaintiff been refused assistance in the circumstances she alleged and then hurt her back, that she would not have mentioned these matters to her co-workers to whom she alleges she reported the incident.

647     Considering the evidence in this regard, I am satisfied that the plaintiff was offered assistance by Ms Howorth.  Assistance was also available from both Ms Eden and Mr Clark.  In such circumstances, there has been no failure on the defendant’s part to provide assistance to the plaintiff in carrying out the plastic handling duties on the said date.

Urgency

648     It has also been submitted on the plaintiff’s behalf that she undertook the lifting alone as she was under pressure to get the order out to the Launceston client by 2.30pm on the said date.

649     The plaintiff is clearly wrong when she said the items had to be collected by 2.30pm as they had to reach patients on the Monday.[335]  At the earliest, in the normal course, the goods would have reached Tasmania by the Wednesday, as Ms Jarvis explained.[336]

[335]T39, T87

[336]T246

650     The plaintiff herself ultimately said that she was not aware of it being an urgent order,[337] despite saying the policy was drummed into her. 

[337]T100

651     There was not “ASAP” or “urgent” noted on the order, as was the practice.  Further, Ms Eden did not advise the plaintiff verbally that the order was urgent, having put it in the order basket for the plaintiff to complete.

652     The request on the order to leave the items under the carport did not indicate the order was urgent, merely that the goods could be left by the courier without having to be signed off by the client.[338]

[338]T268

653     The urgency argument is more relevant to the compliance with the policy;   namely, that the defendant would bear the $85 freight cost if the goods were not sent out that day, rather than to the actual delivery. 

654     Whilst this issue became the focus of much of the cross-examination and a significant part of the plaintiff’s case, both Ms Eden[339] and Ms Jarvis[340] explained, despite the policy being an important part of the defendant’s business and advertised to its clients, the policy was rarely enforced. 

[339]T202

[340]T247

655     Freight costs were only repaid when demanded by the client and were not routinely paid by the defendant by any means.

656     The plaintiff herself ultimately agreed the policy was rarely enforced if goods were in stock.[341]

[341]T104

657     I do not accept, as her counsel submitted, that the plaintiff was a “little girl” who saw it as a crucial part of her job to get the order out before 2.30pm because it was required in Tasmania on Monday and failure to get it out that day would result in the defendant having to meet the freight costs.

658     Any argument as to urgency does not overcome the fact the plaintiff knew that handling plastic was a two person job.  She was a competent and experienced employee who knew the lifting procedure but still chose to do the job alone.

659     I am not satisfied that the order was urgent or that the enforcement of the policy was such that it was understandable the plaintiff felt under pressure to do the job alone to get the order out by the 2.30pm courier.

660     Further, I do not accept that the plaintiff received prior warnings as to her conduct which placed additional pressure on her on the said date.  Her evidence in this regard was specifically denied by both Ms Eden and Ms Jarvis. 

Damages

661     I have not assessed damages in this case as I do not find the defendant liable for the plaintiff’s claim.  However, by way of completeness, counsel for the plaintiff submitted that her pain and suffering damages would be in the range of $150,000.[342]  Counsel for the defendant did not put a figure, simply submitting the figure suggested on the plaintiff’s behalf was way beyond the top of the range and it would be something significantly less than that.[343]

[342]T466

[343]T425

Conclusion

662     Taking into account all the evidence, I am not satisfied there was negligence on the part of the defendant in terms of lack of warning, the provision of assistance or the system of work in general that was a cause of the plaintiff’s injury, loss and damage. 

663     I do not accept that in those circumstances, the defendant breached its duty of care to the plaintiff in the course of her employment.

664     Further, there was no breach of the Occupational Health and Safety Act.  As counsel for the defendant submitted, a risk assessment had been done, and the improvement notice was complied with in terms of manual handling.

665     No specific submissions were made by counsel for the plaintiff in relation to this alleged statutory breach.

666     Accordingly, the plaintiff’s claim is dismissed and there will be judgment for the defendant.

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