Neal v State of Victoria
[2015] VCC 1840
•16 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-13-02107
| BARBARA NEAL | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 23, 24, 25, 28, 29, 30 September, | |
DATE OF JUDGMENT: | 16 December 2015 | |
CASE MAY BE CITED AS: | Neal v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1840 | |
REASONS FOR JUDGMENT
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Subject:NEGLIGENCE
Catchwords: Claim for damages for workplace injury – negligence of employer – breach of Occupational Health and Safety (Manual Handling) Regulations 1999 – causative relationship between workplace duties and injury – credibility of the plaintiff – injury to right and left shoulders, cervical spine, Chronic Pain Syndrome and resultant psychological reaction – claim for pain and suffering only
Legislation Cited: Occupational Health and Safety (Manual Handling) Regulations 1999
Cases Cited:Neal v State of Victoria (Ruling) [2015] VCC 1377
Judgment: Judgment for the plaintiff for injury to right and left shoulders as a result of breach of statutory duty and negligence of the defendant – damages assessed in the sum of $245,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Mr A D B Ingram | Melbourne Injury Lawyers |
| For the Defendant | Mr D E Curtain QC with Mr P G Hamilton | IDP Lawyers Pty Ltd |
HIS HONOUR:
Preliminary
1 The plaintiff, Mrs Neal, says she suffered significant injuries to her right and left shoulders and her neck during a “fire-training day” (“the training day”) in the course of her employment with the defendant as a trainee prison officer, on or about 23 May 2006.
2 On the training day, Mrs Neal received instruction as to the use and operation of a fire-fighting breathing apparatus (“the apparatus”), which she had to don and remove on a number of occasions and also had to enter a smoke-filled room (“the room”) wearing the apparatus, in a mock attempt to search for people affected by smoke.
3 Mrs Neal brings this proceeding in negligence, being a breach of the employer’s duty to take reasonable care for the safety its employees against the risk of foreseeable injury, and in statutory breach, in particular a breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the Regulations”).
4 The proceeding commenced as a jury trial and continued from 21 September until 6 October 2015. On 6 October 2015, I discharged the jury and gave reasons.[1] At that point, the evidence had concluded and the proceeding awaited only counsels’ final addresses. These were delivered on 25 November 2015. Neither of the parties took issue with the matter proceeding before me, after discharge of the jury, as a cause.
[1]Ruling [2015] VCC 1377
The Plaintiff’s cause of action
5 By her Statement of Claim, Mrs Neal alleges breach by the defendant (“the State”) of its duty of care, particularised relevantly as:
· “failing to provide a safe system and place of work”
· “failing to provide adequate supervision”
· “failing to heed the physical capabilities and sex of the plaintiff in permitting and/or requiring her to wear heavy breathing apparatus designed to be worn by men”
· “failing to heed the risk of injury to the plaintiff requiring her to wear heavy breathing apparatus designed to be worn by men”
· “failing to heed the weight required to be supported by the plaintiff on her shoulders and neck”
· “failing to conduct any or any adequate risk assessment of manual handling tasks which the plaintiff was required to perform”
· “failing to comply with the regulations made pursuant to the Occupational Health and Safety Act 2004”.
6 Further, Mrs Neal pleaded statutory breach, being a breach of Regulations 12, 13, 14 and 15 of the Regulations.
7 Mrs Neal further pleaded a breach of the implied terms of a contract of employment; however, this cause of action was not pursued.
8 As a result of these breaches, Mrs Neal says she suffered injury to her right and left shoulders, both requiring surgical repair, and an injury to her cervical spine requiring surgery, being a discectomy and two-level fusion at C4‑5 and C5‑6. Further, she suffered a psychological reaction in the nature of a reactive depression.
9 By its Defence, the State denied negligence or breach of duty and pleaded contributory negligence, particularised relevantly as:
· failing to advise Mrs Neal’s superiors if the workplace or system of work was unsafe
· failing to notify her superiors if she was not capable of performing the tasks, or if they were too difficult.
The evidence
10 It is convenient to divide a summary of the evidence into those parts concerning:
(a) credit
(b) negligence and breach of statutory duty; and
(c) causation.
These were the areas where debate between the parties was centred.
(a) The credibility of the Plaintiff
11 A number of issues arose in the course of Mrs Neal’s cross-examination. She claimed to be in good health, both physically and psychologically, prior to the training day. However, Mr Curtain, for the defendant, took her to an attendance with a Dr Lloyd, a neuro-psychiatrist, in 2005. The comments she accepted she made to him included that her life had been screwed up, that she had problems with fatigue and sleep. These were related, she said, to a difficult time in her relationship with her daughter.
12 Mr Curtain also took Mrs Neal to the clinical notes of her general practitioner, Dr Burbidge, who saw her in April 2005. She complained to that doctor of two to three years’ memory problems and two to three weeks of losing words. She complained of being very fatigued, drowsy and had headaches. She explained this was also during the period of her difficult relationship with her daughter.
13 Mrs Neal confirmed that her work as a counsellor, work she undertook before she started as a trainee prison guard, placed a great strain on herself and her marriage because of the volume of the work. She conceded she had a fall down some steps in 2005, but not in 2002.
14 There was cross-examination as to Mrs Neal’s capacity to get on with others in the workplace, including other trainees. She accepted another employee, Ms Mumford, had a dispute with her. She denied she was difficult to get on with. She agreed that Ms Mumford had set other trainees against her. There was apparently a report produced relating to her workplace difficulties. That report was not produced into evidence.
15 Mr Curtain referred to aspects of Mrs Neal’s evidence which he said were exaggerated, including describing to the ergonomist, Ms Kikas, that she put the apparatus on or off “15 times” in the course of the training day, whereas in her evidence, she said it was nine or so times.[2] Further, she said that the whole training group of ten trainees entered the room, but according to the evidence of Mr Golden, it was only Mrs Neal, himself and another trainee.[3]
[2]Transcript (“T”) 690, L11
[3]T955-6
16 On the final day of the hearing, before submissions, Mrs Neal produced a document which had been discovered by her daughter at home, entitled “Fire Awareness – Recruit Prison Officer Training”.[4] On the front page of that document is handwritten “My Training Book – Page 8 – Donning Equipment”. In evidence given in relation to the document,[5] Mrs Neal admitted that was her writing, but said the handwriting on the front page was written by her in 2008; that is, around the time of the training day. Yet, it is obvious the inscription was made in recent days after the document had been discovered.
[4]Exhibit L
[5]T22-24 – (Transcript of 25 November 2015)
17 Despite some inaccuracies or inconsistencies in Mrs Neal’s evidence, I did not view these matters as of particular significance, nor do I take the view her credibility was markedly affected.
18 However, Mrs Neal was not a particularly satisfactory witness. She prevaricated in answering questions and her answers were very often not responsive. She meandered off onto other topics and refused, despite being regularly corrected, to answer questions directly and to the point.
19 To a large degree, this was explained by her treating psychiatrist, Dr Sunil Datta.[6] He described Mrs Neal as having a “circumstantial thought process”. He said she needed to be interrupted to be brought back to the point. This was like an Obsessive Compulsive Disorder when a person might go into great detail about every little aspect of what they were trying to explain. He said[7] that she had obsessive compulsive traits, was obsessed by detail and was somewhat rigid and inflexible. All of this does not cause me to reject her evidence, but rather to have some reservations about her reliability.
[6]T464
[7]T473-4
(b) Negligence and breach of statutory duty
20 Mrs Neal said that on 18 April 2006, she started an eight-week training program for her job as a prison officer. She had to do practical training in fire safety at the Sunshine fire station. The training started at about 8.30 in the morning, and she said it was rushed. She received instruction as to the use of the apparatus. She paired up with another trainee, and they were shown how to pick up and attach the equipment. It was the first time the squad leader had done this training. For the first part of the training day, from about 8.30am to 1.00pm, she and the others were required to put on and take off the equipment several times. She had the equipment on her back pretty much the whole day.
21 In the afternoon session, Mrs Neal and others were required to don the equipment, including a mask and helmet. They were asked to line up in a chain, and instructed to enter a room which was smoke-filled and dark. The task was to find dummies in a dark and smoky space. Sounds such as cries for help could be heard. All the trainees, in a line, one holding onto the other, were admitted to the room. There was pulling and pushing. Visibility was poor. At one point, Mrs Neal was on her knees in an awkward space. It was difficult. The equipment was not steady on her back. She kept pulling the equipment forward down her chest. It was caught under the helmet and dug into her lower back. The fire-retardant jacket was not a great fit. She was focused on the task. At one point, a person had a panic attack and they were brought out.
22 There was a final test on the training day where they had to don all the equipment within 90 seconds. She put the frame and tank on herself. There was no-one to assist. It was heavy and awkward. She said she felt sore in the lower back and shoulders as the training day wore on. She did not complain to anyone about being sore. She said she thought she was feeling sore because she was carrying things and was doing things she had not done before. By the end of the day, when she was on the bus back to the prison, she felt sore like she had worked out in a gym. She did not complain to anyone about the fit of the apparatus nor the tasks she was required to do.
23 Following the training day, there was further training, including two weeks in the prisons. Gradually, the problem with her shoulders got worse. Initially, she ignored it. Her left arm became restricted.
24 In cross-examination, Mrs Neal accepted that safety was emphasised as a number one priority, and that she was told that if she was in a position where she might suffer injury or hurt herself, she should not do the task, or tell someone about the problem. She accepted she did not need to be told not to lift heavy objects as she knew that.
25 On two occasions, she was assisted to lift the equipment onto her back by another trainee. She was asked if she knew that, if she was having trouble putting the equipment on, she could either not proceed or wait for assistance. She said she never thought about that.
26 Mrs Neal did not make any complaint to anyone regarding the tasks on that day. She said no-one wanted to partner with her.
27 Mrs Neal did not complain to any of the other trainees about suffering any problem with her shoulders.
28 In the course of the morning, she would have put the equipment on and off her back about nine times. On two of those occasions, she received assistance. She said she was unaided on the other occasions because no one wanted to help her. It was fine getting the equipment on and off.
29 The breathing apparatus with the oxygen cylinder was tendered into evidence.[8] Mrs Neal demonstrated how she picked up the equipment and placed it on her back. She leant forward and bent her knee, and used her left dominant hand to pick up the equipment, then placed it around her shoulders, putting her right hand through the straps. She said that she could not recall anyone checking how that was done, nor as to the fit. She did not ask anyone for instructions. On two occasions, she was assisted by someone who took some of the weight.
[8]Exhibit E
30 Mrs Neal was shown a range of photographs taken on the training day. She accepted there were ten trainees, three instructors and Mr Golden. She did not accept that, on every occasion that she lifted the equipment, she was assisted by another trainee. She could not recall anyone else not being able to lift the equipment. At some point, she asked another trainee for help, but he said he had a bad back. Initially, the lifting exercise was done in pairs, but not all the time. The exercise was conducted from 8.30am to 12.30pm or so, although for the first hour, there was general instruction. They were supposed to be able to get the equipment on and off within 90 seconds, which she achieved towards the end, on the third attempt. When asked why she could not get help, she said that there was a younger female group, and some other younger people, who did not include her, and one other trainee, in the exercise.
31 Evidence was given by Ms Mary Kikas, an ergonomist and physiotherapist. She received a description from Mrs Neal of the activities that she had undertaken on the training day. The day went for about nine hours. She obtained a replica of the equipment being used,[9] and weighed it. The total weight of the back plate with the oxygen cylinder empty was 10.8 kilograms. If the oxygen cylinder was full, the weight increased to 13.5 kilograms. Mrs Neal told her that she had to lift and don the equipment up to fifteen times. When Mrs Neal demonstrated lifting of the equipment to Ms Kikas, she lifted from further away than when she demonstrated the lift in the courtroom.
[9]Exhibit E
32 Ms Kikas was told that there were times when Mrs Neal did not receive the assistance of someone to help with the equipment and that the equipment and cylinder was uncomfortable. Mrs Neal had difficulty adjusting the straps, and the harness kept digging into the back of her shoulders. She said it was necessary to have appropriate supervision and training. It was not sufficient to simply ask a trainee whether there were any problems. The trainee needed to identify any risks in an informed manner.
33 Ms Kikas was of the opinion that there was a likely connection between the lifting task and the risk of injury to Mrs Neal’s shoulder and neck. Further, the awkward postures assumed in a smoke-filled room, with sudden movement and crawling on the floor, could be a contributing factor to musculoskeletal injury. She identified a number of measures which could have been used to reduce the risk, including using two hands instead of one to lift the equipment, to have the equipment at about torso height on a peg or a bracket to reduce the height of the lift, and to have a buddy system where the buddy assisted lifting the equipment and placing it on the trainee’s back.
34 Ms Kikas said the load of the equipment travelled along the arms and to the shoulders and neck. She said the activities could have brought about symptoms of pain and restriction upon someone with degenerative changes in the spine. Repetitive lifting caused fatigue and led to a cumulative effect. She made an assessment of the equipment and said that it appeared to be designed more for the male than female population.
35 Ms Kikas undertook what is called the 3D Static Strength Prediction Program exercise. This was a computer program developed at the University of Michigan, which produced what was said to be strength capability in people undertaking lifting tasks. The weight and height of the person lifting, the weight of the object to be lifted, and the distance from the body of the lift were all factored into the program and an assessment made of strength capability. On the calculations made, at the shoulder joints, 49 per cent of the population of Mrs Neal’s type had the strength capability to make the lift. This translated into a high risk of musculoskeletal injury in the female population. A safe lift is one where 75 per cent or more of the population had the strength capability to make the lift. That calculation was based on an empty gas cylinder. If the gas cylinder was full, the risk of injury was significantly increased.
36 In cross-examination, Ms Kikas accepted that it was necessary in the smoke-filled room exercise, to simulate an environment with limited visibility, where it was necessary to feel one’s way around a room. She was aware of no other product available on the market at the time which would provide a better fit. She accepted that the real matter of concern was the lifting exercise. She accepted when Mrs Neal demonstrated the lift to her in July of this year, her body was further away from the equipment than when demonstrated in Court. That would translate into a reduction in the risk of injury. She accepted that any of the measures to which she referred would have addressed the safety problems. In particular, if there was a buddy system and that on each lift a buddy assisted, then she would have no complaints about the system.
37 Ms Kikas was aware of a statement by one of the trainers that the buddy system was employed at all times. She adopted Mrs Neal’s version of events for the purpose of her report.
38 Ms Kikas was shown the photographs, and it appeared that the equipment was properly worn and adjusted, although it was difficult to tell precisely. She accepted that an employer could not know of degenerative changes in a person’s neck or shoulders. In relation to repetitive tasks, if the nine lifts were undertaken over two-and-a-half to three hours, she agreed that was not a particularly frequent rate and did not pose a risk of injury in itself.
39 Even if the load had been closer, as was demonstrated in the Court, there would still be a risk of injury in the moderate range. A prudent employer needed risk control measures. The risk of injury on lifting would increase with repetitive lifts given the cumulative effect. If Mrs Neal was required to undertake three lifting and donning exercises, each within 90 seconds or so, then you would start to see the effects of fatigue.
40 On behalf of the defendant, evidence was given by Mr Paul Dawson, a senior prison officer with Corrections Victoria. In May 2006, he was a prison officer, as well as a fire awareness training officer. He recalled Mrs Neal, but not the details of the training day in May 2006. He was one of several trainers. There were three to four intakes per year. The program was developed in conjunction with the Country Fire Authority and Corrections Victoria. He had become a trainer the year before.
41 In this training course, there were ten people. The morning was spent explaining safety aspects with the aid of a PowerPoint presentation,[10] and then donning the equipment. In the afternoon, the exercise was in the room. The initial briefing was about safety, and the participants were told that if there was any pain, or sickness, or illness, they must report it to the trainer. The trainees were instructed on how to put the equipment on and taught slowly. There was a twelve-step procedure. The trainees were in pairs, and the buddy system was used. There had always been a buddy system. The buddy was responsible for picking up the equipment to about waist height and then it was donned by the other trainee using the right arm first, and then the left. The waist belt and straps were then clipped and tightened. The group was at all times under supervision by the trainers who were overseeing them. Some people got it quicker than others.
[10]Probably exhibit M
42 Mr Dawson said it was incorrect that Mrs Neal had done the lifting by herself. That would not happen. He would have stopped it if he had seen it. He had never seen anyone do it unassisted. In the afternoon, the gear was donned and, with the trainers, the trainees went into the room in an exercise which involved searching for bodies. They were on their feet for the majority of time. They touched by holding the tank of the person in front. There were no sudden, forceful movements.
43 Mr Dawson had not heard of the injury to Mrs Neal until October 2006. There was no complaint to him, or to anyone else that he knew.
44 Mr Dawson said that he thought there had been a “risk matrix placed across the training day”. That covered the task of the donning of the apparatus and working in the room. He said, with new territory, a new place and new people, it would have been appropriate to re-assess the risk. That was a matter for management rather than him.
45 Mr Dawson paid little heed to the height of people. He had instructed people from five foot to six-foot-ten. He said the Dräger equipment, according to the manufacturer, fitted eight out of ten people comfortably. No-one in the training group had ever reported an injury. He had not seen problems with smaller women using the equipment. Every trainee was asked whether the fit was comfortable and adjustments made to the equipment if necessary. You could tell if it was being worn properly or not.
46 Mr Dawson referred to various manual handling documents and a risk matrix. He produced one document but not others.[11]
[11]Exhibit F
47 Mr Dawson could not recall anyone on the training day with any health issues. At no stage did anyone report an injury. He had no recollection of anyone claiming to have a bad back. If a person had a bad back, they would not be permitted to don the equipment. He did not recall anyone having a panic attack. He was not responsible for the preparation of the risk assessment. That was the OH&S people. There was no change to the system of instruction before or after May 2006.
48 Evidence was then given by Mr George Golden, who was the squad manager for the group in May 2006. He said the date of the practical training was 2 and 3 May 2006. That was according to the timetable of the training program. That was the first time he had been squad manager. His duties involved as a coach, assessor and mentor, of someone who imparted knowledge and to help the trainees get through the eight-week course.
49 Mr Golden said Mrs Neal did not tell him of any difficulties undertaking the course. He later became aware of her claim. He was able to establish that there were two different groups. Exhibit H (six photographs) were all taken of Group 1, except the second photograph. The other photographs were of Group 2. Mrs Neal was in Group 2.
50 In his memorandum referring to problems she had with other trainees, those problems occurred after the group commenced and after the training day. He recalled one man saying he had the recurrence of an old back injury. He made a note on that man’s report. That man was seen donning equipment in another photograph and would have passed the 90-second trial. Another person said they could not go into the smoke-filled room, but he was from the other group. The 90-second test had to be performed before the smoke-filled room test.
51 Mrs Neal and another person, Pauline Brauer, and he went into the room together. There were three of them. They struggled, because they were uncertain. He was there for reassurance.
52 Mr Golden said Mrs Neal was very good and enthusiastic, tried very hard and was determined. He did not understand how she could not find a buddy.
(c) Causation
53 Mrs Neal gave evidence that after the training day, her condition gradually got worse. It became more difficult for her to open heavy doors. She telephoned a general practitioner and was told to have an x-ray. There was nothing on the x‑ray and she was told by the doctor that she had probably pulled a muscle. She received medication to help her sleep.
54 The condition became worse and she went back to the doctor and was referred to an orthopaedic surgeon, Mr Young, but instead saw another orthopaedic surgeon at the same rooms, Mr Barwood. He asked what she had been doing. Mrs Neal said that she had sore arms with shooting pains and told him that she was a prison officer. She explained what she did. She said that she had been to a training day and that her shoulders were sore from lifting tanks and helmets. It was sore, like a gym workout. He said words to the effect “that would do it”. He examined both shoulders. The left was her dominant hand and was worse. He said that she had “progressive decompression of the shoulders”. He suggested surgery to the left shoulder.
55 Mrs Neal returned to work and spoke to her squad leader, George Golden. She told him her shoulders had been sore since the training day. She had not reported it, and he suggested she go to the office and fill out an injury report, which she did.
56 Mrs Neal did not think to make a claim on WorkCover earlier.
57 In September or October 2006, Mrs Neal was working in the foyer of the prison when there was a Code Blue emergency. Someone came from behind her and slammed their hands on her shoulders in a vicelike grip. Mrs Neal could not get her off. That person came back later and apologised, although there was no explanation given. She was told that the person was checking whether the injury was real. Mrs Neal was asked to write a report.
58 In February 2008, Mrs Neal was working in the Sally bowls.[12] There were different cameras which had to be observed at all times. This caused problems in her shoulders and neck.[13] In 2008, her neck pain was constant, and restricted her neck movements.[14]
[12]This may mean a ‘sally port’.
[13]T88
[14]T94
59 There had been issues with other trainees in the group. They were standoffish and not friendly. At her graduation dinner, she sat alone with her family.
60 In cross-examination, Mrs Neal agreed that the first time she reported the injury to Mr Golden was after she saw Mr Barwood. The first time she saw Mr Barwood was on 28 August 2006. She filed a WorkCover Claim Form on 22 September 2006. She told Mr Golden she needed time off. She said she told him she might have sustained an injury during the training day.
61 Mrs Neal accepted that she went to her general practitioner on two occasions in June 2006 for vaccinations but did not report the incident or shoulder pain.
62 She went to the Williamstown Hospital on 21 July 2006 complaining of left arm pain for two weeks. She could not recall whether she denied, when asked, whether she had injured herself. She said that she might have told an anaesthetist that in the course of earlier liposuction surgery, she had a spasm attack in her left arm. She accepted she made no reference to the training day at the Williamstown Hospital. Her problems there were her left shoulder and arm. She said she did not mention the training day because she did not know she had an injury.
63 A week later, on 28 July 2006, Mrs Neal went to see her general practitioner, Dr Burbidge, and complained of left shoulder pain. At that attendance, she did not think that there was a relationship between the training day and the sore shoulders. She still did not think there was any relationship the next month, in August 2006.
64 Mrs Neal went to see Mr Barwood in August 2006 complaining of shoulder pain, but denied saying that it had come on spontaneously four or five months earlier, that is, in March or April. She said she told him what she was doing on the training day and he said “that would do it”. She did not speak of the apparatus.
65 It was put to Mrs Neal that the first report of injury related to the training day was on 6 September 2006 to Dr Farrow. She could not recall that. She was asked why it took four months to make the link, and she said that it was because she did not know she had an “injury”.
66 There were a number of emotional issues relating to Mrs Neal’s work. Her daughter had a relationship with someone who subsequently became a prisoner. In mid-2008, a report was published of an inquiry into her complaints regarding other employees. She was shocked and cried when she received the report and completely broke down. However, she said aspects of her allegations were upheld in the report.
67 Evidence was given by Dr Mary Burbidge, Mrs Neal’s general practitioner since 2002. She became aware of shoulder problems in a consultation on 28 July 2006 when Mrs Neal complained of left shoulder pain. At that time, Mrs Neal complained of two months of aches and pains. There was nothing in the notes as to what had caused the soreness.
68 An x‑ray taken at the Williamstown Hospital on 21 July 2006 showed foraminal narrowing. The foraminal narrowing at C5-6 was a degenerative change and had probably been going on for some years. Dr Burbridge said it was unlikely the problem with the neck was causing the shoulder pain. She referred Mrs Neal to an orthopaedic surgeon.
69 Dr Burbidge accepted she would probably have asked Mrs Neal when she was first aware of the pain and whether it related to her work. That was because the billing could be different if it was a WorkCover matter. Had she been told that, she probably would have recorded it and written it in the referring letter to the orthopaedic surgeon. It was probable she did not say it was work related.
70 Dr Burbidge treated Mrs Neal for a reactive depression in March 2002. In 2007, psychological problems developed, including a range of stressors relating to work, where she was living, depression and difficulties with the union and her bosses. After September 2007, Dr Braun was the main treating doctor. In mid-2008, there was significant psychological issues.
71 Both Dr Braun, the sports physician, and Mr Kossmann, the orthopaedic surgeon, conceded that in attributing the injuries to the training day incident, they were reliant upon the accuracy of the history provided to them by Mrs Neal.
72 Dr Farrow, one of the treating general practitioners, gave evidence. He first saw Mrs Neal on 6 September 2006, where she complained of problems with left shoulder pain. His notes recorded that, on that occasion, she was wondering if carrying the apparatus had contributed to her shoulder problems. He saw her on 24 August 2006 relating to a cough and she made no complaint of shoulder problems. He saw her again on 16 September 2006 for wheezing and a cough.
73 In November and December 2006, Dr Farrow noted that she had good pain relief and range of movement from the left shoulder surgery.
74 Evidence was given by Mrs Neal’s treating orthopaedic surgeon, Mr Barwood. He performed surgery to both her shoulders. He was asked whether he recalled discussing with Mrs Neal the cause of the shoulder soreness. He said he could recall her describing difficulty opening and closing heavy doors but could not recall any discussion about the training day, although that may have occurred. He said the phrase “that would do it” is something he might say. He accepted that the actions on the training day could have caused the shoulder injuries. According to his notes, the left shoulder pain came on “spontaneously” five months before the consultation of 24 August 2006. She said the pain started as an initial ache and was related to her work conditions. The pain continued to deteriorate.
75 Mr Barwood said he believed that her employment was a contributing factor to her shoulder injuries, as she described heavy, repetitive work, including opening and closing heavy doors, and that type of work could result in chronic shoulder bursitis. In the course of the consultation, he said he would have asked her how she had injured herself and when it occurred. There was nothing in the referral letter from the general practitioner to say work was involved.
76 In a review of 19 October 2006, WorkCover would have been discussed. That was the first time he documented WorkCover in his notes. He did not recall her mentioning a breathing apparatus but he may not have written it down. The first time he recalled hearing about the apparatus was about twelve months later in a report from Dr Braun. He said if there was one specific injury he would have noted it but if there were a number of incidents, he would have referred to it generally. It was not his practice to delve into whether or not an injury was work related. If he was satisfied that it was, he would request the WorkCover Authority to pay for the treatment. If he was not, he would not make that request.
77 The treating psychiatrist, Dr Datta, referred to a number of other work-related problems which affected Mrs Neal’s psychological condition. These included:
· The adversarial prison system.
· That she was involved in an emotional dispute with others in the prison system.
· That she was hit from behind by another person to test her injury.
· Bullying.
· The involvement of a superior officer who dismissed her complaint.
· Emails from other members of the training group suggesting they did not like her.
· The Zites report.
78 As well as the work injury, Dr Datta said the emotional factors were a major part of her presentation.
79 Evidence was given by Mr Rodney Simm, an orthopaedic surgeon called on behalf of the defendant. He received a history that Mrs Neal participated in the training program over nine hours on 23 May 2006. He was told that she wore breathing apparatus with a tank on her back. He did not receive any history of any lifting, nor of the activities carried out in the smoke-filled room.
80 He looked through the various medical records, including the consultation with her general practitioner on two occasions in June 2006 without any record of neck or shoulder symptoms, and it was not until 21 July 2006, when she complained of left arm pain on movement. According to that record, the symptoms were said to have come on within the last two weeks. He also examined the record of the Williamstown Hospital, and those of Mr Barwood.
81 When further details of what Mrs Neal alleged occurred on the training day were put to Mr Simm, including the increased weight of the tank, he said that would not have affected his opinion. He said that the weight of the equipment was reasonably heavy and the activities on that day would have been demanding. He said by carrying the load on Mrs Neal’s back, that would not have put any stress on the shoulder joints.
82 Mr Simm said it was important that the original investigations of the left shoulder by the x-ray and the CT scan did not disclose anything abnormal. He said he could not diagnose any condition that could have arisen from wearing the breathing apparatus on the training day. He said there was no report of injury or incident on that day and no report of pain.
83 Mr Simm referred to a report in the general practitioner’s notes of June 2006 when it was recorded that Mrs Neal felt lethargic and tired and complained of a poor appetite. He noted that she returned to work in her job. Her subsequent comments about difficulty at work were not related to any restriction in her neck or shoulders. He noted that when she did complain to her general practitioner on 21 July 2006, it was recorded that she had denied any “injury” and that it was noted she had liposuction at an earlier time.
84 Mr Simm said that the left subacromial bursitis identified by Mr Barwood was an extremely common condition in female patients of Mrs Neal’s age. It was possible that that occurred spontaneously. He said the right shoulder pathology was minor. He said that Mrs Neal had developed a chronic pain illness which had been unsuccessfully treated by four operative procedures. He said that chronic pain condition had extended over nine years and was associated with emotional disturbance. He thought the chronic pain illness would persist.
85 Mr Simm noted, in the course of his examination, that on some occasions, Mrs Neal had almost no neck movement, but when distracted, she was able to move her neck.
86 Mr Simm accepted that lifting the equipment could place stress on the shoulder and cause injury. He thought she had a capacity for a wide range of alternative jobs.
Causative relationship between the training day and injuries
87 Ms Hartley submits there were three aspects of what occurred on the training day which were a cause of the injuries to Mrs Neal’s left shoulder, right shoulder and neck. These were:
· the lifting, donning and removal of the apparatus on a number of occasions in the course of the training day;
· while wearing the apparatus, entering the room and assuming a range of awkward postures, and undertaking forceful movements of the arms; and
· lifting and fitting the apparatus within 90 seconds on three occasions in the course of a “time trial”.
88 It is convenient to determine the issue of causation at this stage. A significant aspect of the defendant’s submissions centred on causation. If none of the injuries to Mrs Neal’s shoulders or neck can be causatively related to these aspects of the work, then her claim fails.
89 A preliminary matter to determine is the date upon which the training day occurred. Mrs Neal’s Amended Statement of Claim pleads injury occurred “on or about 23 May 2006”. In the course of her examination-in-chief,[15] Mrs Neal did not name a specific date as the date upon which injury occurred.
[15]T60
90 In the course of his evidence, Mr Golden[16] said that the training day in fact occurred on 3 May 2006. That was because that was the date referred to in a schedule.[17] He had no independent recollection of the date of the training day, save by reference to the schedule.
[16]T940, T950 and following
[17]Exhibit 5
91 However, there was a significant number of documents produced by the defendant in discovery and interrogation which referred to the training day as 23 or 24 May 2006. These included:
· The defendant’s Answers to Interrogatories.[18]
[18]Exhibit N
· The Employer’s WorkCover Claim Report.[19]
[19]Exhibit O
· Letter from the insurer to Mrs Neal dated 13 November 2006 indicating an acceptance of the WorkCover claim.[20]
[20]Exhibit P
· Letter from the insurer to Mrs Neal dated 9 May 2013 approving neck surgery.[21]
· Letter from the insurer to Mrs Neal dated 13 May 2011 accepting a claim for benefits.[22]
[21]Exhibit Q
[22]Exhibit R
92 Further, despite the evidence of Mr Golden, his witness declaration, albeit unsworn and undated, indicated that the date of the training day (practical) was 24 May 2006.
93 It is clear that from the time of the issue of the proceeding up to the trial, and then continuing up until the cross-examination of Mr Golden, both Mrs Neal and the defendant assumed the training day occurred on 23 or 24 May 2006.
94 I prefer the submissions of Ms Hartley that on the balance of probability the training day did occur on one of those days. Schedules may change, in particular, in circumstances where the practical aspect of the training day was originally planned to have been conducted at premises at Fiskville, and then moved to other premises at Sunshine. That move could easily have resulted in a change of the schedule.
Was the neck injury related to the training day?
95 I shall first deal with the injury to Mrs Neal’s cervical spine or neck.
96 Mrs Neal consulted Mr D’Urso, neurosurgeon, in April 2013. He noted an MRI scan of her cervical spine taken on 7 January 2013 showed quite severe spondylosis at C5-6 with severe foraminal stenosis for the exiting C6 nerve roots, particularly on the right side. Examination revealed significant restriction of movement of the neck. On 10 July 2013, he performed a C4-5 and C5-6 discectomy, together with an instrumented fusion at those levels. According to his surgical findings, there was substantial degenerative change noted. He said that the degenerative change was likely to have pre-existed her work on the training day which he thought may have been aggravated by the carrying of the apparatus. Despite the surgery being technically successful, Mrs Neal has continued to complain of significant pain and restriction in the neck. Mr D’Urso formed the view that she had developed a Chronic Pain Syndrome which was “entwined” with an Adjustment Disorder. He concluded that:
“It would appear likely that the workplace activity, in particular the carrying of breathing equipment in April 2006 has been a precipitating factor in the development of Barbara’s symptoms which have aggravated the underlying cervical spondylosis.”[23]
[23]T519, L22
97 Mr D’Urso made this attribution because of the history that he received from Mrs Neal that as a result of carrying the oxygen tanks on her back all day, she developed paraesthesia down the right arm, as well as the neck, and shoulder pain.
98 It is necessary to examine the complaints by Mrs Neal of neck pain and restriction, from the training day.
99 Mrs Neal gave evidence that following the activity on the training day, her shoulders were particularly sore, that gradually it got worse and never got better.
100 She filed a WorkCover Claim Form on 22 September 2006.[24] She described the injury as “subacromial decompression of the shoulders”.
[24]Exhibit 1
101 The body part said to be affected was:
“Shoulders – emphasis on left shoulder.”
102 To the question:
“What were you doing just before the injury occurred?
Mrs Neal answered:
A:“Training in breathing apparatus. The use and procedure of heavy tanks on the back.
Q:What happened unexpectedly?---
A:Shoulders were sore.
Q:If you did not report your injury/condition, give a reason?---
A:I did not know it was [a] serious condition requiring surgery.”
103 There is no reference in the Claim Form to any neck pain.
104 According to Mrs Neal’s evidence, she felt sore while she was carrying things.[25] She completed her training, and took up employment as a prison officer. In the weeks and months that followed, the pain gradually got worse.[26] Her left arm was becoming restricted, in particular, in opening heavy doors.[27]
[25]T75, L14
[26]T76, L27
[27]T77, L4
105 Mrs Neal said she telephoned her general practitioner, and was told to go for an x-ray. She went to the Williamstown Hospital on 21 July 2006.[28] The presenting problems were said to be:
“Ongoing left arm pain, pain on movement and palpation two weeks. Gets worse. Unable to lift uplift arm. Normal sensation of movement of left hand. … .”
[28]Exhibit 4
106 Under the triage nurse assessment, is:
“Denies any injuries, recently had liposuction left and right arm; anaesthetist stated to patient at time during procedure that left arm had a spasm attack. Pain described as sore, pulling sensation. Does not have full movement of left shoulder. Also complains of fatigue; restless nights.”
107 A left shoulder ultrasound, and x-rays of the cervical spine and left shoulder were taken.
108 A doctor at the hospital examined Mrs Neal and although the writing is difficult to read, his/her report says:
“49 year old woman presenting with right shoulder pain last few weeks. No injury. Pain particularly … while combing hair.
On examination afebrile – left shoulder. No redness or swelling. Mild tender tip of left shoulder. … and abduction - ✓. Flex ✓ extending painful up to 30 degrees. Internal rotation and external rotation ✓.
… Ultrasound left shoulder – NAD.
Left shoulder and neck x-ray.
Nurofen Plus.
…
Review as necessary.
Impression:- Left shoulder pain – query muscular – sprain.”
109 On two occasions in June 2006, Mrs Neal went to her general practitioner for vaccinations, but made no complaint of neck nor shoulder pain.[29]
[29]T148, L12
110 She said in cross-examination that the attendance at the hospital was in relation to her left shoulder and her arm.[30]
[30]T151, L29
111 On 28 July 2006, Mrs Neal went to see her general practitioner, Dr Burbidge. She said she had started to get tingling down her left arm and some shooting pains.[31]
[31]T78, L18
112 According to the evidence of Dr Burbidge, Mrs Neal described a shooting pain down her left arm lasting 15 seconds.[32] She said further, the neck was “tense”. It is difficult to know what this means. There was restriction in movement of the left shoulder. Dr Burbidge agreed that there was nothing in her notes to link employment with the left shoulder pain and had there been a work-related injury, it would have been billed through the WorkCover system.[33] From 6 September 2006, Mrs Neal was treated at the same clinic by another doctor, Dr Farrow, who provided WorkCover Certificates. In September 2006, Dr Farrow recorded that he was wondering if carrying the breathing apparatus contributed to her shoulder problems.[34] He recorded that Mrs Neal was having shoulder pain, with pain “radiating up to the cervical spine” (emphasis added). His examination appeared confined to the shoulders. He thought there was some compression of the rotator cuff tendons. There was also discomfort on the right shoulder. He felt the signs were consistent with tendonitis on the left side. He said he was unable to be sure cervical changes were not contributing to her symptoms.[35]
[32]T220, L4
[33]T233, L29
[34]T409, L19
[35]T410, L11 and following
113 Returning to the evidence of Mrs Neal, she said that her shoulders were very sore after the training day.[36] She said:
[36]T151, L16
Q:“As at early February [2007], were you working with any work restrictions?---
A:I was supposed to be, although some of the work I was doing was back in the Sally bowls and on different levels, you’ve got different cameras in different places that you’ve got to observe at all times which is pretty difficult when it’s behind and at the back of your head.
Q:So did that cause some physical symptoms?---
A:Yes, it did.
Q:Where did those physical symptoms - - -?---
A:From my shoulders and my neck.”[37]
[37]T88, L4 – 13
114 Mrs Neal said further, that from June 2008, the pain in her shoulders was bad. She was asked:
Q:“Did you have some ongoing trouble with your neck?---
A:Terrible.
Q:What was that?---
A:It got to a point where I actually couldn’t do - I mean, it’s still restricted but I actually could not do that at all, I would have to turn my whole body.
…
Q:So your neck was very restricted in movement and how was it from the viewpoint of pain?---
A:Constant.”[38]
[38]T94, L18
115 In August 2006, Mrs Neal was referred initially to Mr Young, orthopaedic surgeon, but was in fact seen by Mr Barwood, orthopaedic surgeon. She described to him bilateral shoulder pain, the left more severe than the right.[39] There was no complaint to Mr Barwood of any problems with the neck.
[39]T417, L10
116 Mrs Neal was referred to Dr Braun, sports physician. According to the history he obtained, Mrs Neal said she had developed neck pain and pain in both shoulders following the training day.[40] The pain was aggravated by a further incident at work in October 2006 when she was physically attacked by another prison officer. He noted bouts of surgery to the left and then right shoulders. When he first saw Mrs Neal in September 2007, he noted features of nerve root problem from her neck at the C6 nerve root level. This provided sharp pain running down the arm, with pins and needles.
[40]T250, L16
117 By January 2008, the radicular pain emanating from the C6 area had improved significantly, and by May 2008, Dr Braun thought the cervicogenic symptoms had resolved with conservative treatment. Subsequently, cervical pain returned and became more severe.
118 Dr Braun accepted that the radiology at the neck showed age-related degenerative changes, although at C5-6, they were far in excess of those at other levels which could be more consistent with trauma or accelerated damage at that level.[41]
[41]T283, L9
119 Mrs Neal was examined for medico-legal purposes by Mr Thomas Kossmann, orthopaedic surgeon. The history he received from Mrs Neal was of pain in both shoulders from the training day. He received a further history that in July 2006, Mrs Neal complained to her general practitioner of pain, not only in her shoulders, but also her cervical spine.
120 A letter from the insurer of 9 May 2013 confirmed liability for the medical costs of the fusion surgery performed by Mr D’Urso in 2013.[42]
[42]Exhibit Q
121 The purpose of this tender was that the letter stood as an admission that the neck injury was causatively related to Mrs Neal’s employment with the defendant. However it was accepted by Ms Hartley that at best, the letter stood as an admission that the cervical condition was related to Mrs Neal’s employment with the State generally, rather than specifically to the training day.
122 The evidence as to the onset specifically of neck symptoms after the training day is unclear and unsatisfactory. There was no clear attempt to isolate and define pain which, on the one hand, arose from the cervical spine, and on the other hand, arose from either the left or right shoulder. The position is compounded by the fact that it can be said that pain radiating from the cervical spine can radiate to the shoulders and down the arms. That is particularly so where there is compression of the exiting cervical nerves. The onus is on the plaintiff to establish the causative relationship between the neck injury and the activities of the training day.
123 While many of the practitioners, both treating and consultant, attribute Mrs Neal’s cervical spine symptoms to the activities of the training day, that is because she gave a history of the onset of neck pain from that date. That is not borne out by the evidence. There is no doubt Mrs Neal had underlying significant degeneration of the cervical spine, in particular at C5-6. This is clear from the x-ray taken at the Williamstown Hospital on 21 July 2006. I further accept that Mrs Neal had little, if anything, in the way of cervical spine symptomatology before the training day. However, it is my view that the symptoms which arose as a result of what occurred on the training day were confined to one or both shoulders. Mrs Neal did complain of soreness “like going to the gym” from the date of the training day, but on the evidence, this is confined to the arms or the shoulders. It is, of course, possible, in particular, with someone with a degenerate neck, and with severe stenosis around the exiting C5-6 nerves, that there can be referred pain down the arm. But there are no complaints of specifically neck pain until a long time after May 2006.
124 It is difficult to establish from the evidence when Mrs Neal first complained of pain in the neck, or pain in the area of the neck caused by the degenerative state of her cervical spine. There is no mention of any neck problem in the WorkCover form of September 2006. True it was an x-ray of the cervical spine was conducted at the Williamstown Hospital on 21 July 2006, but there was no presenting complaints of neck pain. The concern was clearly focused on the shoulders. It is reasonable to infer that the neck was examined in the event that the pain in the shoulders emanated from the neck. That turned out not to be the case, as the treating practitioner was left with the impression of left shoulder pain, possibly muscular.
125 While Mrs Neal did complain to Dr Burbridge of shooting pain down her arm in July 2006, it is impossible to say whether that was from the shoulders or the neck. It is hard to know what to make of her report of a “tense” neck. Dr Farrow’s involvement from September 2006 was concerned with shoulder problems. He did record some pain radiating up to the cervical spine, but this is consistent with a shoulder injury. He again examined her in October, November and December 2006. All of the complaints of pain over that period were in respect of her shoulders.[43] A CT scan of the cervical spine was arranged in July 2007 which showed degenerative changes, in particular, at C5-6. The x-ray report is directed to Dr Farrow,[44] although there was no evidence as to how he came to order it.
[43]T413 – T414
[44]PCB 125
126 The first relatively clear complaint of pain which could be said to be related to the neck was the evidence of Mrs Neal, when she said she was doing work in the “Sally bowls”[45] area of a prison. This involved rotating her neck to look at various different cameras or screens. The pain increased so that by June 2008, it was “terrible”.
[45]Probably a reference to Sally port
127 When Mrs Neal saw Mr Barwood in August 2006, her complaint was of bilateral shoulder pain. There was no reference to him of any neck pain. He noted the x-rays of July 2006 with degenerative changes at C5-6.
128 When Mrs Neal first saw Dr Braun in September 2007, she complained not only of shoulder pain, but of severe electric burning pain down the forearm. He diagnosed cervicogenic pain emanating from the C6 level. This is the first formal diagnosis of the neck condition.
129 I conclude that I cannot be satisfied of the causative relationship between the neck condition and the activities of the training day. The evidence points to the onset of neck pain from sometime around February 2007, some nine months or so after the training day. It is more likely the neck pain came on in the course of Mrs Neal’s duties in the Sally bowl. She clearly had a significantly degenerate spine at C5-6 and activities like looking around at screens could well produce symptoms in the neck. The activity would not necessarily need to be very vigorous nor demanding.
130 While the insurer did accept liability for the subsequent neck surgery, that may stand as an admission arising out of Mrs Neal’s employment generally, rather than specifically to the pleaded activities. In these circumstances, I am not satisfied to the required standard that there is any causative relationship between the development of symptoms to the cervical spine, and the training day.
Were the injuries to the left and right shoulders related to the training day?
131 The situation in relation to the injuries to Mrs Neal’s left and right shoulders is more straightforward, although still somewhat complex.
132 Mrs Neal made no complaint to anyone in the training group, or those organising it, of any problem with the left or right shoulders on the training day. She completed the training course, and then started work as a prison officer. There was no report to anyone in management in the prison system of any problem with the shoulders until after she saw Mr Barwood on 21 August 2006 upon the referral from her general practitioner. She then went to see Mr Golden in September 2006 to advise him that surgery had been suggested by Mr Barwood. Subsequently, a WorkCover claim was submitted. Again, she saw her general practitioner on several occasions in June 2006 in relation to vaccinations, but made no report of shoulder pain. The first medical attendance concerning the shoulders was at the Williamstown Hospital on 21 July 2006. The complaint there was of left arm pain and with difficulty lifting the left arm for two weeks. Mrs Neal denied any “injury”. Although an x-ray was taken of the shoulder, the diagnosis by the treating medical officer was left shoulder pain, query muscular.
133 Mrs Neal complained to Dr Burbidge on 28 July 2006 of shooting pain down the arm lasting for 15 seconds. Dr Burbidge received a history of two months of aches and pains, with the right shoulder overshadowed by the left.[46] She prescribed a mild analgesic. While complaining of pain in the shoulders, Mrs Neal did not make any attribution to her work duties.
[46]T221, L3
134 The next attendance on Dr Burbidge was 14 August 2006. Dr Burbidge referred Mrs Neal to Mr Barwood, whom she first saw on 24 August 2006 complaining of bilateral shoulder pain, the left more severe than the right. That eventually led to surgery in November 2006, initially to the left shoulder
135 Mrs Neal then returned on 14 August 2006 and Dr Burbidge checked the results of the x-rays taken at the Williamstown Hospital. Mrs Neal was still troubled by shoulder pain which was disturbing her sleep.[47] Dr Burbidge did not see Mrs Neal again until April 2007. Mrs Neal saw Dr Farrow at the same general practice on 6 September 2006 complaining of left shoulder pain.
[47]T222, L12
136 It was not until the consultation with Mr Barwood in August 2006 that there was any attribution of the left and right shoulder pain to her work duties on the training day. According to Mrs Neal’s evidence, Mr Barwood asked her as to the duties which were involved in her work as a prison officer. He recorded that she had difficulty opening and closing heavy doors. However, further in his evidence, when presented with the evidence given by Mrs Neal as to what was said to him,[48] he said:
“My recollection of the initial account was that Mrs Neal and I discussed several different aspects of her work and I do remember the heavy doors specifically – I don’t recall the fire training now, and my initial impression was that she described enough different types of activities that could have caused her shoulder pain. She said to me previously she had no previous shoulder injuries prior to this episode so I didn’t believe there was any relevant past history and what she described to me seemed consistent.”[49]
[48]T417-419
[49]T419, L30
137 Mr Barwood said the events of the training day could have been a cause of her shoulder problems. In the course of her evidence, Mrs Neal said she described to Mr Barwood the donning of the apparatus on the training day, and in response, Mr Barwood said words to the effect “that could do it”. Mr Barwood agreed that was something he could have said.
138 Evidence was given on the issue of causation by Mr Rodney Simm, orthopaedic surgeon, retained on behalf of the defendant. He obtained an incomplete history. He said the following:
“I was not able to establish the diagnosis of her physical injury or condition that could possibly have arisen as a result of wearing breathing apparatus for one day of training on 23 May 2006. There was no report of injury or incident on that day. Furthermore, there was no report of pain as a result of that activity. One would not expect this activity to cause any mechanical loading of either shoulder joint as the straps of the tank were over the top of the shoulders with the weight supported by the shoulder girdles. The weight of the apparatus which was approximately 11 kilograms was also partly supported by a back support that went down across the waist. … .”[50]
(emphasis added)
[50]T817, L2
139 Mr Simm went on to describe Mrs Neal’s failure to report any neck or shoulder problems on the various attendances in June 2006.
140 It is clear from the evidence of Mr Simm that his assessment of injury was based upon Mrs Neal carrying or wearing the equipment. There is no reference to any assessment in relation to the lifting and then removing the equipment, nor any assessment of having to do so within a restricted period of time. He noted the pre-existing degenerative changes in Mrs Neal’s shoulders. He said that the subacromial impingement syndrome was caused by early underlying degenerative rotator cuff pathology. He said this was a common condition in female patients of Mrs Neal’s age.[51]
[51]T818, L21
141 Mr Simm’s opinion was that Mrs Neal suffered an entrenched chronic pain illness which he thought was likely to persist. He considered that it was not appropriate for Mrs Neal to have undergone any of the surgery to her shoulders and neck in the circumstances.[52]
[52]T844 – T845
142 Mr Simm accepted that the training day was a “very demanding” day:
“For this lady, that is quite a heavy object, it’s not extremely heavy but it’s heavy and now all this additional evidence indicates she was probably undertaking physical activities that were activities she was certainly unaccustomed to and under those circumstances I would think anybody who spent a day doing those activities with that tank probably would feel some muscle tiredness and perhaps a little soreness and I think it would be a demanding day for her. … .”[53]
[53]T832, L7
143 Mr Simm pointed out that the evidence suggested Mrs Neal was suffering “soreness” rather than “pain”.[54]
[54]T833, L1
144 Aside from having an incomplete description of the activities of the training day, I accept the submission of Ms Hartley that the distinction Mr Simm has drawn between “pain” and “soreness” was somewhat semantic. It is not uncommon for someone who has lifted a significant weight on a number of occasions and who thereafter suffers an injury, to describe “soreness” at the outset which is often interpreted as muscle soreness, but the reality is an injury has been caused and the pain increases over time.
145 In these circumstances, I do not accept the assessment of Mr Simm as to the causative relationship between the activities and the injury to Mrs Neal’s shoulders. I prefer the evidence of the other medical practitioners, in particular, the treating practitioners, who accept the association.
146 In determining whether there is a causative relationship between the shoulder injuries and the training day, I am reliant to a fair extent upon the evidence of Mrs Neal. As earlier stated, there were inaccuracies in her evidence on a range of issues but I did not think this significantly affected her credibility. I found her evidence somewhat unreliable, in that she failed to directly answer questions put and insisted on giving long non-responsive answers. However, that was largely explained by the evidence of Dr Datta. I did not assess her as an untruthful witness. I find I am able to rely upon the evidence she gave about the onset of the symptoms in her shoulders.
147 Mrs Neal’s evidence, when asked to explain why she made no report of the pain in her shoulders, was that she did not consider she had suffered an “injury” until it came to the point of Mr Barwood recommending surgery. Further, the pain started as an ache, such as may occur after an exercise session at a gymnasium, and progressed from there. Mrs Neal did not consider the problem with her shoulders as serious until it warranted surgery.[55] This was not an unreasonable view in the circumstances that prevailed at the time. Mrs Neal’s version of the pain in her shoulders was confirmed by her husband. His evidence was that her shoulders were sore after the training day and that she expected they would get better but they did not.[56]
[55]T165
[56]T566, L28
148 There are two aspects of the issue of the causative relationship between the shoulder injuries and the activities on the training day. The first is the lack of complaint of any shoulder pain or restriction. Mrs Neal did not report any shoulder symptoms to her general practitioner or the Williamstown Hospital until late July 2006, some two months after the training day. Also there were varying descriptions to the practitioners she saw of when the pain came on. To the hospital, it appears she considered it may have been associated to some earlier surgery, although the entry in the notes is unclear.
149 The second aspect is that she did not then attribute those injuries to the activities of the training day until August 2006. It is one thing to say you have shoulder pain, it is another to say it is related to a particular activity.
150 Mrs Neal’s evidence that the problem in her shoulders started as an ache and then became more painful as time progressed is understandable and not unusual in circumstances of people suffering workplace injuries. Many workers believe they have suffered some muscle strain or some lesser injury from which they would expect to recover. In a minority of cases, that does not occur and there is often a gap between the onset of the pain and the reporting of the injury.
151 The attribution of the injuries to the training day is a little more unusual. Mrs Neal appears to have canvassed with Mr Barwood what activities could have caused the condition in her shoulders. It is clear she spoke to him about opening and closing heavy doors. I further accept her evidence that she told him about the lifting and carrying of the breathing apparatus, and other activities which occurred on the training day. In the early weeks and months following the training day, as the pain developed, it is not unreasonable for her to canvass the activities in which she was engaged and determine that the lifting and the donning of the equipment was responsible for her shoulder pain. It is easy with hindsight to be critical of her attribution of her shoulder problems to the training day activities, and a range of other activities were clearly mentioned in passing with Mr Barwood, but I accept her evidence that the problem with her arm started at or about the time of the training day and progressed. There was no cause for her, in those early months, to make a particular attribution until she was advised that she needed surgery to, first, the left, and then the right shoulder. At that time, she gave the matter clear thought and came to a conclusion. She reported the matter to Mr Golden and then made a WorkCover claim. In these circumstances, it is not unreasonable for her to have come to the conclusion that the shoulder pain was related to the training day activities some three months later.
152 The insurer accepted liability for the shoulder surgery by letter dated 13 November 2006.[57] It also accepted a claim for impairment benefits for the left and right shoulder by letter dated 13 May 2011.[58] Each stand as an admission of the causative relationship between the shoulder injuries and Mrs Neal’s employment, although not specifically to the training day.
[57]Exhibit P
[58]Exhibit R
153 In all the circumstances, I am satisfied of the causative link between activities on the training day, and the injuries to the left and right shoulder.
Negligence and or breach of duty
154 It is only necessary to examine those aspects of the training day which involved the donning, carrying and removal of the apparatus by Mrs Neal, including the occasions where she attempted to complete that process within 90 seconds. The evidence concerning her entering the room, assuming various poses and using her hands and arms forcefully is somewhat unclear. The real thrust of Mrs Neal’s case, as I perceive it, is directed towards the lifting, carrying and removing of the apparatus.
155 Although there is some inconsistency with the precise number of times that this occurred, I accept Mrs Neal’s evidence that it happened on approximately nine occasions, including three occasions when she attempted to complete the routine within the 90 seconds.
156 It is convenient first to assess whether there has been a breach of the Regulations.
157 “Hazardous manual handling” is defined in Regulation 13 to include manual handling which, relevantly, involved any of the following characteristics:
“(2) …
(a) …
(i) repetitive or sustained application of force;
(ii) repetitive or sustained awkward posture;
(iii) repetitive or sustained movement;
…
…
(c)manual handling of unstable or unbalanced loads or loads which are difficult to grasp or hold.”
158 I am satisfied the lifting, donning and removing of the apparatus in the course of the morning of the training day does satisfy this definition. It is repetitive activity requiring an application of force, given the weight of the apparatus. It clearly requires sustained movement.
159 Regulation 13(3) then requires the identification by an employer of a hazardous manual handling task before is it undertaken for the first time.
160 Regulation 14 then requires an employer to make an assessment to determine whether that manual handling task creates a risk of musculoskeletal disorder. That assessment must take account of the postures adopted, movements undertaken, forces exerted and duration and frequency of the task.
161 Regulation 15 then requires the employer to ensure that the risk of musculoskeletal disorder is eliminated or reduced as far as is practicable.
162 In short, there is no evidence that the task of the donning, carrying and removing the apparatus was identified, assessed or that the risk of musculoskeletal disorder was eliminated or reduced.
163 In fact, a manual handling risk assessment was subsequently undertaken on 1 July 2007.[59] The task being conducted was described as “donning, wearing and removing breathing apparatus”. The assessment describes the lifting, lowering and carrying of a heavy load. There was said to be one report in September of 2006 by an employee suffering pain or discomfort as a result of the task. This presumably relates to the report by Mrs Neal to Mr Golden. The document says that the task involved high force. The “Action Plan” was as follows:
[59]Exhibit G
Risk
Control
Timeframe
Person Responsible
Due Date
Date Control Implemented
Carrying heavy load
Compliance with the training package procedure for donning, correct fitting and strapping up – utilising multiple person assistance (Buddy System)
Short
Paul Dawson
21/07/2007
21/07/2007
MSD
Review SESG & Fiskville training procedures
Medium
Mike Cheadle, Jodie Talone
21/07/2007
01/01/2008
164 From this information, it would appear that when the assessment was undertaken, the task did involve hazardous manual handling and required some control measures to be taken, ensuring compliance with training procedures, including the buddy system, and a review of those procedures at various venues.
165 In the course of his evidence, Mr Dawson was asked whether a risk assessment had been done before the training day.[60]
[60]T869, L7
166 It is somewhat unclear whether the answers that followed precisely responded to this question. He said the following:
A:“And all training, physical training would have a risk matrix applied to the actual physical training.
Q: And do you say that was something that was written in writing?---
A: It would be a written risk matrix, yes.
Q:We asked for that document to be produced and none has been produced, do you understand that to be the case?---
A:That would be risk matrix put across the training module by the SESG and in conjunction with the CFA.
Q:Well, that’s interesting information but are you able to explain to us why the risk assessment that you say was done has not been produced?---
A: Did you personally ask me for the risk matrix to be produced or –
Q:As I recall it, after you said one had been done I asked for it to be produced and I’m told it’s not been produced?---
A:Well, that’s not the way I recall it.”[61]
[61]T869
167 Further:
Q:“In terms of the risk assessment you say was done, was that a risk assessment relating only to the donning of the breathing apparatus?---
A:I would think – I’m not positive on that question, my answer in regards to there would be a risk matrix across the whole fire awareness portfolio that’s applied.
… .”
HIS HONOUR:
Q: “Well, what’s a risk matrix?---
A:Your Honour, it really comes down to a situational - how can I put it, a situational process, the way the training’s applied to any training in a smoke filled environment for example, or for fire fighting techniques or donning the actual breathing apparatus.
Q: But I’m just wondering what you mean by matrix, does that mean it’s some sort of written document?---
A: It is Your Honour, yes.
Q:A verbal instruction that’s given or what, how would you describe it?---
A: No, it’s an actual written document, Your Honour.
… .”[62]
[62]T870
168 There was significant debate in the course of the Ruling I made discharging the jury as to what documents were in the possession of the defendant, and referred to by Mr Dawson, and which were produced. Whatever was produced, no assessment complying with the Regulations, nor even any “risk matrix” relating to the donning and the removing of the apparatus, was ever produced. I conclude that despite the somewhat unclear evidence of Mr Dawson about a risk assessment having been conducted, that it in fact was not carried out specific to the task that caused injury to Mrs Neal’s shoulders.
169 I am satisfied there was a breach of Regulations 13, 14 and 15. That breach founds a claim for damages given the causative relationship between the injury to Mrs Neal’s shoulders, and the use of the apparatus on the training day.
170 Given my finding as to statutory breach, it is not necessary to consider whether there was negligence on the part of the defendant. In the event I am wrong about statutory breach, I will briefly examine the question of negligence.
171 The lifting, carrying and removing of the apparatus in the course of the morning of the training day was a significant and demanding lift task. Ms Kikas, the ergonomist and physiotherapist, gave evidence that, in accordance with the 3D Static Strength Prediction Program, a lift of this type would only be able to be comfortably undertaken by 49 per cent of the population of Mrs Neal’s type. That translated into a high risk of musculoskeletal injury. However, Ms Kikas said in evidence that the situation would be significantly alleviated if, on the occasion of each lift, Mrs Neal had the assistance of a buddy who could carry out the actual lifting and removing of the equipment. In fact, she said she would not have concerns about the safety of what occurred had a buddy been present and assisting throughout the training day.
172 The evidence of Mrs Neal was that she lifted the apparatus on about nine occasions. She said there were only two occasions when she had a buddy to assist. This was for two reasons: firstly, that her partner had a sore back, and the second was that she was somewhat isolated by a group of younger trainees with whom there was a rift, making it difficult to find an alternative buddy. There was also the three occasions where she attempted to comply with the requirement to lift and don the apparatus within 90 seconds, succeeding only on the last occasion.
173 The evidence as to the availability of a buddy as given by Messrs Dawson and Golden was quite different. Mr Dawson said, at the start, the apparatus was lying on the ground and the assigned buddy picked it up to a height to enable a trainee to place it on his or her back.[63] He said, as to Mrs Neal’s claim that she did it on seven occasions without assistance, that “that just would not happen”.[64] He said he would have seen it had that occurred, and done something about it.
[63]T756, L16
[64]T758, L21
174 Mr Golden, in the course of his evidence, made reference to the buddy system. He said he recalled one of the trainees having a bad back from an old injury.[65] He described Mrs Neal as –
“… putting one hundred per cent in, that’s why I called her a hundred per cent, not just Mrs Neal - but she was really determined and had no problems with that, she was really prepared to be a prison officer, she was putting her heart and soul into it.”[66]
[65]T943, L1
[66]T952, L30
175 I found both Mr Dawson and Mr Golden satisfactory witnesses giving a reasonable account of what occurred on the training day. However, I prefer the evidence of Mrs Neal that on a significant number of occasions, she did not have a buddy to help with the donning of the apparatus. Generally, Mr Dawson’s evidence was as to what he would have expected to have happened, without precise recollection as to what actually happened. Mrs Neal’s evidence is more direct. She is more likely to know whether she got assistance or not than either of Messrs Dawson or Golden.
176 It is further somewhat surprising that given the importance of the buddy system, that it was not referred to in the defendant’s “Fire Awareness” document which shows the PowerPoint presentation used to describe the donning procedure.[67] That mitigates against the strict buddy system described by Mr Dawson.
[67]Exhibit L
177 On page 15 of that document, there is reference to “principles of operation” which says: “Always work in pairs.” In the margin alongside, Mrs Neal has written “Looking out for each other – shared responsibility”. However, I am not convinced that that particular reference was designed to apply to the donning of the apparatus, but refers to the training to become a prison officer, generally.
178 There were various options open to the State to reduce the risk of injury in the circumstances. More rigorous and clear training about the importance of obtaining assistance in the lifting and removing of the equipment with the assistance of a buddy should have been provided. Given Mrs Neal did lift the equipment on a number of occasions by herself, stricter enforcement of the buddy system should have been undertaken. Further, it would have been relatively straightforward to have the equipment sitting on a hook or a bracket, rather than on the ground, and for the participants to simply place the apparatus on their backs from a greater height. She was a woman of modest stature and strength required to carry out a heavy lift.
179 True it was, the trainees were instructed about the importance of safety. Mrs Neal knew she could ask for assistance if required, and report any difficulty. But she was someone keen to do well and pass the test. She “put in 100%”, as Mr Golden said. In those circumstances, it was not unreasonable for her not to ask for assistance when the lift was heavy. And those instructions did not absolve the State to make an assessment of the task through its instructors and eliminate or reduce any risk of injury, regardless of whether a trainee complained.
180 In these circumstances, I am satisfied that the defendant did breach its duty to Mrs Neal to take reasonable care against the risk of foreseeable injury.
181 Although contributory negligence was pleaded, it was not pursued by Mr Curtain in the course of final submissions, nor do I see any basis upon which contributory negligence could be successfully argued. Mrs Neal was simply following a system of work and doing her best to comply with the requirement to lift and don the apparatus within the required time.
Damages
182 Mrs Neal’s left shoulder arthroscopic surgery on 13 November 2006 involved a subacromial decompression, capsular release, and a synovectomy of the glenohumeral joint, a bursectomy of the subacromial space and a manipulation of the shoulder to regain a full range of movement. The review subsequently by Mr Barwood indicated that the surgery had been successful, that the pain in the area had been reduced and by May of the next year, Mrs Neal had regained a full range of motion in the shoulder. All in all, her recovery from the left shoulder surgery has been good.
183 However, the pain in the right shoulder increased, and on 26 June 2007, Mr Barwood performed a right shoulder arthroscopy which noted there was subacromial bursitis and biceps tendinitis with a type 2 superior labral tear. He performed a biceps tendinosis and a subacromial decompression with bursectomy. Mrs Neal then developed a frozen shoulder on the right side, and by October 2007, Mr Barwood noted that it was stiff and painful. A hydrodilatation procedure was performed to the right shoulder, with some relief, although Mrs Neal said she still experienced pain and a restriction of movement in the area. A second hydrodilatation procedure was performed. That provided significantly more relief. There was some improved range of movement. By June 2008, Mr Barwood reported that she had a full range of motion of the shoulders without significant pain.
184 However, the improvement in the right shoulder symptoms did not continue and by 2011, Mrs Neal was referred back to Mr Barwood complaining of aches and pains in the shoulder and down the right arm. By that time, Mr Barwood had considered that she was suffering a Chronic Pain Syndrome. He noted that Mrs Neal’s bicep was cramping and locking, and thought there may have been a rupture of the biceps tenodesis. On 15 September 2011, he operated with open surgery to the right shoulder and performed a revision biceps tenodesis. He reported the surgery went without complication, although, according to Mrs Neal’s evidence, she has been left with significant disability and pain in the right shoulder.
185 Since September 2007, Dr Braun, the sports physician, has been, together with Dr Burbidge, her general practitioner, the principal treating medical officer. He said, in the right shoulder, she was still suffering from a frozen shoulder and that the surgery to repair the biceps tendon had not been successful. He received complaints from her of sleep disturbance and what he called, a “myofascial pain – fibromyalgia syndrome with pain amplification”. He did not think her symptoms in the right shoulder were likely to improve. He said that many of her recreational and domestic activities were affected, including a capacity to lift things, open jars and wash her hair.
186 According to the consultant orthopaedic surgeon, Mr Kossmann, Mrs Neal has lost about 10 per cent of left shoulder function, and 30 per cent of right shoulder function.[68] He also noted some disfigurement in the right bicep.[69]
[68]T395, L30
[69]T396, L3
187 According to the evidence of her treating psychiatrist, Dr Datta, Mrs Neal has suffered significant stress and anxiety, diagnosed initially as an Adjustment Disorder with Depressed Mood, which became a Major Depressive Disorder. He noted she had been treated by Ms Saffron, psychologist, over a number of years. He noted anxiety, depression, chronic low moods, some panic episodes and impaired concentration. She was prescribed anti-depressant medication.
188 Dr Datta believed that there were a number of contributors to her psychiatric state, including her neck injury, and other aspects of her employment, including bullying to which she was subjected, and some family issues. At the present time, she is on a high dose of Escitalopram. He thought that there would be some recovery in the future. More recently, she has received psychological treatment from Dr Zabel. Dr Datta noted that she also suffered symptoms, including fatigue, loss of libido, mental confusion and difficulty with concentration.
189 Dr Kornan said Mrs Neal was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood, together with a Pain Disorder associated with psychological features. He said she was significantly disabled.
190 According to Mrs Neal’s evidence, before the injury, she was able to “do everything”.[70] She said she was confident and enjoyed learning. As a result of her shoulder injuries, she is unable to undertake the same domestic chores she used to enjoy. She said it was difficult to do the vacuuming.[71] Many activities in the kitchen are beyond her. She is restricted in the laundry. She is restricted in carrying things in her right arm as it cramps and locks up. Her daughter needs to assist her with dressing. Her intimate life with her husband is almost non-existent. She drops things. She used to enjoy going to live music venues and dancing, but that is now beyond her. There is some scarring from the shoulder operations. She is less social, and sees less of her friends.
[70]T101, L16
[71]T102, L10
191 Mrs Neal’s employment with the Department of Corrections continued until surgery in late 2006. She has not worked since that time, and I accept that from her shoulder injuries alone, it is unlikely she will resume employment again. She has thus suffered the loss of her career, although her prior employment history before was somewhat patchy.
192 I accept that Mrs Neal had some psychological issues in the past and further, since her injury, there have been other aspects of life which have caused psychological trauma. Further, given my findings as to the causative relationship between her cervical problems and the events of the training day, an element of her psychological problems, and Chronic Pain Syndrome are related to the neck, and not to the shoulders. That element should be excluded from any assessment of damages.
193 Generally, the evidence of Mrs Neal as to the effect upon her of her shoulder disabilities was supported by the evidence of her husband, and her daughter, Emma Newman.
194 While undoubtedly Mrs Neal suffered pre-existing degeneration to both shoulders, I accept that they were asymptomatic. The events of the training day caused them to become symptomatic and I am satisfied that a cause of the shoulder problems from that time to the present was the lifting, carrying and removal of the apparatus. Mr Curtain said in submissions that damages ought to reflect the fact that, with her degenerate shoulders, it was likely, absent the injury, there would have been some event to trigger off shoulder problems. However, there is no evidence to support such a contention and, in my view, the evidentiary onus is upon the defendant in that regard.
195 In summary, Mrs Neal has suffered significant injuries to both shoulders. Left shoulder surgery has been successful, but she has been left with a significantly disabled and painful right shoulder which has been the subject of two unsuccessful operative procedures. She is left arm dominant. She has further developed a Chronic Pain Syndrome and a significant psychiatric condition, a proportion of which is related to her shoulder injuries.
196 In my view, an appropriate figure for general damages for the loss of enjoyment of life, pain and suffering is $245.000.00 (Two Hundred and Forty-Five Thousand Dollars).
197 I shall hear from the parties as to further orders.
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