Min v Glen Eira City Council
[2014] VCC 1397
•29 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-11-05650
| CHHUNNEANG MIN | Plaintiff |
| v | |
| GLEN EIRA CITY COUNCIL | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26-29 August, 21-24 and 28-31 October and 1 November 2013 (Defendant to file and serve written submissions by 11 November 2013. Plaintiff to file and serve written submissions by 21 November 2013. Reply (if any) to be filed and served by 23 November 2013) | |
DATE OF JUDGMENT: | 29 August 2014 | |
CASE MAY BE CITED AS: | Min v Glen Eira City Council | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1397 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENATION
Catchwords: Whether defendant breached any duty of care – contributory negligence – causation of injuries – quantum of damages
Legislation Cited: Accident Compensation Act 1985; Occupational Health and Safety Regulations 2007; Code of Practice for Manual Handling 2000
Cases Cited: See Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349; Brown v Owners Corporation SP021532U & Anor (Ruling No 1) [2013] VSC 126; Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40; Jones v Dunkel (1959) 101 CLR 298; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164
Judgment: Judgment for the plaintiff.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie with Mr J F Perry | J N Zigouras & Co |
| For the Defendant | Mr C D N Griffin with Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
1 Chhunneang Min, (“the plaintiff”), sues Glen Eira City Council (“the defendant”), seeking damages for injuries suffered by her when dressing a resident at the Spurway Nursing Home on 5 July 2008.
2 This proceeding commenced as a jury action at the request of the defendant. At the end of the evidence-in-chief of the plaintiff, Counsel for the defendant informed the Court that further relevant documents had been located by the defendant which had not been discovered prior to the commencement of the trial.
3 After argument, I permitted the defendant to rely on such documents on the basis that the plaintiff had adequate time to assess such documents and call any further evidence as a result of such documents.[1] In such circumstances, on 29 August 2013, some three days into the jury trial, I discharged the jury without verdict and ordered that the matter proceed as a cause.
[1]See Ruling T182-187
The pleadings
4 By way of a Second Further Amended Statement of Claim, the plaintiff alleges that:
(a) The defendant was at all relevant times the “occupier and operator” of the Spurway Nursing Home, 89-91 Murrumbeena Road, Murrumbeena (“the premises”);
(b) She was at all material times employed by the defendant as a personal care attendant at the premises and was acting in the course of her employment;
(c) Throughout the course of her employment with the defendant, she was required to “carry out heavy, repetitive and arduous duties with associated lifting” (“the work”);
(d) On 5 July 2008, she was assisting in dressing a resident with dementia (“the resident”), who was prone to violent and/or unpredictable acts of aggression and/or epileptic fits;
(e) In order to dress the resident, she was required to bend and twist her lower back in an awkward position and, whilst doing so, the resident kicked out and struggled to prevent her from dressing him and she thereby suffered injury (“the injury”);
(f) The injury involved injury to the lumbar spine, aggravation of disc degeneration, anxiety and depression and chronic pain;
(g) The tasks that she was performing at the time of the incident involved hazardous manual handling within the meaning of the Occupational Health and Safety Regulations 2007. The tasks involved:
(i) repetitive or sustained force;
(ii) repetitive or sustained awkward posture and/or movement; and
(iii) manual handling of live persons;
(h) The injuries suffered by her were “caused by the negligence of the defendant, its employees or agents”. The Particulars of Negligence alleged are:
(i) Failing to provide a safe system of work;
(ii) Failing to provide a safe place in which to work;
(iii) Failing to provide the plaintiff with proper assistance;
(iv) Failing to properly instruct the plaintiff;
(v) Failing to take all reasonable steps to eliminate the risk of a musculoskeletal injury associated with manual handling in the incident above by –
- restraining the resident’s legs in a sling;
- dressing the resident in a tilting chair;
- failing to properly instruct, train and/or supervise the plaintiff in carrying out the dressing task it had identified as involving hazardous manual handling; and
- failing to educate relatives of the resident and/or provide suitable clothing to diminish movement of arms and legs;
(vi) Failing to comply with its own risk assessment reduction strategies;
(vii) Failing to review reasonable steps to eliminate the risk of musculoskeletal injury associated with hazardous manual handling in a timely manner;
(viii) Failing to rectify an obvious problem with manual handling;
(ix) Failing to provide training to the plaintiff with respect to dressing patients suffering from dementia, epilepsy and like conditions;
(x) Failing to provide adequate linguistic support and/or training in English to the plaintiff when the defendant knew or ought to have known that the plaintiff had difficulties with English;
(xi) Failing to confer with the plaintiff to advise her as to how she could have undertaken her tasks in a manner that was safer and easier for her to complete;
(xii) Failing to review work practices;
(xiii) Failing to comply with the provisions of the Occupational Health and Safety Regulations 2007 and, in particular, Regulation 3.1.1, 3.1.2 and 3.1.3;
(i) Further, and in the alternative, the injury suffered by the plaintiff was by reason of a breach by the defendant of the Occupational Health and Safety Regulations 2007 and the Code of Practice for Manual Handling 2000.
5 By way of its Further Amended Defence, the defendant admits that it was the owner and occupier of the premises and that it employed the plaintiff from 12 July 2005 until 22 October 2010. It does not admit that the plaintiff was required to bend and twist her low back in an awkward position to dress the resident, and in particular, it denies that it was negligent or breached any statutory duty.
6 The defendant also alleges that if it was negligent or breached a statutory duty, which was a cause of the plaintiff’s alleged injuries, then the plaintiff was guilty of contributory negligence, the particulars of which are:
(a) Failing to use common sense;
(b) Placing herself in a position of danger;
(c) If assistance was required, failing to seek manual and/or mechanical assistance;
(d) Failing to adopt a proper and/or proper stance whilst engaged in the work and/or during the incidents;
(e) Failing to act in accordance with and/or acting contrary to instructions;
(f) Failing to act in accordance with and/or acting contrary to her training in respect to interaction with residents suffering from dementia, blindness or epilepsy, inclusive of training in respect to manual handling and dressing of such residents;
(g) Failing to act in accordance with and/or acting contrary to her training with respect to interaction with aggressive or resistant residents, inclusive of training in respect to manual handling and dressing of such residents;
(h) …
(i) Failing to follow the resident’s Care Support Plan and/or acting promptly to such Care Support Plan when interacting with the resident, manual handling and dressing the resident;
(j) …
(k) …
(l) Failing to act in accordance with and/or acting contrary to her training as part of Certificate III in Aged Care Work.
The evidence of the Plaintiff
7 The plaintiff gave evidence that she is a fifty-four-year-old woman who was born in Cambodia, where she attended school to the age of fifteen.[2] In 1980, she married (although now divorced) and from that relationship, she has a daughter, Serina, born in 1981, and a son, who was born in 1984.
[2]DOB: January 1939 (she is now fifty-five years of age)
8 In or about 1983, she completed training as a nurse’s assistant in Cambodia, and during the period from 1984 to 1987, she was living in refugee camps in Thailand because of the “troubles” in Cambodia. In 1987, she migrated to Australia with her then husband, and in the period from 1987 to 1997, she and her husband ran a sewing machinist business. The business closed down in 1997 because the clothes were being made overseas.
9 After looking after her children for some period, she commenced to perform volunteer aged care work in 2001, initially in the Cambodian community, and in or about July 2001, she performed an aged care volunteer program.
10 In September 2001, she obtained employment as an aged care worker with Southern Cross, where she was involved in cooking and taking various clients out for shopping and to appointments.
11 In November 2001, she obtained a Certificate III in Community Services in relation to personal care, specialising in the lifting and transferring of patients. In March 2002, she obtained a Certificate in Basic First Aid. The plaintiff explained to the Court that the purpose of obtaining such certificate was to assist her in obtaining employment in a nursing home, taking care of aged clients or, alternatively, working with the aged in their own home.
12 In July 2002, she obtained employment through Drake Medox and also Silver Circle. Such work involved her being “on call” to attend the homes of various people and to assist them.
13 In October 2002, she obtained a Certificate III in Community Services Aged Care Work in Hygienic Food Handling, Safe Food Practices and Communicating Appropriately with the Client.
14 In or about 2004 or 2005, her marriage relationship broke down and she divorced, causing her to become stressed and depressed. She sought medical help and was prescribed anti-depressant medication, which helped to “relieve all my tension and also my worryness (sic)”. The plaintiff gave evidence that since then, she uses such medication now and then.
15 On 12 April 2005, the plaintiff applied for a personal carer position with the Glen Eira City Council. On or about 28 April 2005, she completed an application for employment, and on 28 June 2005, she was offered a part-time position as a personal carer with the defendant at the premises.
16 The plaintiff described the premises as being made up of three houses – House 1 had twelve “high-care” residents; House 2 had ten residents with a mix of “high-care” and “low-care”; and House 3 had eight residents of a similar mix. When she commenced work as a part-time trainee, the plaintiff recalled attending a function at the town hall, where she did not totally understand what was said because her English was “not perfect”.
17 On commencement of her employment, she underwent other training organised by the defendant, including ten staff training sessions as part of obtaining a position of full-time employment, which was offered and accepted in mid-2006. Full-time employment consisted of 76 hours per fortnight working on rostered shifts either on the morning shift, afternoon shift or evening shift. The plaintiff gave evidence that she worked either the morning or afternoon shift.
18 Although she could remember attending various courses, she could not recall the name “O’Shea No Lift Training” or a Level 2 First Aid Course, although she thought maybe she did undergo such a course.
19 The plaintiff described that high-care patients involved assistance with feeding, dressing, showering, toileting and changing dressings. In House 1, two staff are rostered on each shift. In House 2, again, two staff are rostered on. In House 3, one staff member was rostered on. The plaintiff also described that some high-care patients are in wheelchairs and some patients can stand with the assistance of staff.
20 When queried about the state of her health prior to the commencement of her employment with the defendant, the plaintiff described having “tummy upset” and “the menopause”. In relation to the tummy upset, that is something that she had had for a period of twenty years, and for which she took medication. She also described as suffering from some low-back pain because of cysts that she had which required some surgery.
21 In particular, the following evidence was given:
Q:“Before the accident in July 2008, were you restricted in any way from the symptoms you referred to from performing your full time duties with Glen Eira City Council?---
A:It's only like I have a fever or sometime a little bit ache and pain, that's all.”[3]
[3]T77, L7-11
22 The plaintiff described the defendant conducting performance reviews each year and she was referred to a performance review undertaken on or about 21 June 2008. The plaintiff explained that some of the handwriting on that document was her handwriting and some of the handwriting was that of someone else. The performance review was tendered.[4]
[4]See Exhibit 1
23 The plaintiff gave evidence that on 5 July 2008, she commenced work at 7.00am and was rostered to work in House 1 and that in that house, one of the high-care patients was a man named “Gordon”. She ultimately described him as someone who was of medium size and who had been there since prior to her commencing work with the defendant. The plaintiff also described “Gordon” to be legally blind, demented, suffering epilepsy, and who was aggressive. He was able to communicate.
24 On 5 July 2008, she was required to take “Gordon” to the shower to wash. In order to complete this task, it was necessary to get him out of bed, which required sitting him up in the bed and then using the transfer machine, to transfer “Gordon” from the bed to the shower chair. He was naked on the shower chair, as his clothes are removed when he is on the bed. The shower chair is then taken to the shower area, where he is washed.
25 In particular, the following evidence was given:
Q:“Is that a one person or two person job? ---
A:That job [is] supposed to be two workers, but on that time, only one worker. I do it myself.
Q:What were you doing on 5 July when you washed Gordon? What happened? ---
A:Like what I mentioned – during the time that I washed Gordon, he keep (sic) punching me, kicking me, and then trying to push me.
Q:At any stage were you injured at all whilst you were in the shower room washing Gordon? ---
A:No.”[5]
[5]T82, L15-23
26 The plaintiff then gave evidence that after washing “Gordon” in the shower room, she dried him in that room before pushing him from the washing room to the bedroom.
27 When in the bedroom with “Gordon” sitting naked on the shower chair, the plaintiff gave evidence that she was joined by another member of staff identified as “Sonia”, who was the other personal carer working in House 1 on that morning.
28 When queried about the process of dressing “Gordon”, the plaintiff gave the following evidence:
A:“During the time Sonia will take care of the top part and I take care of the bottom part and first of all I will put sock on – I put pad, I put underwear, I put shoes. (Direct) Sock, pants, underwear, pad and shoes. (Through Interpreter) I would like to repeat that, I put sock, I put pad, I put underwear, I put pants, I put shoes.”
HIS HONOUR:
Q:“At the stage you’re doing this, Ms Min, was Gordon still sitting in the shower chair?---
A:Yes, Your Honour, he’s still on top of the shower – I mean he still sat on the shower chair.”[6]
[6]T84, L19; T85, L1
29 The plaintiff was shown a photograph which she identified as looking like the shower chair and although not certain if it was the chair, she described it as “very similar”. The photograph of the shower chair was tendered.[7]
[7]See Exhibit 2
30 The plaintiff described how Sonia had to put a singlet, a shirt and jumper on “Gordon” and when performing such work, she was standing up. When queried where Sonia stood whilst performing such work, the plaintiff gave evidence that sometimes she stands at the back, sometimes she stands at the side, but she could not recall precisely where she was standing at this time.
31 When the plaintiff was queried where she was situated at the time of dressing “Gordon”, the following evidence was given:
Q:“At the time of the incident, do you remember where you were when you were dressing Gordon?---
A:I am inside Gordon’s room.
Q:In order to dress Gordon, what position were you in in Gordon’s room?---
A:I sat on the stool on his right-hand side - on the corner of his right-hand side and bend down to get him dressed.
Q:You said that you were sitting on a stool, is that right?---
A:Yes.
Q:First of all, could you describe the stool to the members of the jury? Did it have a back and sides?---
A:Um, no, sorry.”[8]
[8]T91, L16-26
32 Later, the plaintiff gave the following evidence:
Q:“You’ve referred to having sat on a stool, can you tell the members of the jury whether the stool had a back to it or not?---
A:No, the stool had no back.
Q:Did the stool have any sides to it?---
A:No, doesn’t have one.
Q:Where was the stool within the room in relation first to the shower chair and secondly to the bed?---
A:The stool and the shower chair are not far from each other.
Q:Where was the stool in relation to the bed?---
A:If the bed on my right side the stool will be near the window where Gordon is.
Q:So from that answer do I understand the stool was between the bed and the shower chair?---
A:Yes.
Q:How many legs did the stool have?---
A:Four legs.
Q:Can you describe to the members of the jury what the seat of the stool was like?---
A:The stool is a little bit lower than the normal chair that have the cushion on it?---It’s the cushion size that’s different.”[9]
[9]T93, L9-25
33 The plaintiff was referred to the photograph of the shower chair[10] and queried how much lower or higher was the stool she was sitting on at the time of dressing “Gordon”. The plaintiff gave the following evidence:
“In this case the stool and the shower chair, it’s not much different. If you can see in the picture the cushion that have, that may be the high - that higher than the stool. And I also went out to the shopping centre and looked at the stool that I was sitting on.”[11]
[10]See Exhibit 2
[11]T97, L24-28
34 When queried about the posture of her body when she was putting clothes on “Gordon”, the following evidence was given:
Q:“Now, what posture was your body in when you went to put the clothes on Gordon on 5 July?---
A:During that time my body bend down to the lower - as I can, to get Gordon dressed halfway.
Q:When you bent down, were you bent straight down or were you bent to one side, or the other? Or did you have to change from one side to the other whilst you were bent down?---
A:I was bent down on his left hand side, because is Gordon here, on his sideway.
Q:Perhaps just - were you on Gordon’s left side or his right side?---
A:On his right, but I bend to the left.”[12]
[12]T97, L29; T98, L8
35 When asked to demonstrate the movement, the plaintiff ultimately stated that she could not bend down like she was doing at the time but, again, stated that she bent her whole body down when dressing Gordon.
36 The plaintiff described bending down to the carpet because Gordon’s leg pointed straight down to the carpet. She described that it was a “really, really difficult situation”. When queried as to why it was difficult, the plaintiff stated:
A:“During that time, make it difficult because of Gordon behaviours. He put his leg, both of them straight, and then keep moving up and down make the job hard for me.
Q: What was he doing with his feet?---
A: Straight, hard and then after moving up and down.”[13]
[13]T100, L18-23
37 The plaintiff gave evidence that the clothes she used to dress “Gordon” were placed on another chair on her right-hand side. She also stated that through the process of dressing, she sat on the stool, although she could not remember exactly how long she bent down or how long she was upright on the stool.
38 The plaintiff gave evidence that the way she described to the jury of dressing “Gordon” was how she normally dressed patients at the premises and that she sat on a stool “in general”. In particular, the plaintiff gave the following evidence:
Q:“For the purposes of getting a patient dressed, what were you told you had to do?---
A:Depend on the circumstances, the way that I perform. Some occasion I can sit on the stool and get the resident dressed and on some occasion I have to kneel down to get the resident dressed and some occasion I have to do what is suitable during the time.
Q:What were you told you had to do depending on the circumstances? What caused the difference?---
A:Some of the residents I am able to sit and get them dressed but some of the residents I can't.
Q:So you’ve said that sometimes you sit on the stool, sometimes you kneel, when do you kneel and when do you sit on the stool?---
A:Depend on the residents. Some residents able to lift their feet up, I'm able to dress them on my stool, I can sit on my stool and some residents if both of their legs are pointing down that mean I need to kneel down. It’s not pointing down right on the ground but pointing down on the level that I can lean.
Q:So why did you sit on the stool on this occasion?---
A:Because I am scared that Gordon might hit me.
Q:What was the problem if you were kneeling down in terms of what you were scared about?---
A:He will kick me.”[14]
[14]T147, L11 – T148, L1
39 I also refer to the following evidence:
Q:“Did Spurway Nursing Home, whilst you were working there, ever have a shower chair that could change positions in the way shown in the two photos?---
A:Are you talking about in general or Gordon only.
Q:No, do you ever recall seeing any such shower chair that could transform from sitting upright to a bench type position as shown in the two photos?---
A:Yes, I have seen that chair.
Q:You’ve seen it at Spurway?---
A:In Spurway.
Q:You have? Whilst you were working there?---
A:Yes.
Q:Was there any reason why you didn’t use that chair on the
day?---
A:Because some of the residents use that chair but for Gordon he doesn’t need to use that chair because I follow the other people.
Q:You follow what other people?---
A:My co-worker.
Q:In what way did you follow – is this Sonia you’re talking about?---
A:Yes, yes.
Q:In what way were you following Sonia?---
A:In general, since I start work as a team I never seen Gordon use that shower chair.”[15]
[15]T148, L21 – T149, L9
40 In particular, the plaintiff described how, when putting on the pads, underwear and pants of “Gordon”, she would raise such items of clothing to just above his knees and then “Gordon” would be lifted by the standing machine, after which those items of clothing are drawn up to their correct position.
41 The plaintiff described that it was Sonia who operated the standing up machine.
42 The plaintiff was shown exhibit 2 (photograph of the shower chair) and she said that such chair was not adjustable.
43 I refer to the following evidence:
Q:“All right. I want to take you back to 5 July 2008, you’ve told the jury that you put Gordon’s lower clothes on, that is the socks, the pads, the underwear, the pants and his shoes in the way you’ve described. What did you do after you’d completed that?---
A:After I have complete Gordon dress, I stood up and during that time I feel the pain on my lower back.
Q:How would you describe the pain to the jury?---
A:During the time that I stood up I informed Sonia, my colleague, to say that, ‘Ow, Sonia I have, I feel the sore back and also it’s sore on my arm, very strong’.
Q:Were you able to continue dressing Gordon after you felt that pain?---
A:I still continue perform my work.
Q:What did you then do after you felt the pain?---
A:During the time that I was still at work?
Q:Immediately after you felt the pain work did you to help Gordon?---
A:After the pain I and Sonia, my colleague, have transfer Gordon to his wheelchair.
Q:Did you continue to do your normal work after that?---
A:(Direct) Yes.”[16]
[16]T113, L26 – T114, L14
44 After completing the dressing of “Gordon”, the plaintiff transferred dirty laundry to the laundry, after which she reported the incident to her supervisor named “Vicky”. At that time, she told Vicky what had happened, and Vicky gave her two tablets.
45 The plaintiff was referred to an Incident Report Form and she identified her signature in the top right-hand part of that document, which was tendered.[17]
[17]Exhibit 3, Incident Report signed by the plaintiff on 8 July 2009
46 The plaintiff gave evidence that she continued to work until about 3.00pm. Before lunch, she was called to assist three other staff members to control “Gordon”, who was having an epileptic fit. At that time, she was asked to assist “Gordon” with the sling, to lift him up.
47 When queried about whether anything happened to her back, the plaintiff stated:
A:“First of all I have a sore back, not as bad, but after I have a really, really severe pain on my back.
Q:How? How did it come?---
A:I got a sore back and it went through my leg.
Q:What were you doing when you got the further sore back?---
A:I pushed the patient from the bedroom to dining room and then pushed the patient to the bed – transferred the patient to the bed.”[18]
[18]T118, L30; T119, L7
48 At about 3.00pm, she lay down in the physiotherapy room at the premises because she had pain in her low back, arm, chest and neck. She also described having pain on the right side through to her right leg, right down to the bottom to the sole of her foot.
49 The plaintiff’s daughter came to the premises and took her to a clinic which, unfortunately, was about to close. Thereafter, a taxi took her to the Monash Medical Centre. Although the plaintiff returned to speak to some of the staff at the premises, she never returned to work at those premises. She made a Claim for Compensation and after identifying such claim, it was tendered.[19]
[19]See Exhibit 4
50 In particular, the Claim Form refers to an injury occurring on 5 July 2008. When queried what happened and “how were you injured”, the following is written:
“Client sitting on a stool, I tried putting on the shoe for them when their legs moved suddenly and I continued to try to put the shoe on for the client. When I stood up after I had severe low back pain in the lumbar area.”
51 The plaintiff gave evidence that it was not her writing on the Claim Form and clearly, the reference to the client sitting on the stool was wrong, as she was sitting on the stool when dressing the client (“Gordon”).
52 The plaintiff ultimately received payments of weekly compensation until 2010.
53 The plaintiff described that when she initially attended at Monash Medical Centre, there was a check of her physical movements and she was prescribed some medication.
54 She subsequently attended her general practitioner, Dr Chan, at the St James Medical Centre on 7 July 2008. Dr Chan prescribed an anti-inflammatory drug, Celebrex; analgesia and a steroid, and also referred her for physiotherapy, which she attended three times a week at that time. She believed that she started, then stopped, for a little bit, and then started again and continued until 2011.
55 On 19 August 2008, she came under the care of Dr Paul Hancock, at the Nunawading Family Practice Centre, because Dr Chan did not accept WorkCover patients.
56 The plaintiff described that about two months after the occurrence of the incident, she experienced pain down her left leg which came on gradually. She described a burning sensation in both legs, but the left is more severe than the right.
57 Dr Hancock referred her to an orthopaedic surgeon, Mr Gary Grossbard, in late October 2008 and he arranged an MRI scan of her low back. On 28 November 2008, he arranged for her to have an epidural injection into the spine which, according to her, did not help.
58 Towards the end of 2008, she was undergoing hydrotherapy, physiotherapy, medication and massage, which gave her some relief. She was also prescribed a lumbar brace, which gave her some relief and made walking easier. She described having difficulties with walking since the incident and that, on occasion, she uses a walking stick.
59 She was referred to the rehabilitation specialist, Dr Clayton Thomas, on 9 April 2009 and at that time, was taking Panadol and Celebrex, and also Endep to help her anxiety. She was also taking Soton and Mylanta, both of which were for her longstanding “tummy upset”.
60 The plaintiff gave evidence that when taking the Celebrex and Endep, it caused more pain in her stomach. Dr Thomas referred her to the Rehabilitation Centre for outpatient treatment over the period from August to November 2009. During that time, she was treated with physiotherapy, occupational therapy, and also consulted with a psychologist. She was also advised to perform certain exercises and she has continued to do those exercises.
61 Since the accident, the plaintiff stopped driving initially, and then drove for a while, but has ceased driving since 2010. When asked why she stopped driving in 2010, the following evidence was given:
“Like you can see I becoming weak and I can’t sit longer than 15 to 20 minutes in the car. Because of the medication that I use it made me feel shaking and because of the sleeping pills that I use and also the Cymbalta that I took it causing me headache, drowsy, sleepy and make me confused, no self-confidence to drive the car and I am also scared that I might kill somebody on the road.”[20]
[20]T132, L25 – T133, L2
62 If she sits for longer than 15 to 20 minutes, she gets more pain in her lower back and leg area. She continues to consult Dr Hancock, initially once a week, then every second week, then every third week, and now perhaps once a month for the purpose of obtaining medication and also, in the past, for the obtaining of a WorkCover certificate.
63 The plaintiff also gave evidence that Dr Hancock referred her back to Mr Grossbard in October 2010, and he performed a further MRI scan of her low back. Furthermore, Dr Hancock referred her to a psychologist, Ms Shagufta Riaz, in June 2010, and she continues to consult with the psychologist.
64 When queried as to why she seeks to see a psychologist, the plaintiff stated:
“After the incident it have impact on my mental capacity. First is have damaged me. The pain, the suffering, I hate myself. Before I always depend on myself. I am the person like to enjoy my social life. I like to take care of my children. I am the main person to prepare all the food for my children and taking care of the household. And I also am independent taking care inside out for the house the same as something else that I need to do, but now all of that pressure have been put down to my daughter because of my capacity. I depend every things on my daughter. Each time if I want to go somewhere, if my daughter have no time or if she too tired I have to accept that because I can’t do anything. So my happiness, it rely on my daughter. I have been – I am the victim and that victim now it go to my daughter. And as you know the time that I have the incident, I was 40 plus and my daughter she’s about 20 plus. And that time is a time that all young adult enjoy their social life, enjoy their time with their partner or the man who she love but instead of that she have to cope with my problem.
Sometime she come towards me and cry and mention that her time is over now and she not going to have a man who will fall in love with her and if my daughter left me who can I depend on? Who can I count on? Who can I ask for help? So in this case I have no hope. I have no hope for my life, my life it’s nothing, it’s meaningless for me and that mention above I thought the first time maybe I can recover but instead my hope now have meaningless because it getting worse and worse and I knew that I can’t depend on no-one.”[21]
[21]T134, L30 – T135, L29
65 The plaintiff described that not only her daughter, but her son and her ex-husband live in a residence situated at Dandenong. The plaintiff described living in that unit for about four years and that her son has been living there for five to six months. Her son is separated and has a child from that former relationship, and that child stays overnight from time-to-time.
66 The plaintiff gave evidence that such child (her grandchild) sometimes stays once a week, sometimes twice a week, and during those times, she helps feed him, makes formula for him, changes his nappy and bathes him. When queried whether such activities interfere with her back, the plaintiff replied that such activities causes her back pain.
67 Her ex-husband, who is not working, lives in one of the bedrooms of the unit, and when queried as to the status of her relationship with him, the plaintiff described that they are just “friends”.
68 The plaintiff accepted that she visits friends once in a while and entertains friends at her home. However, she gave evidence that her way of entertaining is now different, as people now have to help when she is entertaining. When queried about this, she gave the following evidence:
“Before I can perform my duty cleaning up, cooking, taking care of the housework, gardening, do everything that I can. At the current I’m able to do light work. First of all it will be the exercise that I have to practice, and the second sweeping the floor, and put the dirty clothes in the laundry and then hang it up after. And during the winter time or cold weather, I will walk on the treadmill.”[22]
[22]T140, L4-13
69 Presently, she takes Panadol for back and neck pain, Zoton and Crestor for cholesterol, Cymbalta and Gaviscon for her “tummy condition”. Furthermore, sometimes she uses Stemetil for her drowsiness and uses a Chinese ointment to massage headaches.
70 In particular, she takes four Panadol each day – two in the morning and two in the evening – but sometimes takes up to six tablets. She commenced Cymbalta at the end of 2012 and takes a half a tablet per day. She has difficulty sleeping.
71 The plaintiff was shown a document which she identified as the “Care Plan” for “Gordon”. Such document was said to be Document No 38 in the Defendant’s Court Book.
72 The plaintiff identified what she referred to as a reclining shower chair which existed at the premises, and such photograph was tendered.[23] She identified such chair as being similar to what was referred to as the “Magic Mobility Chair”. In particular, the following evidence was given:
[23]See Exhibit 5
HIS HONOUR:
Q:“You’ve told the court you understand what a Magic Mobility wheelchair is. Is that right?---
A:Yes.
Q:And two things you said about that chair, the first is it leans backwards. So someone can go backwards in the chair. Is that correct?---
A:Yes, correct.
Q:And the other thing you’ve said, as I understand your evidence, when you lean back the chair comes up so the feet are brought up also. Is that correct?---
A:Yes, Your Honour.
Q:Now, the diagram you’ve got in front of you - now, that’s not Exhibit 2, is it, or is it?”
MR McCREDIE:
Q:“No. No, it isn’t.”
HIS HONOUR:
Q:“No. The diagram you’ve got in front of you, is that a diagram, as far as you’re concerned, of the Magic wheelchair or not?---
A:To me I think it’s similar (referring to exhibit 5).”[24]
[24]T209, L28 – T210, L10
73 Under cross-examination, the plaintiff accepted that the Magic Mobility Chair was available for use when dressing “Gordon” and that “Gordon” used that chair for the majority of the time that he was at the premises. The plaintiff also agreed that at the end of each shift, she was required to prepare progress notes. The plaintiff initially seemed to acknowledge that she also had to look at the progress notes when she commenced a shift but later, in the context of another question, stated:
“I can’t remember.”[25]
[25]T211, L13-15 and T212, L8-10
74 The plaintiff agreed with the suggestion that the “second injury” that she suffered on 5 March 2008 was “more serious” than the initial injury. It was during the second incident that she experienced a click in her back and felt pain down her leg after “the second incident”.
75 The plaintiff was referred to a statement which she accepted was signed by her on 28 July 2008, wherein she accepted she stated that she never had problems with her back prior to the accident in July “apart from the normal tiredness”.
76 It was also put to the plaintiff whether she recalled taking “an overdose in May 2001”, and after some questioning, she accepted she was taken to the Monash Hospital but asserted that she “didn’t take overdose”.
77 The plaintiff suggested that the reason that she was taken to hospital was that her family was worried about her and, in particular, she explained at that time “my business dropped down. I lost money.”
78 The plaintiff also described that when she and her husband were operating the manufacturing business for eleven years, she was a supervisor of the business. She described how she was “inside the business and he doing outside the business”. She explained that that meant that she hired and dismissed staff, supervised the work undertaken by the staff, decided on how many garments of a particular type would be made, and was responsible for quality control.
79 The plaintiff accepted that she did have some back pain before the accident at the premises and had treatment for that back pain. However, she could not recall any precise time in 2001 where she had back pain. In particular, the plaintiff explained that she experienced back pain when she had her period, and such pain started before the operation for her cysts, which she estimated was nine or ten years ago.
80 Although the plaintiff gave answers frequently that she could not remember certain events, she ultimately said “I got pain in the leg and pain in the back” before her cyst operation, and after the cyst operation, there was no more pain.
81 The plaintiff accepted that from about September 2008 onwards, she was offered a number of positions to return to work at the premises. In particular, in October 2008, she was offered a position back at the premises, three hours a day for two days a week to assist the activities officer.
82 In particular, such assistance would involve reading to the residents, assisting in games of Scrabble and Bingo, and generally talking to the residents. During that time, she could either sit or stand as she wanted and take whatever breaks were needed and certainly not engage in any lifting or pushing.
83 The plaintiff accepted that she could have done some of that work, even though she was in pain. She ultimately stated:
Q:“And why then haven’t you gone back and tried to do some work?---
A:Would you like me to say something?
Q:Yes?---
A:Yes, yes, a good chance for me to explain to you. Yes, for normal sick people like that, job is OK. Yeah, for me, I have a lot of pain. Doesn’t mean get pain - get less and less, is always going more and more. I miss my place, I love my residence before. I want to make my friend, I miss that. I want to work. And when I - if I go to work, I hear the work machine, then it make me sick. When I - when I saw my friend, they miss me, they come and hug me. They reflect me back from the past. With a similar in my - that stabbing from my heart, to reflect me before.”
HIS HONOUR:
Q:“I want to know - can I ask you this. When the job was offered in October 2008, it was a job involving talking to people and helping them play some games and things like that. Is that right?---
A:Yeah, they did told me about that job, asked me to do that job.
Q:And why do you think you couldn’t do that job?---
A:Yeah, always remind me of standing machine and lifting machine, and always make me remember of the back pain. So just make remember back, you know, when my friend come to work with me, and you know, make me remember the past. And I feel like a knife is stabbing into my heart. I feel depressed. Keep going further and further. In fact I miss my working place, I love that place, I miss the place. Yeah, I put - I fit back into a box to say that I love the work, I love the place. Since I have a problem with the family and the business broke - after the business drop down, my husband got depressed and went gambling.”[26]
[26]T238, L28 – T239, L27
84 The plaintiff accepted that in 2009, it was arranged for her to attend the Victorian Rehabilitation Centre, where she was taught how to manage her pain. She also accepted that there was a further attempt to get her back to work at the premises in November 2009, when she was offered similar duties to that offered earlier.
85 When queried by the Court as to why she could not perform such duties, the plaintiff gave evidence that going back to the premises reminded her of all the things that happened to her and, in particular, the following evidence was given:
Q:“I just want to be clear, this is what you told me about earlier, when you went back to Spurway you remembered that things had happened there, is that what you’re saying?---
A:Yes. It make me more sick.”[27]
[27]T241, L26-29
86 The plaintiff again accepted that in June and, probably, September 2010, there were further meetings about her returning to some form of work at the premises. She also accepted that the psychologist whom she had commenced to consult also urged her to find some light work.
87 It was again put to the plaintiff that on 22 July 2001, she attended a Dr Christine Pham, who noted that the plaintiff was anxious and stressed and was having problems with her son and also told the doctor about a recent “overdose”.
88 The plaintiff accepted that prior to the accident – perhaps in 2005 – she was given short notice to sell the house that she was then living in, after which she moved in with her sister. The house had to be sold because her husband had run up gambling debts and could not pay the debts.
89 Nineteen minutes of video film were shown to the plaintiff and the plaintiff accepted that such video depicted her in June 2009 in the company of an interpreter from the Rehabilitation Service. She accepted that she was being shown how to operate a petrol nozzle, measure the oil, and checking the battery to see if it needed water. She accepted that the film showed her laughing with that gentleman and seemingly moving around for about 12 minutes. The vehicle was owned by her daughter. A video was tendered.[28]
[28]Exhibit LL1
90 The plaintiff accepted that she separated from her husband in 2004, although living under the one roof, and then divorced in 2005. She accepted that she was depressed around this time and was admitted to hospital one night when she attempted to take an overdose. Also at that time, she was having trouble with her son, whose partner had left him, and also there were problems about paying for various maintenance around the house and in particular, problems with the electricity and a damaged floor.
91 The plaintiff accepted that she had a lot of stresses in her life, for which she took medication for depression in 2005, and that has continued on and off since then.
92 The plaintiff accepted that after the close of the factory run by her and her husband in 2001, she went and studied English through the Immigration Department for a period of 500 hours. She also accepted that the lectures and demonstrations in the course that she commenced in personal care were in the English language.
93 When queried about the course, “Certificate III, Community Service Personal Care Course”, the plaintiff could not remember where such course was undertaken or for how long it went, but accepted that she was taught matters pertaining to food safety. Furthermore, she accepted that she underwent a course at Swinburne University of Technology in October 2002 and that was also about safe food hygiene.
94 The plaintiff also accepted that at some time in the Certificate III, Community Service Personal Care Course, there was lifting and transferring information.
95 The plaintiff accepted that she obtained a statement from Mediquest relating to Certificate III, Community Services Personal Care and Lifting and Transferring, dated 13 November 2001, and such statement was exhibited.[29] The plaintiff also accepted that in order to obtain such statement, she had to perform written work and also sit for an exam in English.
[29]See exhibit A
96 The plaintiff also accepted that she underwent a basic first aid course, which required tests both in writing and by word, and which were undertaken in English. She identified the statement of attainment in relation to dealing with basic first aid, dated 18 March 2002, and such statement was tendered.[30]
[30]See exhibit B
97 The plaintiff accepted that the course she undertook at Swinburne University of Technology involved communication and again, the lectures were in English and there were both written and oral tests all undertaken in English. She identified a document headed “Statement of Attainment” issued by Swinburne University of Technology pertaining to a “Certificate III, Community Services (Aged Care Work)” dated 2 October 2002, and such document was tendered.[31]
[31]See exhibit C
98 The plaintiff also accepted she underwent a first aid course, which was again conducted in English, and the tests required of that course were also conducted in English. She identified a document headed “First Aid Consultants and Training” relating to a statement of attainment for the plaintiff in relation to a course in First Aid Level 2 dated 6 December 2005, and such document was tendered.[32]
[32]See exhibit D
99 The plaintiff also agreed that during the course of her employment with the defendant, she was required to attend staff meetings, attend training sessions and to attend various workshops. The plaintiff also accepted that she was required to work with the defendant within policy guidelines, be proactive in problem solving, possess time management skills and, within those guidelines, was required to exercise her own judgment.
100 The plaintiff accepted that amongst the policies which she was made aware of at the premises, were not to lift patients and use machines, and when transferring a patient from a bed to a shower chair or from a shower chair to a wall chair, you were required to use the transfer machine. Similarly, if a patient had to be brought from a seated position to a standing position, you were required to use the standing machine.
101 Counsel tendered the document consisting of the Position Description as personal carer with the defendant, which the plaintiff accepted she received. The plaintiff also identified a résumé made up by her, together with her letter of application to the defendant dated 12 April 2005. Each of those documents was tendered.[33]
[33]Exhibit F – résumé of the plaintiff; exhibit G, letter of application to the defendant
102 The plaintiff gave evidence that she was assisted in making up her résumé by someone at Centrelink, who typed up the document, and that the letter of application was written up by her niece.
103 When queried about the actual application made to the defendant,[34] the following evidence was given:
[34]Exhibit H
Q:“Would you have a look at that document, please, Mrs Min?---
A:Yeah, I see that.
Q:And that’s your application for the position at Spurway?---
A:Yes.
Q:And that’s your writing, is it not?---
A:Yes, I wrote that, but I copied it.
Q:You copied it?---
A:I copy.
Q:What did you copy it from?---
A:So I got one of the - I got one of my relatives, he or she used to work at one of the place and they got this old application and give to me so I can copy. But for me myself I don’t have this skill that to do this kind of job excellently like this.
Q:So who was it exactly that you got to help you?---
A:Yes, she used to work in that place. My relative.”[35]
[35]T276, L15-27
104 The plaintiff was also referred to that part of the application that states “All applicants must read the following information”. When queried as to why she did not understand all the information in the document but was prepared to make a declaration, the plaintiff stated:
“Yes, I’m sorry. This is the job that I tried, I want to get, obtain the job. I couldn’t read and couldn’t understand. So that I can get the job so I - my child can have education to the finish and get some money by then to support and get good future and got a job. I’m sorry. I’m really sorry.”[36]
[36]T277, L30 – T278, L5
105 The plaintiff accepted that she was trained in “manual handling transfers, hoists and wheelchairs”. Furthermore, at the commencement of her employment, care plans were discussed with her and it was emphasised the importance and the use of care plans, with each patient having their own particular plan. The plaintiff also accepted that she was instructed to follow those care plans and fill out progress notes at the end of each shift to be included in those care plans. The plaintiff described how someone had to help her get access into a computer program in order that she could put notes into any particular care plan. She thought that maybe she did obtain some training using the computer for making the case notes.
106 The plaintiff also gave evidence that in relation to the performance appraisal for 2008, she sat down with her supervisor to answer the various questions posed in the appraisal. The plaintiff gave evidence that she got some assistance from her workmates what to write in this type of feedback. The plaintiff recalled that she had classes in relation to her Aged Carer’s Certificate and they were carried out by a company called AVLI, who were outside trainers.
107 The plaintiff identified a document headed “Certificate III in Aged Care Work” dated 15 June 2006 as being a certificate acknowledging that she underwent instruction over a period of a month by instructors from AVLI. The certificate was tendered.[37]
[37]See exhibit J
108 Before completing the course to obtain such certificate, the plaintiff accepted that when she started with the defendant, she underwent two weeks of intensive instruction about work systems and procedures before she had actually started to do any work. Furthermore, her first two shifts were as an observer, watching others performing carer’s work.
109 The plaintiff considered that “it may be like that” when it was suggested to her that for approximately the first four to five months of her employment, she went around with other carers but was not involved in any particular activities and merely observed how the work was carried out.
110 Counsel also tendered the staff attendance record in relation to the Certificate III in Aged Care Work course[38] and the plaintiff accepted that she has signed off on such documents, in that she attended the course on the days nominated.
[38]See exhibit K
111 Evidence was given as to what the course consisted of, and in particular, I refer to the following evidence:
Q:“Do you recall in that course being instructed as to how to transfer patients?---(Through Interpreter)
A:Yes.
Q:Yes. And you were instructed in the use of equipment?---
A:Yes.
Q:And you were instructed in the use of equipment to move the patient from?---
A:Yes.
Q:Yes. And to move from the bed to, for example, the shower chair?---
A:Yes.
Q:Yes. And from the shower chair to a wheelchair?---
A:Yes.
Q:Now, you said yesterday that – I’m sorry, the day before, that Gordon spent most of his time in a Magic Mobility Chair?---
A:Yes.
Q:Yes, so in that course you learnt how to transfer, for example, Gordon, from the shower chair to the Magic Mobility Chair?---
A:Yeah, Magic Mobility Chair.”[39]
[39]T343, L23 – T344, L3
112 The plaintiff was shown a photograph of what was suggested to be a Magic Mobility Chair, to which she replied:
“I forgot, maybe like that, maybe that one.”[40]
[40]T355, L14-15
113 The plaintiff agreed that the back of a Magic Mobility Chair tilted and the bottom section came up to support the legs of a patient sitting in such chair. She accepted that the photograph depicted a chair very similar to the Magic Mobility Chair that “Gordon” utilised.
114 In particular, the following evidence was given:
Q:“… On the day of your accident you had showered Gordon using the shower chair?---
A:Yes.
Q:Yes. And the shower chair you – I’ll go back a bit. You dried Gordon, you said, whilst he was in the shower?---
A:Yes.
Q:Yes. And you then wheeled the shower chair out of the bathroom into the bedroom?---
A:Can you please repeat again?
Q:Yes, certainly. After you’ showed Gordon you moved him out of the bathroom into his bedroom?---
A:Yes, correct.
Q:Now, the shower chair, after the shower, would have been wet?---
A:Yes.
Q:And you knew how to transfer Gordon from the shower chair into the Magic Mobility Chair?---
A:Yes.
Q:And Gordon had been agitated in the shower, he’ been upset?---
A:Can you clarify, please?
Q:Yes, Gordon had been upset when he was having a shower?---
A:When he was in the shower?
Q:Yes?---
A:I mean he’s not happy.
Q:No?---
A:Yes.”[41]
[41]T356, L16 – T357, L2
115 Furthermore, the plaintiff was queried as to whether, before dressing “Gordon”, he could have been transferred from the shower chair to the Magic Mobility Chair. In particular, the following evidence was given:
Q:“Before you dressed Gordon, you could have transferred him to the Magic Mobility chair?---
A:Well, do you want me to answer it?
Q:Please?---
A:Not doing like that.
Q:Why not?---
A:Normally must be dry - must be dry him up first, get dress up first, before transport him into the chair.”[42]
[42]T357, L16-21
116 Counsel for the defendant tendered the statement of the plaintiff made on 28 July 2008 (consisting of five pages).[43]
[43]See exhibit L
117 The plaintiff was shown what was referred to as the Progress Notes, and she accepted that on the day she suffered her accident, she knew that “Gordon” was upset and had been upset for some days. She was queried as to why, when having that knowledge, she could not have come back a little bit later and then showered and dressed “Gordon”, to which she stated “Yes”. In particular, the following evidence was given:
Q:“Well, why didn’t you?---
A:When I brought him out - yes, Sonia prepare to dress up, and I also prepare to dress up.
Q:My question to you was why didn’t you postpone showering Gordon on that day?---
A:Yes, so the time is limited, so I have to complete dress - I have to complete dress up for Gordon, and then I have to do other things.
Q:Didn’t you agree that you could’ve postponed it?---
A:So at that time I didn’t think of anything else, just to - to do this job ready.”[44]
[44]T363, L19-29
118 The plaintiff was also referred to the Care Plan which in part stated “Able to stand at rail for clothes adjustments,” to which the plaintiff stated:
“He can stand at the rail, yes, and get changed – clothes.”[45]
[45]T366, L3-4
119 The evidence continued:
Q:In Gordon’s room there was a rail that he could hang onto, wasn’t there?---
A:In the toilet?
Q:There was, I suggest to you, a rail that he could hang onto whilst being suspended in the standing machine?---
A:Yes, in the bathroom or in the toilet there’s a rail.
Q:And the standing machine is able to be wheeled into the toilet?---
A:Yes, can be able.
Q:Now, a little bit further down - again under the heading of - and it says: ‘Wheelchair. To sit in Magic Mobility chair when at Spurway’?---
A:What is it?”[46]
The plaintiff accepted that “Gordon” sat in a Magic Mobility Chair during the day and that he used a normal wheelchair when he was going home on the weekend.
[46]T366, L5-14
120 Counsel for the defendant tendered the various Resident Care Plans.[47] The plaintiff accepted that the machine referred to “Steady Eddie” was used each time “Gordon” was required to be moved. Again, the plaintiff confirmed the use of the reclining wheelchair around the facility and a normal wheelchair when “Gordon” went home for a weekend. The plaintiff accepted that the Care Plan makes reference to two types of “pads” for “Gordon” – one consisted of a full pad which has sides and has to be “pulled up” and the other has adhesions on either side where the back and the front of the pad is joined.
[47]Exhibit M
121 The plaintiff distinguished from what she referred to as a “yellow pad” and a “pull up pad”. In particular, shortly prior to the occurrence of the accident, she was using a “pull up pad”.[48] The plaintiff accepted that from the Care Plan, she appreciated that “Gordon” could be physically aggressive, hitting, spitting and kicking, and the Care Plan suggested that the nursing aide be firm, refrain from arguing, say one thing at a time, acknowledge feelings and attend to needs, slowly and touch gently.
[48]T398, L7-9
122 The plaintiff also accepted that she attended classes which covered such aspects of looking after the care of the aged, how to lift patients, how to dress and undress patients and also how to deal with patients who were demented. The plaintiff also accepted that on occasions, she was required to complete assignments, attend class and on occasion, also given discs to watch at home to help deal with patients.
123 The plaintiff also accepted that she had been assessed by one, K Podum, at the completion of the “no lift” policy, dealing with such subjects as floor to bed, chair to chair, which would include moving from the shower chair to the Magic Mobility Chair or the Magic Mobility Chair to the shower chair. Counsel for the defendant exhibited a document referred to as “No lift competency”.[49]
[49]See exhibit N
124 It was suggested to the plaintiff that she had attended courses involving “Elder Abuse: Protecting Residents”; “Pain Management in Aged Care Workbook Score”, and she thought maybe she had undertaken such courses.
125 When again it was suggested to the plaintiff that the standing machine could have been taken to the shower room to be used to stand up “Gordon” near the rail in the shower in order for him to be dried and for his pants to be pulled up, the following evidence was given:
Q:“And you told us also that there is a rail in the shower
room?---
A:Yes.
Q:And that the standing machine is able to be taken into the shower room?---
A:Yes.
Q:And I suggest to you that it was usual to fit Gordon’s pull up pants whilst he was standing in the shower room?---
A:Every day or at that time?
Q:Every day?---
A:During the day?
Q:Yes, after he had had a shower?---
A:Before they use it. But because it’s a double job, so the person who worked would try to find a way to do something a little bit quicker.
Q:So you were trying to find something quicker?---
A:It’s not me; all of us. All of us.
…
Q:To stand Gordon requires two people, does it not?---
A:Yes.
Q:You had assistance on that day?---
A:Is that the day of the injury?
Q:Yes?---
A:Yes.
Q:I suggest to you that there was a very good reason to fit Gordon’s pull up pants in the shower room?---
A:… you can do it. You can do it, yes. It depends on the time that - inside is narrow, outside is a lot of space; easy to do.
Q:But you can get the lifting - you can get the standing machine into the bathroom?---
A:Standing machine?
Q:Yes?---
A:Yes, you can.
Q:And in fact you had to stand Gordon after you’d showered him to dry him?---
A:Yes, it can do. Yes.
Q:But you had to do it?---
A:(Indistinct) I follow my way.
Q:Now, the reason that you fit the - or you’re instructed to fit the pull up pant is to avoid an accident happening in the bedroom. That is, Gordon either urinating or defecating?
…
Q:Are you agreeing then that the standard procedure was to fit Gordon’s pad in the shower room?---
A:Care plan they say like that but sometime you have to apply inside the shower, sometime you have to bring and do it outside.”
HIS HONOUR:
Q:“Tell me what times would you have to do it outside the shower room?---
A:So I start working round about 11 and I don’t – I can’t remember what time I took it out.
Q:What I want to know, as I understand your evidence. Sometimes you would do that, apply the pull-up pad in the bathroom and other times outside the shower room? Is that right?---
A:Yes.
Q:What circumstances would cause you to do that outside the shower room?---
A:At that time it was little and we did like that, it was hard to do the job. With two people it was hard to do the job and need to do it outside also.”[50]
[50]T466, L6 – T467, L30
126 Counsel for the defendant suggested to the plaintiff that for three reasons it would have been better for “Gordon” to be stood up in the shower room hanging on to a rail in order for his pants to be put on for reasons that it would be easier, safer and more sanitary. The plaintiff did not accept that it was easier and given that at that time he “hadn’t got any kind of problem”, it can be safer (but not on that day).[51]
[51]T470, L26-29
127 Furthermore, the plaintiff gave evidence that no one at any time told her that it was wrong to fit the pants in the bedroom rather than the bathroom.
128 The plaintiff was also queried about undergoing a course conducted by an organisation called “Big Kidz” and in particular, by a Mr James Grealy, which dealt with how to dress aged people with dementia. The plaintiff could not recall such course and following such questions, the following evidence was given:
Q:“Do you remember being shown safe ways of putting on shoes and unsafe ways of putting on shoes?---
A:I can’t remember. You know, the work that we’re doing we follow each other.
Q:When you say you follow each other, your instructions are to make up your mind about what is the best and safest way of doing things?---
A:It’s a job I did every day. The way – and that way, is like that every day.
Q:Whilst you don’t remember the contents of the dementia care course, right - - - ?---
A:I can’t remember. He asked me about costs, he tried to ask me questions about cost, maybe I remember.
Q:I suggest to you that you were trained if you were handling socks or shoes to kneel down or to squat on the side of the patient’s legs, that’s correct, isn’t it?---
A:Been a long time. Seemed like lit on the chair and put the shoe on.
Q:Let’s deal with this. You were told not to sit on a stool when dressing patient?---
A:When I was working nobody told me not to sit. I see people sit - - -
Q:The stools you use to feed patients, that’s correct, isn’t
it?---
A:Yeah, so the stool is for people to use to work, not just for feeding.”[52]
[52]T472, L15 – T473, L5
129 The plaintiff accepted that she was told that it was inappropriate for a carer to place herself in front of a patient as hair might be grabbed or the carer might be kicked in the face. The plaintiff also accepted the appropriate method was that the carer should kneel down on the side of the patient, resting the patient’s foot on her knee or to place the patient’s foot on a stool.
130 Counsel for the defendant put various propositions to the plaintiff towards the end of his cross-examination:
Q:“What I am suggesting to you is you should have been kneeling rather than sitting on the stool?---
A:So that is - yeah, it’s the task that I do all the time, you know, when I sit and dress up.
Q:Do you agree on this day, because of Gordon’s condition, you should have knelt down?---
A:That incident is just - I couldn’t - - -
Q:You made a mistake. That’s correct isn’t it?---
A:I’m not - I don’t know if I make a mistake or right.
Q:In any event, you did not follow instructions?---
A:It’s just at that instant.”[53]
[53]T479, L11-21
131 Later, the following evidence was given:
Q:“You could have put Gordon’s shoes and socks on in the Magic Mobility chair?---
A:People – a co-worker, people work with me didn’t do this kind of things.”[54]
[54]T479, L26-29
132 The plaintiff accepted that she had improved emotionally and that she was able to get out and enjoy herself, look after her grandson, which involving bathing him, feeding him and nursing him. She did not accept that she could lift him. She confirmed that he comes at least one day a week and sometimes two days per week.
133 The plaintiff also accepted she mixes with friends at the temple. Furthermore, she has attended the premises and spoken to old staff friends and also gone and seen patients that she had nursed.
134 The plaintiff also accepted that subsequent to the accident when she attended at the premises, she indicated she would like to return to some type of work, and when being told she needed a certificate from her doctor, she accepted that she told her doctor that she could not do the work. When queried about this situation, the plaintiff stated:
“As I told you, my condition - I tried to tell them that I tried to come to work. Myself said I tried to come to work. It’s not like a lot of pain and dropped back. When I went and met my friend, I like them. I love. But my heart is crying for my come back. I’m pain. Yes, when I went to work I went there. I remember the standing machine make me sick. Sometimes I slept. I sleep some, I couldn’t sleep.”[55]
[55]T482, L7-14
135 Under re-examination, the plaintiff stated that “Gordon” had been at the premises since her commencement but she did not care for him every day. She agreed that if the Care Plan indicated that “Gordon” came to the premises on 12 October 2005, she would agree with that. Over a working week of five days, and sometimes six, she would have worked two to three days a week with “Gordon” and often before the incident, he was agitated.
136 The plaintiff also confirmed that when “Gordon” was not agitated, she would sometimes dress him standing in the shower room, and that would involve pads, socks, underwear and trousers. On being dressed, he was placed on the shower chair and he was taken to his room where he was transferred to the mobile chair or wheelchair. Again, when queried as to why she did not stand “Gordon” up in the shower room to dress on the day of the accident, the plaintiff stated:
A:“He hit me, he kick – he’s not like a person he can stand stable, he’s like shaking. It’s unsafe. So he wasn’t strong, he can fall and he’s shaking.
Q:On other occasions when Gordon was agitated, did you stand Gordon up in the shower room?---
A:No.
Q:When you were in the shower room, to the best of your knowledge where was Sonia?---
A:He or she was in the bedroom.
Q:If you were going to stand Gordon up in the shower room, was that a one or two person task?---
A:Two.”[56]
[56]T492, L12-23
137 The plaintiff confirmed that although “Gordon” tried to hit and kick her, he did not actually come into contact with her.
138 Also, when queried as to why she did not kneel in order to dress “Gordon” below the waist (which she accepted she was instructed to do in answer to Counsel for the defendant), the plaintiff answered she was concerned that he would “kick me”. The plaintiff explained that although sitting on the stool, the stool was on his side and it was not easy for him to kick her and that he could not hit her. The plaintiff confirmed that on that day, she did what she normally does when “Gordon” was in an agitated state.
139 The plaintiff gave evidence that she loved her work at the nursing home, and absent her back injury, she would have continued to work for a “long, long time”.[57]
[57]T497, L22
140 The plaintiff also confirmed that since her divorce from her husband, her only source of income was her wages when employed by the defendant.
The evidence of Ms Sere Yrath Yun
141 Ms Sere Yrath Yun gave evidence on behalf of the plaintiff. She described herself as a thirty-two-year-old single woman who was employed as a part-time case manager with the Australian Taxation Office.
142 She is the daughter of the plaintiff and was born in Cambodia, where she remained until the age of six, after which she joined her family in migrating to Australia.
143 Ms Yun gave evidence that prior to the accident, her mother was very outgoing,[58] loved shopping,[59] enjoyed organising and attending functions,[60] enjoyed going to the snow and beaches, where she sometimes camped,[61] and was very much involved with gardening when living on a large block in Mulgrave.
[58]T406, L22
[59]T407, L24-26
[60]T407, L6-13
[61]T408 L3-7
144 Ms Yun also gave evidence that her mother “loved” swimming, walking her dog, dancing and hiking.
145 Ms Yun described that after her parents’ divorce, which she thought was in about 2004, she and her mother moved to a house of her aunt, where she remained until 2009, before Ms Yun purchased a house. Ms Yun described her mother as being “very different” since the occurrence of the accident. Any sporting activities are very limited and her social activities are confined to very close friends and her family. Ms Yun described how handrails have been put into her house at the front, and the inside of the shower has been adjusted as to where the soap is placed, all of which is to assist her mother. She also described her mother using a walking stick from time to time.
146 Ms Yun also noted that her mother does not drive anymore and that from her observations, her mother has broken sleep.
147 The witness was shown a photograph and she described the person in a pink dress being her mother photographed at Ms Yun’s 21st birthday party, which would have been in May 2002. Such photograph was tendered.[62]
[62]See exhibit 9
148 When queried as to what her demeanour is presently like, Ms Yun stated:
“Much better. She’s found a lot of ways to manage her pain. She’s more optimistic. Her pain is still there, I can see that she still struggles with certain things but at least she doesn’t complain as much. She’ll just go and lie down and I’ll know that she’s not well. She’s just not as negative now.”[63]
[63]T420, L30 – T421, L3
149 Under cross-examination, she was queried as to whether or not, following her mother’s divorce, her mother continued to be upset and depressed, to which Ms Yun answered:
“No, she wasn’t depressed all the time or anything like that. She was still going out. She was still going overseas. She was still - she lived her life. She might have - there might have been a duration where she, I don’t know, like I guess was depressed, I don’t know. But for me not to notice, like I’m still self-absorbed, then it might not have been as significant as what you’re trying to say, I don’t know. Because if that was the case I’d be attending to my mum straight away.”[64]
[64]T427, L30 – T428, L8
150 Ms Yun accepted that it was a source of stress for her mother when the divorce occurred and the matrimonial home was sold, all in approximately 2005.
151 Ms Yun accepted that the improvement in her mother’s condition of recent times reflected in her mother having greater optimism, an increase in the level of her activities, being up more during the day, interacting and going out more and her general functioning increasing.[65]
[65]T437
The treatment of the Plaintiff
152 The plaintiff relies on a letter from the Monash Medical Centre Emergency Department dated 5 July 2008, and such letter was tendered.[66] The plaintiff attended at the Monash Medical Centre Emergency Department on 5 July 2008 and the following complaint was recorded:
“Patient was sitting down in a stool when trying to dress up a patient and bend to help her to put the shoe on, when she tried to stand up after she had severe low back pain in the lumbar area with right outer thigh pain.”
[66]See exhibit 11
153 Examination at that time revealed forward bending of the trunk to be painful, together with a positive stress leg raising test.
154 The plaintiff attended the St James Avenue Medical Centre on 7 July 2008 and consulted Dr Christine Pham, and later, Dr Chan. A report from Dr Anthony Chan dated 17 October 2012 was tendered.[67]
[67]See exhibit 11
155 Dr Chan recalled that the plaintiff gave a history that on 5 July 2008, she suffered a work-related injury when trying to help a heavily demented patient to get dressed with another staff member. The plaintiff described sitting on a stool trying to put shoes, socks and pants on, with the patient kicking his legs, and when she tried to stand, she suffered acute pain in the low back. He also reports that when attending the clinic on 7 July 2008, she was complaining of persistent pain in the low back, at which time physiotherapy was arranged, and she was advised to rest and continue with analgesia. She further attended on 11 July 2008 when seen by Dr Chan, at which time she was complaining of right-sided sciatica symptoms with numbness in her right leg, and a CT scan of her lumbosacral spine was ordered, which demonstrated, according to Dr Chan, L4-L5 posterior disc bulge, central canal stenosis, with both L5 nerve root involvement.
156 As at the time of writing the report, she had attended the clinic on five more occasions, complaining of severe back pain and demonstrating a restricted range of movement. She was treated with Celebrex, analgesia and prednisolone. She ceased attending the clinic in mid August 2008. Dr Chan made a diagnosis of L4-5 posterior disc bulge, central canal stenosis and both L5 nerve root involvement.
157 Dr Paul Hancock gave evidence on behalf of the plaintiff. He described himself as a legally qualified medical practitioner carrying on general practice as the Nunawading Family Medical Centre up until March 2013, after which he continued to practice at the Seymour Street Medical Centre in Ringwood. He gave evidence that he has been a general practitioner for eighteen years and other than the normal qualifying degrees, is a Fellow of The Royal Australasian College of General Practitioners.
158 Dr Hancock confirmed that he had treated the plaintiff from mid 2008 and had prepared the following:
· A report to the Accident Compensation Conciliation Service dated 26 May;
· A report to the plaintiff’s then solicitors, Henry Carus & Associates, dated 17 November 2010;
· A further report to the Accident Compensation Conciliation Service dated 27 September 2011; and
· A report to the plaintiff’s current solicitors, J N Zigouras & Co, dated 23 October 2012.
Such reports were tendered.[68]
[68]See exhibit 10
159 Dr Hancock accepted that the contents of those reports set out the history that he obtained, his examination findings, radiological material and various opinions and conclusions.
160 Dr Hancock confirmed that he initially saw the plaintiff on 19 August 2008 and has seen her on average every two to four weeks from then, which he thought was in the order of seventy-five times. With his move to the Ringwood Medical Centre, the plaintiff has continued to consult him there, although probably on a frequency of about every four weeks.
161 Dr Hancock obtained a history that the plaintiff injured her back on 5 July 2008 during the course of her employment when “trying to dress a patient who was no co-operating with the exercise”. Dr Hancock reports that examination findings had been consistently of restricted lumbar flexion, paralumbar tenderness and positive straight leg raising. Furthermore, according to him, CT scans and subsequent MRI scans have revealed an L4-5 disc prolapse and spinal stenosis. He further reports that such condition was subsequently complicated by a Chronic Pain Syndrome and Depression, Anxiety and Panic Disorder.
162 The plaintiff has been treated with anti-inflammatory and analgesic medication, physiotherapy and hydrotherapy in a pool, all of which gave some temporary pain relief, but never sustained for any lengthy period. Dr Hancock referred the plaintiff to the orthopaedic surgeon, Mr Grossbard, in October 2008, at which time she was given an epidural cortisone injection, which again provided some limited but temporary relief. Furthermore, she was referred to the pain specialist and rehabilitation physician, Dr Clayton Thomas, at the Victorian Rehabilitation Centre, where she undertook a multidisciplinary pain management program from August to November 2009. Dr Hancock notes that she found this program “quite challenging” and continued to be “troubled by pain and incapacity”.
A: M’mm.
Q: But if he’s exhibiting aggression that’s really not capable of being handled, it may be better off just to go with him and just take him out of the shower room, comfort him a bit more and do it all a bit more slowly than forcing him to - - -?---
A: Yes.
Q: So even though you’re running the risk of him urinating or defecating in the bedroom, it's only going to be for 30 seconds or a minute before you can get the pad on, correct?---
A: There’s - yeah.
Q: Something like that?---
A: Something like that.
Q: And you’ve got towels around him, it’s no going to be as big a problem, is it?---
A: No.
Q: That’s an entirely plausible, reasonable thing for a personal carer to do?---
A: Yes.”[191]
[191]T688, L4-22
395 There was no issue that the wheelchair described as the “Magic Mobility Chair”[192] is one that leans backward and the feet can be brought up. The plaintiff accepted under cross-examination, that on the day she suffered her back injury, the Magic Mobility Chair was available and that “Gordon” used such a chair for the majority of his time during the day when at the premises. Ms Heath confirmed that “Gordon” spent much of his daytime in the Magic Mobility Chair because he does not ambulate and does not weight bear and thus it is necessary to have positional changes to avoid pressure sores.
[192]See exhibit 5
396 When queried about the use of a Magic Mobility Chair for “dressing”, Ms Heath stated:
“Well, it’s an easy chair to get people in and out of. The arms are low, you can bring the feet up, it tilts back, it just makes it simpler to get at people to do things to.”[193]
[193]T528, L10-13
397 In particular, Ms Heath stated that she would use it to put on shoes and socks and this would involve partially dressing a patient on the shower chair then lifting the patient from the shower chair to the Magic Mobility Chair where socks and shoes could be put on.
398 When it was put to the plaintiff that she could have, with Sonia, transferred “Gordon” from the shower chair to the Magic Mobility Chair before commencing dressing him, the plaintiff disagreed with such a course of action. In particular, the following evidence was given:
Q:“What I’m suggesting to you is before you started to dress Gordon you could have - this is the first proposition, there are two. You could have transferred Gordon from the shower chair to the Magic Mobility Chair?---
A:With dressing up or without dressing up?
Q:No, before you dressed?---
A:I want to clarify. You said that I did like that? Or - - -
Q:No, what I’m saying to you is that you could have?---
A:With the dressing up?
Q:Before you dressed Gordon, you could have transferred him to the Magic Mobility chair?---
A:Well, do you want me to answer it?
Q:Please?---
A:Not doing like that.
Q:Why not?---
A:Normally must be dry - must be dry him up first, get dress up first, before transport him into the chair.”[194]
[194]T357, L7-21
399 I also note that the plaintiff agreed under cross-examination that when residents were pointing their feet down, she needed to kneel and, accordingly, it was put to her that as “Gordon’s” feet were pointing down, she should have kneelt and not sat on the stool.[195] In response to such suggestion, the plaintiff stated:
[195]See generally T478, L16-27
Q:“Gordon couldn’t help you put his clothes on, could he?---
A:Yes.
Q:So you should have knelt down?---
A:Yes.
Q:And then at line 5 you said this: ‘Like what I have mentioned, it depend on the resident. If the resident easy to get dressed, either sit on the stool. But if the resident mobile, movement doesn’t give me enough. I will kneel down.’ I suggest to you that on this day, with Gordon being agitated, you should have knelt down rather than sit on the stool?---
A:Whatever - as you said, you know, correct. But I was sitting. He kicked me.
Q:What I am suggesting to you is you should have been kneeling rather than sitting on the stool?---
A:So that is - yeah, it’s the task that I do all the time, you know, when I sit and dress up.
Q:Do you agree on this day, because of Gordon’s condition, you should have knelt down?---
A:That incident is just - I couldn’t - - -
Q:You made a mistake. That’s correct isn’t it?---
A:I’m not - I don’t know if I make a mistake or right.
Q:In any event, you did not follow instructions?---
A:It’s just at that instant.
… .”
MR GRIFFIN:
Q:“… You could have put Gordon's shoes and socks on in the Magic Mobility chair?---
A:People – a co-worker, people work with me didn’t do this kind of things.”[196]
[196]T479, L1-29
400 Later, the plaintiff gave the following evidence in re-examination:
Q:“You said in answer to questions asked by Mr Griffin that you were instructed to kneel in order to dress patients below the waist?---
A:Yes.
Q:Why didn't you kneel on the day?---
A:I’m concerned he kick me.
Q:What did you do in terms of positioning yourself? What did you – I’ll withdraw that, Your Honour. I’ll ask it slightly different. You’ve said that you sat on the stool in order to dress Gordon?---
A:Yes.
Q:Why do you say that that was safer than kneeling?---
A:I’m not sitting with the stool in front of him, but on the side. On that side, like that. Easy for him not to kick me.
Q:All right?---
A:And he also couldn’t hit me much.
Q:And in doing that on that day, did you do anything different to the way you normally dressed Gordon on days when he was agitated and you hadn't stood him up in the shower room?---
A:I did the same (indistinct).”[197]
[197]T493, L16-331
401 After a consideration of all of these matters, I find, as a matter of probability:
(a) That Sonia, the co-worker, took the lead in performing any activity involving “Gordon” on the day that the plaintiff suffered her injury:
(b) That it was not the practice to employ the Magic Mobility Chair as part of the dressing process but rather, such chair was, in the case of “Gordon”, used for general mobility around the premises during daytime;
(c) That the plaintiff, during her training, had been advised that it is better to kneel in one form of another when tending to, in particular, dressing the lower half of a patient;
(d) However, I do find that the plaintiff had frequently used a stool prior to the events on 5 July 2008 and such use had been acquiesced in by not only Sonia but more particularly, Vicki Degenhardt, the nurse in charge of that area;
(e) I also accept that the plaintiff made a decision on that particular day for her to sit on the stool as it would be safer for her to perform such work which had commenced given “Gordon’s” aggression. By placing herself on the stool, on the side of “Gordon”, she placed herself out of harm’s way if “Gordon” resumed the activities that he had demonstrated when being showered.
402 I am also satisfied that the plaintiff is not guilty of contributory negligence. The plaintiff makes clear, and again it was not disputed, that she sat on the stool rather than kneel on the ground, to give her a degree of security from when “Gordon” kicked out with his legs. Furthermore, any allegation of contributory negligence must be seen in the context that the unchallenged evidence was that the defendant seemingly acquiesced in the plaintiff, and perhaps other carers, sitting on stools when they dressed the lower half of clients. If one accepted the proposition put by the defendant, it would follow that the plaintiff’s body would be far closer to the legs of “Gordon” in circumstances where he had exhibited aggression and difficulties in the shower.
Conclusion on liability
403 After a consideration of all of the evidence, I consider that the defendant breached its duty of care by not enforcing a system of work that did not expose the plaintiff to a foreseeable risk of injury when she bent down to tend to the shoes and socks of “Gordon” when sitting on a stool.
404 Furthermore, I also find that the defendant breached its duty of care by not stipulating in its Care Plan that showering should be undertaken utilising a reclinable shower chair, given that it was known that “Gordon” could be aggressive with both his arms and, more particularly, his legs. The use of the reclining shower chair would have brought the legs up to a suitable height to clothe the bottom half of his body and it would obviate the risk of being kicked with his legs in such a position and would also obviate the risk of performing extensive bending and reaching.
405 In relation to the claim for breach of statutory duty, I am satisfied that the defendant did, by way of its risk assessment, identify tasks undertaken by employees involving hazardous manual handling. The issue becomes whether or not the defendant has ensured that the risk of musculoskeletal disorders identified with a hazardous manual handling task has been eliminated “so far as reasonably practicable”.
406 Ultimately, I have come to the view that there is a breach of such Regulation in that, pursuant to Regulation 3.1.2(2), there could have been an alteration to the system of work used to undertake the task of showering patients such as “Gordon”, who on occasion had aggressive tendencies. If such alteration was noted in the Risk Plan and translated to the Care Plan, it is unlikely that the plaintiff would have suffered her injury.
Damages
407 After a consideration of all of the evidence, I make the following findings relative to the issue of damages:
(a) The unchallenged history given by the plaintiff demonstrates that she strived to become a carer and that it was a vocation which she enjoyed very much. Furthermore, it is plain, that the employer considered her a good carer, describing her in the performance review undertaken on 21 June 2008 as a “valuable and efficient team member” who “gives 110 per cent in delivering the best care for [residents]”. Such is also made plain by the evidence of Ms Perna, when she described how the plaintiff reacted when she saw some of her work colleagues, and more particularly, some of her old patients, when she returned to the premises after the occurrence of her injury;
(b) Consistent with her enjoyment of such vocation, I do accept her evidence that absent the injury, she would have worked at the premises for a “long long time”. Such employment must also be seen, in my view, in the context that in the past she, with her then husband, lost the sewing business, and ultimately, she lost her house through the gambling habits of her former husband. She had no other income other than what she was earning with the defendant;
(c) That during the course of her employment with the defendant up to the time of her injuries, the plaintiff seemingly lost no time off work for any type of back condition or psychological condition. I find that absent her injury, the plaintiff would have continued working but I consider, given the nature of work that she was performing, which on any view of the evidence does involve a degree of bending and lifting, she would not have worked beyond the age of sixty;
(d) There is a vast number of medical reports with a vast range of diagnoses and, in particular, a range of opinions as to the nature and extent of any low-back injury.
After a consideration of all of the evidence, I am satisfied that, as a result of the accident, the plaintiff has suffered a disc lesion at the L4-5 level of her spine which may involve an annular tear, as suggested by Mr Grossbard.
Although I do not accept that the plaintiff has had a frank prolapse at the L4-5 level, such injury has given rise to low-back symptoms which have been magnified by psychological mechanisms which has given rise to various diagnoses of Chronic Pain Syndrome, Depression and Anxiety. She has been referred to an orthopaedic surgeon, who arranged for her to have an epidural injection; to a pain specialist, who arranged for her to undergo a pain management program over the period from 4 August 2009 to 25 November 2009, and also has been referred to a psychologist, who has been treating her since June 2010 on a regular basis;
(e) I also find that consistent with the evidence of Dr Hancock, the plaintiff is prescribed Panadol Osteo or Panadol Back and Neck, together with Celebrex, to control the pain in her low back. She also takes Cymbalta, an anti-depressant medication, but the prescription of such medication has been on and off, commencing prior to the accident. I accept the evidence of Dr Hancock, who has been her treating general practitioner on a regular basis since 19 August 2008 (when Dr Chan stopped seeing the plaintiff because she was a WorkCover patient) and the evidence of the psychologist, who also has seen her regularly since June 2010. In this sense, I accept that the plaintiff is totally incapacitated for any type of employment, and is likely to remain so in the foreseeable future. In this respect, I reject the evidence of Mr Brazenor and Professor Mendelson in favour of the evidence of Dr Strauss. I consider that it is totally unrealistic to consider that the plaintiff has any meaningful capacity for work, given the combination of her physical and psychological injury;
(f) I accept the evidence of the daughter of the plaintiff, Ms Yun, who described her mother, prior to the accident, as outgoing, loving shopping, enjoying organising and attending functions, enjoying going on outings where she sometimes camped, and also being very much involved with gardening. She described her mother as being now “very different”, in that her mother no longer drives, her sporting activities are very limited and her social activities are confined to very close friends and her family. Ms Yun also described how handrails have been put into her house at the front, and the inside of the shower has been adjusted, all to assist her mother.
In particular, I found Ms Yun a balanced witness and was prepared to concede that the demeanour of her mother was “much better” as she has found a lot of ways to manage the pain and she is more “optimistic”. Although Ms Yun noted that her mother still has the pain and she struggles with such pain, she does not complain as much and is not “as negative”. Indeed, the plaintiff also gave some evidence that she felt she had improved a little bit.
408 The defendant submits that the weight of the evidence is that the plaintiff sustained a significant back injury in the “second incident” on 5 July 2008 which counsel referred to as the “non-compensable injury”. It is further submitted that such injury is “unconnected” to the plaintiff’s back injury the subject of these proceedings which occurred in the “first incident” earlier on the same day when dressing “Gordon”. In such circumstances, it is submitted that the non-compensable injury has been, and continues to remain, a contributor to the plaintiff’s damage.
409 In a similar vein, the defendant also submits that the plaintiff’s previous psychological history of attempted overdoses and subsequent treatment has increased her vulnerability to develop a psychological illness, contributed to not only by the consequence of her compensable injury, but by her non-compensable back injury. It is submitted that the combined effect of the plaintiff’s history of previous back treatment, noting the imprecise complaints of pain in the back and hip, the existence of degenerative changes seen radiologically soon after the accident, and her previous incidents of psychological injury should be seen to contribute to the consequences flowing from the first incident on 5 July 2008 and impact upon the assessment of general damages (and presumably loss of earnings).
410 I reject such submission. In particular, I refer to the evidence of Mr Grossbard when, under cross-examination, he accepted that on the history given to him by Counsel for the defendant, that the second incident was “the most significant”. In particular, he gave this evidence to the Court under re-examination:
Q:“Her evidence to this court was that the pain in her back as a result of the first incident was in the same area as the pain in her back in the second incident, but it had the added pain to the legs and it was an increase of pain in the back?---
A:Well, if that - if that’s the history that the pain was in the same place, then I think the first incident did something to the disc, and that was extended at the time of the second incident.”
HIS HONOUR:
Q:“Can I ask you this, doctor. As she presented to you when you last saw her in 2012, and to the extent that she had an organic back injury as described by you, what role, if any, do you see the first or second incidents playing?---
A:If the - if they were both in the same place, I think they are both relevant. One is an injury and the other is an extension of that injury.
Q:Yes?---
A:She might’ve had a little tear or a weakness in the disc and it might've extended at one or other of those times. It - no one will ever be able to say for sure.”[198]
[198]T386, L19 – T387, L5
411 I accept the evidence of Mr Grossbard and consider that on the authorities of Watts v Rake[199] and Purkess v Crittenden,[200] it is for the defendant to disentangle the operation of the first incident as a contributory cause to any damage the plaintiff may have suffered.
[199](1960) 108 CLR 158
[200](1965) 114 CLR 164
412 Taking all of these matters into account, and bearing in mind the plaintiff is now fifty-five years of age, I would assess “pain and suffering damages” within the meaning of the Accident Compensation Act 1985, to be $150,000.00.
413 In relation to pecuniary loss, Counsel for the defendant make reference to the refusal of the plaintiff to even attempt the job offers made to her in the first twelve months of her incapacity. Although I accept that the job offers which involved supernumerary work were of the lightest nature, the rejection of such offers must take account of the significant psychological element which the plaintiff was experiencing. In this respect, I refer to the evidence detailed in paragraph 83 of this Judgment, wherein the plaintiff explained her basis for not taking up the jobs. It also must be borne in mind that such return to work jobs were, as Ms Perna accepted, a “means to an end” for her to return as a carer employed by the defendant. As I have indicated, I believe it would have been totally unrealistic for the plaintiff to have been able to return to caring type work after the advent of her injury.
414 Counsel have prepared a document headed “Agreement as to Special Damages”,[201] wherein it has been agreed as to the following:
[201]Exhibit GG1
(a) The past net rates of pay (on the basis of a 3 per cent CPI increase per annum);
(a) Employer superannuation contributions based on the gross pay over that period;
(b) The gross weekly payments of compensation to be deducted pursuant to s134AB(25)(a) - $57,488.00;
(c) The Fox v Wood component to be taken into account in respect of weekly payments – $7,920.00;
(d) Various multipliers for a then fifty-four-year-old woman to the age of fifty-five, sixty and sixty-five.
415 Of course, although accepting such rates, the defendant disputes that the plaintiff is entitled to any damages, let alone those claimed by the plaintiff.
416 As I have noted, such document is up to 30 October 2013, whereas I have assessed past loss of earnings from the date of injury to date.
417 Accordingly, based on my recorded findings, I find:
Past loss of earnings:(a)
- for the period from 6 July 2008 to 30 October 2013, the plaintiff has lost $220,040.00 net.
- for the period from 31 October 2013 to today’s date (a period of 43 weeks), the plaintiff has lost $39,044.00 (being 43 weeks at a net loss of $908.00 per week).
- for the period from 6 July 2008 to 30 October 2013, the plaintiff has lost $19,804.00 net by way of superannuation contributions.
- for the period from 31 October 2013 to date (a period of 43 weeks), the plaintiff has lost $3,705.00 (being 43 weeks at a net loss of $86.17 per week).
Accordingly, past loss of earnings amount to $282,593.00, from which must be deducted $57,448.00 (being the compensation paid) and to which must be added the sum of $7,920.00 (being the Fox v Wood component), which amounts to a past loss of $233,065.00.
Future loss of earning capacity(b)
Bearing in mind that the plaintiff is now fifty-five-years-old, I have utilised a multiplier for a fifty-five-year-old woman to age sixty with a net wage loss of $908.00 per week and a net superannuation loss of $86.17 per week. The multiplier to be utilised is 224.3.
Accordingly, future loss of earning capacity is $203,664.00 (being $908.00 net per week multiplied by 224.3).
Future loss of superannuation(c)
Future loss of superannuation amounts to $19,327.00 (being a net loss of $86.17 per week multiplied by 224.3).
418 The total loss of earning capacity amounts to $222,991.00 and I discount that sum by 20 per cent for vicissitudes, which I shall round out to $180.000.00.
419 I have increased the vicissitudes slightly more than normal, given that I believe there may be some prospect that improvement in the plaintiff will continue and that she be capable of some mundane work activity on a limited basis. In this respect, I do note that at present, she assists with her grandson a couple of times a week and is involved with household duties, albeit at a limited pace.
420 I will hear the parties on the proposed orders they seek to have made.
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