McKenna v Karingal Inc
[2021] VCC 1387
•1 October 2021
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-04424
| KIM SHEREE MCKENNA | Plaintiff |
| v | |
| KARINGAL INC (ABN 97 468 305 401) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Warrnambool (via Zoom hearing) | |
DATE OF HEARING: | 20, 21 and 22 September 2021 | |
DATE OF JUDGMENT: | 1 October 2021 | |
CASE MAY BE CITED AS: | McKenna v Karingal Inc | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1387 | |
REASONS FOR JUDGMENT
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Subject:INDUSTRIAL CAUSE
Catchwords: Plaintiff suffered injury as she alighted from a mechanised platform at the rear of a van used to transport wheelchair-bound clients in the course of employment – platform a short distance above the ground at the time – ground surface onto which she stepped uneven – significant injury to left ankle and knee – whether safe system of work – whether appropriate training, instruction and supervision provided by employer – whether plaintiff ought to have been instructed to ensure platform lowered to ground before alighting – steps taken by employer after the incident – whether and to what extent the state of the ground surface was a cause of injury – whether presence of another client caused the plaintiff to rush as she alighted – whether breach of the employer’s duty of care and whether any breach causatively related to injury – whether plaintiff contributorily negligent in failing to keep a proper lookout or failing to ensure platform was on the ground when she alighted – assessment of pain and suffering damages
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Occupational Health and Safety Regulations 2007 (Vic)
Cases Cited: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529; Maloney v Commissioner for Railways (NSW) (1978) 18 ALR 147; Liftronic Pty Limited v Unver [2001] HCA 24
Judgment: Judgment for the plaintiff. Plaintiff 25 per cent contributorily negligent. General damages assessed at $250,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Arnold Thomas & Becker |
| For the Defendant | Ms B A Myers with Mr T Storey | Thomson Geer |
HIS HONOUR:
1As part of her duties as a disability support worker with the defendant, Karingal Inc (“Karingal”), Ms Kim McKenna took two clients, Wade and Peter, for a recreational excursion to Hopkins Falls, near Warrnambool, on 26 June 2016. Both clients had significant disabilities and were described as being “non-verbal”. Peter used a motorised wheelchair. Wade had some behavioural issues and needed supervision, as he could occasionally “wander off” when left unattended.
2Ms McKenna transported Wade and Peter to the Falls in a Toyota bus or van (“the van”).[1] The van had a hatch door at the rear and was specially fitted with a mechanised hoist or platform (“the platform”), about one metre square, which folded out from the rear and then lowered to the ground to enable access and egress for wheelchair-bound clients.[2]
[1]The van was registered – 1EO 7AT – and about one-year old at the time – see Exhibit 8 – see photograph 8, Exhibit 2
[2] See Photographs 24 and 25 - Exhibit 2
3It is necessary to explain how the platform operated. The platform, when in its retracted position, prevented access into the van by someone standing at the rear.[3] This meant two rear restraining straps used to secure the wheelchair in position could not be released unless the platform was “unfolded” out of the van. The platform mechanism was operated by a control device (“the control”).[4] That enabled the operator to unfold the platform so that it was level with the floor of the van,[5] and then to lower it to the ground.[6]
[3]There was some suggestion in cross-examination (see Transcript (“T”) 106-109) that the platform floor “split” as it was retracted (as can be seen from Photograph 7, exhibit 2) but I am satisfied from Ms McKenna’s evidence the platform was not of that type
[4] Photograph 43, exhibit 2
[5] Photograph 54, exhibit 2
[6] Photograph 24, exhibit 2
4Ms McKenna is of short stature, less than five-feet tall, and is of large build.[7] The problem she faced was that, even with the platform lowered to the ground, she was not tall enough to reach into the van to release the back straps,[8] an operation which required her to use both hands. Her practise was to lower the platform to the ground, stand on it and “ride” it up so that it was about level with the floor of the van. She could then reach in and release the rear straps.
[7] Ms McKenna estimated her weight at the time of the incident at about 130 kilograms
[8] T108, Line (“L”) 2
5At the outset of her employment with Karingal in early 2016, Ms McKenna undertook “shadow shifts”, following other employees and observing what was done.[9] She observed them using the van and the platform over two or three weeks, prior to her training.[10] She said she observed them lower the platform to the level of the floor of the bus and “they would just step up and on it from the ground”.[11]
[9]T87, L13
[10]T88, L17
[11] T35, L7
6Ms McKenna said the only instruction she received in the use of the bus was from team leaders, Rebecca and Lisa, over five or ten minutes in February 2016. It was the first day she was to use the bus. That training involved how to complete the log book, how to secure the clients in the van using straps and a seatbelt, how to use the control, and how the platform operated.[12] She said she observed Rebecca and Lisa stepping up from the ground onto the platform when it was level with the floor of the bus:[13]
“… they unfolded the back of the bus. Rebecca then climbed onto the bus when it was unfolded level with the bus, and she just stepped up. She was obviously a taller person than me. She just stepped up and then climbed into the back of the bus and then I would’ve walked around to the side to see what – so I could see exactly what she was doing then when she was hooking up the client.”[14]
[12] T34, L27
[13] T34, L30; T36, L14; T37, L12 and 24
[14] T35, L21
7At the time Rebecca climbed into the van as part of the demonstration, the platform was level with the floor of the bus.[15] She said she told Rebecca that “I would not be able to do that”.[16] Rebecca replied, “You can just climb – lower it down a bit and climb on it”.[17]
[15] T37, L12
[16] T38, L5
[17] T38, L7
8Ms McKenna said she was not told that the platform should be lowered to the ground before she got on it.[18] She said she only observed about ten per cent of fellow employees lowering it to the ground before getting on. In lowering the platform to the ground, she said about ninety-eight per cent of employees “just step straight off at the same level as in the photo …”.[19] When alighting from the platform, Ms McKenna said she held one of the handles fixed to the platform.[20]
[18]T38, L20
[19]Photograph at figure 13, Plaintiff’s Court Book (“PCB”) 82; T39, L2
[20]See Photograph 24, exhibit 2
9Between the time of instruction and the date of the accident, Ms McKenna said she used the platform to access the rear of the bus regularly, on over thirty occasions. She did it without problems and did not report any concerns.
10According to the defendant’s Answers to the plaintiff’s Interrogatories, no instruction nor warning was given to Ms McKenna that she should not ride the platform down.[21] After the incident, the defendant modified the system of raising and lowering the platform, in that staff were instructed to no longer ride the platform up or down.[22]
[21] Exhibit B
[22]Exhibit B
11There was a safety latch to the side of the platform which, when engaged, meant the platform could not be unfolded or lowered. Ms McKenna did not use it and did not observe others using it.[23] Given the size of the platform, Ms McKenna said she could not ride it with a client’s wheelchair.[24] That was particularly so in Peter’s case, as he had a large, motorised wheelchair.
[23]See photograph at Defendant’s Court Book (“DCB”) 83
[24]T97, L8
12I will now turn to what happened on 26 June 2016. Ms McKenna described the surface of the parking area where the van was parked as asphalt and gravel, with an uneven surface.[25] She said:
“… it had gravel on it, it was asphalt but it was an older - like, you know, obviously not a highly maintained carpark, so yes, it did have, I suppose depressions in it, like you know, a bit of uneven surface, gravel. There was some holes that had water in them, not - I couldn’t tell you how deep they were, but yes, the surface was not in perfect condition.”[26]
[25]T44, L18
[26]T140, L21-28
13After she arrived at the Falls carpark, Ms McKenna got out of the van and opened the side sliding door. Wade got out and stood nearby. She said to him:
“‘You need to just stay there, Wade. Don’t go any further, please, you just need to stay at the side of the bus because I have to get Peter unhooked so we can then go down together’”.[27]
[27]T45, L5
14Peter was secured in his wheelchair towards the back of the van. She released two straps from inside the van, which held the front of the wheelchair secure. Ms McKenna then walked to the rear of the van so as to release the two straps which secured the rear of the wheelchair. She opened the hatch door but was unable to gain access to the rear straps with the platform in its retracted position.
15Ms McKenna unfolded the platform and lowered it to the ground using the control. She could not recall whether she lowered it all the way to the ground. If not to the ground, she said it was lowered to a height such that she could step onto it. She stepped onto the platform and raised it so that it was about level with the floor of the van. She then entered the van and released the rear straps.
16She did not move Peter’s wheelchair onto the platform as that had to be done from inside the van.
17Ms McKenna then lowered the platform to “probably nine inches off the ground”.[28] She said she had time concerns as Wade was out of the bus. She thought it was possible he might wander off. Lowering the platform and getting the wheelchair out was a time-consuming process. She thought she had another five minutes or so before she could move off with Peter and Wade towards the Falls. She said she was conscious of the time, as a small thing might trigger Wade to wander off.[29]
[28]T47, L14-15
[29]T139, L19
18Ms McKenna was then asked what happened. She said the following:
Q:“What happened?‑‑‑
A:Ah, I stepped off, and the next thing I remember, I was laying on the ground, in uneven surface.
Q:When you stepped off, were you holding onto anything?‑‑‑
A:Yes, I was holding onto the rail.
Q:With which hand?‑‑‑
A:My left hand.
Q:And did you step off the left-hand side, the right-hand side, or the rear of the platform?‑‑‑
A:The left-hand side.
Q:All right. And which way were you facing?‑‑‑
A:I was facing towards the bus.
Q:Right?‑‑‑
A:Well, to the - well, I don't know how you describe it. Like, the back of the bus is - like, yeah. I was to the side more, so I stepped backward.
…
Q:Yes, all right. And as you put your foot down, what happened?‑‑‑
A:I just lost my feet - my footing.
Q:All right. And why was that?‑‑‑
A:Um, because of the uneven surface.
Q:All right. And did you fall to the ground?‑‑‑
A:Yes, I did, quite heavily.
Q:Were you able to get up?‑‑‑
A:No, I wasn't able to get up.”[30]
[30]T48, L3 – T49, L8
19Ms McKenna accepted that, with the platform lowered, she could no longer see the ground under it, but otherwise had a view of the surface from when she got out of the driver’s door and around the vicinity of the bus. She accepted she was aware of the uneven surface with some potholes.[31] In cross-examination, she said:
[31]T117, L10
Q: “By that stage you could see that there were problems with the surface of the carpark?---
A:Ah, well, I - yes, I had observed the carpark.
Q:You'd observed that there were problems with the surface of the carpark being uneven with potholes?---
A:Yes, yes.
Q:And you knew that was relevant, not just for you, but for Wade and Peter?---
A:Yes.
Q:You could see, couldn’t you, that you’d need to be careful where you put your feet in the carpark?---
A:Um, yes, I guess.
Q:There were potholes filled with water; you didn't know how deep they were, did you?---
A:No.
Q:And so you knew that, if you stepped in one, I mean, at best you'd get a wet foot and at worst you might suffer an injury?---
A:Yes, I would definitely get a wet foot.
Q:But, at worst, you might suffer an injury?---
A:Yes, I guess, yes.
Q:It was obvious to you that you needed to be mindful of these problems?---
A:Um, I probably didn’t think about it at the time maybe probably, I just - it was my subconscious that thought, yep, this ground's unlevel.
Q:You stepped up somewhere towards the back end of the platform from the side?---
A:Yeah.
Q:And do you think you stepped down in roughly the same spot?---
A:Yes, I probably would have, yes.
Q:So, you must have stepped near to the pothole as you stepped up?---
A:Yes.”[32]
[32]T130, L6 – T131, L1
20Ms McKenna accepted she lowered the platform before stepping off to a distance she felt was safe and comfortable. She did not look at the ground before she stepped down.[33]
[33]T132, L5
21After the fall, Ms McKenna was unable to get up. She called for assistance and a co-employee arrived. Her kneecap had become dislocated and she “knocked” it back into place. She was taken to the Warrnambool Base Hospital and an x-ray revealed a fracture to the fibula. Surgery was performed on the ankle in July 2016 by orthopaedic surgeon, Mr Kunle Arogundade.[34] Ms McKenna has made a reasonable recovery from the ankle fracture, albeit with some ongoing pain and restriction.
[34] Exhibit H
22More significantly, she suffered an injury to her left knee. It involved a tear to the medial patellofemoral ligament. Further, there was a fracture at the lateral femoral condyle, as well as a dislocation of the patella. An MRI scan of the knee showed pre-existing degenerative changes. She underwent arthroscopic surgery to the left knee, performed by Mr Arogundade in May 2018.[35] A partial lateral meniscectomy and removal of some articular cartilage was carried out. Significant degenerative condyle changes were observed, consistent with osteoarthritis of the left knee. The arthritis has progressed, and most medical opinions are to the effect it is likely Ms McKenna will require total left knee replacement.
[35] Exhibit H
23Returning to the incident, Karingal prepared an investigation report.[36] The report noted:
“… It is not uncommon for staff to ‘ride’ the hoist up and down when accessing the rear of the bus with and without clients on the hoist. Due to the small size of the bus and the size of wheelchairs there is little or no room to move from the front to the rear of wheelchairs when secured in the bus hence the hoist is ridden. Informal, on the job training provided to Ms McKenna included the importance of lowering the hoist fully to the ground prior to alighting the hoist however, this is considered time consuming particularly when workers are on their own with clients.”[37]
[36]Exhibit C
[37]DCB 200
24As stated, after the incident, staff were instructed not to ride the platform up or down. Karingal’s “Duty Statement”, issued after the incident, provided:
“No staff are to travel up or down on the rear hoists plates (on either bus) and/or step up or off the plate when it is not positioned flat on the ground fully.”[38]
[38]Exhibit E
Issues to be determined
25The claim, self-evidently, is brought in negligence. The plaintiff alleges her injuries arose as a result of the breach by Karingal of the duty it owed as employer. The Statement of Claim further alleges a breach of the Occupational Health and Safety Regulations 2007 (Vic); however, that cause of action was not pursued.
26Having consulted with counsel, the issues to be determined in this proceeding are:
(a) What instruction and training was provided to Ms McKenna as to the use of the platform, in particular, whether the platform should be lowered to the ground before alighting?
(b) Was such instruction and training appropriate and was it enforced by the defendant?
(c) What steps were taken by the defendant as to the system of work after the injury and were such steps an admission by the defendant as to the inadequacy of the system?
(d) If no adequate instruction and training was provided by the defendant as to the use of the platform, was the defendant in breach of the duty of care owed to the plaintiff, and was that breach a cause of her injury?
(e) Did the presence of Wade outside the van cause Ms McKenna to hurry her movements such that she did not lower the platform to the ground? If so, what, if any, steps should the defendant have taken to prevent that happening and was the defendant in breach of the duty owed in failing to do so?
(f) What was the state of the surface of the car park where Ms McKenna fell, and was that a cause of her injury?
(g) If there was a breach of the defendant’s duty, was the plaintiff contributorily negligent in failing to keep a proper lookout, and/or failing to lower the platform to the ground before alighting?
(h) If there was breach, in what sum is it appropriate to assess pain and suffering damages?
Instruction and training
27I am satisfied Ms McKenna had the instruction and training from team leaders, Lisa and Rebecca, as she described. I am further satisfied she observed other employees climbing on and off the platform when it was off the ground. Despite what was said in the subsequent injury report, I am satisfied from her evidence she was not told never to ride the platform, or only step onto it or alight from it when it was on the ground. I do have some reservations about Ms McKenna’s credibility which I will shortly address. However, Ms McKenna was not significantly challenged on her version of what she observed, nor as to the instruction and training she received, in the course of cross-examination. Further, had the defendant sought to challenge what she said, it could have called Lisa, Rebecca or other employees.
28In examining whether that instruction and training was adequate, it is necessary to understand what factors were at play which caused Ms McKenna to suffer injury. In my view, there were three. The first was that the platform was some 9 inches off the ground when she alighted. The second was that at the time, she was facing towards the bus. The third was that she placed her foot on an uneven surface. These three aspects each played a role in Ms McKenna’s fall and injury. I accept the submission of counsel for Karingal, Ms Myers, that the analysis of these matters and the training and instruction provided by Karingal, must be assessed prospectively and not with the wisdom of litigious hindsight.
29I will start with the fact that Ms McKenna was facing forward. In my view, it was quite appropriate that Ms McKenna positioned herself looking forward towards the front of the bus as she alighted from the platform. Firstly, she had to undo the straps which necessarily meant her body was in a forward position. Next, she had to grasp the control and use it to lower the platform. Further, she had to grasp the yellow handle as the platform descended, for stability. It could not be said that she should have turned to face the other way as the platform descended. That would be clearly unsafe. The only option then was for her to turn around before the platform descended, or when she brought it to a halt, some 9 inches off the ground.
30A consideration of this issue must bring into play the state of the surface. Ms McKenna was aware the surface was uneven. She had observed some depressions and gravel, even potholes with water in them.
31However, the focus of Ms McKenna’s tasks was looking towards the front of the bus. She had just released the rear straps. While I am not satisfied there were any particular time pressures, as the platform could only be raised and lowered at a certain speed, nonetheless I accept she had in her mind that Wade was nearby and she had concerns he might wander off.
32Importantly, she was instructed to climb onto the platform when it was off the ground and had observed other employees climbing onto and alighting from the platform in the way she had done. There was no instruction given to turn around and look at the ground.
33In all the circumstances, it was not unreasonable for Ms McKenna to disembark from the platform looking forward into the bus in the manner she did.
34I will now consider the position of the platform off the ground when Ms McKenna stepped off. The defendant’s contention is that the system of work employed by the plaintiff, and others, was perfectly appropriate. The cause of her fall was not the position of the platform, but the uneven ground with potholes or depressions onto which she placed her foot. I will analyse the role of the surface where Ms Kenna stepped shortly. In my view, the fact that the platform was lowered by Ms McKenna to a position about 9 inches above the ground was a factor, and a significant factor, in her fall.
35Accepting Ms McKenna’s evidence, it was common practice for Ms McKenna, and other employees, to ride the platform in the course of disembarking a wheelchair. It was further common practice for herself and other employees to stand onto the platform, and disembark from it, when it was at a height above the ground. In fact, she observed Rebecca and Lisa standing up onto the platform when it was level with the floor of the van.
36A number of matters must have been foreseeable to the defendant. Firstly, absent any instruction to the contrary, employees, including Ms McKenna, would alight from the platform backwards, while holding onto the handle. Further, in the disembarking process, with only one employee present to look after the clients, while there were not necessarily time pressures, nonetheless the concentration of an employee in the position of Ms McKenna with the task at hand would be affected by a concern to ensure a client such as Wade would not wander off. A further matter that was foreseeable was that in taking clients on recreational outings, car parks may have surfaces which were uneven. It would be foreseeable for there to be depressions and even potholes.
37Bearing these matters in mind, I am of the view the instruction and training provided to Ms McKenna was deficient. The instruction about how to load and unload clients was very brief. Much of the learning was done simply by watching other employees. In particular, the instruction and training ought to have provided that when it was necessary to ride the platform up or down, in particular, to release the rear straps, employees should not access nor alight from the platform unless they had a firm hold on the handle and that the platform was flat on the ground. These instructions were necessary because with an employee facing towards the van, stepping on and off the platform when it was some distance off the ground, and with the prospect of an uneven surface onto which to alight, there was a very real risk an employee might become unsteady, lose their balance or footing, and be unable to gain a firm purchase on the surface onto which they stepped.
38The plaintiff submitted that the introduction of the instruction in the Duty Statement provided after Ms McKenna’s injury was not necessarily an admission, but rather a demonstration of what could be done by Karingal to reduce the risk of injury, with relative ease and little cost. I accept that submission. The instruction not to ride the platform was not particularly relevant as, at least with the type of van used in the incident, Ms McKenna could not gain access to the rear holding straps without doing so. But the instruction in the Duty Statement as to stepping off the platform only when it was flat on the ground was appropriate and clearly could have been given.
39It was the combination of the factors to which I have referred, that created a real risk of injury. That height from which to step off the platform altered the angle at which Ms McKenna’s left leg descended, out and to the left of the platform and, with a woman of her weight, something in the order of 130 kilograms, placed a much greater force on her foot than had she lowered the platform to the ground and simply stepped off it. This is not a matter which requires any expert opinion.
40In my view, an injury, such as Ms McKenna’s injury, was foreseeable in the circumstances which prevailed at the time. There should have been an explicit instruction not to alight from the platform until it reached the ground. It would have been a relatively simple instruction to introduce and would have likely prevented Ms McKenna’s injury.
41The defendant contends that Ms McKenna understood the task at hand, knew what she had to do and was herself responsible for the height to which she lowered the platform before alighting. She, herself, accepted she lowered it to a point which she deemed safe and comfortable.[39]
[39] T132, L5-7
42However, these matters do not alleviate the need for a clear and direct instruction against the risk of a foreseeable injury. In the circumstances that prevailed, that instruction should have been given.
43Thus, the defendant is liable in negligence for failing to provide adequate and appropriate training and instruction.
Was Ms McKenna rushed?
44I accept Ms McKenna’s evidence that at the time of her fall she had concerns about Wade being out of the bus and wandering off.
45However, in my view, that did not lead to Ms McKenna being rushed as she lowered the platform towards the ground, stood on it, raised it to release the rear straps and then lowered it towards the ground. The speed of undertaking that procedure was fixed. The mechanism worked at a certain pace and could not be hurried.
46Further, there was no evidence that the failure to lower the platform fully to the ground was because Ms McKenna was either rushed, or undertaken for fear that Wade might wander off. Ms McKenna was following the instructions she had received, and what she understood to be the system of work to be, as observed by what other employees did.
47I accept Ms McKenna’s evidence that she had in her mind at the time the risk of Wade wandering off and while that was a matter which ought to have been in the contemplation of the defendant when giving instruction and training, it was not something which was a cause of her injury.
The surface of the car park
48The defendant’s contention is that the real cause of the injury was the surface of the car park
49Ms McKenna was unable to say, with precision, the state of the asphalt surface with which her left foot connected as she alighted from the platform. She said she lost her footing because the surface was uneven.[40] She said she observed the surface when she got out of the driver’s door after the bus stopped and saw it to be uneven with potholes. She accepted that she needed to be careful where she placed her feet and that if she stepped in a pothole, she may suffer injury. She stepped down onto about the same spot from which she had moved when she stood onto the platform.
[40] T49, L2-5
50Without a precise description as to the surface onto which she stood, including the size and depth of any pothole, it is difficult to know with precision the extent to which that surface caused her injury. Nonetheless, I am satisfied that whatever the nature of the unevenness of the surface, it played a role in her losing her footing. Had she been facing in the other direction with the platform lowered to the ground, she may have alighted away from that point.
Contributory negligence
51A consideration of contributory negligence involves a measure of the extent to which each party departed from the standard of care expected of them. It involves a comparison of the culpability of each party, and the relative importance of the acts involved in causing the injury.[41]
[41]Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532
52It is relevant to examine the circumstances and conditions surrounding the system of work and determine whether, in those circumstances, Ms McKenna’s conduct amounted to mere inadvertence, inattention or misjudgement.[42] Again, the issue of contributory negligence must be looked at prospectively, and not retrospectively.[43]
[42]Podrebersek at 531
[43]Maloney v Commissioner for Railways (NSW) (1978) 18 ALR 147
53Consideration should be given to the nature of the duty Karingal, as employer, owed Ms McKenna. The duty was described in Liftronic Pty Limited v Unver:[44]
“… The respondent [worker] owed no relevant legal duty of care to his employer. The appellant [employer], on the other hand, as employer, bore a heavy responsibility to devise, institute and enforce a safe place of work, and safe system of work, so as to avoid exposing workers, such as the respondent, to unnecessary or unreasonable risks. This was a duty personal to the employer. The ultimate legal responsibility for its fulfilment could not be delegated. In this sense, explaining the standard of care expected of an employer in terms of the conduct of ‘the reasonable person’ may have understated the very heavy duties that the law in Australia casts on an employer. Such duties include affirmative attention to the issue of accident prevention. … .”
[44][2001] HCA 24 at paragraph [85]
54The defendant contends that the plaintiff failed to take reasonable or adequate steps for her own safety. She was aware of the surface of the car park which represented a hazard. She moved backwards off the platform without turning around to look where she was placing her feet. The defendant contended the contributory negligence was substantial, in the order of 75 per cent.
55For the reasons already referred to, I am not satisfied it was inappropriate for Ms McKenna to alight from the platform in the manner she described. Her attention was towards the front of the bus where the straps had been released. She had to use the control, which was in front of her, and hold the handle to her left. This was a procedure which she had been taught and observed. Standing on the platform when it was either level with the rear floor, or in the process of moving it down and then turning 180 degrees to face the other way was, of itself, an undertaking not without risk. I am not satisfied facing towards the front of the van and stepping off to the side and to the left, represented any breach of the duty of care she owed.
56However, what is clear is that she was aware of the uneven, potholed, surface of the car park. She observed this when she first left the driver’s side of the bus. She observed the area from which she alighted onto the platform as she approached. The surface contributed to her losing her footing as she alighted from the platform.
57In my view, reasonable care required her to keep a better lookout. Had she properly done so before alighting, I am satisfied she would have observed that there was some unevenness, depression, loose gravel or whatever else was a cause of her losing her footing and taken steps to avoid it.
58Notwithstanding she was simply following what she understood to be the system of work, she could have glanced over her left shoulder towards the ground where her foot was to go and placed her foot out of the danger. Alternatively, in the knowledge of the problems with the surface, she could, notwithstanding the training she received, have lowered the platform fully to the ground to avoid the risk of the added force and angle involved, of standing onto that surface from a height.
59However, I am of the view the departure by the defendant from its obligation to adequately train and instruct the plaintiff was significantly greater than Ms McKenna’s departure. It had control of the workplace and the system of work. It was responsible for her training and instruction. It permitted, and even encouraged, a system of stepping off the platform when it was significantly off the ground. The risk of injury to Ms McKenna in the circumstances which prevailed was foreseeable. It was reasonable, although it did not hurry or rush her, to anticipate that she would be concerned about Wade wandering off.
60In the circumstances, I am of the view it is appropriate to apportion responsibility for Ms McKenna’s injury as to 75 per cent to the defendant and 25 per cent to Ms McKenna.
Damages
61The assessment of damages in this proceeding requires an examination of the medical opinions, and an assessment of the evidence of the plaintiff, of the effect of the injuries, and the consequences which flowed. There is little contention between the parties as to the medicine. However, as to the assessment of the plaintiff’s evidence, Ms Myers submitted I ought to have significant reservations about her reliability and credibility. She submitted there was a clear contrast between the manner in which the plaintiff gave answers to questions in evidence-in-chief, as opposed to her answers in cross-examination. Ms Myers submitted Ms McKenna was far more reluctant to answer questions directly in cross-examination, rather, provided answers which assisted her cause. Ms Myers referred to examples of this in cross-examination.[45] Those matters included her evidence as to:
· Gastric sleeve surgery, which Ms McKenna suggested was undertaken after the incident so she could lose weight for surgery to her left leg whereas that surgery had at least been contemplated prior to the incident.
· Ms McKenna’s intake of Panadeine Forte in respect of which she said she had become addicted.
· Her complaints of ongoing pain which were inconsistent with her attendances upon her general practitioner and her limited use of medication. Ms Myers also submitted the plaintiff was able to drive, including long distances, exercise, socialise with friends and perform many activities of daily living.
· Her use of prednisolone.
· Her personal training before and after the incident.
· Her evidence about the safety latch.
[45]T179-181
62To some extent, I accept Ms Myers’ submissions. There was a difference between the manner in which the plaintiff gave evidence in examination-in-chief, and then in cross-examination. In cross-examination, she was quite defensive and often avoided giving a direct response to questions, until pressed. I accept there were some inconsistencies in her evidence.
63However, these matters do not cause me to reject all her evidence. None of the credit issues were of major significance. However, she was not as forthcoming in her answers as I would expect of an honest witness. I do have some reservations about Ms McKenna’s claims as to the impact of her injuries. As such, I will look for any objective support of those claims.
64I accept Ms McKenna has had difficulties with weight for most of her life, in particular since the birth of her first child. She has a range of other comorbidities, including Type 2 diabetes, and has had various gynaecological, gastric and abdominal problems.
65I accept that the incident causing injury to her left ankle and left knee would have been particularly painful, including a dislocation of the kneecap. The facture to the fibula near her left ankle initially required the application of several back slabs and eventually, in July 2016, surgery for internal fixation of the fracture with a plate and screws. She suffered a wound infection which required treatment, and spent a period in a moonboot and on crutches.
66In October 2016, she underwent laparoscopic sleeve surgery to address her obesity. I am not satisfied that came about solely as a result of her injuries, but had been previously contemplated. No doubt the need to lose weight for the surgery played a role.
67Her more significant injury was to the left knee. Investigation revealed pre-existing arthritis of the knee, although I accept it was asymptomatic until the incident. According to the report of Mr Rodney Simm,[46] orthopaedic surgeon, who was retained on behalf of the defendant, the injury to Ms McKenna’s left knee was complex. She suffered a tear to the medial patellofemoral ligament, and a fracture to the lateral femoral condyle, with bruising in the area. She suffered a dislocation of the kneecap and developed degenerative chondral changes to the patellofemoral joint. Her ongoing problem relates to degenerative arthritis in the knee.
[46] Exhibit K
68In November 2016, Ms McKenna went back to work on restricted duties. To her credit, in early 2017, she resumed full-time office-based duties.
69I accept she suffered ongoing pain in the knee, leading to arthroscopic surgery in May 2018. The surgery involved excision and debridement with a partial lateral meniscectomy. Grade 4 degenerative chondral changes were observed.
70In July 2019, Ms McKenna found employment with NDIS, and has worked on a full-time basis in administrative duties since.
71Medical opinion is relatively uniform that she will require a total knee replacement at some time in the future, although, given her age, she has been advised to hold off as long as possible. She has also been told to reduce her weight, the earlier gastric sleeve surgery having failed.
72The fracture to her left ankle has healed without significant ongoing symptoms, although I accept she suffers some pain and limitation from time to time. I accept that the left knee injury was serious and has aggravated and accelerated pre-existing asymptomatic degenerative arthritis.
73I accept the plaintiff’s evidence that she suffers ongoing pain and restriction in the left knee. I accept that this causes her to limp and limits a range of activities, including kneeling, squatting and a range of recreational activities. I accept this has had an impact upon her relationship with her husband and her children. She has had a range of treatment, including surgical treatment, physiotherapy and exercises.
74Most significantly, she faces the likelihood of total knee replacement surgery at some time in the future. That is major surgery, and although there is the prospect that it will be successful and relieve some of her symptoms, there are a range of risks which may eventuate. There is also the prospect that that surgery may have to be repeated.
75In summary, Ms McKenna is a relatively young woman who suffered a very significant injury, in particular to her left knee. It has caused her pain and restriction in a range of activities, and will lead undoubtedly to significant problems in the future. To her credit, she has been able to return to full-time work, and to some activities of daily living, recreational and social pursuits.
76Mr Brett submitted damages should be assessed at not less than $250,000, and should be approximately $300,000. Ms Myers submitted damages should be in the range of $175,000 to $185,000.
77Doing the best I can, I assess general damages in the sum of $250,000.
78I will hear from counsel as to appropriate orders.
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