Nkamba v Queensland Childcare Service Pty Ltd - [2022] QDC 292

DISTRICT COURT OF QUEENSLAND

CITATION:

Nkamba v Queensland Childcare Service Pty Ltd [2022] QDC 292

PARTIES:

CHOMBA ANNIE KABWE NKAMBA

(plaintiff)

v

QUEENSLAND CHILDCARE SERVICE PTY LTD

(ACN 056 351 181)

(defendant)

FILE NO:
ID23/2019

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Ipswich

DELIVERED ON:

16 December 2022

DELIVERED AT:

Ipswich

HEARING DATE:

1, 2, 3, 4 February and 19 April 2021

JUDGE:

Horneman-Wren SC, DCJ

ORDER:

1. Judgment for the plaintiff in the sum of $197,013.98;

2. The parties are to file submissions on costs, limited to 4 pages, by 31 January 2023 or alternatively a proposed draft order if the parties are agreed, will be filed by 31 January 2023.

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – where the plaintiff was employed by the defendant – where the plaintiff was setting up an activity yard in the course of her employment – where the plaintiff entered a shed and stood on a Lego/construction block and rolled her ankle – whether the block was present prior to the plaintiff entering – whether there was adequate lighting where the incident occurred – whether the defendant had in place a safe system of work – whether the plaintiff’s injury was caused by the defendant’s negligence

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – where an induction workbook was provided to employees – where it contained a policy requiring that, after the equipment has been taken out for morning set up, the floor area of the shed to be clear of any equipment – where the light switch for the interior of the shed was defective – where the plaintiff notified her supervisor of the defect – where there was a maintenance book in which the defect could have been noted by the plaintiff – where the plaintiff did not write the defect in the maintenance book – whether the plaintiff is guilty of contributory negligence

DAMAGES – ASSESSMENT OF DAMAGES IN TORT –whether the plaintiff failed to mitigate her loss – whether the plaintiff is incapacitated to perform her former role – whether there was permanent impairment – whether the psychiatric condition was caused by the injury

LEGISLATION:

Worker’s Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’)

CASES:

Benic v New South Wales [2010] NSWSC 1039

Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329

Strong v Woolworths Limited (2012) 246 CLR 182

COUNSEL:
C Newton for the plaintiff
O Perkiss for the defendant

SOLICITORS:
McNamara Law for the plaintiff
BT Lawyers for the defendant

Introduction

Generations of parents have admonished their children to put away their building blocks lest someone stand on them. That common and simple caution inherently recognises that a block on the ground may pose a risk to a person who steps upon it. On 29 August 2017, the risk posed by a block on the ground was realised by the plaintiff, Mrs Nkamba. In the course of setting up an activity yard at the defendant’s childcare centre at which she was employed she stepped backwards and down from a storage shed onto an area covered with artificial grass on which there was a small block.[1] Her ankle inverted. She fell. How the block came to be there is central to this case.
[1]The precise dimensions of the block were not established by the evidence, the particular block itself not having been identified.
Having stepped on the block and inverted her ankle, Mrs Nkamba immediately felt pain. She had, it would subsequently be discovered, suffered a disruption of the anterior talofibular ligament of her right ankle joint. The therapeutic treatments which she received had only limited success and she suffers from a residual impairment. Her lack of physical improvement and the persistence of her injury, pain and associated impacts to, and limitations upon, her work and daily living caused her to become depressed such that she suffered an adjustment disorder with depressed mood from which she still suffers residual symptoms.
Mrs Nkamba claims that her injuries were caused by the negligence of her employer, the defendant. She brings this proceeding seeking damages. For the reasons which follow, her employer was negligent and her claim should be allowed.
The parties pleaded cases
It is convenient at the outset to make some observations about the parties, respective, pleaded cases. For reasons developed later, the cases as conducted, but particularly that of the defendant, were not entirely consistent with the cases as pleaded.
The plaintiff pleaded duties owed to her by the defendant in the following terms:
“Duties at law and as prescribed by s 305B of the Workers’ Compensation and Rehabilitation Act 2003 to provide a workplace free of significant and foreseeable risk of injury.”[2]
[2]Further amended statement of claim, para 2(d).
The defendant denied it owed the plaintiff those duties because:
(i)they do not properly state the duty of care owed by the defendant to the plaintiff;
(ii)the duty owed by the defendant to the plaintiff was a duty to take reasonable care to avoid the unnecessary risk of foreseeable injury arising out of the plaintiff’s employment as modified by the operation of ss 305B, 305C and 305D of the Workers’ Compensation Rehabilitation Act.[3] It is a fact agreed between the parties that the defendant owed the plaintiff a duty in terms that it set out at (ii):[4]
[3]Amended defence, para 2(b).
[4]Agreed facts, Exhibit 2, agreed facts, para 6.
The plaintiff pleads the facts relevant to “the accident” as follows:
“At or about 5:55 am to 6:00 am, on or about 29 August 2017;
(a)the plaintiff having arrived in darkness at the workplace at approximately 5:30 am;
particulars: the work roster was from 6:00 am but parents start dropping children at that time and the defendant expected staff to have the Senior Kindy Yard (“SKY”), the Junior Kindy Yard and the Baby Yard all set up before that;
(b)the plaintiff was accessing a storage shed (“the shed”) to set up an obstacle course in the SKY;
(c)the plaintiff was working alone at the request of Beth Westgate as Beth was late to arrive so the setup was being performed under time pressure;
(d)the shed has a roller door and a stepdown from its floor level to an artificial grass surface (“the grass”);
(e)as the plaintiff dragged a triangular A-frame from the shed she stepped backward down to the grass;
(f)as the plaintiff dragged the plaintiff stepped on plastic building blocks;
particulars: four piece square block hereinafter “the block”;
(g)the block, unbeknownst to the plaintiff, was dragged out of the shed in the course of the setup;
(h)the plaintiff could not and did not see the block in the shed because;
(i)a regular overhead light (as distinct from a floodlight of any description) on the building face was of poor quality and did not shed any or any adequate light into the shed;
(ii)the internal fluorescent light did not operate at the time probably because the switch was defective;
particulars: on or about the same shift one week prior the plaintiff was working with (Natash Katte “Katte”) when the defective light was observed and Katt said she would write it down in the maintenance book. On 29 August 2017 and prior to the accident, the plaintiff reported the continuing defective light to Beth who advised her it had been reported the previous week and maintenance would fix it;
(i)the plaintiff rolled her right ankle and fell to the ground suffering injury; which events are hereinafter referred to as ‘the accident’.”[5]
[5]Further Amended Statement of Claim, para 3.
The defendant denies those allegations because:
“(a)they are untrue;
(b)the allegations therein do not accurately reflect the plaintiff’s actions on 29 August 2017;
(c)the defendant does not know and cannot admit the plaintiff rolled her right ankle and fell to the ground. The defendant has made reasonable enquiries and cannot ascertain the truth or otherwise of the allegations;
(d)the defendant says if the plaintiff rolled her right ankle and fell to the ground (‘the incident’) (which is not admitted):
(i)the incident occurred at approximately 6.05 am;
(ii)it was light at the time the incident occurred;
(iiA)the plaintiff was working with Bethany Westgate in the setup of the Senior Kindy Yard;
(iii)the plaintiff was working alone accessing a storage shed to set up an obstacle course;
(iv)the plaintiff had been trained in how to access the storage shed and how to set up the obstacle course;
(v)the task of accessing the storage shed to set up the obstacle course was a task that could be safely performed by one person;
(vi)the plaintiff was not working under pressure;
(vii)the term ‘under pressure’ is vague, embarrassing and has not been properly particularised;
(viii)the shed:
(A)     was well lit by a floodlight above the roller door, which provided light to the area immediately inside the roller door, and the area outside the roller door;
(B)     was tidy;
(C)     had a step at the entrance;
(D)     the step was clearly delineated from the ground;
(E)     the step was red in colour;
(F)     the outside area was artificial grass and green in colour;
(e)the defendant does not know and cannot admit the plaintiff stepped on a plastic building block. The defendant has made reasonable enquiries and cannot ascertain the truth or otherwise of the allegation;
(f)the defendant says if the plaintiff stepped on a plastic building block, which is not admitted, the block:
(i)was brightly coloured;
(ii)was obvious;
(iii)prior to the incident had been stored in the storage shed on racking inside the storage shed;
(iv)was knocked to the ground by the plaintiff prior to the incident in the course of dragging out part of the frame from the obstacle course;
(v)was apparent to the plaintiff;
(vi)was observed or ought to have been observed by the plaintiff prior to the incident;
(g)the defendant says the shed and surrounding area was well lit by:
(i)Natural daylight;
(ii)Floodlight on the front wall of the shed, which:
(A)     was on at the time of the incident;
(B)     operated on a timer between 5.00 pm and 7.00 am daily;
(C)     lit the area inside the shed and in front of the roller door;
(h)the defendant denies the plaintiff was injured; whether as alleged or at all;
(i)the defendant says if the plaintiff suffered injury, which is denied, any injury was a minor ankle strain which resolved completely within weeks, causing no ongoing symptoms or impairment.”[6]
[6]Amended Defence para 3.
The allegations that the accident was caused by its negligence are denied by the defendant because:
“(a)   They are untrue;
(b)The events alleged in paragraph 3 of the Statement of Claim did not occur, by reason of the matters pleaded in paragraph 3 of this defence;
(c)Any injury sustained to the plaintiff was not sustained in the circumstances alleged in paragraph 2 of the Statement of Claim;
(d)The defendant was not negligent, whether as alleged or at all;
(e)The defendant had in place an adequate and safe system of work;
(f)The defendant provided adequate and safe plant and equipment;
(g)The defendant adequately trained and instructed the plaintiff in tasks she was required to perform;
(h)The defendant adequately trained and instructed the plaintiff and its staff, which included training and instruction in:
(i)Safe lifting- training and techniques;
(ii)Hazard identification;
(iii)Cleaning:
(A)     In the defendant’s Queensland Childcare Services Induction Workbook – v 10 at 25.0 – Cleaning, it states “each staff member is responsible for their own playroom, set of toilets and room equipment. These areas must be kept clean and tidy at all times”; and
(B)     In the defendant’s Queensland Childcare Services Induction Workbook – v 10 at 51.0 – Shed, Storeroom and Cupboard Policy, it states “staff are to ensure all sheds are fully unpacked when setting up in the morning and to ensure all equipment is neatly packed away into the shed in a safe and secure manner”.
(iv)Incident reports/documentation:
(i)The plaintiff was not required to work in the dark or in poor lighting;
(j)The lighting in the area was proper and adequate;
(k)The block was properly stored prior to the incident;
(l)The block was not laying [sic] on the floor prior to the incident;
(m)If the block was on the floor, it was on the floor because it had been knocked to the floor by the plaintiff and the plaintiff failed to pick it up prior to moving the frame;
(n)The exercise of reasonable care did not require the defendant to engage the plaintiff to start work earlier or provide additional time to set up the obstacle course;
(o)The defendant provided adequate lighting, namely a floodlight on the front of the shed;
(p)The defendant provided adequate staffing numbers to perform the work activities;
(q)The defendant complied with its obligations pursuant to the Work, Health and Safety Act 2011;
(r)The obligations imposed on the defendant under the Work, Health and Safety Act do not constitute duties owed by the defendant to the plaintiff;
(s)The plaintiff may not maintain any action against the defendant in respect of any breach of the defendant of its obligations under s 267 of the Work, Health and Safety Act;
(t)The incident could not have been prevented by the exercise of reasonable care by the defendant.”[7]
[7]Amended Defence paragraph 4.
The plaintiff alleges that as a consequence of the accident she suffered injuries comprising a right ankle injury with damage to the anterolateral ankle joint and anterior talofibular ligament and an adjustment disorder with depressed mood. She pleads she has suffered loss and damage comprising out of pocket expenses, past economic loss and future economic impairment and that she will incur expenses in the future.[8]
[8]Further Amended Statement of Claim paragraphs 5 and 6.
The defendant denies these allegations as being untrue. As to the alleged injuries it pleads that the applicant was not injured at all. It pleads she has not suffered the alleged losses. It pleads that she has not suffered the symptoms and sequelae alleged.[9]
[9]Amended Defence paragraph 6.
Although not pleaded in the alternative to the earlier assertion that the plaintiff was not injured at all, the defendant pleads that any injury which she did sustain is de minimis, was a minor muscle strain which resolved in weeks, caused no ongoing symptoms or impairment and does not constitute compensable loss and damage. It denies her having suffered psychological injury and pleads that any psychological symptoms she suffers are not caused or contributed to by any injury sustained in the course of her employment and are the consequence of a pre-existing psychiatric disorder.
It pleads that she does not suffer any functional physical impairment at all, and that any injury sustained by her is properly characterised as a minor ankle injury and should be accorded an Injury Scale Value of zero.
The defendant further pleads that:
“(k)The plaintiff was not incapacitated for work by reason of any injury sustained in the course of employment beyond 29 October 2017;
(l)The plaintiff has an unrestricted capacity to work;
(m)The plaintiff has not suffered past economic loss whether of the quantum alleged or at all;
(n)Any past economic loss the plaintiff suffered has been fully reimbursed by WorkCover Queensland, which compensation must be deducted from any judgement the plaintiff obtains against the defendant pursuant to s 270 WCRA;
(o)The plaintiff remains fit and capable of working as a childcare worker;
(p)The plaintiff had not in the past and would not in the future earn $800 net per week;
(q)The plaintiff has not suffered any impairment of future earning capacity and will not suffer economic loss, whether of the quantum alleged or at all;
(r)The plaintiff has not in the past and will not in the future suffer loss of employer funded superannuation contributions;
(s)The plaintiff has not in the past and will not in the future require medication, treatment expenses or incur other special damages;
(t)Any special damages the plaintiff has incurred will be fully reimbursed by WorkCover Queensland, which sums must be deducted from any judgment the plaintiff obtains from the defendant pursuant to s 270 WCRA;
(u)Any loss the plaintiff has sustained and the type alleged is causally unrelated to injuries sustained in the course of employment with the defendant;
(v)The plaintiff had not commenced nursing qualifications prior to the incident and had taken no steps to secure appropriate qualifications or employment to facilitate work as a nurse;
(w)The plaintiff had no intention and never had any intention as working [sic] as a nurse;
(x)The plaintiff had no skills, qualifications, experience or other skills to permit her to obtain employment as a nurse or in the nursing industry;
(y)The plaintiff remains fit to work as a nurse.”[10]
[10]Amended Defence paragraph 6.
The defendant further pleads the plaintiff has failed to mitigate her loss by failing to seek and obtain employment with similar remuneration when she is fit to do so and by failing to return to her employment with it when she was fit to do so.
The following observations may be made about the pleaded cases. At paragraphs 3(d)(vi) and (vii) the defendant pleads, inconsistently, that the term “under pressure” is vague, embarrassing or not properly particularised, but nonetheless pleads, in an apparent understanding of the term, that the plaintiff was not working under pressure.
The plaintiff pleads, at paragraph 4(a) of the Further Amended Statement of Claim, a failure of the defendant to rectify lighting defects in the shed “despite being on notice of the defective light”. At paragraph 4(b) she pleads that the defendant exposed her to a risk of injury from the absence of proper lighting when it was on notice of the problem. She does not provide particulars of the allegation of fact that the defendant was “on notice”. The defendant does not, other than by its general denial of all the allegations in paragraph 4 of the FASOC because they are untrue,[11] and because it was not negligent,[12] join issue with the allegation of fact that it was “on notice” of the defective lighting.
[11]Amended Defence paragraph 4(a).
[12]Amended Defence paragraph 4(d).
By paragraph 3(d)(viii)(a) of its Amended Defence, the defendant asserts that the shed was well lit by a flood light above the roller door which provided light to the area immediately inside the roller door, and the area outside the roller door. It does not assert that the shed, beyond the area immediately inside the roller door, was lit by the flood light above the roller door or by any other light source.
By paragraph 3(g) of its Amended Defence the defendant asserts that the shed and surrounding area was well lit by natural daylight and a flood light on the front of the shed which “lit the area inside the shed”. It, again, does not assert that the inside of the shed was lit by a light within it. Similarly, in denying the plaintiff’s allegations of negligence, including the failure to rectify the lighting defects despite being on notice of them and exposing the plaintiff to a risk of injury from the absence of proper lighting, the defendant pleads that it provided “adequate lighting, namely a floodlight on the front of the shed”. It asserts no provision of adequate lighting by a light within the shed.

For reasons developed later, the pleading of the adequacy of the light in these ways is of some significance.
The plaintiff’s account of the incident
Mrs Nkamba was rostered to commence work on the day of the incident at 6am. She said that she arrived “at about 5.30ish”.[13] She explained that when rostered to commence at 6am she would arrive early because three yards had to be set up and parents would commence bringing their children to the centre as early as 6am and that the rostered staff would start opening for the parents “at about 5 past, or so”. She further explained that “if you started at 6, you would not be able to finish setting up the yards before the children arrived”.[14]
[13]Trial transcript 1-14
[14]Ibid 1-15.
Mrs Nkamba had originally been rostered to commence at 7.30am on that day. However, the staff member who was to commence at 6am had become unavailable and Mrs Nkamba had been asked to commence at 6am and open in her place. Mrs Nkamba was not the senior person commencing at that time and performing the opening on that day. The senior person was Beth Westgate. Ms Westgate was designated as a group leader. Mrs Nkamba explained that the senior person would have the keys to open up. The junior person did not have keys.
Mrs Nkamba said that Ms Westgate arrived “at quarter to six”. Having opened the front door and entered the centre, Mrs Nkamba said that Ms Westgate told her “you do the Senior Kindy, I will do the other side”.[15] This was a reference to separate areas within the centre. The area which Mrs Nkamba was tasked to set up was the Senior Kindy Yard. Mrs Nkamba said that this was a change from usual practice which was that the two staff members engaged in setting up worked together.
[15]Trial transcript 1-17.
Mrs Nkamba knew where the keys for the shed for the Senior Yard were, so she went and got them and opened the shed. The shed contained various pieces of play equipment which had to be taken from the shed into the yard and set up. The equipment included items such as toys for the sandpit, small tricycles or pushbikes and items used in the construction of an obstacle course. The latter included benches and A-frames.
No plans of the shed were put in evidence. Nor is there evidence of its dimensions. From the few photographs of it which are in evidence it can be described as a brick structure with a roller door entrance. At the entrance there is a step which appears to be about one and a half bricks in height. Outside is artificial grass.
Mrs Nkamba described first removing the pushbikes which she explained had to be removed to gain access to the obstacle course equipment. However, having removed the bikes, she took out the benches which were smaller items used in the obstacle course after which she was going to get the frames which were the biggest components of the obstacle course equipment. She described having to drag out the frames. Usually, when two people were working together on the opening, the frames could be lifted and carried out.
Mrs Nkamba described grabbing the A-frame in the middle and trying to pull it out walking backwards. As she did so, and as she was stepping out from the shed, she described standing on something, tripping and falling. When she checked, she saw that what she had stepped on was a building block.
Mrs Nkamba said that at no time prior to falling did she observe the block. When asked whether she knew how the block came to be on the ground where she stood on it she said:
“In my understanding, because I had already been in and out of the shed … more than three times because I had to get the things that were around there, and, in my understanding, when I tripped on this, the first thing that was – I came to remember that this block must have been in the way of one of the legs, – the right leg – of the frame because I had been in and out. So, if it was anywhere in the way, I would have stepped on it or kicked it or something.”[16]
[16]Trial transcript 1-23.
When shown a photograph of the inside of the shed taken in January 2019,[17] she said that the frame that can be seen was not the same frame as that which was there on the day of the incident. She described the A-frame that was there on that occasion as being bigger and that it was not lying on its side as the one depicted in the photograph is. It was standing up.
[17]Exhibit 1, page 72.
From another photograph,[18] Mrs Nkamba identified a light above the roller door which she described as “a normal light” by which she meant that it had a normal bulb and was not a floodlight. As to the lighting in the shed at the time of the incident she said, “there was no lighting in the shed … so it was dark”.[19] As to whether there was reflected light from the external overheard light she said “it was very dim. So it was dark in the shed”[20].
[18]Exhibit 1, page 71 (also replicated at Exhibit 1, page 75)
[19]Ibid.
[20]Ibid.
From a further photograph,[21] Mrs Nkamba identified a fluorescent light which was located on the interior ceiling of the shed. She said that she was not aware of any time when that light worked. She said that about a week before the day on which the incident occurred, when performing and opening with a person named Natash, they spoke about the need to have the light fixed because it was not working and because it was winter and it was dark. She described how, when they went to do the opening, they “would try to fidget with the switch, it was loose”.[22]
[21]Exhibit 1, page 82.
[22]Trial transcript 1-25.
Of the previous week when she did the openings with Natash she said, “we’re like, ‘yes, we have to – we have to put it in the book’. And Natash, being the person in charge said, ‘I’m going to record it in the book for – for this’ or ‘I’ll record it in the maintenance book’”.[23]
[23]Ibid 1-26.
On the day on which she fell she gave evidence of having had a discussion with Beth about the light in the shed. She said:
“When Beth arrived as we’re walking in, setting up, I was like, ‘was that light fixed?’ so we had this discussion about lighting. And Beth’s response was, ‘yes, yes, we’re aware. It’s been recorded to be fixed. It’s already in the maintenance book’. And you’re like, ‘so you know we are going where – or still going to deal with a shed without a light’. So there was a discussion.”[24]
[24]Ibid.
Mrs Nkamba said that after she fell she could not put weight on her foot, so she “hopped and walked – limped” towards the shed, closed and locked the shed. She started hopping into the closest room and yelled out for Beth. Beth did not come to her because she could not leave reception as there must have been a parent there, so Mrs Nkamba hopped through and told Beth that she had hurt herself.
Mrs Nkamba was shown a Staff Incident Report Form which had been completed in relation to the incident.[25] She identified those parts of the form which she completed. Those parts were: her name, the date and time of the incident; the description of the incident; and that part of the action which records “ice pack applied”.
[25]Exhibits 1, page 74.
When her attention was drawn to the time of the incident having been recorded as “06:05”, she explained that this was the time when she was filling out the form and that the incident, including locking the shed and hopping back, had all happened before 6am.
The details of the incident as recorded by Mrs Nkamba in the report were:
“I was setting up the yard in the senior kindy yard this morning when I tripped and twisted my right ankle. I was getting the obstacle course frame and as I pulled it out of the shed a plastic block moved and dropped on the ground as I just stepped out and that’s what I tripped over.”
Mrs Nkamba was reminded that “the defence pleads that what that means is you knocked the block off the shelves onto the floor and that’s what you tripped on”. To that proposition Mrs Nkamba responded “that’s not correct because that’s not what happened. All of the blocks were stored into the crates and on the day I didn’t set up any building blocks”.[26]
[26]Trial transcript 1-30.
Asked if she touched any of the crates, she answered, “I didn’t touch any. And the frame I was dragging didn’t touch any – any blocks and it did not touch the shelves”.
In cross-examination, Mrs Nkamba was shown a copy of her WorkCover Queensland claim form also completed by her on 29 August 2017, with the assistance of her husband, in which she identified 6:05am as the time at which the injury happened. When asked if she accepted that the injury occurred at that time she said, “according to the incident report. So I do not accept it happened at 6:05”.[27]
[27]Ibid 1-62.
Mrs Nkamba was questioned about her answer to the question “how did the injury happen?” which was “tripped while setting up play yard”. Particularly, she was asked whether she accepted that there was no mention of the Lego block in that description. Mrs Nkamba explained, “there isn’t because of the space. I did say all of those things, and then he said to me, well, there’s not enough space to fill in there”.[28]
[28]Ibid 1-63.
It was also put to her that there was no mention in the description of how the injury happened that it was because the light was poor or inadequate to which she responded, “yeah, all that wasn’t there because of the space on this form”.
It is to be noted that the box on the form for providing a description of how the injury happened is only seven centimetres long and is sufficiently deep to accommodate only one line of writing. In fact, the six words written in response to the question did not fit entirely within the box. Mrs Nkamba’s explanations as to why the greater details were not provided seems not only entirely plausible but self-evident. Furthermore, the absence of any reference to poor or inadequate lightning in this form should be viewed in the context of her answering the question as to ‘how’ the accident occurred, not ‘why’.
Counsel for the defendant reminded Mrs Nkamba of that part of the description of the incident in the incident report where she said: “I pulled it out of the shed, a plastic block moved and dropped to the ground as I just stepped out” and asked whether she accepted that the block fell because of her movement of the A-frame out of the shed.
Mrs Nkamba answered, “Yeah. Like I said, it must have been in the line of the A-frame, so dropping onto the ground, it was – must have been on the floor in the line of the A-frame”.[29]
[29]Ibid 1-70.
Mrs Nkamba rejected the suggestion that she heard the block “drop to the floor”.
It was then put to her that as she was moving out, “You have basically become the victim of your own misfortune and tripped on the block that had fallen”. To this suggestion Mrs Nkamba said:
“Well, as you said, I had gone in and out of that shed, so when I said according to my understanding, if it – it didn’t drop off the shelf. It was in the line. So as I dragged, it must have moved with the frame, and it has dropped. Dropping meaning from a level to the ground, so not that I heard it dropping and stepped on it”.[30]
[30]Ibid.
There was then the following exchange:
“I’m suggesting to you that the Lego block dropped as you dragged out the A-frame - - -?---Yes.
- - - on the floor as you were pulling the A-frame out. You’ve heard it drop?---I did not hear it drop.
Well, you knew that it had dropped on the floor because you said in your statement, ‘that as I pulled it out a plastic block moved and dropped on the ground as I just stepped out’?--- Yeah, because I say that because I had been in and out of the shed and it wasn’t on the ground so---
So it wasn’t left there the night before, was it? The block was not left there the night before?---I wasn’t there the night before.
No. And it wasn’t there in the morning when you opened up?---It wasn’t in the way where – it wasn’t anywhere where I could have stepped on it. So when I said it must have moved with the frame, meaning it must have been in the line of the leg for the frame because it was anywhere where I’d been in and out more than three times.
And that is because you could see the floor of the shed, couldn’t you?---No, I couldn’t see the shed. I’d taken out things in – in the – in the – where I was going in and out, I’d taken out the pushbikes. So there were things that I’d already taken out; the big objects.
And you had seen the location of these objects. You’d seen the pushbikes. You’d seen the A-frame. You could see the floor?---It’s – it’s a situation where you’re familiar. You have been doing open and close and you know where things are. So seeing them as seeing the colours. I would not say I was – I was seeing them as because of the light. I knew where those things were kept.
You also could see the Lego block because you knew what colour it was and what it looked like, didn’t you?---I didn’t see the colour of the block. I did not see the block. That’s not correct.”[31]
[31] Ibid 1-70 – 1-71.
Mrs Nkamba frankly conceded that when she walked into the shed and saw the A-frame she did not see the block. The question was asked, so it seemed, to establish that if Mrs Nkamba could see the A-frame, she would also have been able to see the block. That should not be accepted. First, Mrs Nkamba said she was generally familiar with where the equipment was. It is one thing to locate something you expect to be there, another entirely to see something unexpected. Secondly, the A-frame was considerable larger than the block
Later she was asked, “And when you walked into the shed and you saw the A-frame you didn’t see the block on the floor at that time?” and she answered, “No”.[32]
[32] Ibid 1-71.
It was then put that she did not see it at that time “because the block, in fact dropped as you pulled the A-frame out” to which suggestion she responded, “It did not drop from the shelf”.[33]
[33] Ibid 1-72.
In these exchanges, defence counsel put the defence case, as pleaded at paragraph 3(f) of the amended Defence, that in the course of dragging out the A-frame Mrs Nkamba knocked a block which had been stored on racking inside the shed causing it to fall.
This case was again put to Mrs Nkamba shortly afterwards, when having confirmed she had been in and out of the shed three times, she was asked:
“And the reason why you didn’t see the Lego is because say, it’s the third time you’ve come out, that is when you have knocked the block and it’s fallen to the ground and you’ve tripped on it?”[34]
Mrs Nkamba answered:
“Block being on the floor is the fact that [indistinct] to me was that when I moved this frame, this block must have been in the way of the leg of the frame, because I have been in and out and I’ve not stepped or kicked on anything”.[35]
[34]Ibid 1-73.
[35]Ibid.
There immediately followed an exchange in which Mrs Nkamba gave a very important explanation. When asked:
“But yet in your contemporaneous incident report, completed moments after the event occurred on your evidence, you say that the block dropped and fell to the floor?”[36]
Her answer was, “What I meant by dropped was as it’s being dragged with the frame, it has dropped from the floor of the shed onto the ground”.[37]
[36]Ibid 1-74.
[37]Ibid.
By that explanation of “dropped”, Mrs Nkamba made plain her distinction between the floor of the shed and the ground outside. A close analysis of her evidence demonstrates that it is a distinction she maintained consistently throughout as to where the block fell and from where it fell from. She consistently gave evidence of her understanding that the block must have been on the floor and fell to the ground in the course of her moving the A-frame. That evidence, consistently given, is also consistent with the incident report.
By contrast, the case put by defence counsel did not distinguish between the floor and the ground. The questioning proceeded as though they were interchangeable expressions for where the block had fallen to. This is particularly apparent from the question asked in the last quoted exchange which elicited Mrs Nkamba’s explanation. In purporting to recite back to Mrs Nkamba what she had recorded in her description of the incident in the incident report, counsel had said, “You say the block dropped and fell to the floor”. That is inaccurate. What Mrs Nkamba had said in the incident report was “a plastic block moved and dropped on the ground”.
The defence case, as pleaded and as conducted, proceeded from a misunderstanding of what had been described by Mrs Nkamba in the incident report.
There is further evidence in support of the distinction which Mrs Nkamba makes between the floor and the ground and that the dropping of the block which she describes was from the former to the latter.
I have already referred to the photograph of the exterior of the shed at page 71 of Exhibit 1. That photograph has been written on by Mrs Nkamba. She gave evidence of having marked an arrow on it and written the word “ground”. The arrow commences on the raised floor of the shed and describes a downward arc onto the ground below upon which she has written “ground”. On the photograph on page 72 of Exhibit 1 which shows the open shed, the A-frame lying in a position said not to be the position in which the A-frame was on the day of the incident, and various pieces of equipment on shelves, there are also written notations. There is an arrow pointing to the concrete slab inside the shed upon which is written the word “floor”. Whilst there was no direct evidence concerning the hand-written markings on the photograph on page 72 of Exhibit 1, given Mrs Nkamba’s evidence that the markings on the photograph at page 71 were hers,[38] and given the evident similarity in the writing itself, the use of an arrow (it too very similarly drawn) and the evident purpose of the markings to identify an area within the photograph, should it have been disputed that it was her handwriting on page 72, I would readily have concluded that it was.[39]
[38]Ibid 1-20.
[39]Section 159(2) Evidence Act 1977.
Apart from Mrs Nkamba’s denials that she had knocked the block to the floor, there was other evidence which contradicted the defence’s contention that this was how the block came to be there.
Bethany Westgate was a lead educator with the defendant and with whom Mrs Nkamba was setting up the Senior Kindy Yard on the day of the incident. Ms Westgate gave evidence that, unlike the A-frames depicted in the photograph at page 77 of Exhibit 1, which she described as being “concertinaed inside each other” the A-frames were usually stacked standing up. Although Ms Westgate could not exactly recall how they were positioned, this was consistent with Mrs Nkamba’s evidence that they were standing up on the day of the incident.
Ms Westgate said that when stacked in a standing position, as they usually were, the base of the frame would be towards the right-hand side of the shed as seen in the photographs. In that position they would taper away from the right to the left from the base to the apex. That taper would result in the frame becoming progressively further from the shelving on the right-hand side of the shed where the boxes containing the blocks were located. Mrs Nkamba had described grabbing the frame in the middle as she tried to pull it out walking backwards. Judging by the angle of the frame as best one can from the photograph, it would seem to me that grabbing and pulling a frame stacked in that way in that position would not cause the frame itself to come into contact with the shelving where the blocks were located. It would seem unlikely that part of the body of the person grabbing and pulling the frame would make contact either.
Mrs Nkamba agreed that she did not have a code to enter the centre on the day of the incident, “because I was not their certified supervisor. Beth was the one in charge”.[40] It was put to Mrs Nkamba that a swipe report would demonstrate what time she entered the centre with Beth. That evidence would have been wholly in the defendant’s control. It led no evidence of whether Mrs Nkamba arrived according to its own records.
[40]Trial transcript 2-88.

When put to her that both she and Ms Westgate were in the yard on that day, she said: “We’re not both in the yard. Beth was on the other side”. She went onto to explain:
“She was doing the – the – kindy yard. So we have the senior kindy and the kindy yard and the baby yard. So she was on the other side. I would not specifically say she was – she was on – in the kindy end because I would have heard her. So she was on the other side. That’s why I’m saying she was on the other side.”[41]
[41]Ibid 2-93.
Mrs Nkamba that she had a direct recollection of a conversation before the incident with Natash Katte when Natash was in charge, about the lighting in the shed in which Natash said that she would put it in the maintenance book. Mrs Nkamba said that any educator could make entries in the maintenance book, but she had not written in it about her concerns in regard to the lighting “because Natash said she would write it and the week I was doing – the day I did the opening with Beth on the Monday – on a Tuesday, said that’s something that it was already in the book and that they were aware of it. So I personally did not write. The person in charge the week before, Natash, said she would write it down”.[42]
[42]Ibid 2-94.
Mrs Nkamba again gave evidence that on the morning of the incident she asked Beth Westgate if the light had been fixed and Ms Westgate had said that it had not been, but that it had been reported and it would be fixed. She rejected the suggestion that there had been no such discussion.
When Ms Perkiss suggested to Mrs Nkamba that she could see the A-frame when she opened the shed door, she said “I couldn’t see the A-frame. It was dark in there. I could see that this is the shed, and being familiar of – being familiar with the place, you know you’re going to take equipment out of there.”[43]
[43]Ibid 2-97.
She again described entering the shed, grabbing the A-frame somewhere in the middle and starting dragging it out. It was put to her that as she as dragging the frame “you haven’t seen the block that has dropped on the floor, have you?” Mrs Nkamba responded “no”.[44]
[44]Ibid.
She was then asked “and – but if the A-frame were in that position, do you accept that there is nothing in terms of the A-frame that would be obstructing your view to see the block?” To that Mrs Nkamba answered:
“It was dark, so like – like I said yesterday, I mean, you are talking about dropping the block. I don’t see how the block would drop if it was stored in the – in the crates that we would – that we would keep them in, and that is why I have a problem each time when you are talking about a block dropping. So when you’re talking about dropping, for me, when I – when I was dragging it, so it’s not like it’s dropping from a level from the shelf. And when you say seeing it, it was dark and we are familiar, so when you’re taking things out, you go in and you get them.”.[45]
[45]Ibid.
That evidence again demonstrates that the defence was putting a case – the block dropping to the floor from a shelf, rather than from the floor to the ground – seemingly on a misunderstanding of the description of the incident provided by Mrs Nkamba in the incident report. It also reiterates her evidence that she was entering a dark, but familiar, environment where the location of items to be removed was generally known to her.
It was next put to her, “and therefore, all you’re doing is just drawing an assumption of what you think happened on 29 August 2017?” To which she responded:
“Just like you’re leading me to say it dropped from the shelf, my reasoning, not assumption, is for the block – my reasoning was that it should have near the – one of the lengths of the frame.”[46]
[46]Ibid.
The cross-examination continued:
“But it – but you don’t know that do you? You don’t know that the block was there, do you? --- I don’t know except when I tripped it, so if I knew then I would have avoided it, which I didn’t see any.
So again, that’s just an assumption that you’re drawing as to the circumstances of the event? --- that’s my reasoning, not assumption.”[47]
[47]Ibid 2-97 – 2-98.
When it was put to Mrs Nkamba that she did not see any block on the ground she said “it was dark and I didn’t see any block, and like I said, they had taken things out. If there was anything in my way, which even if I did see, I would have kicked.”[48]
[48]Ibid 2-98.
Mrs Nkamba was cross-examined about the exterior light mounted on the shed which she had described in her earlier evidence as normal and not a flood light. She again rejected the suggestion that it was a flood light.
Following this, she was asked:
“Okay, and that the block, the plastic block, – so as you are pulling out the A-frame, the plastic block moved, it dropped to the ground and then you stepped on it?”[49]
[49]Ibid 2-99.
Mrs Nkamba answered:
“To my reasoning, because I had been in and out of the shed, and my reasoning, like I said, I think that’s what’s happened. It must have been in the way of the right leg of the – of the A-frame. So whilst I’m in the middle, so obviously it will be the first thing to go out before I even step down. That’s my reasoning.”[50]
[50]Ibid.
She was then asked if there could have been a cause or reason for the block to have fallen when she had gone into the shed or putting her arms into the shed, she said:
“This building blocks were mainly stored in the crates, so it never left anything on the – loose on the – on the shelves, yes, so it was in the crate.”[51]
[51]Ibid.
She was then asked:
“Yes. And isn’t it the case that the people who do the pack up of a night-time, have to do a thorough check of the shed to make sure that it’s all put away safely?”[52]
[52]Ibid.
Mrs Nkamba answered:
“Yes, unless someone didn’t do their job.”[53]
[53]Ibid.
That answer prompted this question:
“And that could be the only possible or probable cause if someone didn’t do their job and the block was left on the floor?”[54]
[54]Ibid.
She answered:
“Well, then that’s not my – that’s what has caused my accident, then.”[55]
[55]Ibid.
The following exchange then occurred:
“And what I’m going to suggest to you is that the – with the pack-up, as part of the procedure of the defendant’s system of work, is that once the shed is packed up, the shed then needs to be reviewed and it needs to be sighted off and signed off as being clean and everything packed away? --- I tell you, the reality of opening and packing up, normally you would be under the pump where we still have children and you don’t have time. You still have children and you’re working in the ratios, to a point where you’d – when you start packing, you’re friends with the children so the person packing may not even be careful enough to pack properly or even for the next person to come and sign to say you’ve packed properly because we are trying to still maintain the ratios. We don’t have that extra person, I wish we could, or could kind of help with the packing. So they sign in to make sure that that was done, if it was – if the signing was done, it would tell you what the reality is different.”[56]
[56]Ibid 2-100.
Implicit within Mrs Nkamba’s answer is an acceptance of the primary proposition that there was, as part of the defendant’s system of work, a review of the shed after it is packed up to establish that the shed is clean, and everything packed away. It also implicitly accepted the secondary proposition that the cleanliness and tidiness must be signed off. Mrs Nkamba’s answer, although implicitly accepting those two propositions, was that the reality was different to the observance of the policy. Given that evidence, one would have expected evidence to be adduced in the defendant’s case proving both the existence of the policy and its observance on the day prior to the incident, both as to there having been a proper and tidy packing of the shed and that fact having been signed off.
For reasons which will be developed more fully, the policy was, at least to an extent, proven. Its observance was not proven, notwithstanding that counsel for the defendant said in her opening, that evidence would be adduced that it was. The evidence which was actually adduced would comfortably satisfy me that the policy was not observed, both generally and specifically, on the day before the accident..
Mrs Nkamba agreed that she had walked in and out of the shed in the Senior Kindy Yard, including stepping up and off the ledge at least three times without injury.
She was asked about the A shape of the frame. When asked if there was a middle bar, she said “not that I can remember”. She agreed it was “just up and down and clear in between”.[57]
[57]Ibid 3-3.
She was asked, immediately following:
“Yes. And so, by the time you had gone back into the shed on, at least, after of these three occasions to get the A-frame, there was nothing obstructing underneath the shed, was there – underneath the A-frame?”[58]
[58]Ibid.
Mrs Nkamba answered, “there was nothing”.
When it was put to Mrs Nkamba that as she walked backwards dragging the a-frame out of the shed, at no time did she check whether it was safe for her to place her right foot on the grass before stepping off the ledge of the shed. She explained:
“I did not check – because I – like I said, I had been in and out …. So obviously with the confidence that I have been – that there’s nothing in my way, I am going backward and that’s how I was going. So, for me to start checking when I’ve already been in and out, I didn’t see any danger in the way, I did not check.”[59]
[59]Ibid 3-5.
It was then put to her “because, when you walked in and out of the shed, the Lego block was not on the grass floor outside the shed, was it?”. Mrs Nkamba agreed that it was not.
It was then suggested that “the critical point is that you didn’t look where you were stepping your foot before you stepped off the shed floor”. To this suggestion Mrs Nkamba replied: “I did not look”.
The next suggestion was cast in these terms, “Yes. And – because I suggest to you, Mrs Nkamba, that, had you done so, you would have seen the Lego block on the shed floor and that you simply just failed to pay attention to where you were walking that morning”.[60]
[60]Ibid 3-6.
This suggestion contains a non-sequitur; her concession that she did not look behind her as she stepped off the shed floor cannot lead to the conclusion that had she done so, she would have seen the block on the shed floor which was in front of her. Nevertheless, Mrs Nkamba answered saying that even if she had looked, it was still dark. Perhaps struggling with the inherent absurdity of the suggestion she continued, “and, if it was in the way, I’m backing out. So even if I had turned, I would not have looked there. I would have been looking – turning where I’m going out, not looking on the ground, considering I’m carrying an A-frame”.[61]
[61]Ibid.
This non-sequitur is demonstrated by counsel’s next suggestion which was “and I suggest to you, Mrs Nkamba, as you stepped off the ledge of the shed floor onto the synthetic grass and, had you looked on the synthetic grass, you would have seen the Lego block where you were placing your foot”. Her answer to this suggestion was “it was still dark”.[62]
[62]Ibid.
When this suggestion was again pressed by Ms Perkiss, Mr Nkamba expanded upon her explanation as to why she believed she would not have seen the block even had she looked. She said:
“I don’t think I would have seen it. Like I said, unless the block dropped right in front, would still – like I said, the lighting was good the lighting wasn’t good. It was still dark and my – like I’ve said, my reasoning is that, as I am dragging, the frame has gone out first. So the block must have obviously dropped where I – even if I had looked back, I would not have looked immediately where I am standing.”[63]
[63]Ibid.
It was suggested that had she paid attention, she would have heard the block drop onto the ground to which she said, “It’s a plastic block. There was no way it could make a sound on the synthetic grass.” This observation seems sound.
She denied that daylight was breaking.
When the suggestion that had she looked she would have seen the block was further pressed, Mrs Nkamba again explained:
“Like I said to you, there was no need for me to start looking when I have been in and out looking – meaning wanting to see if there’s anything in my way because I had been in and out of the shed and I was confident to be just going backwards because I’ve been already”[64]
[64]Ibid 3-7.
Then further:
“I’m saying I wouldn’t have looked because I – there was nothing in my way. So I was backing out with all the confidence knowing that I have been in and out of this shed and I’m taking this and I’m familiar – I am familiar with the height of where I am coming in and out and yes, looking is a reflex, looking back. So for me to say I wouldn’t have looked, it would depend on my reflexes on that day.”[65]
[65]Ibid.
She reiterated, however, that on that day she did not look.
Mrs Nkamba again stated that Beth Westgate had said to her about the setting up on the Senior Kindy Yard on this occasion, “you do that side and I’ll do this side”. She said that Ms Westgate “wasn’t in the Senior Kindy Yard. She wasn’t even in the vicinity.”[66]
[66]Ibid 3-8.
It was put to her that it was the centre policy that when people unpack the shed, two people are to do it together. Mrs Nkamba agreed but said that on that morning Ms Westgate was not with her. She again explained that Ms Westgate was running late and she asked Mrs Nkamba to do the yard by herself, so she was not with her.
Mrs Nkamba agreed that it was common practice for two people to unpack the shed.
It was then put:
“And so I’m suggesting that day there was nothing unusual about the common practice, that Beth was assisting you unpack the shed on that day?”[67]
[67]Ibid 3-9.
Mrs Nkamba answered:
“Beth wasn’t with me. It was very unusual for me to be unpacking the yard because I was doing it – I was doing a two person job by myself.”[68]
[68]Ibid.
This cross-examination caused me to later raise with Ms Perkiss that the factual contentions put to Mrs Nkamba were the antithesis of the case pleaded (to that point) in the defence which was that:
(a)The plaintiff was working alone accessing the storage shed to set up an obstacle course;
(b)The defendant had trained the plaintiff how to access the storage shed and how to set up the obstacle course; and
(c)Accessing the storage shed to set up the obstacle course was a task that could be safely performed by one person.
This led to the amendment of the defence to include, subparagraph 3(d)(ii)(A):
“The plaintiff was working with Bethany Westgate in the set-up of the Senior Kindy Yard.”
The allegation at subparagraph 3(d)(iii) remained:
“The plaintiff was working alone accessing the storage shed to set up an obstacle course”.
Ms Perkiss would later inform the Court that she had a conversation with Mr Newton as to what she had put to the plaintiff and that the parties were in agreement that there was no policy of the defendant that the set-up was to be done by two persons but that it was “best – normal – best practice”.[69]
[69]Ibid 3-31.
When it was suggested to Mrs Nkamba that daylight was breaking when she suffered her injury, she said that it was “still dark”. Mrs Nkamba said that it was not just in the shed where she was working on her own, but in the yard and the shed. She said that it was first time she set up the yard by herself and was the first time she had ever dragged the A-frame out by herself.
Mrs Nkamba rejected the suggestion that there was sufficient light for her to have been able to see the Lego had it fallen to the ground in the area closest to the step. She said “I was dragging the – I was going backward and there wasn’t enough light. There wasn’t light in the shed and there wasn’t enough light. So I wouldn’t have been able to see the Lego block.”.[70] She accepted she did not look where she was stepping, explaining, “I was going backward”.
[70]Ibid 3-41.
Mrs Nkamba was re-examined about her earlier evidence concerning the sign-off at the end of the day after the shed had been packed up and her suggestion the reality was different. She said, “the person – yeah, depending on the person who was packing up, they should have signed off. So the reality is different like I was saying.”[71]
[71]Ibid 3-51.
She was asked whether what she meant was the fact that somebody signed off doesn’t mean that they had done a check of the shed to which she answered, “they didn’t –no. Yeah, that’s what I mean.”[72]
[72]Ibid.
Evidence called by the Defence
Ms Westgate gave evidence that when she was on openings, she would arrive at the centre at 5.45am to 5.50am. She explained that it was only lead educators and management who had keys. She said that parents were allowed on the premises from 6.15am and that the time between 5.50am and 6.15am was used to re-set the yards, putting all the equipment out. Understandably, Ms Westgate could not remember exactly what she did on the day of the incident.
She said, in contrast to only lead educators and management having keys to the centre, keys to the sheds were kept on hooks in reception and were accessible to all staff; lead educators and assistants.
She said:
“So generally, we’d grab them and then open up the shed. It’s a roller door, so push it all the way up. There’s a light inside the shed, so turn the light on and start – start unpacking, starting from sort of the equipment at the front.”[73]
[73]Ibid 3-109.
She could not, however, remember whether she or Mrs Nkamba unlocked the shed on that day. Shown the photograph of the flood light on the outside of the shed at p 81 of exhibit 1, Ms Westgate described it as “very bright”. She estimated it would cast light five to six feet out of the shed and probably a foot into the shed. Notwithstanding her evidence that she could not remember whether she unlocked the shed on that occasion, and her evidence that after opening the door, the light would be turned on by, I infer, the person who opened the door, she was, in evidence in chief, shown the photograph of the fluorescent light tube on the ceiling of the shed which is at p 82 of exhibit 1 and was asked “is that the light that you turned on 29 August 2017?” Ms Westgate answered “yes”.[74]
[74]Ibid 3-111.
She was next shown the photograph at p 83 of exhibit 1. It, like all the other photographs, was taken on 14 January 2019, more than 16 months after the incident. In the photograph there is a casing for a light switch, but the switch itself is missing. Where it ought to be appears as a black void against the white casing. She was asked, “was there a light switch there that you used to turn on the light?”, to which she answered “yes”. Then she was asked “and you did turn on the light?”, to which she answered “yes”.[75]
[75]Ibid.
At that point, I asked her if she actually recalled that about 29 August 2017 or whether her evidence was based on her routine. Her answer was, “yeah, yeah. So someone would have turned it on. Whether it was me or Kabwe who opened the shed, one of us would have turned it on”.[76]
[76]Ibid.
Ms Perkiss then asked, “so to be specific, the light was on in the shed on 29 August 2017” to which Ms Westgate answered “yes”.
Later in her evidence in chief, Ms Westgate was asked, “so in terms of 29 August 2017, where were you working in comparison to where Mrs Nkamba was working?”. Having asked for clarification if she was being asked about the morning, Ms Westgate said, “we would have been together, if that’s ---" At that point she was interrupted and asked, “and where was that?”, to which she responded “we both have been in the – we’d go around together to set the yards up so we’d have been together”. She was asked by Ms Perkiss, “in the Senior Kindy Yard?”, and she answered “yes”.[77] Earlier, she had said that she did not know where Mrs Nkamba was throughout the set-up process “but we generally set up together because of this – the size of the yard we generally do it together because it was quicker. We’d have been in the yard together”.[78]
[77]Ibid 3-120.
[78]Ibid 3-114.

However, Ms Westgate confirmed that she did not witness Mrs Nkamba fall – which suggests that they were not working together at that time. She said that when told by Mrs Nkamba that she had stood on a block and rolled her ankle, she helped her inside.
Ms Westgate was asked if she knew what time Mrs Nkamba suffered her injury and she said, “it would have been before 6.15am, so between 6.00am and 6.15am”.[79] Ms Westgate was informed that the incident form recorded a time of 6.05am, and of that time, she was asked “do you know what it was like in terms of the yard with the brightness of the day?” She answered, “it would have been pretty light, yes”.[80]
[79]Ibid 3-120.
[80]Ibid.
When asked why she said that, she responded, “because the lights – again the veranda lights and the shed light would have been – spread the light around, so it sort of gives ample light”.[81]
[81]Ibid.
She was then asked about the sunrise having been at the agreed time of 6.06am and was asked how she would “describe the daylight around the shed – so in that yard, I should say, sorry?”. Ms Westgate’s response was, “yeah, I can’t – I can’t recall to be honest”.[82]
[82]Ibid.
Later, Ms Westgate was asked if she could “recall at all, like, what – like the light of the day would have been like on that day?” Ms Westgate answered, “I can’t exactly recall what the light on the day would have been like, but the lights that are under the veranda and the shed lights and the inside shed light is ample, I believe, to – to set the yard up safely” (emphasis added).[83]
[83]Ibid 3-117.
She said she had never had any problems “with the lighting in the – when setting up the Senior Kindy Yard” and no one had ever reported any problem to her “about – setting up the Senior Kindy Yard”.[84]
[84]Ibid.
Ms Westgate gave evidence that there was “a maintenance log that would live on the side of the filing cabinet and anybody, if you spotted an issue, was able to write it on there and inform management as well.”[85]
[85]Ibid.
Ms Perkiss asked, “Ok. So you could either write it on there or inform management?”, to which Ms Westgate said, “I would do both.”
Ms Perkiss asked, “You would do both?” and Ms Westgate confirmed, “Yep, I would do both. Yep.”[86]
[86]Ibid.
This exchange concerning the maintenance book and what Ms Westgate would do leaves open the possibility that others may take one or other action, but not both.
As to the more particular issue, Ms Westgate was asked,
“And I take it, that on 29 August 2017, you did not make any notification in the maintenance book about lights or problems in the yard?”
and, separately,
“or problems with lighting in the shed?”
To each of which she said “No”.[87]
[87]Ibid.
When asked, “What about safety, any concerns about safety?”:
Ms Westgate said,
“Yeah, they could come to me but I would – if – I would usually point them in the direction to, sort of, go and speak to Sam. It’s too – you know –“.[88]
[88]Ibid 3-118.
At that point, Ms Perkiss interrupted the answer and offered, “I understand back then was also Stacie would as well”. Ms Westgate agreed and said, “so to go and speak to management”.[89]
[89]Ibid.
The reference to Sam and Stacie was to the two directors of the centre.
Ms Westgate was asked, “And so if you needed to report or someone wanted to report something, you could go to Stacie and/or go to Sam?”. She agreed with that proposition.[90]
[90]Ibid.
Notwithstanding her earlier evidence that if she spotted an issue she would both write it in the maintenance book and inform management of it, when asked if she ever had reason to write in the maintenance book her answer was more equivocal. She said:
“I can’t specifically remember but I would probably say yes, in my time I was there there would probably be something, sort of locks, door locks and bolts – for nappy changing areas usually.”[91]
[91]Ibid.
It was put to her by Ms Perkiss (without objection) that she did not have a conversation with Mrs Nkamba on 29 August 2017 about a light to which she said, “not that I can recall”. Ms Perkiss pressed on asking whether she had a conversation as best as she could recall. Ms Westgate again answered, “not that I can recall”. Ms Perkiss then put it to Ms Westgate (again without objection) that, specifically, Mrs Nkamba did not tell her that the light inside the shed was broken to which assertion Ms Westgate answered, “no”. Ms Perkiss went on (again without objection) to provide the explanation, “because your evidence is that it was working”, with which Ms Westgate agreed.[92]
[92]Ibid 3-122.
Ms Perkiss then asked, “Had there been occasion for the light not working in the shed, what would you do?” Ms Westgate’s answer was:
“I would only go as far as the light outside the shed would allow me to. I wouldn’t go further if it was – again, depending on the light, the sunlight and things like that – I would go as far as the outside would light up in the shed”.[93]
[93]Ibid.
Ms Westgate’s answer suggests that there had been an occasion or occasions on which the light was not working in the shed. It also suggests that there was a limit to the illumination which external light, natural or artificial, would project into the shed and thus limit as to how far into the shed Ms Westgate would proceed.
Immediately following that evidence Ms Perkiss again asked, “And on 29 August 2017 your evidence is that that light was turned on”, with which Ms Westgate agreed.[94]
[94]Ibid.
Immediately following that, Ms Perkiss asked, “Because otherwise, if it was not turned on, what would you do?”. Ms Westgate answered:
“I would, again, so I would go as far as the outside light would allow me and I wouldn’t set the rest of it up if I – if the shed – if the light in the shed wasn’t working, I wouldn’t go in the shed.”[95]
[95]Ibid 3-123.
When asked why, her answer was telling: “Because it’s not safe”.[96]
[96]Ibid.
When asked what, as a supervisor she would do, she said: “I would encourage others to do that as well. I would make that call”.
She was asked, “Ok. And did you make that call on this day?” Her answer was, “not that I recall, no”.[97]
[97]Ibid.
She was then asked, “Because the yard was set up or being set up?” to which she said, “Yeah. And the lights were working”.[98]
[98]Ibid.
That concluded Ms Westgate’s evidence-in-chief. Her cross-examination by Mr Newton commenced with her frank agreement to the following proposition:
“Is it fair to say, as you’ve said, you really have no recollection of what really happened on 29 August 2017. And everything, and every answer you’ve given to my learned friend, despite it being premised by your recollection of 29 August, is really what normally happened?”[99]
[99]Ibid.
Ms Westgate agreed that her “evidence is limited to your normal practice and your normal expectation”.[100]
[100]Ibid.
Later, she said that well over three years had passed before anyone asked her to try to remember what happened on that day and that is why she could not remember and relied entirely on what the practice had been.
Ms Westgate did not accept that she said to Mrs Nkamba as they went to do the opening, “Cause we’re running late, you do this side and I’ll do the other side”. She agreed that normally they would do it as a pair.[101]
[101]Ibid 3-124.
She did not agree that normally two persons would carry out the A-frame saying, “I wouldn’t. I’m quite happy to. I find it manageable to do it by myself. And you don’t lift it you drag it” (emphasis added).[102]
[102]Ibid 3-125.
Ms Westgate said that she believed she and Mrs Nkamba would have been together in the Senior Kindy Yard because that is what was normally done for safety. As to safety she explained that it was because you do not know if there may be someone else in the yard who had “climbed over a fence”.
She also did not agree that after Mrs Nkamba suffered her injury she hopped into the centre and called for her and that Ms Westgate had to go through to where she was.
She did not accept that she had told Mrs Nkamba to write 6:05am as the time of the incident, saying she would have told her to write the time the incident had happened. Ms Westgate was asked about the fluorescent lights under the verandah about which she had earlier given evidence. When it was suggested that they would not contribute any light to the inside of the shed, she said, ”probably not to the inside, no”.[103]
[103]Ibid 3-128.
As for the light above the roller door, she confirmed her earlier evidence that this would cast light about one foot into the shed and that there was a shadowing effect from the fascia of the shed. She agreed that if the light in the shed was not working the light would be fairly inadequate at that time of day to see to the back of the shed.
When it was put to Ms Westgate that on the day of the incident the internal light in the shed was not working, she answered, “I don’t agree. The light in the shed would have been working”.[104]
[104]Ibid 3-129.
At that point, the following exchange between the Court and the witness occurred:
“Did you say ‘would have been;? ---It would have – yep.
Is that because you suppose that it would have been ---? --- No, sorry. It was working.
---that you have a memory that it was? ---No, sorry. It was. It was working. The light inside the shed was working.”[105]
[105]Ibid.
When it was put to Ms Westgate that on the morning of the incident Mrs Nkamba had asked her “Has the light in the shed been fixed?” and that she had replied, “No, but it’s in the book, and maintenance will fix it”, she twice answered, “I don’t recall that conversation”. In light of that somewhat equivocal answer she was asked if such a conversation could have occurred to which she answered, “No, because I believe the light in the shed was always working”.[106]
[106]Ibid.
Ms Westgate did not accept that the light switch was not working on the day of the incident. She again stated that if the light in the shed was not working she would not enter the shed because it would not be safe.
She did not accept that there had been a departure from normal practice on the day of the incident such that she and Mrs Nkamba were setting up separate areas rather than working together because she had arrived later than usual. She agreed that it was not uncommon for parents to be hanging around from 6.00am or certainly 6.05am. She did not, however, agree that the parents would be accommodated when set up was completed.
When re-examined, Ms Westgate indicated that the A-frames when standing would be between two thirds of a metre to a metre from the roller door inside the shed. She said that if the internal shed light is on, “it’s bright”, and that you would be able to see into the shed.[107]
[107]Ibid 3-137
She was asked if one would be able to see the A-frame to take it out to which she answered, “with the light in the shed, yes”. The clear inference being that one would not be able to see the A-frame if the internal light was not on.
That inference can be drawn more readily in light of her answer to the next question she was asked which was, “And the light outside the shed?” Her answer was,
“I would probably sort of say to where the legs are in this photo would probably be the limit for the shed, for the light outside the shed”.[108]
[108]Ibid.
The positioning of the legs in the photograph is such that they are what appears a short distance into the shed. It can be inferred from other evidence as to the storage of the A- frames in the standing position that the legs at the base of the frame would be further into the shed. It is quite apparent from the photograph that the width of the frame at its base is less than the height of the frame from the base to apex. Therefore, with the frames pushed into the shed as described in the evidence,[109] they would go further back when standing, as opposed to lying on their side as depicted in the photograph.
[109]Jemma Shanks at 4-44 gave evidence of them being pushed to the back of the shed. Mrs Nkamba gave evidence that it was not at the entrance: 1-73/12 – 19. Beth Westgate gave evidence that they would be pushed in: 3-134/4 – 13 confirmed in re-examination at 1-136/9.
Ms Stacie Wood gave evidence for the defendant. Ms Wood was at the time of the incident a director of the child care centre. She described the role of director as “oversees the basic running of the service, communication between head office and the staff, basic manager position”.[110]
[110]Trial transcript 4-4.
Ms Wood explained staff who commence in the morning are paid from 6.00am “to have the time to come in and have that time to set up the service”. She explained that the centre opens at 6.15am and never earlier “because the insurances don’t start for families and children to be on the premises until 6.15”.[111]
[111]Ibid 4-6.
Ms Wood said that she would have been somewhat involved in Mrs Nkamba’s induction but she could not recall which aspects.
Ms Wood was asked to explain the procedural process she would have taught staff for taking out the A-frame. Ms Wood said:
“Well, because of the way the shed, like lift is, where you have to stand up, I would walk in and drag it forward a little bit so that you could then turn around and walk forwards out of the shed”.[112]
[112]Ibid 4-10.
She said that this was something adopted in terms of her training with her staff, “because you wouldn’t walk backwards, not being able to see where you’re going”.[113]
[113]Ibid.
That evidence seemed inconsistent with the description which she gave very shortly afterwards when she was asked how the A-frames came out of the shed and she said, “dragged – you would generally drag them anyway. Those ones aren’t very heavy”.[114]
[114]Ibid 4-11.
Apart from that inconsistency, to the extent that Ms Wood was asserting that staff generally and, by inference, Mrs Nkamba specifically, had been trained in a method of removal of the A-frames by which they push them whilst walking forwards rather than dragging them whilst walking backwards, I would reject the assertion. It was clearly not the method adopted by Mrs Nkamba. Nor was it the method adopted by other staff who gave evidence for the defendant. Two staff members consistently referred to dragging the A-frames from the shed. Their description of the method they adopted was consistent with that adopted by Mrs Nkamba.[115]
[115]See the evidence of Bethany Westgate at: 3-107/11; 3-114/9 – 13; 3-125/5 – 15; 3-132/19 – 27; 3-136/10 – 30;p 3-137/12 and Samantha Lane at 3-43/6 and Jemma Shanks at 4-44/16.
The evidence of each of those witnesses was also consistent with the defendant’s case as opened by Ms Perkiss that Ms Westgate would give evidence:
“that the particular A-frame was dragging out on the day, and she says that the A-frame was traditionally stored upright. She’ll say their of a light aluminium nature and easy to be dragged out of the shed and easily done by one person, and she has done it many times herself”.
One staff member, Jemma Shanks, did describe a method of getting the A-frames out which was consistent with Ms Wood. She described pushing them out. However, there was nothing in her evidence which would cause me to believe that this was the method in which she had been trained rather than simply the method she adopted. She had earlier been asked if she was trained or inducted on operating procedures for opening and closing the shed. Her frank response was, “Not so much of the shed, but manual handling”.[116]
[116]Trial transcript 4-43.
She went on to say:
“So we were shown the sheds and, obviously, everything you would normally do at a new workplace and just, obviously, spoken about basic stacking and things like that in the shed and how it’s got to be neat and tidy”.[117]
[117]Ibid.
She described the A-frames being slid into the shed. She said that she would generally put them to the side for easier access and because “you can fit a lot more around it, but everyone does it differently, I suppose, but all very similar”.[118]
[118]Ibid 4-44.
She said that normally the yards were packed up before the close and it was not necessarily always the closing staff who pack up the yard. If the yard did need to be packed up by the closing staff member, they would put everything that is outside into the shed and then shut the shed door and lock it ready for the following day.
Ms Shanks gave evidence of staff members doing a walk-through outside making sure there was nothing left on the ground. If the shed was already packed up and something was found outside they could take it inside and place it on the shelf or in a box.
Ms Shanks did not give evidence of a system of work which required the certified supervisor or another person to conduct a check of the shed as to everything being clean and packed away and for this to be signed off, as had been put to Mrs Nkamba and with which she had implicitly agreed. Ms Shanks’ evidence would also support a finding that, as Mrs Nkamba said, such a system of work was, in reality, not followed.
Ms Wood said that she had on occasions opened the shed in the morning. She said, “the lighting was fine” even in winter.[119] She said that the light above the door provided sufficient light for her to open. As for the internal fluorescent light in the shed, Ms Wood believed that it was on a timer, which rather betrayed a lack of any real knowledge of the lighting inside the shed. She could not recall ever having opened the shed and turned on the light. She could not recall whether the light would be on or off when she opened the shed door. Again betraying any real knowledge of the internal shed lightning
[119]Ibid 4-12.
In relation to the maintenance book, Ms Wood said:
“So the maintenance book in 1 and 2 was based on the side of the filing cabinet in the office. If any concerns were brought to us, it was written on there. Staff were also able to write on it if something needed to be fixed, and if it was anything urgent, say electrical, plumbing that was out of our means, then we would contact head office to get permission to contact Ben, for example, or the plumber.”[120]
I infer that “Ben” as referred to by Ms Wood is Ben Humphreys, an electrical contractor who performed work at the centre and who gave evidence for the defendant. I shall return to Mr Humphrey’s evidence shortly.
[120]Ibid 4-13.
Ms Wood confirmed that a broken light switch would be “something that you would see on the list”.[121]
[121]Ibid.
Ms Wood said that she had been made aware on occasions of staff letting parents in earlier than 6.15am. She said that if informed of that, the staff member would immediately be spoken to about it “because it’s not what should be occurring”.[122] This evidence somewhat supported Ms Nkamba’s evidence that parents would on occasion be let in earlier than the nominated opening time.
[122]Ibid 4-14.
Ms Wood in cross-examination said that at around 6.00am on 17 August, “the yard is pretty well lit up” by daylight. She said, “it’s pretty well bright by that time of the morning”. When it was put to Ms Wood that she was wrong and that at 6.00am it was not even sunrise, she said, “well that’s your opinion”. Ms Wood said, “I think it would be bright enough to see what you’re doing”.[123]
[123]Ibid 4-16.
Ms Wood appeared to me to be quite dogmatic in her view as to the level of brightness in the yard at that particular time of the year. It was not apparent to me how she would have such specific recollection of the state of light.
Ms Wood also said that lighting from the car park would cast some light into the shed, noting that there was also other lighting across the verandah for the playground.
Ms Wood went on to suggest that other lighting which would provide assistance in opening the shed were lights from the shops adjacent to the centre and lights under a verandah. She conceded that the latter “might not project directly in front of that shed, but it would at – like, help towards the lighting”.[124]
[124]Ibid 4-20.

Indeed, I thought that the cross-examination of Mrs Nkamba as to what she would be able to do within a childcare setting assumed an unreal, static and controllable method of doing the work unreflective of the dynamic circumstances identified by both Ms Hague and Dr King in his earlier report.
For those reasons, I am more inclined to accept the opinions of Dr Morgan and Ms Hague as to Mrs Nkamba’s incapacity to perform her former role.
Accepting that Mrs Nkamba is incapacitated to perform her former role has a major bearing upon the areas of damages most in dispute between the parties; past and future economic loss.
The psychiatric evidence can be dealt with briefly. Dr David Storor, psychiatrist, was called on behalf of Mrs Nkamba. He expressed, in a report dated 28 August 2018,[181] the opinion that Mrs Nkamba is suffering from an adjustment disorder with depressed mood of mild to moderate severity caused by her workplace injury. He records that Mrs Nkamba told him that she developed a depressed mood due to ongoing pain and restriction caused by her injury. Dr Storor’s opinion was that that stated mechanism of injury was consistent with her current psychiatric condition.
[181]Exhibit 1, pp 129-138.
As to the affect that her adjustment disorder may have on her employment, Dr Storor expressed the opinion that her past employment had been, and her future employment would be, affected in that she lacks confidence in her work abilities and had a fear of reinjuring herself through activity. In his opinion that lack of confidence and fear of reinjury, which was a feature of her disorder, would adversely affect her future employment opportunities in the open job market.
In a further report dated 29 July 2020,[182] Dr Storor expressed the view that Mrs Nkamba continued to suffer from an adjustment disorder with depressed mood as a consequence of her injury. Further, he expressed the view that she suffered a degree of permanent impairment caused by that condition, which was unlikely to alter significantly, with or without further treatment. He assessed her incapacity, using PIRS as a whole person impairment of 4% having assessed her to have a median class score of 2 and an aggregate score of 9.
[182]Exhibit 1, pp 203-212.
For the defendant, Dr John Chalk, psychiatrist, was called. In a report dated 1 June 2020[183] Dr Chalk expressed the opinion that Mrs Nkamba had developed a mild adjustment disorder with depressed and anxious mood as a result of her injury. His opinion was that it was her frustration over the injury and its effects that have been significant factors. He added that, from her account, she had found the whole process of litigation very difficult and indeed stressful.
[183]Exhibit 1, pp 181-196.
He expressed the opinion that Mrs Nkamba could return to fulltime work in an occupation which she was suited by virtue of her training, education, experience and within her physical limitations. From a psychiatric perspective, he did not think that Mrs Nkamba is, or had been, incapacitated for work.
It should be observed that there is nothing at all in any of the psychiatric evidence which would lend any support whatsoever to the defendant’s pleading that any psychological symptoms she suffers from are the consequence of a pre-existing psychiatric disorder. There is no evidence to support that there has ever been such a pre-existing disorder. The evidence, even in the defendant’s case, is that there has never been. Parties should be cautious about pleading such matters in the absence of evidence.
The real issue which emerges from the psychiatric evidence is whether the diagnosed adjustment disorder with depressed mood should impact upon the assessment of the Injury Scale Value under s 306O of the WCRA having regard to the ranges mentioned in sch 9 of the Workers Compensation and Rehabilitation Regulation 2014, applying the rules mentioned in sch 8 as required by s 129 of the Regulation. Essentially, the plaintiff contends that there should be a 25% uplift of the ISV to reflect that it is for multiple injuries. The defendant contends that the psychiatric condition would have no impact upon the assessment of the ISV.
General Damages
There is no dispute that the range of Injury Scale Values under Schedule 9 is 6 to 10 applying item number 142, Moderate Ankle Injury.
Item 142 of Schedule 9 provides that an ISV at or near the bottom of the range will be appropriate if there is a DPI for the injury of 6%. As noted above, Dr Morgan assessed a whole-body impairment of 4% and Dr King assessed a whole person impairment of 2%.
I have come to the conclusion that an ISV of 8, that is in the middle of the range, would be appropriate for the ankle injury itself. However, I am of the view that there should be a 25 percent uplift for the psychological injury as such that the total ISV will be 10. Applying that ISV, general damages are assessed at $15,600.
Past Economic Loss
The approaches of the parties to this head of damage vary differ markedly in a number of respects.
The defendant’s contention is that the plaintiff’s claim for past economic loss should be restricted to the statutory compensation paid, being $17,778, with 15 percent uplift to compensate the plaintiff for the variation in her actual versus net weekly earning. This would result in an award of $20,500.
There are several reasons why the plaintiff’s approach should be rejected.
First, it limits the period of past economic loss to the time at which the plaintiff provided her last medical certificate and Workcover ceased her claim for weekly benefits. The defendant submits that that was the time at which the plaintiff provided her last medical certificate. The plaintiff submits that the defendant’s contention should be rejected because the action taken by Workcover in ceasing the claim is irrelevant.
The defendant is correct. An injured worker does not cease to suffer economic loss compensable as damages simply because Workcover Queensland determines not to pay further weekly benefits.
As noted above when considering the expert orthopaedic evidence of Dr Morgan and Dr King, their differing views as to Mrs Nkamba’s ongoing incapacity, or capacity, to perform her pre-injury work is material to both the assessment of past and future economic loss. If Dr King’s opinion were accepted, and it was further accepted that she had capacity to return to that employment from about the time which the plaintiff identifies, then, arguably, that would be the appropriate end to the period during which she suffered past economic loss. However, rejection of Dr King’s opinion in that regard and acceptance of Dr Morgan’s opinion that she is incapable of returning to that work leads to the conclusion that she continued to suffer economic loss from that time until trial.
Next, the defendant rejects the methodology for calculation of past economic loss contended for by the plaintiff because it says that, properly analysed, Mrs Nkamba suffered no weekly loss of earnings because her average rate of pay prior to the injury was $696.72 net per week, not $800 net per week as claimed in the plaintiff’s Updated Statement of Loss and Damage. Furthermore, her average weekly earnings after she commenced her present employment on 22 August 2020 exceeded her pre-injury earnings. The defendant also claims that income protection insurance payments of $37,214 and Centrelink payments of $7,620 must be brought to account in assessing whether the plaintiff has suffered a loss of income during that period.
The plaintiff, correctly in my view, contends that amounts which Mrs Nkamba received under a policy of income protection insurance should not reduce the damages awarded.
The defendant calculates average weekly earnings of $696.72 by dividing the net income paid to the plaintiff in the period of her employment with the defendant commencing on 7 November 2016 to the end of the 2016/2017 financial year by the number of weeks being a little more than 33.5. The PAYG payment summary for that period[184] shows gross payments of $27,526 and tax withheld $4,186 resulting in a net total payment of $23,340. That was for a period of 33 weeks and four days. By dividing the total net amount by that number of weeks ($23,340 by 33.5 weeks), the defendant derives the average net weekly earnings figure of $696.72.[185]
[184]Exhibit 1, p 388.
[185]By Exhibits 21 and 22, the defendant also attempted to demonstrate that Mrs Nkamba’s pre-injury working hours averaged only 27 per week. It is a false analysis but nothing seems to turn upon it because that 27 week figure does not otherwise feature in its calculations.
The plaintiff rejects that methodology. In an employment schedule attached to its written submissions, it identifies that the plaintiff’s taxation notice of assessment for the year ended 30 June 2017 discloses gross income of $37,377 with tax payable on that amount of $3,694.52 and a Medicare levy of $747.54 totalling, in round terms, $4,442. That $4,442 equates to an effective tax rate on the gross earnings of $37,377 of 11.88 percent.[186]
[186]The Notice of Assessments to be found at Exhibit 1, page 384.
In a similar way, the plaintiff analyses her PAYG payment summary for the period[187] of her employment with the defendant from its commencement on 7 November 2016 to the end of that financial year. Her gross earnings were $27,526 which, she contends, equates to $1,019.48 gross per week over a 33-week period. A tax rate of 12 percent is then applied to that average gross per week figure to arrive at an average net per week figure of $897.14. On the basis it is then contended for the plaintiff that the $800 net per week claimed in the Updated Statement of Loss and Damage is arguably conservative.
[187]Exhibit 1, page 388.
The Plaintiff’s methodology is generally sound. The Plaintiff’s maths, however, are incorrect.
In order for total gross earnings of $27,526 to result in gross earnings of $1,019.48 per week, the period over which the gross sum was earned would have to be 27 weeks; not 33. Adopting the plaintiff’s methodology, the correct weekly gross figure, applying 33.5 weeks, would be $821.67. Further adopting the plaintiff’s methodology of applying an effective tax rate of 12 percent, the net earnings per week would be $723.07. Calculated over a 33-week period, the gross weekly earnings per week would be $834.12. Applying an effective tax rate of 12 percent, the net weekly earnings would be $734.
In my view, the defendant’s approach of arriving at net earnings of $23,340 by simply deducting the tax withheld from the gross payments is inappropriate. The plaintiff’s Notice of Assessment demonstrates that the plaintiff was entitled to a tax refund demonstrating that the amounts withheld were in excess of the tax liability.
The plaintiff’s method, although not perfect, is to be preferred. It is not perfect because there were earnings from another employer brought to account in the 2016/2017 financial year. The analysis performed in the table at paragraph 223 of the defendant’s written submissions shows income from the PCYC for the period 1 July 2016 to 25 August 2017 in the gross amount of $11,133 and a net amount of $8,857.[188] Adding the $11,133 from that source to the $27,526 derived from the defendant results in a total income of $38,659 for the 2016/2017 financial year. That accords with the total gross payment for salary and wages disclosed in the plaintiff’s 2017 tax return.[189]
[188]In the table, the defendant has incorrectly identified as gross earnings as having been derived in the 2015/2016 financial year.
[189]Exhibit 1 pages 378 to 380 at page 379.
Adopting the plaintiff’s methodology, the total tax and Medicare, in my view, when deducted from that slightly higher gross figure would result in an effective tax rate of 11.5% rather than 12 percent. If that 11.5% were applied to the $834 average gross weekly payment for the 33 weeks worked for the defendant in the 2016/2017 year the resulting net average weekly payment would be $738.
In my view, that is the correct amount to apply in calculating past economic loss.
Applying that amount to the 156 weeks to 24 August 2020 as claimed in the statement of loss and damage, the total amount would be $115,128. The difference between the $680 per week on average being earned as a casual Lifestyle Support Assistant with her present employer would be reduced from $120 per week, as claimed, to $58 per week. Applying that to the claimed period of 20 weeks from 24 August 2020 results in a total amount of $1,160.
For past economic loss I would award $116,288.
Interest at the rate of 1% for 3.5 years would apply to $53,676 ($116,288 - $17,778 (Workcover) - $&,620 (Centrelink) - $37,214 (AIA)). This amounts to $1,878.
Superannuation as Past Economic Loss
Superannuation on past economic loss calculated at a rate of 9.5% on $79,074 ($116,288 - $37,214) amounts to $7,512.
Future Economic Loss
In her Updated Statement of Loss and Damage, the following summary of the plaintiff’s claim for future economic loss appears at page 16:
“The plaintiff is currently earning an average net weekly wage of approximately $680.
In the circumstances, the plaintiff claims a net weekly loss of not less than $400 net per week over 14 years from 25 August 2020 until retirement at age 67. The claimed loss of $400 net per week being the difference between the possible earnings of a nurse or a childcare person and her current position as a casual lifestyle support assistant. On the five percent tables using a multiplier of 529 and discounting 10 percent for contingencies, that would be a claim of $190,440.”
The basis for the claim of a difference between current earnings and possible earnings of a nurse relates to the plaintiff’s ambition to have become an enrolled nurse. The defendant submits that the plaintiff only undertook training as an enrolled nurse not to work in such a capacity but, rather, to undertake those studies so as to develop and enhance her work with children.
The plaintiff’s Updated Statement of Loss and Damage includes, at page 11:
“Ms Hague noted that the plaintiff reports her vocational goal to complete further studies to become qualified as an enrolled nurse. In Ms Hague’s opinion, she is now unfit for this physically demanding work. Contrary occupational demands include long periods of standing and walking throughout the hospital; crouching to assist with personal cares or wound dressing and assisting with transfers or pushing wheelchairs. In Ms Hague’s opinion she will now be unable to achieve this vocational goal. As a guide to the Australian average net week income of an enrolled nurse is $1,070.”
It is from that average weekly income of $1,070 that the $400 loss is calculated.
I can find no basis upon the evidence upon which such a loss could be related to a comparison of her present level of earnings and those of a “childcare person”. The difference between her current level of earnings and those of a childcare person would be the $58 per week already identified.
Later in the updated statement of loss and damage at page 15, the following appears:
“The plaintiff is now 53 years of age and has a prospective working life of 14 years.
The plaintiff had pursued some nursing qualification but is unsuited to work as a nurse although it may give her an opportunity to get into a medical centre or an aged care facility in a principally administrative assistant position.
The plaintiff had commenced nursing qualifications post-accident but not with the view to becoming a nurse so much as improving her value as an employee in the childcare sector.”
It is from that last quoted paragraph that the defendant’s submission as to the intended purpose for Mrs Nkamba’s study as an enrolled nurse is derived.
In my view, the plaintiff’s claim for future economic loss should not be allowed. The plaintiff’s future economic loss or lost earning potential should not be assessed on the basis claimed.
As demonstrated above, at her present level of earnings compared with that which she was earning in her former employment, Mrs Nkamba has a loss of $58 per week. That, in my view, is an appropriate basis upon which to project future economic loss of a person in their mid-50’s over the future course of their working life.
In her evidence she explained a number of benefit or advantages of her current employment as a support worker. These included that there is a range of things they do in personal care and support of the residents in the aged care facility. It was not full-time care of bedridden residents. Sometimes they would just show up and support the residents. There was also the advantage that sometimes they would be rostered just to perform social support by keeping them company and interacting with them. She described it as “much, much better than being a full-time aged carer.” She was able to make that comparison because she had previously had a three week placement in such a role in an aged care facility. She described a flexibility in this work.
Mrs Nkamba works 4 days a week in the role. This would appear to be within her physical capacity. There is no evidence to suggest that her employment is insecure.
She expressed an interest to pursue training in diversional therapy which would no doubt lighten her workload further because it would involve those aspects of her current role which do not require actual care work. She thought she could get a certificate 4 and then a diploma. That was, she said, something she could study online, part-time in her present role or full-time for 18 months.
I do not accept the Plaintiff’s submission that one method of calculating her future economic loss would be to give her “full freight” for two years to allow her to study diversional therapy and then a reduced amount, or global amount, for the period thereafter. There are too many contingencies to make that an appropriate method of awarding damages. The evidence about what she would need to do to quality is vague and uncertain. On the evidence of Ms Hague, jobs for diversional therapists are quite rare compared with aged and disability carers so there would be uncertainty of her securing such employment.
In any event, if Mrs Nkamba is compensated for the difference in income between her current and former positions, she is, effectively, in the same position as she was previously, should she wish to pursue training as a diversional therapist.
Applying a loss of $58 per week with a multiplier of 529 from the 5% tables results in future economic loss. Given the approach I have taken, discount for contingencies would be a modest 5%. Given The award would be $29,148.
In my opinion, some award in addition to those weekly earnings should be made for the loss of opportunity of employment in the field of enrolled nursing. That opportunity, however, was, in my view, also highly contingent. First, it would have required Mrs Nkamba to qualify as an enrolled nurse. Secondly, it would have required her to have secured work in that capacity as a person in at least her mid 50’s without any earlier experience. To that must be added the consideration that working in that role was not primarily her reason for pursuing those studies.
Taking all of those matters into account, I am of the view that a global award of $20,000 would adequately compensate Mrs Nkamba for that loss of opportunity. It equates, in rough terms, to $27.50 per week over the balance of her 14-year working life. I would award a total of $49,148 as future economic loss.
I would allow superannuation on the whole of that sum at the rate of 11.33 percent being an amount of $5,568.
Past out of pocket expenses
The defendant does not take issue with the plaintiff’s claim for past special damages in the sum of $12,490.82. That amount will be allowed.
Fox v Wood[190]
[190][1981] HCA 41

The defendant does not take issue with the plaintiff’s claim for a Fox v Wood component in the amount of $3,098. That amount will be allowed.
Future Out of Pocket expenses
The plaintiff claims a number of items of expected future expenditure. Some are more contentious than others.
It is accepted, on the evidence of Dr Morgan, that Mrs Nkamba will continue to need to use an ankle brace into the future. Dr Morgan estimates the costs will be approximately $150 per year. This equates to $2.90 per week. The plaintiff uses a multiplier of 866 from the 5% tables to calculate a figure of $2,494.08. She applies no discount for contingencies.
The defendant uses a multiplier of 856 to calculate a figure of $2,482.20 which it discounts by 15% for contingencies.
Using the Plaintiff’s multiplier, I would award $2494.00. I would not discount it.
The Plaintiff also claims for orthotic inserts. The evidence about them is sparce. She says she has bought them. There is no evidence of the benefit she derives from them. The orthopaedic specialists said nothing about them. There are no receipts in evidence.
I would not allow anything for this claimed item.
There is a claim for future pharmaceutical expenses in the sum of $21,242.98. it relates to Panadol, Panadol Osteo, Voltaren Rapid/Diclofenac and Voltaren Emulgel. Mrs Nkamba gave evidence of using each of these; but not the rate at which she uses them.
The defendant contends that the claim for future pharmaceutical expenses should be limited to Panadol at a cost of $3.00 per week which would equate to $2,183.00 using a multiplier of 856.
It is difficult to assess what should be allowed on the evidence. I would accept that Mrs Nkamba uses more than Panadol, but cannot find support for the rate at which she claims for various items. The Plaintiff’s claim, which is based on a multiplier of 866, equates to a weekly claim of $24.53 without discount.
In my view, doing the best I can on the evidence, I would allow $10 per week without discount. Applying a multiplier of 866, that would be an award of $8,660.
There is a claim for future physiotherapy and/or hydrotherapy. The Updated Statement of Loss and Damage claims that such treatment will be required. There is no evidence to support that it will be required. The Plaintiff, both in its submissions, and in cross-examining Dr King, accepted that it would not bring an improvement, at least after a time, to her injury. Dr King gave a limited concession that it might be helpful in helping to deal with a pain problem; but did not consider it would thereby help with employability.
There is no explanation as to how the figure of $3,000 is reached.
I would allow the modest sum of $1,000.
There is a claim for future vocational rehabilitation in the amount of $1,320 for which there is no evidence in support. I would make no allowance for it.
There is an agreed future travel expenses claim of $1,000.
There is a claim for $2,500 for future counselling and psychological management. Such a claim finds support in the evidence of Dr Storor. The amount claimed seems modest. I would allow it.
The total award would be $15,654.
Summary of damages assessed

Head of damage

General damages $15,650

Past Economic Loss $116,288

Interest on past Economic Loss $1,878

Past Loss of Superannuation $7,512

Future Economic Loss $49,148

Loss of Future Superannuation $5,568

Fox v Wood $3,098

Special Damages $12,490.82

Future Damages $15,654

Subtotal $227,286.82

Less refund to WorkCover $30,272.84

Total $197,013.98
Orders

There will be judgment for the plaintiff in the sum of $197,013.98
The parties are to file submissions on costs, limited to 4 pages, by 31 January 2023 or alternatively a proposed draft order if the parties are agreed, will be filed by 31 January 2023.

CITATION:	Nkamba v Queensland Childcare Service Pty Ltd [2022] QDC 292
PARTIES:	CHOMBA ANNIE KABWE NKAMBA (plaintiff) v QUEENSLAND CHILDCARE SERVICE PTY LTD (ACN 056 351 181) (defendant)
FILE NO:	ID23/2019
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Ipswich
DELIVERED ON:	16 December 2022
DELIVERED AT:	Ipswich
HEARING DATE:	1, 2, 3, 4 February and 19 April 2021
JUDGE:	Horneman-Wren SC, DCJ
ORDER:	1. Judgment for the plaintiff in the sum of $197,013.98; 2. The parties are to file submissions on costs, limited to 4 pages, by 31 January 2023 or alternatively a proposed draft order if the parties are agreed, will be filed by 31 January 2023.
CATCHWORDS:	TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – where the plaintiff was employed by the defendant – where the plaintiff was setting up an activity yard in the course of her employment – where the plaintiff entered a shed and stood on a Lego/construction block and rolled her ankle – whether the block was present prior to the plaintiff entering – whether there was adequate lighting where the incident occurred – whether the defendant had in place a safe system of work – whether the plaintiff’s injury was caused by the defendant’s negligence TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – where an induction workbook was provided to employees – where it contained a policy requiring that, after the equipment has been taken out for morning set up, the floor area of the shed to be clear of any equipment – where the light switch for the interior of the shed was defective – where the plaintiff notified her supervisor of the defect – where there was a maintenance book in which the defect could have been noted by the plaintiff – where the plaintiff did not write the defect in the maintenance book – whether the plaintiff is guilty of contributory negligence DAMAGES – ASSESSMENT OF DAMAGES IN TORT –whether the plaintiff failed to mitigate her loss – whether the plaintiff is incapacitated to perform her former role – whether there was permanent impairment – whether the psychiatric condition was caused by the injury
LEGISLATION:	Worker’s Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’)
CASES:	Benic v New South Wales [2010] NSWSC 1039 Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329 Strong v Woolworths Limited (2012) 246 CLR 182
COUNSEL:	C Newton for the plaintiff O Perkiss for the defendant
SOLICITORS:	McNamara Law for the plaintiff BT Lawyers for the defendant

Head of damage
General damages	$15,650
Past Economic Loss	$116,288
Interest on past Economic Loss	$1,878
Past Loss of Superannuation	$7,512
Future Economic Loss	$49,148
Loss of Future Superannuation	$5,568
Fox v Wood	$3,098
Special Damages	$12,490.82
Future Damages	$15,654
Subtotal	$227,286.82
Less refund to WorkCover	$30,272.84
Total	$197,013.98