Knott v The Withcott Hotel
[2015] QDC 314
•10 December 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Knott v The Withcott Hotel [2015] QDC 314
PARTIES:
NATALIE KNOTT
(Plaintiff)And
THE WITHCOTT HOTEL ABN 209 202 10
(Defendant)FILE NO/S:
1590 of 2013
PROCEEDING:
Trial
DELIVERED ON:
10 December 2015
DELIVERED AT:
Brisbane
HEARING DATE:
04 – 06; 23 November 2015
JUDGE:
Bowskill QC DCJ
ORDER:
Judgment for the defendant
CATCHWORDS:
TORTS – NEGLIGENCE – PERSONAL INJURIES – Dispute as to liability and quantum – Where the plaintiff was employed as a cook by the defendant – Where the plaintiff claimed to have suffered an injury to her upper back while at work, and subsequently developed a psychiatric disorder – Where no particular incident occurred, but aspects of the system of work involving manual handling alleged to be the cause - Whether the defendant breached its duty of care to provide a safe system of work – Causation – Whether any breach of duty was a necessary condition of the occurrence of the injury, for the purposes of s 305D of the Workers’ Compensation and Rehabilitation Act 2003
DAMAGES – PERSONAL INJURIES – QUANTUM –– Where physical injury alleged to be a cause of subsequent psychiatric disorder – Where evidence of complex and multiple other contributing factors – Assessment of damages for past and future hypothetical events in those circumstances
Workers’ Compensation and Rehabilitation Act 2003 ss 305B, 305C, 305D, 306J
Workers’ Compensation and Rehabilitation Regulation 2003Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Brooks v Zammit [2011] QSC 181
Castro v Transfield (Qld) Pty Ltd (1983) 47 ALR 715
Erickson v Bagley [2015] VSCA 220
Hawkins v Ross Human Directions Ltd [2015] NSWCA 265
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319
State of New South Wales v Abed [2014] NSWCA 419
Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268
Strong v Woolworths Ltd (2012) 246 CLR 182
Tabcorp Holdings Limited v Dank [2011] QCA 253
Turner v South Australia (1982) 42 ALR 669
Vairy v Wyong Shire Council (2005) 223 CLR 422
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wallace v Kam (2013) 250 CLR 375
Woolworths Ltd v Perrins [2015] QCA 207
Wolters v The University of the Sunshine Coast [2012] QSC 298
Wyong Shire Council v Shirt (1980) 146 CLR 40COUNSEL:
T Nielsen for the plaintiff
N Jarro for the defendant
SOLICITORS:
Slater and Gordon for the plaintiff
BT Lawyers for the defendant
Introduction
The Withcott Hotel[1] is a “small country hotel”[2] in Withcott, near Toowoomba. The plaintiff worked as a cook at the Withcott Hotel, from January 2010 to April 2011. She says she suffered an injury to her upper back in the course of her work as a cook, and subsequently developed a psychiatric disorder, and seeks to recover damages for those injuries. Both the defendant’s liability and, if it is liable, the quantum of any damages recoverable, are in issue.
[1]Although the defendant is named as the Withcott Hotel, a registered business name (which is permitted under UCPR r 89), it is apparent from paragraph 2(b) of the amended defence that the hotel is operated jointly under that name by Portsim Pty Ltd, Blue Umbrella Pty Ltd and Alangail Pty Ltd. Contrary to UCPR r 91, the defence is in the name of Withcott Hotel also, although no issue was taken in relation to this at the trial.
[2] T 3-112.20
As one of the medical experts, Dr Curtis, said, this is a perplexing case. It is perplexing because the plaintiff does not point to any particular incident or event occurring at work – she simply says she felt pain, after being at work for a relatively short period of time. Subsequently, there has been an analysis of the work system at the Withcott Hotel and various aspects of it have been identified which are alleged to have increased the risk of an injury such as the plaintiff complains of, and in respect of which it is said the employer ought to have taken precautions.
For the reasons set out below, this court has found that, although there were precautions the defendant could have taken in relation to one of those aspects (the task of putting deliveries away) which might have reduced the risk of injury, the plaintiff has not established that the failure to take such precautions – that is, any breach of duty - caused her pain, in the sense required by s 305D(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA). Accordingly, the plaintiff’s claim fails, and there will be judgment for the defendant.
The plaintiff’s pleaded case
It is useful to start with the plaintiff’s pleading as to what it is that the defendant did, or failed to do, that is claimed to have caused her injury and which is said to be in breach of the duty of care owed.[3]
[3]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [103]; see also Woolworths Ltd v Perrins [2015] QCA 207 at [30] per McMeekin J (Fraser and Gotterson JJA agreeing).
Paragraph 6 of the further amended statement of claim filed on 26 February 2015 (statement of claim) pleads that [with the defendant’s response in italics]
“6.The Plaintiff worked for the [defendant] primarily as a cook at their premises which required her to inter alia:-
a.Bend, and squat [The defendant admits this, but says the plaintiff was only required to perform occasional bending and squatting in the course of her work duties, because the majority of her work was performed in a standing position[4]];
[4] Paragraph 5(b) of the amended defence filed 4 March 2015 (defence).
b. Lift and carry objects including:-
i.Deep fry baskets [the defendant admits the plaintiff was required to occasionally lift and carry these, and says deep fry baskets weigh 1.3kg when empty and 3.3kg when full[5]];
[5] Paragraph 5(c)(i) of the defence.
ii.Bags and boxes of fruit and vegetables (fresh and frozen) weighing up to 20 kilograms [the defendant admits the plaintiff was required to occasionally lift and carry bags and boxes of fruit and vegetables weighing between 1kg and 15kg, not exceeding 15kg[6]];
[6] Paragraph 5(c)(ii) and 5(d)(iv) of the defence.
iii.Boxes/drums of oils, gravy and other ingredients. The drums of oil were 20 litres in size and weighed in excess of 20 kilograms [the defendant admits the plaintiff was occasionally required to lift and carry boxes of gravy and other ingredients; but denies she was required to lift or carry drums of oil[7]];
[7] Paragraph 5(d)(i) and (ii) of the defence.
iv.Drums of dishwashing detergent [the defendant denies this[8]];
[8] Paragraph 5(d)(iii) of the defence.
v.Bins in and out of the kitchen [the defendant admits the plaintiff was required to occasionally lift and carry bins weighing 10kg[9]];
[9] Paragraph 5(c)(iii) of the defence.
vi.Cartons of meat weighing more than 25 kilograms [the defendant denies this[10]].
[10] Paragraph 5(d)(v) of the defence.
c. Put away food deliveries in circumstances where:-
i.Deliveries arrived between once and twice a week;
ii.When a delivery was made it was placed in the corner of a room where the plaintiff was required to put stock away without any assistance being made available to her;
iii.The delivery items included those mentioned in 6b herein;
iv.The Plaintiff was required to move the items to the relevant store room, freezer or cold room;
v.The Plaintiff did the work unassisted;
vi.Place deliveries into, and at times remove stock from, chest type freezers which involved bending and lifting in awkward positions.
[The defendant denies this allegation, saying that the plaintiff was required to assist in unpacking food deliveries if such deliveries arrived at a time when she was working; but she was assisted in this by the head chef Peter Burnett and an apprentice chef, Catherine Ellis-Marshall; in addition, the defendant instructed male employees working in the bottleshop to provide assistance with lifting stock; the plaintiff was not required and did not in fact unpack deliveries unassisted; the plaintiff was required from time to time to place stock into and remove stock from a chest freezer, but this did not require her to bend or lift in awkward positions.[11]]
[11] Paragraph 5(e) of the defence.
d.Lift deep fry baskets containing potato chips into a vat of oil on a regular basis throughout a shift when working in the kitchen [the defendant admits this, referring again to the weight when empty of 1.3kg and when full of 3.3kg[12]];
[12] Paragraph 5(f) of the defence.
e.Lift drums of oil up onto the stove so they could be placed in the deep fryer [the defendant denies this, saying it was a task performed by male workers including Peter Burnett[13]];
[13] Paragraph 5(g) of the defence.
f.Carry plastic bins weighing at least 10kg and empty them into an industrial bins outside the premises during each shift [the defendant denies this, saying the plaintiff was required to carry and empty plastic bins but says they weighed no more than 10kg[14]];
[14] Paragraph 5(h) of the defence.
g.Cook and prepare meals [this is admitted[15]];
[15] Paragraph 5(i) of the defence.
h.Work for long periods of time at a kitchen bench which was:-
i.Not level such that it slanted to one side;
ii.Positioned high (1,120 millimetres) and was consequently awkward for the Plaintiff (whose height was 155 centimetres) to work at [this allegation is denied[16]];
[16] Paragraph 5(j) of the defence.
i.Reach up to high benches to collect and put away items of stock and equipment including heavy pots and pans [the defendant admits the plaintiff was required to collect and put away items of stock and equipment including pots and pans, but otherwise does not admit the allegations, on the basis of lack of particularisation[17]];
[17] Paragraph 5(k) of the defence.
j.Lift and handle stacks of six or more plates weighing approximately five kilograms. This involved lifting and placing them in various storage locations around the kitchen including on high shelves which were 1,730 millimetres high [the defendant admits the plaintiff was required to lift and carry plates to various locations in the kitchen, including on a shelf which was 1.73m from the floor, but denies she was required to lift stacks of 6 or more, because there was no minimum number of plates she was required to lift; saying she could, and did, lift and carry plates singly or in stacks of less than 6[18]].
[18] Paragraph 5(l) of the defence.
k.Load plastic crates containing crockery into and remove them out of the dishwasher [this is admitted[19]].
[19] Paragraph 5(m) of the defence.
l.Work within the kitchen at the premises which was:-
i.Small; and
ii.Cramped to work in;
iii.In the premises of the matters in g and h herein, not ergonomically designed and constructed [the defendant does not admit this, on the basis of lack of particularisation[20]];
m.Wait and serve on tables [this is admitted[21]]; and
n.Spend extended periods of time standing on hard floors without any anti-fatigue mats or any other softer surface [the defendant admits the absence of anti-fatigue mats, but otherwise denies the allegation on the basis of lack of particularisation[22]].”
[20] Paragraph 5(n) of the defence.
[21] Paragraph 5(o) of the defence.
[22] Paragraph 5(p) of the defence.
Some of these activities were not the subject of any evidence from the plaintiff (for example, paragraphs 6(b)(iii) (drums of oil), (iv), (v), 6(e), 6(f), 6(i), 6(j), 6(k)). In respect of others, there was no apparent link between the activity, and the alleged injury (for example, paragraph 6(a), 6(b)(i), 6(m) and 6(n)). The focus of the case, at trial, was really upon the matters alleged in paragraphs 6(b)(ii), (iii) (other ingredients), (vi), 6(c), 6(g) (preparation) and 6(l) – in particular, upon the task of putting away food deliveries, which required the plaintiff to lift and carry various things; food preparation; and some aspects of the ergonomics of the kitchen.
Further, paragraphs 7, 8 and 9 of the statement of claim plead:
“7. On or about 25 March 2011:-
a.The Plaintiff was working for the Defendant at the premises. She commenced work at approximately 10 am;
b.It was a Friday which was a busy day at the premises where up to 100 meals needed to be prepared and served;
c.The Plaintiff completed the said deliveries and returned to working at the kitchen bench;
d.She performed food preparation and cooking work consisting of the various tasks identified in paragraph 6 hereof;
e.The Plaintiff began to feel the onset of pain in her neck and shoulders from approximately 11am;
f. The pain became worse during the course of her shift.
8.As a result of the matters pleaded in paragraphs 6 and 7 herein (‘the work activities’), the plaintiff incurred the following injuries:-
a. A cervicothoracic spine injury;
b. A major Depressive Disorder.
9.The Plaintiff’s said injuries were caused by the Defendant’s negligence and/or breach of contract, in that:-
a.The Defendant directed the Plaintiff to do the tasks that it ought to have known were likely to cause injury;
b.The Defendant permitted and/or required the Plaintiff to perform repeated heavily manual handling or heavy and awkward items;
c.The Defendant failed to provide a safe or proper system of work in and around the kitchen;
d.The defendant failed to provide any or any proper training and instruction for the safe execution of the Plaintiff’s duties;
e.The Defendant failed to provide the Plaintiff with any or any adequate mechanical or manual assistance with performing manual handing tasks;
f.The Defendant failed to undertake regular risk assessment of the system of work within the kitchen;
g.The Defendant failed to provide a safe place of work;
h.The kitchen supplied by the Defendant was small, cramped and not ergonomically designed;
i.The Defendant failed to warn the Plaintiff of the risk of injury arising from manual handling and performing repetitive tasks;
j.The Defendant failed to comply with the WHSA and the Regulations by implement and maintaining risk management systems;
k.Failing to implement reasonable measures to reduce or obviate risks in the workplace including:-
i.Ensuring benches for food preparation were at optimum heights;
ii.Implementing anti-fatigue matting in areas where prolonged standing is required;
iii.Ensuring sufficient storage places are provided for various items in the workplace at appropriate heights between the mid-thigh and the shoulder;
iv.Ensuring that lifting from the floor level or above head height is reduced or eliminated;
v.Directing the Plaintiff that she was to lift no more than 15 kilograms.
vi.Directing the Plaintiff that preferably she should seek assistance for any lifts in excess of 10 kilograms;
vii.Providing plan and equipment including trolleys to convey stock and equipment around the premise;
viii.Directing delivery drivers to temporarily store deliveries on trolleys in order to minimise double handling;
ix.Replace chest type freezers with upright freezers;
x.Implementing appropriate measures including the installation of mechanical aids to assist with loading rubbish into industrial bins.”
In relation to paragraphs 7, 8 and 9 of the statement of claim, the defendant puts in issue the factual circumstances on 25 March 2011; puts in issue whether the plaintiff experienced pain on 25 March 2011 at all; denies any breach of duty on its part; and, in any event, denies any pain or injury found to have been suffered by the plaintiff was caused or contributed to by her work activities, or any negligence on its part.[23]
[23] Paragraphs 6, 7 and 8 of the defence.
The plaintiff’s claim is pleaded as one for breach of contract of employment also; but there being no contention of any difference between the tortious duty of care owed, and any co-existing implied contractual term requiring the employer to take reasonable care for the employee’s safety, or submissions otherwise made about the contractual claim, it is unnecessary to say any more about this.
Liability
The determination of the issue of liability involves the following questions:
(a)Did anything happen on 25 March 2011?
(b)If so, what happened?
(c)What was the relevant work system?
(d)Has the plaintiff suffered any injury and, if so, what injury?
(e)What was the scope of the duty of care owed by the defendant to the plaintiff?
(f)Was there any breach of the defendant’s duty of care? Which requires consideration of:
(i)whether the risk of injury was foreseeable and was “not insignificant”; and
(ii)what a reasonable person in the position of the defendant would have done in response to that risk.
(g)If there was a breach, did it cause the injury(ies) to the plaintiff?
Did anything happen on 25 March 2011?
The defendant’s challenge to aspects of the plaintiff’s case, beginning with whether anything happened on 25 March 2011 at all, is based in part on matters of credit. I will deal with that briefly, by recording that I did not form the impression that the plaintiff was a dishonest witness. But that is not to say that all of her evidence has been uncritically accepted. As is appropriate, her evidence has been objectively assessed, having regard to the whole of the evidence before the Court, and consideration of where the balance of probability lies on the basis of that analysis, rather than on the basis of general conclusions about her credibility.[24]
[24] Fox v Percy (2003) 214 CLR 118 at [31]; Camden v McKenzie [2008] 1 Qd R 39 at [34].
The plaintiff started working as a cook at the Withcott Hotel in January 2010. She was employed on a part-time, casual basis to work around 25-30 hours a week; although she often worked more like 40 hours.[25]
[25] T 1-20.2 (plaintiff); T 3-95.29-.35 (Mr Simpson).
The plaintiff said she would usually work on a Monday and Tuesday by herself, have Wednesday and Thursday off, and then work Friday and Saturday with “Pete” (Peter Burnett, the chef).[26] She worked a “split shift”, meaning she worked for a period of about 3-4 hours in the morning and over lunch (say, 10 am until 2pm) and then returned at 5pm for the dinner service, working until about 8.15 or 8.30pm. On 25 March 2011 her shift commenced at 10.30am and she finished at 1.30pm.[27]
[26] T 1-20.35-.37.
[27]Her timesheet is exhibit 8. Although the plaintiff said she started work at 10am, she agreed in cross-examination that the timesheet, which records her starting at 10.30am, would probably be accurate: T 1-74.14.
In addition to her role as a cook, and the chef (Peter Burnett), there was also an apprentice chef (Catherine Ellis-Marshall), who worked with the plaintiff on some days.[28] She worked with the plaintiff on 25 March 2011.
[28] T 1-20 (plaintiff);
Initially, and indeed up until amendment of the statement of claim on 26 February 2015, the plaintiff had identified the date of the “incident” as 15 March 2011. However, after receiving a copy of her timesheets in the course of disclosure, at some time after 30 May 2014,[29] she identified Friday, 25 March 2011 as the correct date.[30] Her explanation for the earlier date was that when she contacted WorkCover about making a claim, she could not remember exact dates, and “they told me to guess”, which is what she did.[31] She did not know exactly when she contacted WorkCover, but thought it was around June 2011.[32] The curiosity of her not remembering the date, relatively soon after the incident is said to have occurred, may be explained by the fact that there was no particular “incident” as such and, as the plaintiff said, she did not think it was very serious at first.[33]
[29] T 1-100.
[30] T 1-51.22; 1-89.9; 1-99
[31] T 1-51.
[32] T 1-100.3-.16.
[33] T 1-50.33.
The plaintiff said that, after feeling pain, which she said was about 11 o’clock, she continued to work, until about 1pm, and then went to the doctor. There is support for that, in the records from the Toowoomba Medical Centre, which include a record of an attendance by the plaintiff on a doctor identified as LS (said to be Dr Leslie Smith) on 25 March 2011. The doctor recorded “pain left neck and upper back due to lifting left arm as a cook”.[34] She was given an “off work certificate”,[35] and prescribed Mobic (an anti-inflammatory medication).[36]
[34] Emphasis added.
[35] Exhibit 3.
[36] Exhibit 22.
In addition to the plaintiff’s incorrect attribution of the date as 15 March, there is also a record from a different GP’s practice, the Withcott Medical Centre, made on 29 March 2011, which creates confusion. A consultation is recorded on this date, with a Dr Nirmala Chand, which reads “upper back pain for 3/52, seen GP 2/52 ago, not getting better”. This note also says “working as a cook in a pub, lifting weights, not too heavy”.[37]
[37] Exhibit 16. Emphasis added.
The plaintiff’s evidence was that she had gone to the Withcott Medical Centre, to see her “normal doctor”, after the weekend, on the Tuesday (ie following 25 March 2011),[38] from which it was suggested Dr Chand had incorrectly written 3/52 (3 weeks) rather than 3 days.
[38] T 1-49.20; 1-94.41 – 1-95.3.
There were tendered in evidence the records from three GP practices: Toowoomba Medical Centre; Withcott Medical Centre; and Yeppoon Family Practice (from September 2011 onwards). It was noted by counsel for the plaintiff that there are no records, in the former two, of any attendances two weeks prior to 29 March 2011.
The plaintiff’s husband’s evidence was supportive of something happening in “early 2011”, but not otherwise as to the date.[39] Similarly, the evidence of a co-worker, Denise Marshall, corroborated the plaintiff’s evidence of pain (Ms Marshall saying she noticed the plaintiff had a sore shoulder and aching back), but was vague in terms of timing (although not sure, she thought it was maybe a couple of months before the plaintiff finished up work at the hotel).[40]
[39] T 1-103.12-.19.
[40] T 2-51.22 – 2-52.10.
The plaintiff said that, at the time that she experienced pain, Neil Simpson (her boss, and the manager of the hotel) walked through and “[h]e said something like what’s up. What happened. And I said I’ve hurt my back”. She also said that Peter Burnett was present, on the other side of the bench, but she could not remember if he said anything.[41] Mr Simpson denied this happened.[42] Peter Burnett was not called, and the defendant invited me to draw a Jones v Dunkel inference, that his evidence would not have helped the plaintiff’s case.[43] I accept that it is appropriate to draw such an inference, because Peter Burnett is a witness the plaintiff might reasonably be expected to have called. In light of both Mr Simpson’s denial, and an inference that Peter Burnett’s evidence would not have helped the plaintiff’s case, I do not accept the plaintiff’s evidence of a complaint being made to Mr Simpson at this time.
[41] T 1-44.15-.30.
[42] T 3-106.18.
[43]Jones v Dunkel (1959) 101 CLR 298; recently discussed by the New South Wales Court of Appeal in RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [75]-[79].
Nevertheless, on balance, and in particular having regard to exhibit 3 and exhibit 22, I accept that the plaintiff experienced pain on 25 March 2011. In so far as the notes made by Dr Chand suggest onset of pain some 3 weeks earlier, it seems this may either be explained by a miscommunication, or a typographical error.
What happened on 25 March 2011?
As already mentioned, this is not a case where any particular incident is said to have occurred, causing the plaintiff to feel pain. Rather, what the plaintiff says is that, whilst she was at work, having been there for about half an hour or an hour,[44] she started to feel pain in her upper back and left shoulder.[45]
[44]The plaintiff’s evidence initially was that she started work at 10am, and experienced pain at 11am. As noted, she actually started at 10.30, but the elapse of time before feeling pain was not clarified with her – so I proceed on the basis it was either half an hour or an hour.
[45] T 1-44.11 – 1-45.3.
The way the plaintiff’s case has developed, although she could not identify any particular incident, there seems to have subsequently been an analysis of her work situation, in an attempt to identify a cause, or an explanation for her pain. That has resulted in the plaintiff’s claim being advanced on the basis that the manual handling she was required to do in the course of her work as a cook, in particular putting away deliveries, caused an injury to her upper back. As she said, “I’m not sure exactly what it was that – I just know that I was standing against the bench and I was in a lot of pain after doing my normal stuff that morning”.[46]
[46] T 1-90.2-.3.
Although the plaintiff was questioned in examination in chief and answered at times in terms of describing what she actually did on 25 March 2011, it was quite clear (and quite understandable) that she could not recollect this. I proceed on the basis that what the plaintiff was describing was what she generally did.
The plaintiff said the first task for the day was for her to put away various things that may have been delivered prior to her starting work. After this she would start doing “prep work” for lunch and dinner. If the onset of pain was noticed between a half to one hour after commencing work, all that could have been done in this time was putting any deliveries away, and commencing preparation. It was not part of the plaintiff’s case at trial that she had commenced to do anything else – for example, cooking, plating, serving customers, cleaning up etcetera.
As to what actually transpired on 25 March 2011, the plaintiff’s evidence was: “Say about 11 o’clock, I was standing at the bench, and I remember leaning over on – because I was in pain.”[47] She elaborated that she “just had pain up in here [pointing to her upper back] … and in my shoulder along there [pointing to her left side]”.[48] She said the pain was “really bad”.[49] She continued working until 1.30pm.[50]
[47] T 1-44.15.
[48] T 1-44.32 to 1-45.3.
[49] T 1-45.6.
[50] See exhibit 8.
What was the (relevant) work system?
On the basis of the plaintiff’s evidence, and the evidence from other witnesses and the documents tendered, a picture can be formed about the system of work.
Putting away deliveries
At the relevant time, the task of putting the deliveries away was shared between the plaintiff, Peter Burnett (the chef),[51] and Catherine Ellis-Marshall (the apprentice chef). Other staff would sometimes assist, for example Denise Marshall,[52] but it was mainly the kitchen staff who did this task.
[51]T 1-25.19-.20.
[52]Who had worked at the Withcott Hotel at the same time as the plaintiff, at the front of the hotel, including as a bar attendant and waitress. T 2-50; 2-52.25.
Ms Ellis-Marshal was working on 25 March 2011, starting at the same time as the plaintiff, 10.30am.[53] She described herself as being lower, in terms of seniority of staff, than Pete the chef and the plaintiff,[54] and said that she and the plaintiff “worked as a team, and we shared the workload”.[55] Ms Ellis-Marshall said that if they were there, “[d]eliveries would be put away straight away” and depending how big the order was, this would take “maybe the maximum would be 20 minutes”.[56] The plaintiff said the task of putting the deliveries away took her about half an hour.[57]
[53]Exhibit 43 (timesheet).
[54] T 3-69.9.
[55] T 3-67.3.
[56] T 3-74.22-.28.
[57] T 1-39.40.
It is reasonable to infer that Ms Ellis-Marshall would have assisted the plaintiff in putting away the deliveries on this occasion.
The products delivered generally came from three sources: the local fruit and vegetable supplier (Boko’s Fruit Mart), the meat supplier, and all other grocery items (including frozen foods) from a supplier called Bidvest.
The plaintiff said deliveries were generally made two or three times a week (for Bidvest); twice a week (Monday and Friday) for the fruit and vegetables; and once a week (Friday) for meat.[58]
[58] T 1-82.46 – 1-83.6.
The plaintiff described the deliveries (other than the meat) being placed on the floor in a room which is entered from the verandah, and through which one has to walk to access the kitchen,[59] in which there was a chest freezer, shelfing, and fridges[60] (the “delivery room”). Next to the delivery room is the “storeroom” (called the “dry store” by some witnesses). From the delivery room, one walks through to the kitchen, and on the other side of the kitchen there are two cold rooms, one for meat and alcohol, and one for fruit and vegetables.
[59]The layout of the kitchen and adjacent areas of the hotel (including this room) are shown on a “mud map” drawn by the plaintiff which is exhibit 2.
[60] T 1-23.
The plaintiff said that the meat would get delivered directly to the coldroom, but the fruit and vegetables and all the Bidvest items would get put on the floor of the delivery room.[61] The plaintiff’s evidence that deliveries were placed on the floor in the delivery room was supported by Denise Marshall.[62]
[61] T 1-24.38-.47.
[62] T 2-50; 2-52.29.
It was also supported by Catherine Ellis-Marshall’s evidence, although there were some differences. Ms Ellis-Marshal said that “Boko”, who delivered the fruit and vegetables, would “put the majority of them in the fridge [which she identified as the cold room shown on exhibit 2[63]], or the potatoes [and onions] and that he’d put near the storeroom for us to put in the appropriate place”.[64] She seemed to identify a place just outside the door of the storeroom, in the delivery room, as the place where the potatoes were left.[65] She described moving them “just around the corner” into the storeroom.[66] She described the potato sacks as the heaviest item of fruit and vegetables that she would actually have to lift, weighing, she thought, about 20 kg.[67] But she said she didn’t think she did this many times; she could not remember.[68]
[63] T 3-64.46.
[64] T 3-63.36-.40.
[65] T 3-65; exhibit 2; 3-68.25-.34.
[66] T 3-66.13.
[67] T 3-65.40-.43.
[68] T 3-66.20-.29.
Ms Ellis-Marshall seemed to indicate that some of the Bidvest deliveries would also be placed directly into the store-room, on the floor.[69] She said if the deliveries were made before the kitchen staff had started work, “the delivery man will put the chips either in the cold room and the frozen foods in the chest freezer”.[70]
[69] T 3-70.1.
[70] T 3-74.30.
Russell Bachman, who is the proprietor of Boko’s Fruit Mart, the fruit and vegetable supplier to the Withcott Hotel, said that it was his “usual practice” to put the “dry goods” (potatoes, onions, pumpkins) straight into the storeroom (to the left of the delivery room) and place the remaining items, which he said was “not a big order”, on the floor in the delivery room.[71] He said he personally did “probably 90 percent” of the deliveries to the Withcott Hotel, and that would have been the case in March 2011. He said “Luke, my main man in my fruit shop” did the balance of the deliveries. He said he would “guarantee” that Luke was putting things like the potatoes in the dry store room also, because “he’d automatically do the right thing”, and that’s the way he teaches his staff, to give good service and look after our customers, although he had not been out to the Withcott Hotel with him.[72]
[71] T 2-69 - 2-70.
[72] T 2-73 – 2-74.
Although Mr Simpson, in his evidence in chief, seemed to indicate that deliveries from Bidvest would be placed directly into the cold room or freezer or dry store area, as appropriate, by the delivery people; and all the fruit and vegetables would be placed in the dry store,[73] an earlier statement was put to him, in which he had said “its normal procedure for the chef or cook working on the day to sort through the goods and place them in freezers, cold rooms, or dry stores room etc”, which he did not disagree with, maintaining only that something like ice-cream would not be left on the floor, but put straight into a freezer. That may be the case, but otherwise, it does not seem to me that Mr Simpson’s evidence is in fact at odds with that of the plaintiff and Ms Ellis-Marshall, regarding the deliveries being placed predominantly on the floor in the delivery room.
[73] T 3-97 – 3-98.
The evidence of another employee from the Withcott Hotel, Ms Beverley Wellington, was curious and quite discordant with all the other evidence. She said she had not observed any of the kitchen staff putting any deliveries away[74] (but it was apparent that her shift, as a cleaner, finished before the kitchen staff started[75]). She described the delivery boys putting everything away,[76] but in light of the plaintiff’s, Ms Ellis-Marshall’s, and Mr Bachman’s evidence, I do not accept that. She had some fairly strident, and negative, things to say about the plaintiff (including that she used to smoke marijuana while at work, near Neil Simpson’s office; that she would complain to everybody about not wanting to lift anything; that she had a lot of days off from work,[77] having more sick days than she had on[78]), which were not corroborated and, at least in so far as smoking marijuana outside her boss’ office[79] is concerned, frankly implausible. Mr Simpson’s evidence about the plaintiff was far more positive, including that she was not known to have a lot of time off.[80] I disregard Ms Wellington’s evidence as unreliable.
[74] T 3-77.41.
[75] T 3-82.
[76] T 3-77.34.
[77] T 3-78.
[78] T 3-80.38.
[79] T 3-79.
[80] T 3-101.
There were tendered in evidence invoices from each of the suppliers, showing what was delivered on 25 March 2011:[81]
(a)From Bidvest: 5 boxes of frozen chips (each of which contained 6 x 2 kg bags of chips – so each box weighed 12kg); 1 tray of “fillo chicken mango & macadamia” (6 x 200g); 1 x 2 litre tub of icecream; a 2kg bag of shredded cheese; some plastic takeaway containers; a 750 g packet of pepper; a 2.3kg bottle of tartare sauce; and a 15 litre drum of vinegar.[82]
The plaintiff identified the boxes of chips as probably the heaviest item on this invoice.[83]
(b)From Boko’s Fruit Mart: 3kg of salad onions; 3 pumpkins [estimated to weigh roughly 8 or 10kg by Mr Bachman[84]]; ½ bag of potatoes [estimated to weigh 24 kg by Mr Bachman[85]]; 3 dozen eggs; 2 bunches of parsley; 4 bunches of shallots; 10 punnets of snow peas; 1 box of mesculin lettuce; 2 red cabbages; ½ box of tomatoes [estimated to weigh 5 kg by Mr Bachman[86]]; 15 cucumbers; 1 box of broccoli [estimated to weigh 8 kg by Mr Bachman[87]].[88]
The plaintiff identified the box of tomatoes as probably the heaviest item on this list.[89]
(c)The meat delivery comprised various items, the heaviest single item of which was rump steak weighing 9.69 kg.[90]
[81] Exhibits 9, 10 and 11.
[82] Exhibit 9.
[83] T 1-83.22.
[84] T 2-71.29.
[85] T 2-71.36.
[86] T 2-72.25.
[87] T 2-72.34.
[88] Exhibit 10.
[89] T 1-87.8.
[90] Exhibit 11.
Having regard to the invoices, and the evidence of other witnesses, I consider that the plaintiff tended to overstate some aspects of this task. For example, she described the deliveries being “like, all over the floor” and said she “would have to normally climb over them to get to the deep freeze, and then I’d have to turn around and pick up the boxes”;[91] that “normally the boxes covered that whole space”;[92] that (on this occasion) there were “probably about 15” containers (or boxes) containing deliveries, and each might weigh about 20-25 kilograms;[93] and that on this specific occasion she “had to go over boxes to get to the freezer”.[94] She apparently told Mr McDougall, an engineer who gave evidence, that on a Friday there could be “30 or more cartons of product on the floor”.[95]
[91] T 1-26.42-.46.
[92] T 1-28.45.
[93] T 1-29.32-.46.
[94] T 1-39.30.
[95] Exhibit 23 at p 4.
In contrast, Ms Ellis-Marshall said there may have been 30 “things, maybe, but not boxes”.[96] Mr Bachman described the Withcott Hotel’s as “not a big order” and, looking at the invoice for 25 March 2011, he said that would probably fit into 3 or 4 boxes.[97] Mr Simpson’s evidence was that quantities ordered would vary from week to week, depending on how busy they were, but the invoices in evidence seemed “pretty normal”.[98] There being no evidence before the court of other invoices suggesting deliveries of far greater items on other occasions, but even accepting that the amount of items delivered would no doubt vary, it would seem that the plaintiff’s various descriptions are exaggerated.
[96] T 3-69.30.
[97] T 2-73.
[98] T 3-97.34.
As to how she went about this task, the plaintiff said she would have to take the fruit and vegetables to the cold room, to put them away (other than pumpkin, potatoes and onions, which went into the storeroom adjacent to the delivery room). In relation to the “fruit and veg”, she said “so you’d have to pick them up from their boxes and carry them into the coldroom”.[99] She described having to “drag” the potatoes and carrots, because “they were too big to carry”.[100] The pumpkins she would carry in a box (maybe 3 or 4).
[99] T 1-29.3.
[100] T 1-33.27.
In relation to the potatoes, having regard to Ms Ellis-Marshall’s evidence, of having to move the potatoes on some occasions, but also having regard to Mr Bachman’s evidence (which I otherwise found credible and reliable), whilst I accept that Mr Bachman would put the potatoes in the dry storeroom, it seems probable that there were occasions when the potatoes were not put there. Perhaps this was when Mr Bachman’s employee (Luke) carried out the delivery. Although Mr Bachman had an expectation of what this person would do, he could not actually say.
In so far as Mr Simpson suggested that the delivery people would take things to where they had to go, I find that he was describing something that was not done as at March 2011 (having regard to the other evidence).
Accordingly, it is apparent that, as at March 2011, the task of putting deliveries away did require things to be lifted from the floor, or perhaps dragged (in the case of the potatoes), and that the weight of these things would vary, but could be 5kg (in the case of the ½ box of tomatoes); 8-10kg (in the case of the box of broccoli, or 3 pumpkins); up to 24kg (in the case of the potatoes).
I do not accept that the plaintiff would be required to lift, and carry, boxes of fruit and vegetables, or other products for that matter, weighing 20-25kg, as this was not established on the evidence. Her own evidence was somewhat unclear in terms of what she did. In relation to the “fruit and veg” she said that she would “pick them up from their boxes and carry them into the coldroom”.[101] On another occasion, when referring I infer to deliveries from Bidvest, she described picking up a box, containing multiple items, to take it where it needed to go.[102] But either way, that any such box would weigh 20-25kg was not demonstrated.
[101]T 1-29.2; see also 1-25.5 (where the plaintiff described her role in relation to the deliveries as “[t]o get them all of out of their boxes and put them into the places, so the storeroom, the chest freezer that was in that same room, or they could go out to the fruit and veg coldroom”).
[102] T 1-28.35.
In terms of the meat, as noted, this would be delivered directly to the cold room. The plaintiff described having to put away what was delivered to the cold room, by putting it on the shelves, and rotating the stock to make sure the older meat was on the top.[103] But I find that this involved taking individual items out of the carton delivered (as opposed to carrying the whole carton[104]), as a result of which the weights involved would not be excessive (the largest item was just over 9.6kg).
[103] T 1-85 – 1-86.
[104] Cf Mr McDougall’s report at exhibit 23, p 43.
In terms of the boxes of chips, the plaintiff described pulling them over to the chest freezer, and then lifting each packet (weighing 2kg) out of the box “singularly” to put them into the freezer. She was not lifting each box of chips (which would weigh 12 kg).[105] She would first move the existing items in the chest freezer, so that the newest stock was at the bottom (ie rotating the stock).[106] She said “[t]he chest freezer was really full. So you had to get things out to be able to put things in”.[107] She described having to be “up on my tippy toes” to lean right over into the chest freezer.[108] There is some incongruity to this – if the chest freezer was “really full”, it may be wondered how 30 packets of frozen chips (5 cartons containing 6 packets each) could be put away. In any event, Ms Ellis-Marshall, who said she was a similar height to the plaintiff, described this task as “easy”.[109]
[105] Cf Mr McDougall’s evidence at T 2-36.22.
[106] T 1-27.39.
[107] T 1-27.19.
[108] T 1-28.6.
[109] T 3-75.45.
Other items delivered from Bidvest, such as sauces and other “dry goods” were put into the store room.
Prep work
After putting away the deliveries, the plaintiff said she would start doing “prep work” for the lunch and dinner service, which she said “was doing potatoes or carrots, or salad was done straight after”.[110] Once again, parts of this evidence were given in terms of the plaintiff remembering tasks she had actually done on the relevant date. I do not accept that as reliable, but I do accept her description of what she would usually do.
[110] T 1-35.25.
Doing the “salad prep” involved getting the salad ingredients from the cold room, taking them to the bench in the middle of the kitchen and cutting them up.[111] This would not involve the plaintiff in carrying significant weights. Her evidence was to the effect that she would take the ingredients she needed from the cold room (eg a couple of capsicums). Although at one point she said she carried the whole box of tomatoes[112] that is inconsistent with her otherwise saying she just took what she needed, which is more plausible.
[111] T 1-41.7-.16.
[112] T 1-41.12.
Doing the potatoes involved getting the already peeled potatoes from a tub in the coldroom, cutting them up, putting them in a pot, filling it with water and carrying it to the stove. This evidence was the subject of objection at the trial, as it was not a task referred to in paragraph 6 of the statement of claim. Whilst there is some merit to the objection, given the very specific nature of the pleading, the evidence did not extend to weights etc involved in this task and does not advance the plaintiff’s case in any particular respect.
The evidence was to the effect that this particular Friday, 25 March 2011, was not a very busy one, with only 13 meals being prepared at lunchtime.[113] Although the evening was busier, and the evidence was that the preparation work in the morning part of the shift covered both lunch and dinner.[114]
[113] Exhibit 47.
[114] T 3-109.42 – 3-110.6.
Training or instruction?
The plaintiff said that she was not given any induction or training, other than being shown “where everything was, who to order through, and … what meals there was and things like that”.[115]
[115] T 1-20.8-.18.
When asked if she had received any training about manual handling in the past, she said she “did a certificate 1 through Grade 11 at school, and after I left school, I did a traineeship in certificate 2”, which was in 1997.[116] In terms of her understanding as to what was important when doing manual handling, she said “[j]ust to try and keep your back straight and bend your knees”.[117] She did not have any understanding about lifting away from her body as opposed to close to her body.[118] She also said she “tried to do it as quick as I could to get onto the next thing”.[119]
[116] T 1-21.6 - .14.
[117] T 1-21.26.
[118] T 1-21.41.
[119] T 1-21.38.
Ms Ellis-Marshall described being given instructions about how to perform her tasks (which she described as full kitchen duties, cooking, preparing food, plating, serving). She said Neil (Simpson) “would tell us about lifting things, that there’s always people around that can come and help us pick up heavy stuff”, those people being Neil Simpson, any of the men from the bottle shop floating around, and Peter, the head chef. She said she sometimes did that (that is, asked the male staff to help), but not very often, because the delivery guys would help us put some of the items away.[120] She said she could not remember being told anything about a weight limit for lifting, or ways to position your body when lifting.[121]
[120] T 3-61.38 – 3-62.5.
[121] T 3-72.28-.40.
Mr Simpson said that, when the plaintiff first started working at the hotel, “[w]e spoke about lifting and all that sort of thing in detail..”,[122] and said that he recalled going through a “document … in some detail of what’s required and, you know, the different actions you take where if you lift something and using your knees and that sort of thing”.[123] He seemed to suggest the document came from the Queensland Hotels Association. It was apparent his evidence in this regard came as something of a surprise to counsel for the plaintiff, no such document having been disclosed, and no reference having previously been made to it in a statement made by Mr Simpson.[124] The document was called for, but not produced. I do not accept Mr Simpson’s evidence in this regard. I find that what was said by Mr Simpson to the plaintiff, in terms of lifting, was simply that if she had any problems with lifting things, or needed a hand with lifting, there were male staff members available, including the head chef, and she could ask them to help.[125]
[122] T 3-96.43.
[123] T 3-97.3.
[124] T 3-101 – 3-104.
[125] Also, T 3-113.1-.12.
In her evidence in chief the plaintiff said she was not given any direction about getting someone else to help her. But in cross-examination, it appeared that she was aware of this as an option, because when it was put to her that people like Peter Burnett and the male staff of the hotel, including the ones from the bottle shop, were there to assist, she answered “[t]hey were not always available”, explaining that they needed to “man their own sections”.[126] That suggests that it is likely that she was told that she could ask them for assistance with lifting heavy things.[127]
[126] T 1-76.36.
[127]See also exhibit 23 at p 2 (recording the plaintiff telling Mr McDougall about the limitations on obtaining assistance from the men in the drive through area, or female bar staff).
Other matters
The plaintiff described the whole kitchen as being “on a lean, so it slopes down”, towards the dishwasher side of the kitchen.[128] The plaintiff seemed to associate this with the bench in the middle of the kitchen being higher at one end than the other - saying that the height of the bench towards the “fridge” (which is nearest the dishwasher) was too high for her.[129] This would only make sense if the bench was raised up in some way on one end of it (ie to keep it level), although the plaintiff did not say anything about this. Neither the presence of any slope in the floor, nor any question of the bench being of unequal heights, was supported by other evidence received by the court. Duncan Gray, a factual investigator, gave evidence of various measurements he took at the Withcott Hotel. His evidence was that the bench in the middle of the kitchen was approximately 1020 mm high.[130] He said he did not observe any slope in the kitchen floor, towards the dishwasher.[131] Mr Simpson said he was not aware of any slope.[132] Ms Ellis-Marshall said she observed no slope in the kitchen floor.[133] In the circumstances, I do not accept the plaintiff’s evidence about this.
[128] As shown on exhibit 2.
[129] T 1-44.6-.9.
[130]It seems that in a written report to WorkCover he had recorded the bench height as 1120mm, but he said that in preparation for giving evidence in court he had reviewed the photographs he had taken, and video footage he had taken, and he considered that was incorrect, as the middle bench was certainly not 200 mm higher than the “plating bench”, which is said was 910mm. See T 2-11 to 2-12.
[131] T 2-15.30.
[132] T 3-95.6; 3-111.44.
[133] T 3-67.31.
The plaintiff never complained to Mr Simpson about her work duties, or the way the deliveries were placed or had to be put away.[134] Mr Simpson said that, prior to March 2011 no one else had made any complaints to him about the layout of the kitchen or the process of putting away the deliveries, either.[135]
[134] T 1-87.41 – 1-88.2 (plaintiff); T 3-100.44 (Mr Simpson).
[135] T 3-113.17.
Furthermore, it is reasonable to infer that the plaintiff had not had any difficulties with her work tasks prior to this – she agreed that she told Dr Chand “[w]orking as a cook in a pub, lifting weights, not too heavy”, and said “[b]ecause I didn’t think it was – I was just doing my normal duties, so I didn’t think that it was bad at that stage”.[136]
Has the plaintiff suffered any injury?
[136] T 1-95.11-.18.
Thoracic spine / upper back pain
The plaintiff’s case is one where medical professionals are unable to identify a pathological reason why she should be feeling pain, yet she has been largely[137] considered to be genuine in her complaints of pain, although that seems to be explained on psychological or emotional bases, rather than physical.
[137]Only Professor Whiteford was non-committal about this, on the basis that from his limited examination of the plaintiff he did not feel he could comfortably reach this conclusion (see paragraph [87] below).
Following her initial consultation with Dr Chand, the plaintiff was referred for and had physiotherapy,[138] and subsequently had cortisone injections, on the recommendation of another GP, Dr van Heerden.[139]
[138] Exhibit 16, notes from Withcott Medical Centre, include notes from Mr Jason Chung, physiotherapist.
[139] Exhibit 16, p 81.
In relation to the cortisone injections, the plaintiff described receiving three of these injections, and said the first one (which she had shortly after 15 April 2011) lasted about a month, the second (which she had a few months later) lasted about two weeks and the third (which she had after moving to Emu Park, which was in about September 2011) did nothing.[140]
[140] T 1-52.10-.18.
In July 2011, the plaintiff was referred to Dr Anthony Wilson, orthopaedic surgeon, by Dr Chand. She saw Dr Wilson in August 2011. In a report addressed to WorkCover dated 11 November 2011,[141] Dr Wilson diagnosed the plaintiff as suffering “minor aggravation of thoracic spine degeneration.”[142] He indicated the condition should be “stable and stationary” “six to twelve weeks from injury”. In relation to “work”, Dr Wilson said:
“This lady should be performing suitable duties. The degeneration in her spine would be compatible with her work as a Cook I expect. I think she could return to full work as a Cook in usual circumstances probably from six weeks after the injury. I would think that if she is unable to work as a Cook because of the symptomatology than (sic) other factors are relevant and this is non-orthopaedic.”
[141] Exhibit 26.
[142] Emphasis added.
I note that, in a letter dated 9 December 2011, Dr Gilbert, referred to Dr Wilson’s report, and said that “his conclusions and recommendations, although worded differently, are in concurrence with my opinion”.[143]
[143] Exhibit 40.
In his earlier letter to the referring GP[144] Dr Wilson had said he thought it prudent for the plaintiff to see a “spine surgeon”. The plaintiff then saw Dr Leo Zeller, an orthopaedic surgeon, on 26 August 2011. This is the “spinal surgeon” Dr Wilson referred her to.[145] In a letter from Dr Zeller to WorkCover dated 23 November 2011, Dr Zeller said:[146]
“When I initially saw her she reported upper back pain. She was reporting episodic loss of feeling in her right hand and right foot. She also reported lower back pain. MRI Scan was undertaken at my request. This did not show any evidence of injury and the MRI displayed evidence of age related change. There was no evidence of any neurological abnormalities. I referred her to a neurologist for an opinion. She has subsequently seen Dr John Cameron. My understanding was that he did not find any neurological abnormalities and was repeating the MRI Scan. I have not planned to review her.
This lady reports a work related injury. She did not describe to me any specific event. My examination and Dr Cameron’s examination[147] does not show any evidence of impairment in either the muscular skeletal or neurological systems. This lady has pain around her left shoulder and upper back. There is no evidence of significant underlying pathologies based on the information that I have to hand.
I believe that this lady should be able to return to some work at this point in time. I have not seen her since 26/8/2011…”[148]
[144] Exhibit 25.
[145] See exhibit 26, 2nd page.
[146] Exhibit 21.
[147]Letters from Dr Cameron to Dr Zeller dated 27 October 2011 and 21 November 2011 are part of exhibit 19.
[148] Emphasis added.
Dr Cameron, the consultant neurologist, provided a report to WorkCover dated 21 November 2011.[149] In this report, Dr Cameron said the plaintiff “appears to have” non-specific upper thoracic back pain and depression. He said that “[i]t is possible her working activities may have aggravated or exacerbated at times the symptoms of mild degenerative changes in her upper thoracic spine. I cannot obtain a history that she suffered any specific discrete injury”. In Dr Cameron’s letter to Dr Zeller, of the same date, he said:
“[The plaintiff] was reviewed with her partner. She was depressed and tearful. She states she has chronic pain in her upper thoracic spine region.
She has had an MRI of her cervical and thoracic spine, a whole body bone scan and an ultrasound of her left upper back region and really little has been demonstrated to account for her chronic pain.
Overall I believe [the plaintiff] is depressed but probably has some underlying mild degenerative problem in her upper thoracic spine.
In the past, she has had two good responses to T1 and T2 nerve root block on the right. I have suggested she have one final go at this and once it is effective she could undertake a very active rehab programme if possible arranged through WorkCover.”
[149] Exhibit 19, p 211
The plaintiff saw Dr Gilbert, a public health physician (occupational health), on 23 November 2011. Dr Gilbert provided a report to WorkCover dated 23 November 2011.[150] In that report, he expressed the opinion that:
“Her condition is consistent with a soft tissue injury related to the left shoulder girdle and cervical spine, which is most likely to be a mild aggravation of pre-existing underlying mild degenerative changes within the cervical and thoracic spine.
… the soft tissue injury is more related to static loading of the levator scapulae and rhomboid muscles of the left shoulder girdle and associated obesity.”[151]
[150] Exhibit 39.
[151] Emphasis added.
The plaintiff relies on evidence from Dr Frank Thomas, a “pain specialist”. Dr Thomas has performed procedures on the plaintiff, described as “radiofrequency neurotomy”. Although this aspect of his evidence was somewhat unclear, it appears this procedure was conducted on 3 occasions, on 14 March 2013, 5 June and 20 November 2014.[152]
[152]Dr Thomas’ records, exhibit 27, at pp 275, 276 and 277 (operation records for 14/03/13, 05/06/14 and 20/11/14). Cf Dr Thomas’ oral evidence at T 2-80 (that he last saw her on 31 July 2014, and that she had an appointment down for 20 November 2014, which she did not turn up for).
In relation to these procedures (which the plaintiff called “nerve ablation”) the plaintiff’s evidence was that after the first one, she got about a month’s relief; after the second one, she “only got a little bit” and she “got nothing out of the third one”.[153]
[153] T 1-52.37-.43.
That pattern is, in part, reflected in Dr Thomas’ records:
(a)On 10 May 2013 (first procedure), he reported back to the plaintiff’s GP that he had reviewed her that day, and:
“She reports complete relief of her neck pain following the radiofrequency neurotomy of C5/6 and C6/7. She has been able to discontinue all analgesics, has returned to work[154] and is enjoying leisure activities again such as kayaking”.[155]
(b)On 1 August 2014 (second procedure), he reported back to the plaintiff’s GP that she “did not respond as well to the most recent radiofrequency neurotomy”, and referred to a proposal to use “the new Nimbus needles to increase the size of the lesion to try and recapture control of the facet joint pain”.[156]
[154] What this refers to was not explored, either in Dr Thomas’ evidence, or the plaintiff’s.
[155] Exhibit 27, p 265.
[156] Exhibit 27, p 272.
There does not appear to be a report following the third procedure. In fact, Dr Thomas’ evidence was that he had not seen the plaintiff since that last procedure in December 2014.[157]
[157] Exhibit 28; T 2-79.17.
Dr Thomas said he believes the source of the plaintiff’s pain is an injury to the facet joints at the C5/6 and C5/7 vertebrae, which cannot be detected on any x-rays or scans. He said the cause of the pain is that the injury has affected the nerve connections to the brain which result in chronic pain. He said that diagnosis is supported by the fact that after a radio frequency neurotomy at the C5/6 and C6/7 vertebrae, there was some relief from pain for a period.[158]
[158] Exhibit 28, p 282; also exhibit 27, p 265.
However, in his oral evidence, he acknowledged that with this methodology there is always a degree of uncertainty, with the reduction in effectiveness of the procedure increasing the doubt that her ongoing problem is due to facet joint pain. In relation to the plaintiff’s evidence that she received no relief at all from the third procedure, he said that suggests either that the pain was not coming from the facet joint, or that the needle used “missed the target”.[159] He described being “well short of significant evidence”[160] for the source of the pain being the facet joint. In that context, he said that he had planned to do another procedure using “some new needles”.[161] Although this seemed to be indicated as a proposal following the third procedure, the written records tendered would indicate this was proposed following the second procedure[162] (although this was not investigated in cross-examination, in terms of whether the new “Nimbus” needles, referred to in Dr Thomas’ letter of 1 August 2014, were used on the third occasion).
[159] T 2-82.41 – 2-83.28.
[160] T 2-85.33 and 2-86.39 – 2-87.9.
[161] T 2-83.30.
[162] Dr Thomas’ letter dated 1 August 2014, exhibit 27, p 272.
On balance, I do not consider that this significantly qualified view of Dr Thomas supports a finding, on the balance of probabilities, that the source of the plaintiff’s pain is an injury to the facet joints.
The evidence is of a present inability to work due to the plaintiff’s psychiatric condition; but the most significant factors identified by Dr Flanagan (and Professor Whiteford) are the need to lose weight, to address the opioid dependency, and this litigation.
Relevant factors to have regard to include the multiple and complex factors said to have contributed to the plaintiff’s current psychiatric condition, only a minor part of which can be said to involve the physical “injury” incurred at work (had that been found); that, as a result of the combination of those factors, the plaintiff was vulnerable to developing a psychiatric condition as a result of some other occurrence (including, as here, as a result of a minor occurrence); as well as the likelihood that circumstances will improve, at the least, with the conclusion of this litigation; and, hopefully, the withdrawal by the plaintiff from the use of opioids. Although there is no scientific certainty or accuracy to this calculation, it seems to me a significant reduction is warranted in any award of future economic loss.[309]
[309] Cf Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211 at [40].
What the plaintiff’s submissions contemplate is recovery of $350 per week (half the plaintiff’s previous weekly earning) over her remaining 34 years working life, with only a reduction of 15% for contingencies.
In my view, an appropriate award would reflect a loss of no more than 15% of what she was earning at the time (say $105 per week), which adopting the 5% multiplier identified by the plaintiff (865.9) amounts to $90,919.50. I am including “normal contingencies” in that calculation, and therefore would not propose any further discount. To this would need to be added loss of superannuation.
Past and future expenses
In terms of past expenses, the award ought to include the WorkCover refunds ($17,316) and the Medicare refund ($6,649.35), which amounts were agreed. Beyond this, having regard to the medical evidence concerning the physical aspect of the plaintiff’s difficulties, I would accept the defendant’s submissions that only a global additional amount ought to be permitted. This may be more than the $500 submitted by the defendant, but in circumstances where no attempt was made, on behalf of the plaintiff, to demonstrate what the medications referred to in exhibit 48 were for, I would not propose to award more than $2,000.
In terms of the future, having regard again to the evidence as to the absence of a physical explanation for any ongoing pain experience, and the very strong views expressed by a number of doctors about the debilitating effects of the opioid dependency developed by the plaintiff, it would be inappropriate in my view for any award for expenses for pain medication to be made. It is noted that both Dr Flanagan[310] and Professor Whiteford[311] have suggested that referral to a multi-disciplinary pain and rehabilitation clinic may be of benefit, the cost of which is estimated at $6,000. Dr Curtis may be said to support this view also.[312] In addition, all of those doctors recommend losing weight, and improving fitness, with Dr Flanagan adding a suggestion that a personal trainer or life coach would be helpful, “as would involvement in a group activity with shared goals and mutual support”. It may be reasonable to include an amount for this. Otherwise, future counselling is not suggested by Dr Flanagan or Professor Whiteford. There is no other orthopaedic treatment recommended by Dr Curtis. Having regard to the evidence, but again factoring in some discount having regard to the multiple contributing factors, I would have considered it appropriate to award a global figure of $10,000 for future expenses.
[310] Exhibit 35 at p 12.
[311] Exhibit 44 at p 12.
[312]Exhibit 42, p 8 (on the basis that he says “Investigative results up to the point have not been able to determine any treatable orthopaedic problem and it would suggest that this lady has some vague form of chronic pain syndrome, which can only be addressed rom a multidisciplinary aspect and psychiatric management”).
Orders
There will be judgment for the defendant.
I will hear the parties as to costs.
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