Micallef v Endeavour Foundation
[2013] QDC 142
•28 June 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Micallef -V- Endeavour Foundation [2013] QDC 142
PARTIES:
JULIE CORRALIE CONWAY (FORMERLY MICALLEF)
(Plaintiff)
v
ENDEAVOUR FOUNDATION
(Defendant)FILE NO:
07/2011
DIVISION:
Civil
PROCEEDING:
Claim
ORIGINATING COURT:
District Court, Innisfail
DELIVERED ON:
28 June 2013
DELIVERED AT:
Brisbane
HEARING DATE:
28 November – 29 November 2012
JUDGE:
Harrison DCJ
ORDER:
That judgment be entered on the claim for the defendant
CATCHWORDS:
WORKPLACE RELATED INJURY – Whether there was a foreseeable risk of injury – whether the employer breach their duty of care.
COUNSEL:
Mr J Trevino for the plaintiff
Mr R.A.I Myers for the defendantSOLICITORS:
Shine Lawyers for the plaintiff
MVM Legal for the defendant.
Introduction
The plaintiff Julie Corralie Conway, formerly Micallef was born on the 21 December 1981. As at the 21st February 2008 she was employed by the defendant at Innisfail as a disability support worker.
On that date she, along with a fellow disability support worker, Karen Howell was required to take two children namely Jake Anderson and Tristan (she could not recall his second name) to the Warrina Lakes Complex in Innisfail so that they could utilise a public swimming pool.
In her statement of claim filed on the 17th August 2011 the plaintiff alleges that all four were at the pool, for about two to three hours. She alleges that, after the children exited the pool they were being dried and one of them threw some grapes into the pool. She re-entered the pool to retrieve the grapes and, as she was starting to surface, Jake Anderson jumped into the pool feet first and landed on her neck causing an injury to her neck.
It appears that the plaintiff never sought any legal advice in this matter until about two years and nine months after the event. After seeing solicitors in Ipswich, were she was then residing, she signed a notice of claim for damages under the workcover legislation dated the 14th December 2010 (exhibit 5).
There was also a telephone application for statutory benefits made to Workcover Qld on 17 December 2010 (exhibit 4). I understand that it was necessary for that application to be received so that Workcover Qld could process her notice of claim for damages.
In the notice of claim for damages the plaintiff said, in part, in the answer to question 38:
“On or around 21 February 2008, the claimant attended at the pool in the early afternoon with a group of 4 children. They had been at the pool for a couple of hours.
One of the children, Jake, had thrown some grapes into the pool.
The claimant jumped into the pool to retrieve the grapes from the bottom of the pool. Just prior to the claimant re-entering the pool, she noticed that Jake was being dried by another of the workers. The other workers saw the claimant re-enter the water.
After she had retrieved the grapes, she started to swim back to the surface of the water. As she came up, one of the children jumped back into the pool feet first and landed on her neck. She immediately felt pain in her neck.”
The account in the telephone application was similar but less detailed. It said:
“The claimant attended at the pool early in the afternoon with a group of 4 children. One of the children had thrown grapes in the pool and the claimant jumped in the pool to retrieve the grapes. As she started to swim back to the surface of the water one of the children jumped back into the pool feet first and landed on her neck.”
The plaintiffs evidence
Plaintiff said that she started work with the defendant on the 15th January 2008. She said she was there for about five weeks. She was employed on a casual basis and was unable to say how many shifts she did but said that they averaged out to about five days out of seven.
She explained that the defendant conducted a residential centre for adults and a respite centre for all ages but predominantly for children. She said that she worked at both the residential centre and the respite centre. The children cared for were children with disabilities and the duties included washing and bathing the children preparing meals and facilitating recreational activities.
She said that she had a couple of official training sessions but that, basically, her training continued on the job under the guidance of more experienced workers.
She recalled the date of the incident and explained that the complex was essentially a council operated pool which was relatively small being less than a 25 metre pool and that it was in a fenced off area.
She said that, on the day in question, she went there with Karen Howell another disability support worker, and with the two children Jake Anderson (Jake) and Tristan. She said that Jake was between twelve and fourteen years of age and that he was suffering from autism and Down syndrome. She said that he was slightly built and a slim child for his age. She said that Tristan was a couple of years younger.
She indicated that she had been to the pool on at least three occasions previously although she did not say that she had taken Jake there previously. She said that she was given certain directions as to what to do at the pool and that these related to matters such as ensuring there was adequate sunscreen and water and ensuring that the children were back in time for their meals.
She was uncertain as to how many times she had worked with Jake before that day but said she had met him before. She described him as being a playful child who enjoyed being involved with water and that it was water that kept him happy.
She said there were no particular instructions or directions as to who of the carers had to look after which of the children. She said that they went to the pool around mid morning and that she started her shift at 9.00am.
She said that they were at the pool for two to three hours and that, at times, she was in the water playing with the children. She was unable to say whether Karen was in the water. She said that both children were playful and enjoying themselves in the pool environment.
She explained how she and Karen got the children out of the pool at the end and she said that Karen was drying Jake and Tristan next to her near a bench seat near the pool.
She said that Jake was having some grapes that they had taken over there for the children and he threw some grapes into the pool. At this stage Karen was standing next to him and Tristan was next to Karen.
She said that she entered the pool to retrieve the grapes which were a number of individual grapes that were on the bottom of the pool. She entered via the steps and dived down to the bottom of the pool to retrieve them. She said that nothing was said between her and Karen before she went in and that both of the children were next to Karen when she went into the pool and Karen was in the process of drying Jake.
She then described how she was coming to the surface when she felt a huge impact on the back of her neck and head which, she later realised, was caused by Jake jumping onto her feet first. She said she was coming up on a bit of an angle. She experienced immediate pain and was feeling dizzy.
She described how, after waiting at the pool for a while, she went back to the respite centre and reported to her manager, Maree Kondisenko, what had happened.
She said she finished her shift that day and that she went back to work about three to four days later but had further problems with her neck and down through her arms when she tried to lift a client off the floor. She said she never worked for the defendant again after that day and she resigned.
In cross examination, it was put to the plaintiff that she had effectively re-constructed what happened in the incident and she denied that.
She was referred to the accounts in the notice of claim for damages and in the telephone application for workers compensation. She said that she genuinely believed that there were four children in the outing at the time she included those things in the documentation. She said that she must have confused that aspect of the matter with another day. She agreed that there was no reference to Karen being present in those earlier written accounts.
She agreed that the notice of claim for damages was signed on oath. She said that she was not sure about the chronological order of events of that day but gave her earlier statement (the notice of claim for damages) with the memory that she then had of the event to the best of her ability. She said that, according to everything that she had been given since including statements from other people, there were not four children involved.
She agreed that she told Maree Kondisenko that one of the boys had jumped into the pool on top of her head and that she did not complain at the time of Karen having done anything wrong.
When asked whether or not Karen could have done anything different she said that she would have expected Karen to have restrained the child from jumping on top of her head in the pool. She said that she would have expected that of another staff member in an environment where one of the children was unpredictable.
She also said that she had not considered any question of blame when she had spoke to Maree because she had not sought any legal advice at that stage.
She was asked what training the employer should have given her before the incident and she said that she should have been provided with a better knowledge of the client, Jake.
She agreed that she thought the two children were under control prior to the incident that day and agreed that they had one on one care. She agreed that she had not had any major problems with Jake prior to that day nor had she reported anything about Jake’s behaviour.
She said that she was not given much information about his background or his personality other than the fact that he suffered from autism and Down syndrome and that he enjoyed being in and around water.
She was asked whether or not she had been given any copies of any assessments made of Jake in terms of his behaviour and she said she could not recall any but that that was possible.
She was referred to a client profile (part of exhibit 1.10 pages 57 – 69 of exhibit bundle) and said that she could not recall being given access to that document.
Page fourteen of that document (page 68 of exhibit bundle) referred to two behavioural problems of Jake namely “spitting and pushing young children” and “tipping over cups and glasses”. It was said that the former problem was triggered by people who were in his physical space. She was asked about this and said that she was aware of a problem with spitting and was aware that he did not like people in his physical space. She could not recall what she was told in that regard but she had seen examples of that at the centre.
She said that she was not aware of the second behavioural problem noted in that document.
She agreed that he did not have a viscous propensity and was not violent unless people were in his physical space. She also agreed that he loved the pool and loved being involved in anything to do with water and that he was capable of swimming unsupported.
She was questioned about a risk assessment form (exhibit 1.1 page 1 of exhibit bundle) which dealt with risks when taking clients to swimming pools and she said that she had not seen that document. She agreed, however, that she had been made aware of the matters contained in that document by other staff members, these matters going more towards shade sunscreen hats fluid intake etc. Paragraph one of this document also referred to close supervision on a one on one – two on three – or two on one basis depending on the client’s needs. She said she was not aware of what the appropriate ratio was in any given circumstance and that she relied on the guidance of the more experienced workers at the centre.
When asked whether she was saying that Jake deliberately jumped on her she said that she could not say whether it was deliberate or playful because of his intellectual impairment.
When questioned further about the ratio of carer to child she said that she believed that a higher ratio such as three on two would have been appropriate in this case. When asked, as to what of the child’s history required that, she said that the child had been at the centre for about twelve months and that other staff would have been in a position to assess that.
After it was accepted that the behavioural assessment referred to earlier was completed by the child’s mother when he first came there she was asked whether or not there was anything that she would have added to the behavioural assessment from what she saw of the child’s behaviour and she said that she had only had the opportunity of working with him for a few shifts.
Evidence of Maree Kondisenko
Ms Kondisenko gave evidence on behalf of the defendant and agreed that she was the service manager for the defendant at the relevant time in Innisfail. She said that she prepared the risk assessment form for swimming (exhibit 1.1) on the 12th of February 2007.
She said that Jake first attended the service in early 2007 and she confirmed that the earlier document which contained the reference to two behavioural problems was prepared by Jake’s mother Kerry Anderson.
She was asked about whether or not the service monitored the accuracy of the behavioural problems as described by the parent and she said that this was done in collaboration with staff input from incidents and, that, she also made enquiries of Jake’s school, Caravonica State School in Cairns and talked to his teacher.
She was asked whether or not anything had happened in the intervening 12 months from when he started to the date of the incident to justify the inclusion of any further references to his behaviour and she said that nothing had really happened. She did refer to the problems mentioned by the child’s mother in the document, particularly spitting and throwing things around if other children were in his space.
She said that nothing like this happened either before or after that date and she did not see the need to change anything in relation to the behavioural information.
She was asked about who determined the relevant ratios of carer to client and she said that this came from the needs assessment and that it was usually one on one for excursions. She said that it was not documented as one on one but that was the usual policy where two young people were taken out. She was asked whether or not there had ever been any three on two carer situations and she said that that was possible but she could not recall any exact circumstances. When asked whether she could envisage such a situation she did recall that there was a child who had cerebral palsy who was in a pool situation and that the ratio there may have been higher than normal.
She said that she first became aware of the incident some time afterwards when the plaintiff came to her office and told her something to the effect that she had been jumped on by one of the children and that she had pain in her neck and shoulder area.
In cross-examination she agreed that Jake had autism and down syndrome and that he could not verbally communicate.
She agreed that the document completed by his mother was a very important document and was used as a starting point to determine what level of support the client needed. She also agreed that summaries were prepared from time to time which basically included updated information.
She was referred to a summary sheet (part of exhibit 1.10 at page 70 of the bundle of exhibits) and agreed that this was one such sheet updated as at 21 July 2009.
She agreed that that document would have been updated from time to time and there would have been a number of changes but she could not say what the relevant updated document said as at February 2008. It may have been just the original client information from the mother or may have included further information. She later said that it probably would have been what was contained in the summary dated 2009.
She said that the relevant summary sheet was kept in a cupboard which was in the living area of the office and which was sometimes locked. She said that staff needed to unlock that cabinet to review the summary file.
She agreed that there was no written work instruction which required the employees to look at these particular summary sheets before dealing with the clients, although, she understood that that was sometimes done.
She was questioned of what she knew of Jake’s behaviour prior to February 2008. She agreed that he was difficult to manage from time to time, that he was active and energetic that he could be unpredictable in his behaviours and that he was quite quick. She agreed that his disabilities were such that he needed a high level of support, care and supervision. She agreed that he would spit at other clients, throw things and agreed that he could, on occasions, push staff but that that was not an every day occurrence.
She was questioned about whether he was potentially a risk to other clients and to employees and she said that he was not a constant risk but there were risks that she thought were manageable. She said that they were manageable if staff had been trained in responding to challenging behaviours which they all had.
She agreed that Jake’s mother had classified the child’s intellectual disability as “severe” in the original referral from to the service (part of exhibit 1.10 pages 51 to 56 of exhibit bundle). She agreed that, in that profile, Jake’s mother had noted his needs as “high”.
She agreed that in that same document under the heading “safety issues”, his mother had inserted “road, stranger danger – runs off sometimes but waits 4 you to catch up as if it is a game to him” (page 60 of exhibit bundle). She said that she had not witnessed that type of behaviour herself.
She said that she had been made aware that, on occasions, when staff were assisting him with bathing or personal care, he might push them or spit on them and that this behaviour would have been recorded in progress notes which were completed daily.
She spoke of what strategies different staff used when confronted with that type of situation and said that that invariably involved what could be described as positive reinforcement.
She was referred to a report prepared by Sharon Daniels a psychologist directed to Disability Services Cairns dated 24 September 2008 (part of exhibit 1.10 pages 89 to 91 of exhibit bundle). She agreed that there was reference there to Jake not being left unattended in any environment as his behaviour was unpredictable. It was not clear on the evidence just when she became aware of that particular report but she had made enquiries of the school where Ms Daniels said that this was recorded after Jake started at the centre.
She was questioned about any training the plaintiff would have received during the course of her employment with the defendant in relation to children at pools and she agreed that that was limited to matters such as sunscreen and keeping the children out of the sun and first aid but that there was no specific training about care and supervision of clients at pools.
She asked whether she ever told the plaintiff about Jake’s propensity for unpredictability and she said that she could not recall whether she had but she thought the plaintiff would have read that on the material available to her.
She said that the only warning that the Plaintiff would have received would be the information about of his identified needs.
She agreed that the risk assessment referred to related to the risks to the client at the pool and not to any potential risks to employees.
Evidence of Karen Howell
Ms Howell agreed that she was employed by the defendant as a support worker at the relevant time.
She said that she started work for the defendant in early or mid 2007 and could recall the plaintiff. She could also recall Jake Anderson and said that he was there at weekends the whole time she worked there.
She was asked about any mischievous propensities on his part and described the spitting and how he used to throw things if someone got close to him and how he might give people a bit of a nudge out of the way. She said that, basically, he was a pretty good little child but you had to watch out for those kinds of behaviours.
She spoke of his fascination with water which varied from just sitting looking at a tap drip all day, right through to his involvement with the swimming pool where he was a good swimmer. She said that he normally was well behaved in the swimming pool even when members of the community were in the pool at the same time as him. She said that the worst thing he would do in the pool was take his pants off and that she would have to put them back on again. She said she never had a problem with him at the swimming pool other than for that.
She said she could recall the incident happening and that it was just a split second sort of thing. She said that she could remember being in the pool and the support worker (presumably the plaintiff) being there and him jumping. She then said that she was not really clear on exactly when it happened.
She spoke of them playing a game which involved throwing things in the pool and diving down to get them and coming up again. She said all of them, the two carers and the two boys, were playing that game.
She was fairly vague in giving her evidence and said that the game may have entailed grapes. She said that she could remember the other support worker going to get something off the bottom of the pool and, in a split second, Jake jumped in and that it was just an accident.
When asked, with the benefit of hindsight, whether there was anything she should have done differently, she said that they probably should have left the grapes in the pool and gone back and got them later.
She said she could recall that individual files were kept for the clients and it recorded daily behaviours. She said that the individual files were kept in a filing cabinet in the office and that she used read about the client before she started work.
In cross-examination, she agreed that Jake suffered from Down syndrome and autism and that he could not communicate verbally.
She agreed that he was active and energetic in the swimming pool. She was asked if he was difficult to manage and she said that she was on hand if he was too close to people or if they crowded him too much. When asked whether he was difficult to manage because of his unpredictable behaviour she said that he was not difficult to manage and that you just had to watch him. She said that he was not a danger to other people.
She was questioned further about whether she was in the pool at the relevant time and agreed that it was possible that she was, in fact, outside the pool. It was put to her that she was drying Jake when he threw some grapes into the pool and she said that she could not remember that. Later she said that it was possible that that could have happened. She agreed that the whole thing happened in a split second and that she was having trouble remembering it because it was five years later.
When questioned further about the plaintiff’s version of what happened she agreed that it was possible but she could not remember.
She was questioned about playing a game and it was her recollection there had been a game played. She said that it was a split second thing where the child had the mind of a three or four year old. She basically said that in that situation the child may think that the game was back on if someone was back in the pool or going into the pool.
Particulars of negligence and/or breach of contract
In paragraph 6 of the statement of claim the plaintiff pleaded the following particulars of negligence and/or breach of contract:
“The defendant, by its servants or agents:
(a)Failed to provide a safe system of work, namely a system which ensure that the children, including Jake, were moved an appropriate distance from the pool and outside of the pool fence when preparing to leave in order to eliminate or minimise the risk of the children re-entering the pool and making contact with the plaintiff;
(b)Failed to provide any or any adequate supervision of the children including Jake, namely supervision which was sufficient to ensure that Jake did not re-enter the pool area;
(c)Failed to implement any or any adequate and reasonable process of risk identification which ought to have highlighted risk factors, inter alia, that:
(i)Jake might be non-compliant with direction to stay out of the pool;
(ii)Jake had access to the pool if inside the pool fence;
(iii)In the premises, there existed a risk of injury posed by the children, and particularly by Jake, jumping onto the plaintiff whilst she was in the pool.
(d)Failed to provide the plaintiff with competent trained co-workers to ensure the safe performance of the employment duties;
(e)Failed to adequately warn the plaintiff of the risk of injury arising from her employment duties.”
In the amended defence the defendant basically denies that there was any risk to the plaintiff which it knew or ought to have known in short the defence case that what happened was an unavoidable accident which could not have been prevented by the exercise of reasonable care.
Duties of the defendant
It was admitted in the pleadings that it was an implied term of the contract of employment and/or that the defendant owed the plaintiff a duty to:
(a) Provide and maintain a safe work place;
(b) Take all reasonable precautions for the safety of the plaintiff while she was engaged in her employment;
(c) Not to expose the plaintiff to any risk of damage or injury of which it knew or ought to have known.
Credibility of the plaintiff
There was a considerable attack upon the plaintiff’s credibility throughout the course of the trial. I have already dealt with the discrepancies between her original telephone application for workers compensation (exhibit 4) and her notice of claim for damages (exhibit 5) on the one hand and what she said in evidence on the other.
She was also questioned in length about her letter of resignation (part of exhibit 9 - page 27 of exhibit bundle) which made no reference whatsoever to any ongoing neck problem.
In that letter she advised that she was going to relocate to Darwin to live with her partner who is now her husband. On the evidence, she had met him some months before that.
When questioned about this, she said that she did not complain about her neck because she, did not want to “burn her bridges” with the defendant in case she wanted to try and get employment with the defendant elsewhere at a later time.
She was also questioned at length about her attendance upon doctors after initially seeing a doctor in Innisfail shortly after the incident.
She was taken through her various attendances upon doctors in the different areas that she had move to from time to time after the incident and agreed that it was not until some years later that she made any mention of her neck injury.
Her explanation for this was that she did not believe that doctors could do anything for her and that she felt that she was more likely to get assistance from chiropractors.
She was also questioned at length about her attendances upon a chiropractor, Peter Portelli, going back as far as 15 March 1993. (Notes exhibit 1.14 pages 193 to 205 of exhibit bundle). It would seem that she was introduced to chiropractic treatment when she was only 11 years of age and regularly saw Mr Portelli in Victoria.
She said that she attended upon him for maintenance purposes not necessarily because of any specific problem.
It was also clear from the records and from her evidence that she continued to see him after her return to Victoria sometime after the incident.
Whilst most people would not share her views about chiropractors, it does seem to me that she clearly was a person who had more faith in chiropractors than she did in doctors, so I do not draw any inference adverse to her credibility from the fact that she never thought that the doctors could help her and that she sought help from the chiropractor, particularly after she returned to Victoria and was able to see Mr Portelli again.
Whilst I have some concerns about her reference to four children in the first place as ppposed to two, I note that her evidence as to what happened in the incident was essentially un-contradicted. Karen Howell has an even poorer memory of events. This may not be surprising because the claim was not made until just before the expiration of the limitation period and it would seem that she was not called upon to recall what happened until well after the event.
Nonetheless, she concedes that events could well have occurred the way the plaintiff said and I do accept the plaintiff’s evidence both in relation to what happened and her symptoms and ongoing problems since the incident.
Defence arguments re liability
Essentially the defendant argued that, there was not an identifiable risk to the plaintiff which it knew or ought to have known. It was argued that there was nothing to suggest that Jake would in anyway be violent towards one of the employees. In short, it was argued that this was just an unfortunate accident.
It was also argued that, even if there was an identifiable risk, there was nothing that the defendant could have done, without the benefit of hindsight, to minimise that risk.
The plaintiff’s argument
It was argued on behalf of the plaintiff that the defendant knew, through Ms Kondisenko, that the child was unpredictable. This was clear in the material in the file and was also accepted by Ms Kondisenko in evidence.
It was noted that Ms Kondisenko did attend upon the school and it was argued that it was apparent in the information in the education plan referred to in a report from Sharron Daniels, that as at 2007, there was a record to the effect that Jake should not be left unattended in any environment as his behaviour was unpredictable.
It was further argued that the risk could have been minimised by a higher ratio of carers in circumstances where he was allowed to go to the pool or by ensuring that he was not left unattended by Ms Howell when the plaintiff went to retrieve the grapes from the bottom of the pool.
Decision on liability
I will deal firstly with the question of risk. The plaintiff’s case, at its best, is that the defendant knew that Jake was unpredictable and knew that, on occasions, he had pushed and even spat at members of staff. Ms Kondisenko conceded this in evidence.
Ms Kondisenko had reference to the school records and it seems that the defendant ought reasonably to have known from her enquiries that Jake should not be left unattended in any environment because of his unpredictable behaviour.
The passage referred to in the report form Sharon Daniels is qualified in the following paragraph (page 90 exhibit bundle) where she says:
“After familiarising myself with Jake’s past behavioural assessments and conducting behavioural analysis on current behaviours, it was determined Jake engaged in various behaviours for a variety of reasons. However, he displayed most behaviours when feeling stressed and not having his needs or wants met. Without the ability to engage in verbal communication, it became necessary for Jake to communicate his needs via non-verbal means, such as spitting, grabbing and/or hitting.”
It is important to consider the context in which this incident occurred. Jake was at his happiest and was best behaved when swimming. Ms Howell confirmed that he had interacted appropriately with other members of the public on occasions when he had been swimming in that pool.
There was no suggestion that he did become stressed when placed in that situation such that he would spit at anyone, grab anyone or hit anyone.
His previous adverse behaviour always seemed to arise in circumstances where he perceived that someone was invading his space and reacted accordingly.
Further, it does not appear that anyone was suggesting that Jake deliberately jumped on the plaintiff as she was surfacing after collecting the grapes. On the plaintiff’s case, it was argued that he may have thought was happening at the end was a game and he was merely participating in that game by jumping into the pool.
To this end I was referred to an entry under the heading “safety issues” in the documentation originally completed by his mother, which I referred to earlier.
The question arises to whether or not it was reasonably foreseeable to the defendant that in the circumstances that prevailed, i.e. the throwing of the grapes into the pool and the plaintiff going into the pool to retrieve them, would constitute a risk to the plaintiff, because Jake might think it was a game and think that he was entitled to then dive in.
In the course of argument I was referred to the decision of Margaret Wilson J in Carswell v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane 2012 QSC 253.
That involved a disability support worker who was injured when struck on the side of the head by a soccer ball which had been kicked by one of the children at a camp.
It was noted that the child in question was a very troubled boy who had been diagnosed with severe conduct disorder, oppositional defiance disorder, ADHD, attachment disorder and special behavioural education needs. The plaintiff there was not directly responsible for the child because there were a number of carers at the camp. She was in a totally different team to the one that was caring for the child.
A game of soccer was organised for the children at the camp. After the game finished, four of the children including the boy continued kicking the soccer ball and, at one stage, the boy kicked it striking her on the side of the head.
Her Honour found that the person who was assigned the care of the child was not in any way supervising the child at the relevant time and, therefore, found that the defendant had breached its duty to take all reasonable precautions for the safety of the plaintiff.
She was not however satisfied that causation had been made out with the onus being on the plaintiff to do so. Even though much was known about the boy’s behaviour, it was noted that there was a lack of evidence about what happened in terms of kicking the ball. There was no evidence that he deliberately aimed at the plaintiff, or no evidence that he acted recklessly in kicking the ball and it was found that he may well have made a miscalculation.
Her Honour found that there was no evidence that the identified risk occurred. In short, the identified risk related to what I might turn generally as his antisocial behaviour but not to the kicking of the ball which may well have been in entirely innocent circumstances.
At paragraph [77], her Honour noted that the plaintiff needed to establish “injury” within the area of foreseeable risk.
In this case, I am not satisfied that it was reasonably foreseeable to the defendant that the plaintiff was at risk of being injured in the circumstances at the pool. Whilst the defendant knew that the boy was unpredictable, there was nothing in his history to suggest that his behaviour constituted a risk of injury to employees in such circumstances.
Certainly there were occasions where he had pushed workers, according to Ms Kondisenko, but that was always in circumstances where he felt his space was being invaded. There was nothing to suggest that he would do something like this when at the pool.
I am not satisfied, on balance, that the defendant breached its duty to the plaintiff and I find for the defendant on the issue of liability.
Quantum
It is still necessary for me to assess damages in this case.
There is a clear conflict on the medical evidence between the opinions of Dr Campbell, who gave evidence on behalf of the plaintiff, and Dr Holt who gave evidence on behalf of the defendant. Dr Campbell diagnosed what was effectively a musculo-ligamentous injury to her neck and assessed her as suffering an 8 per cent whole of person disability. He had particular regard to her complaints of daily neck pain, bilateral upper limb pain, headaches and dizziness as well as a restricted range of movement in the cervical spine in all directions and tenderness and guarding over the cervical paraspinal muscles.
Dr Holt diagnosed a soft tissue injury of a minor nature and said that any ongoing symptoms were not related to any work related injury. He referred to an MRI performed in 2010 and noted that there was some disc desiccation and arthropathy indicating pre-existing disease. He attributed any ongoing symptoms to the presence of pre-existing disease.
He agreed that often pre-existing disease of that nature was not necessarily symptomatic.
Dr Campbell did not consider that the evidence of any pre-existing disease was of itself sufficient to justify the diagnosis that it was responsible for her ongoing symptoms.
I accept the evidence of Dr Campbell over that of Dr Holt because it is more consistent with the history provided by the plaintiff of her ongoing symptoms which I have accepted.
Having regard to the assessment of Dr Campbell I have allowed $40,000 for general damages.
I have allowed interested on a pre-trial component of $18,000 at 2 per cent for 5.35 years namely $1,926.
In relation to past economic loss I have had regard to the submissions made on behalf of the plaintiff. It was noted that she was earning about $800 net per week with the defendant and that amount carried through to the date of trial represented a starting point of $199,200 which after deducting her earnings since becomes $192,536.
As was properly conceded there are numerous discounting factors in this case. Her partner moved around for some time including to Darwin and to Ipswich and they also moved to the Nebo area at some stage and also to Melbourne. The fact that he was moved in his position did impact on what type of work she could do. Further, her pre-trial work history was very limited as is apparent from paragraph 2 of the updated statement of loss and damage (exhibit 6). There clearly has to be substantial discounting because of what is a very limited work history for someone of her age. She was 26 years of age at the time she was injured.
For the financial years extending from 2004/2005 through to 2007/2008, her highest net annual income was $7,881 back in 2005 and in 2006/2007, for example, it was negligible.
At different time she was affected by study commitments and also by physical and psychological problems.
Counsel for the plaintiff submitted a discount of 66 percent was appropriate but it seems to me that it would have to be more in region of 80 percent to reflect those discounting factors particularly the very poor work history.
That would effectively result in the starting point of about $160 net per week and even that would appear to be higher than what she earned in the years leading up to the incident.
20 percent of the starting point in the plaintiff’s calculations ($192,936) represents $38,587.20. There needs to be some further allowance for the time that has elapsed since the trial and in the circumstance, have rounded off the allowance for past economic loss at $40,000 and I have allowed 9 percent for pass loss of superannuation benefits namely $3,600.
I have allowed interest at 5 percent for 5.35 years namely $10,700.
This is the type of matter where future economic loss can only be assessed on a global basis.
The same discounting factors would be relevant. The plaintiff still has the option of pursuing education which means that she may not have to pursue work which is as physical as some of the work she had done previously. After balancing that with the discounting factors I have settled on a global amount at $50,000 and allowed an additional 9 percent namely $4,500 for future loss of superannuation benefits.
In relation to special damages I have had regard to what the plaintiff has set out in the update statement of loss and damage and also to her evidence. It appears as though she has resorted to the use of chiropractic treatment from time to time and has used analgesics from time to time. She was unable to provide receipts.
In the circumstances I have allowed $1,500 together with interest at 5 percent for 5.35 years namely $401.25.
There is a substantial claim for future recurring expense, but I have great difficulty accepting that she will need the aids as set out in the report of Ms Stephenson (exhibit 1.24 pages 269 to 294 of exhibit bundle). It seems to me that she will continue to resort to the use of chiropractors, although, that would have to be discounted considerably because she would have done that for maintenance purposes in any event. She may also need to resort to the use of analgesics from time to time. In the circumstances, I have allowed $2,500 for future recurring expenses.
Because of the late lodging of the claim it does not appear as though there were any periodic benefits paid by work cover and there is no refund due to work cover.
In summary I assess damages as follows:
General Damages $40,000 Interest on pre-trial component $1,926 Past economic loss $40,000 Past loss of superannuation benefits $3,600 Interest on past economic loss $10,700 Future economic loss $50,000 Future loss of superannuation benefits $4,500 Special damages $1,500 Interest on special damages $401.25 Future recurring expenses $2,500 Total $155,127.25
Orders
In the circumstances I order that there be judgment entered for the defendant on the claim.
I will hear the parties on costs.
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