Knight v CPSM Pty Ltd

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DISTRICT COURT OF QUEENSLAND

CITATION:

Knight v CPSM Pty Ltd [2021] QDC 3

PARTIES:

MEGAN HAZEL KNIGHT

(plaintiff)

v

CPSM PTY LTD

(defendant)
FILE NO:

4874 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22, 25, 26, 27, 29 March 2019 and 2, 4 April 2019

JUDGE:

Sheridan DCJ

ORDER:

1.   The claim by the plaintiff is dismissed.

2.   If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Friday, 19 February, 2021.

3.   If the parties cannot reach agreement as to costs:

(i)       the plaintiff file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 26 February, 2021;

(ii)     the defendant file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 5 March, 2021; and

(iii)    the plaintiff file any submissions in reply, of no more than 2 pages in length, by 4:00pm, Wednesday, 10 March, 2021.

CATCHWORDS:

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where plaintiff employed by defendant as personal care assistant at aged care facility – where plaintiff alleges defendant exposed her to a liquid chemical causing her to develop a chemical sensitivity and other associated conditions – where allegations by plaintiff included failure by defendant to protect plaintiff from injury, to provide suitable protective clothing and to prevent other employees using the chemical in plaintiff’s presence – where plaintiff alleges that injuries sustained had caused ongoing impairment and rendered her unable to work – where quantum in issue – whether defendant breached its duty of care – whether plaintiff has an ongoing impairment

LEGISLATION:

Workers Compensation and Rehabilitation Act 2003 (Qld)

Workers Compensation and Rehabilitation Regulation 2003 (Qld), sch 9

CASES:

Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931, cited
Bankstown Foundry Pty Ltd v Braisina (1986) 160 CLR 301, cited
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, cited
Road & Traffic Authority of NSW v Dederer [2007] HCA 42, cited
Vairy v Wyong Shire Council (2005) 223 CLR 422, cited

Wyong Shire Council v Shirt (1980) 146 CLR 40, cited

COUNSEL:

Self-representation by the plaintiff

O Perkiss for the defendant
SOLICITORS:

BT Lawyers for the defendant

Introduction

  1. The plaintiff, Megan Knight, was employed by the defendant, CPSM Pty Ltd (CPSM), as a personal care assistant on a casual basis working at a facility owned by CPSM known as “CPSM Mt Coolum Aged Care” (the Facility).

  2. Ms Knight alleges that in the course of her employment she was exposed to a liquid chemical product, known as “D4”, in the workplace and developed a chemical hypersensitivity and other associated conditions, rendering her unable to work. 

  3. The relevant legislative regime is the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA).

    The Plaintiff’s Pleaded Case

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Details
Case
[2021] QDC 3
Decision Date

CaseChat Overview and Summary

The plaintiff, Ms Knight, brought an action against CPSM Pty Ltd for personal injuries she sustained in the course of her employment as a personal care assistant at an aged care facility. She alleged that she was exposed to a liquid chemical which caused her to develop a chemical sensitivity and other associated conditions, and that her employer failed to protect her from injury, provide suitable protective clothing and prevent other employees from using the chemical in her presence. The issues before the court were whether the defendant breached its duty of care and whether the plaintiff suffered an ongoing impairment as a result of the injuries sustained.

The court found that the plaintiff failed to establish that she suffered from the injury alleged, or that she had a psychiatric disorder arising from her employment. The court was not satisfied that the plaintiff would benefit from any counselling, or that there was any basis for expenditure on medication or treatment. The court found that the plaintiff did not have an ongoing impairment and dismissed the claim. The court ordered that the parties make submissions on costs unless they could otherwise agree, and set out specific timelines for the filing of submissions if the parties could not agree on costs.

Orders

Orders of the court

1. The claim by the plaintiff is dismissed.

2. If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Friday, 19 February, 2021.

3. If the parties cannot reach agreement as to costs:

(i) the plaintiff file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 26 February, 2021;

(ii) the defendant file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 5 March, 2021; and

(iii) the plaintiff file any submissions in reply, of no more than 2 pages in length, by 4:00pm, Wednesday, 10 March, 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Knight called medical evidence from Dr Joseph Matthew (psychiatrist) and Dr Christine Oliver (Professor in Public Health at the University of Toronto). CPSM called medical evidence from Dr Hasim Shaikh (psychiatrist) and Dr Matthew Brandt (physician).The EvidenceFactual Context Ms Knight commenced working as a personal care assistant (also known as an assistant-in-nursing) (carer) at the Facility in about 2010. She had worked a number of shifts at the Facility whilst an agency worker in the early part of 2010 and then commenced as an employee of the previous owner of the Facility, Peninsula Care Pty Ltd, on a casual basis in August 2010. Ms Knight’s pre-employment medical certificate obtained in relation to her employment with Peninsula Care is dated December 2010. There appears to have been a delay between her commencing employment and the provision of the certificate. CPSM purchased the Facility in late 2010 and Ms Knight was transferred and became an employee of CPSM. In transferring employees to CPSM, as part of the sale process, CPSM did not require any employees to undergo a further medical assessment. Ms Knight usually worked morning or afternoon shifts, and not the night shifts. On average in the period up to September 2014, Ms Knight said she worked seven shifts a fortnight at the Facility. During this period, Ms Knight was also running her own business, Natural Surrender. The business involved a directory for living naturally, and retail of health products, both online and in the period from April 2014 to October 2014, also the sale of products from a stall at the Eumundi Markets. CPSM commenced operations in 2010 and acquired Mt Coolum as its first aged care asset. The company subsequently went on to own and operate a number of aged care facilities. By September 2014, the company owned and operated three aged care facilities. There were three directors of CPSM, all of whom were owners of the business. Two of the directors, Shane Winterton, and Cliff Evans, had previously been RNs and were involved in the daily operations of the business. Before becoming a director of CPSM, Mr Winterton was the Queensland State Manager of Health Scope Hospitals. He began his career as a RN, later becoming a hospital administrator. Mr Winterton was the director responsible for workplace health and safety at the Facility. The third director was a chartered accountant. The Facility had 120 beds: a 40 bed nursing home and 80 beds in four 20-bed hostels, Wattle, Rose, Ivy and Jasmine. Two of the hostels, Wattle and Rose, were for high care residents and always had two carers on any shift. The other two hostels, Ivy and Jasmine, were for more independent residents and had only one carer rostered on each shift. On each shift, there would be one RN in charge of supervising the carers working in the four hostels and one RN in charge of supervising the carers in the nursing home. The RN was responsible for looking after the medication side of things for the residents and the carers were responsible for looking after the residents’ care needs. There was also a RN who held the position of clinical nurse manager and above the clinical nurse manager was the Director of Nursing. Both persons in those positions did not work shift work but more usual business hours.

Decision

Reasons for decision

There is a claim for the future cost of counselling, medication and treatment, and travel expenses. I am not satisfied that Ms Knight would benefit from any counselling, and in any event, I do not consider that she has a psychiatric disorder, let alone one that arises from her employment. There is nothing that supports any expenditure for medication or treatment; even if I had found that Ms Knight suffered from the injury alleged. Conclusion The claim is dismissed. I will make orders for the parties to make submissions on costs, unless costs can be otherwise agreed between the parties.

Ratio Decidendi

Legal Principle Established

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