Knott v The Withcott Hotel

Case [2015] QDC 314

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 2003

Adeels 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 40

COUNSEL:

T Nielsen for the plaintiff

N Jarro for the defendant

SOLICITORS:

Slater and Gordon for the plaintiff

BT Lawyers for the defendant

Introduction

  1. 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…

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AGLC
Knott v The Withcott Hotel [2015] QDC 314
Case
[2015] QDC 314
Decision Date

CaseChat Overview and Summary

The case of Knott v The Withcott Hotel involved a claim by the plaintiff, who was employed as a cook by the defendant hotel, against the hotel for damages arising from an alleged work-related injury and subsequent psychiatric disorder. The plaintiff alleged that she suffered an injury to her upper back while at work and that the manual handling aspects of her job system caused her injury. The dispute centred on whether the defendant breached its duty of care to provide a safe system of work and whether any breach of duty was a necessary condition for the occurrence of the injury as per s 305D of the Workers’ Compensation and Rehabilitation Act 2003. Additionally, the court had to determine the quantum of damages for the plaintiff’s injuries, including the contribution of the physical injury to the development of the psychiatric disorder, amidst complex and multiple other contributing factors.

The primary legal issues revolved around the defendant’s alleged breach of its duty of care to provide a safe work environment and the causation of the plaintiff's injuries. The court needed to determine whether the manual handling aspects of the plaintiff’s work were inherently unsafe and if the defendant could be held liable for the plaintiff's injuries. Furthermore, the court had to establish whether the physical injury was a necessary condition for the plaintiff's subsequent psychiatric disorder, and if so, how this impacted the assessment of damages.

The court found that the plaintiff's claim did not establish a breach of duty by the defendant. The evidence did not demonstrate a specific incident that led to the injury, nor did it conclusively show that the manual handling aspects of the work were inherently unsafe. The medical evidence indicated that the plaintiff had mild degenerative changes in her upper thoracic spine, but no significant underlying pathology was found to support a direct causal link to her work activities. Additionally, the court determined that the plaintiff's psychiatric disorder was influenced by multiple factors, and the physical injury did not constitute a necessary condition for the occurrence of the disorder under s 305D of the Act. Consequently, the court awarded judgment in favour of the defendant.

In summary, the court found no breach of duty by the defendant and no necessary condition linking the physical injury to the psychiatric disorder. As a result, the plaintiff’s claim was dismissed, and judgment was entered for the defendant.

Orders

Orders of the court

Judgment for the defendant

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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