Pasqualina Repici v Rentokil Initial Pty Ltd

[2022] VCC 365

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-04046

PASQUALINA REPICI	Plaintiff
V
RENTOKIL INITIAL PTY LTD (ACN 000 034 597)	Defendant

REASONS FOR JUDGMENT
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JUDGE:	Her Honour Judge Tran
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22, 23, 24, 25 and 28 February 2022 (via zoom)
DATE OF JUDGMENT:	28 March 2022
CASE MAY BE CITED AS:	Pasqualina Repici v Rentokil Initial Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VCC 365

REASONS FOR JUDGMENT
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Subject:WORKER’S COMPENSATION

Catchwords:              Breach of common law and statutory duties of care – causation – absence of OHS expert evidence – inaccurate history provided to medico-legal practitioners

Legislation Cited:      Occupational Health and Safety Regulations 2007, r2.1.2, r2.2.1, r3.1.1, r3.1.2, r3.1.3

Cases Cited:Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1

Judgment:                  Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr A Broadfoot QC with Ms L Burke	IDP Lawyers Pty Ltd

HER HONOUR:

1For about eight months Pasqualina Repici worked as a driver and service technician for the defendant (“Rentokil”). Rentokil provides serviced sanitary waste bins to various locations around Melbourne. Ms Repici’s role required her to drive from location to location emptying these bins. For each location she serviced, Ms Repici would either empty the contents of the bin into a trolley and from there into a 360 litre green bin, which she would push up a ramp into her van; or she would load each of the individual bins into her van. At the end of her shift, Ms Repici would take all of the bins in her van back to the depot for emptying.

2This was demanding physical work. Ms Repici was required to empty hundreds of sanitary waste bins each day. Several times a day, she would push a heavy 360 litre green bin up and down a ramp into her van. Her work was performed under time pressure. Workers were closely monitored for compliance with targets and were under constant electronic monitoring via GPS tracking installed in their work vehicles.

3On 19 April 2016, Ms Repici says that she was pushing a 360 litre green bin up the ramp into her van at the Monash Hospital, having just serviced level three of the hospital. She said the green bin at that time weighed about 50 kilograms. She said that when she was about halfway up, the right wheels of the bin came off the ramp and the bin tilted forward. She says that she lunged to grab the bin to save it from falling. It was at this moment, she says, that she injured her back (“the ramp incident”).

4Ms Repici says that she has suffered an injury to her spine, including aggravation of pre-existing degenerative changes, a disc prolapse at the L4-5 level of the spine and injury to the nerves. Nearly six years after the ramp incident, she says that it is still a daily struggle to get out of bed in the morning. She says she suffers chronic back pain with referred pain into the legs. She says she takes about 120 Endone tablets per month for her pain. She says she suffers from pins and needles and numbness in her left leg and, as a result, she is more prone to falls. She says that she has gained weight and suffers from anxiety and depression. She says that she has to push through the pain to go about her daily life.

5Ms Repici says that this injury resulted from Rentokil’s breach of its common law duty of care and statutory duties. She claims damages for her pain and suffering.

6To succeed, Ms Repici must satisfy the Court on the balance of probabilities that Rentokil breached either its statutory duty or care, or its duty of care to take reasonable care to protect Ms Repici, and that that breach of duty caused her injury. It is not enough for Ms Repici to show that she has an injury, or even that her injury arose from her employment with Rentokil. For the reasons which follow, I have concluded that Ms Repici has not discharged her burden of proof and that the proceeding should be dismissed.

Did Rentokil breach its duty of care to take reasonable care to protect Ms Repici from harm?

Submissions of the parties

7In her Statement of Claim (which was prepared by her former lawyers), Ms Repici relied upon sixteen particulars of negligence, many of which were quite general in nature. At trial, Ms Repici was self-represented. Her case, as explained in her oral submissions, relied upon three specific breaches of duty which were encompassed within her particulars:[1]

(a)   failing to provide Ms Repici with adequate training;[2]

(b)   failing to install either a hydraulic lift on the van; or lugging grips or locks on the ramp used to load bins into the van;[3] and

(c)   pressuring Ms Repici to complete high volumes of work at a pace exceedingly difficult to sustain.[4]

[1]Particulars of Negligence sub-joined to paragraph 8 of the Statement of Claim, CB15-16. The Statement of Claim also included an allegation that Rentokil failed to provide any or any adequate risk assessment of the tasks that Ms Repici was required to undertake and failed to comply with the results of any risk assessment undertaken by Rentokil. Paragraph 10 of the Statement of Claim alleged a breach of contract. There was no evidence or submissions in relation to these allegations at trial and I find that they were not established.

[2]See particular (b) “Failing to provide the Plaintiff with any or any adequate or proper supervision” and (d) “Failing to provide the Plaintiff with any or any adequate induction or training” Statement of Claim, Joint Court Book (“CB”) 15-16.

[3]See particular (a) “Failing provide a safe system of work”; particular (c) “Failing to provide the Plaintiff any or any mechanical lifting aids; particular (e) “Failing to provide the Plaintiff with safe equipment with which to work”; particular (f) “Failing to provide the Plaintiff with ramps that were safe and prevented the sanitary bin from falling”; particular (h) “Exposing the Plaintiff to a risk of danger or injury of which the Defendant knew, or ought to have known”; particular (i) “Exposing the Plaintiff to a risk of injury which could have been avoided with reasonable care on the part of the Defendant”; particular (j) “Permitting and/or requiring the Plaintiff to work in a dangerous manner; particular (k) “Failing to provide the Plaintiff with a safe method for loading the truck”; particular (n) “Failing to heed the cumulative weight that the Plaintiff was required to manually handle”; particular (p) “Failing to comply with the Regulations made pursuant to the Occupational Health and Safety Act 2004, Statement of Claim, CB15-16

[4]See particular (o) “Requiring the Plaintiff to collect an excessive amount of sanitary bins in a limited amount of time”, Statement of Claim, CB16

8Rentokil accepted that it owed Ms Repici a duty to take reasonable care for her safety and not unnecessarily expose her to the risk of injury. However, it submitted that Ms Repici had not established that there had been any such breach of duty by Rentokil. In particular, Rentokil submitted that without expert evidence the Court could not be satisfied that there had been a breach of duty.

Did Rentokil fail to provide Ms Repici adequate training?

9In her opening submissions, Ms Repici said that at the start of her employment with Rentokil she was told that she would be given “five to six weeks of full training”;[5] but that instead she received four to five days of driving under supervision, after which she was driving and completing runs on her own. Ms Repici said that the remainder of her training involved ‘sitting in a room with folders’, reading through them and signing off on each page.[6]

[5]Transcript (“T”) 7, Line/s (“L”) 14-16

[6]T7, L22-26; see also evidence-in-chief at T25, L28 - T26, L26

10The mere fact that fewer days of training were provided than anticipated does not establish a breach of duty of care. There was no evidence to suggest that Ms Repici was deprived of any specific relevant training. Ms Repici also accepted in cross-examination that she was shown how to push sanitary bins; how to position the wheels of the bins to push them up ramps; how to get them into trucks using the ramps; and told not to catch a bin that is falling or tipping over.[7] Ms Repici’s general assertions as to the inadequacy of her training are not sufficient to satisfy me that Rentokil breached its duty of care.

[7]T28, L24 – T29, L4

Should Rentokil have installed a hydraulic lift or lugging grips or locks?

11I accept that Ms Repici’s role was physically onerous. I also accept that installation of a hydraulic lift would have made Ms Repici’s role less physically onerous. However, it does not follow from these facts alone that Rentokil was under a duty of care to install a hydraulic lift in Ms Repici’s van; or to take any other measures such as installing lugging grips or locks. To succeed, Ms Repici must show that Rentokil failed to exercise reasonable care to protect her from harm. This necessarily requires consideration of the extent of the risk and the effectiveness and expense of any measures to ameliorate that risk.

12There was no expert evidence in relation to the likely risks to an employee of Rentokil’s existing system of work; nor of the expense and effectiveness of installing a hydraulic lift or lugging grips or locks. Indeed, it was not entirely clear on the evidence what was meant by lugging grips or locks. In opening submissions, Ms Repici referred to “lugging grips” on the floor of the ramp which would assist if a worker was required to stop halfway or the bin dislodged;[8] in her evidence-in-chief she referred to “locator lugs” on the bottom of ramps;[9] and in closing submissions she referred to “lugging locks” which held the two ramps in place so that they did not wobble.[10]

[8]T8, L1-11

[9]T27, L21-24

[10]T359, L 17-25; T360, L18-22

13It may be possible to conclude in some cases, relying upon ordinary experience alone, that an employer ought to take some particular safety step to protect its employees. However, this is not such a case. I am not satisfied that the failure to install a hydraulic lift or lugging grips or locks was a breach of Rentokil’s duty of care.

Did Rentokil require Ms Repici to work at an unreasonable pace?

14Ms Repici stated in opening submissions that she was expected to work over her rostered hours without pay,[11] that when she would call in sick she would receive calls back from her supervisor querying whether she was truly sick,[12] and that the pace at which she was expected to work was constantly ‘go, go, go’.[13] In her oral evidence, Ms Repici spoke of being given 45 jobs to complete in one day and being rung two or three times by her supervisor asking how she was going. She also spoke of having extra jobs added because someone else had called in sick; and of knowing that if she had unfinished jobs they would be added to her roster for the next day. She spoke of being refused leave when her father was having chemotherapy (but then calling in sick anyway).

[11]T8, L24-25

[12]T8, L27-29

[13]T9, L6-8

15Mr Trent Pearton, a former co-worker called as a witness by Ms Repici, also gave evidence of the difficulty of meeting Rentokil’s expectations.[14]

[14]         T171, L25-26

16Rentokil did not call any lay witnesses. In particular, they did not call Ms Repici’s former manager to give evidence. It is open to me to infer in the circumstances that the evidence of Ms Repici’s former manager would not have assisted Rentokil’s case.

17It certainly appears, from the uncontested evidence led at trial, that Ms Repici was required to work in a fast-paced and stressful environment with unsupportive and demanding management. However, it is a further step from there to a conclusion that the volume of work which Rentokil required Ms Repici to perform breached Rentokil’s duty of care to take reasonable care for Ms Repici’s physical safety. In the absence of any expert evidence in relation to the risks inherent in Rentokil’s system of work, I am not prepared to infer that it did.

Conclusion on breach of duty of care

18I am not satisfied that Rentokil breached its duty of care to take reasonable care for Ms Repici’s safety and not to unnecessarily expose her to the risk of injury occurring.

Did Rentokil breach its duties under the Occupational Health and Safety Regulations 2007?

19In her particulars of breach of statutory duty, Ms Repici relied upon:

(a)   regulation 2.1.2 (requiring the provision of information, instruction and training);

(b)   regulation 2.1.1[15] (regarding the proper installation, use and maintenance of risk control measures);

(c)   regulation 3.1.1 (requiring hazard identification);

(d)   regulation 3.1.2 (requiring control of risks); and

(e)   regulation 3.1.3 (requiring review of risk control measures).

[15]Incorrectly described as regulation 2.2.1 in the Statement of Claim.

20Breach of statutory duty was not expressly addressed at trial. However, for completeness, I am not satisfied on the evidence given at trial that there was any failure to provide Ms Repici sufficient information, instruction and training in relation to any hazard or risk; to properly install, use or maintain a risk control measure; to carry out hazard identification; to eliminate a risk of musculoskeletal disorder as far as reasonably practicable; to reduce a risk of musculoskeletal disorder as far as reasonably practicable; or to review and revise risk control measures.

Did any breach of duty cause injury to Ms Repici?

Submissions of the parties

21The focus of Ms Repici’s submissions and evidence at trial was to the effect that her injury was caused by the ramp incident. However, her Statement of Claim also alleged that her injury arose out of or in the course of her employment as a result of the repetitive and heavy nature of her duties. I will address both issues in these reasons.

22Rentokil submitted that:

(a)   Ms Repici was not a reliable witness. It submitted that she had:

(i)admitted relying upon her previous back pain in order to access her superannuation;

(ii)grossly understated her long history of back pain to almost every medico-legal expert who assessed her;

(iii)provided an inaccurate and incomplete description of the events of the day of the ramp incident to the medico-legal experts;

(iv)exaggerated her current symptoms, when presenting for assessment by the medico-legal experts; and

(v)given incorrect evidence in this proceeding;

(b)   given that Ms Repici was not a reliable witness and there was no witness to the ramp incident, I should not be satisfied that the ramp incident occurred as described by Ms Repici at all; and

(c)   even if the ramp incident occurred as described, I should not accept any medical opinion which relied upon Ms Repici’s self-described symptoms or history. In particular, I should not accept any medical opinion that the ramp incident caused injury to Ms Repici.

Past history of back pain and claim for early release of superannuation

23Ms Repici has a long history of suffering from back pain. Her history as recorded in the clinical records, and largely admitted by her during cross-examination, included:

(a)   on 2 March 2011, consulting a chiropractor in relation to her right shoulder blade area and lower back pain, which arose in the context of having hurt her back in a takeaway shop years’ prior, when lifting a 10 kilogram box of food;[16]

[16]CB 765; T32, L 29 – T33, L 6

(b)   on 2 July 2011, consulting a general practitioner for back pain after heavy lifting, for which she was prescribed Panadeine Forte;[17]

[17]CB 584

(c)   on 23 February 2012, complaining to a general practitioner of chronic low back pain with two to three years of recurrent onset and asking for a referral to a chiropractor;[18]

[18]CB 763; 768

(d)   on 2 March 2012, consulting a chiropractor and obtaining an x-ray of her cervical spine;[19]

[19]CB 1846

(e)   on 2 July 2013, being prescribed Endone and referred for a CT scan of the lumbar spine by a general practitioner for “non specific back pain”;[20]

(f)    on 10 November 2014, complaining to a general practitioner of pain in the T12/L1 paraspinal region and being prescribed Mobic;[21]

(g)   on 15 January 2015, being described by her long-term treating general practitioner, Dr Xiao Wang, as having suffered “Chronic low back pain for 7 yrs [sic] with lumbar disc protrusion on [L]5/S1”;[22]

(h)   on 16 January 2015, being referred by a general practitioner from the same practice to two orthopaedic surgeons for assessment in relation to “suffering from a chronic low backpain for 12 years with right leg pain. The pain is affecting her quality of life and she is unable to work”;[23]

(i)    on 17 January 2015, Dr Wang recording that she was “suffering from a disability and requires her vehicle [sic] for daily use…The jarring of accessing transport affects the disability…”;[24]

(j)    on 4 February 2015, being prescribed Panadeine Forte by a general practitioner for back pain;[25]

(k)   on 4 February 2015, being described as suffering chronic back pain for which she required physiotherapy twice per week in a form to claim early release of her superannuation completed by that general practitioner;[26]

(l)    on 11 February 2015, receiving a repeat script for Panadeine Forte;[27]

(m)     on 21 March 2015, attending the Dandenong Hospital Emergency Department complaining of right flank pain developed while mopping the floor, for which she was prescribed analgesia and referred for a CT scan[28]; and

(n)   on 26 March 2015, consulting a general practitioner for a follow-up appointment in relation to her right flank pain, for which she was referred back to the Dandenong Hospital. [29]

[20]CB 760-761

[21]CB 620

[22]CB 758

[23]CB 1130; CB 1895

[24]CB 758

[25]CB 620

[26]CB 721-2

[27]CB 619-620

[28]CB 1897

[29]CB 619

24Ms Repici’s history also included making two claims for early release of her superannuation on the grounds of back pain, the second of which was successful.[30]

[30]         CB 758; CB 620

25Notwithstanding this long history of back pain:

(a)   in her Claim Form completed on the day of the ramp incident, in response to the question “Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?” Ms Repici wrote “No”;

(b)   in a statement signed by her and prepared in the course of the investigation into her injury, she said that she had never suffered any injury similar to the injury she had now;[31]

(c)   Dr Ales Aliashkevich, a neurosurgeon and spinal surgeon, assessed Ms Repici on 16 June 2016 and recorded, as part of Ms Repici’s history, that “She had no problems with her back prior to commencing her employment”; 

(d)   Dr Sam Soliman, an occupational medicine consultant assessed Ms Repici on 8 August 2016 and stated in his report that “Ms Repici stated that she has no previous injuries or back pain”[32] and that she “completely denies that she ever had lower back pain”;[33]

(e)   Dr Tim Hwang, a consultant occupational physician assessed Ms Repici on 20 February 2018 and recorded that “she described some minor back aches from time to time but these were not disabling in any way”;[34]

(f)    Associate Professor Anthony Buzzard, a general surgeon who assessed Ms Repici on 8 March 2018, recorded that she had “normal backaches” before but had not had any time off work;[35]

(g)   Dr Gerard Powell, a consultant orthopaedic surgeon, assessed Ms Repici on 26 October 2018 and recorded that “She has a long history of back injuries in the past.  She states that she only ever took Panadol for these and that her back condition was not severe;”[36] and

(h)   Dr David Kennedy, a sports and industrial physician who assessed Ms Repici on 13 March 2019 recorded a history of niggling back soreness generally which required intermittent Panadol but no other investigations or specific treatment for back problems.[37]

[31]JCB 189

[32]CB 1960

[33]CB 1962

[34]CB 1991

[35]CB 1983

[36]JCB 2006

[37]CB 1935

26Even in this proceeding, Ms Repici sought to minimise her previous back pain, stating in cross-examination “…it’s not the same pain as what I’m getting now, I take a few Panadol or a few Nurofen and get on my way, this is a different type of pain”.[38]

[38]T 33, L7-11. Note: the transcript is incomplete. This quotation has been cross-checked with the recording of the hearing.

27Ms Repici’s clinical history cannot fairly be described as a few minor back aches; mild pain; or pain which required nothing more than a few Panadol or Nurofen. Her history, as recorded in the clinical records and largely admitted by her, indicates that she suffered from pre-existing disabling back pain which has, at times, required significant prescription medication such as Endone or Panadeine Forte.

28Ms Repici has also received early release of her superannuation on the grounds of the disabling nature of her back pain. Either this is indicative of the seriousness of her pre-existing backpain; or it is indicative of a willingness to exaggerate her symptoms in order to receive a financial benefit. Neither interpretation supports the view that Ms Repici is a reliable historian.

29Ms Repici denied giving inaccurate histories to the medico-legal experts. She claimed that she answered their questions truthfully and that it was the medical reports which were inaccurate.  

30The history taken by a doctor, even an experienced medico-legal expert, is not always reliable. However, it is not plausible that this many practitioners recorded Ms Repici’s history as inaccurately as alleged by Ms Repici.

31I find that Ms Repici has consistently understated the extent of her pre-existing back pain to the medico-legal practitioners. It follows that her evidence in this proceeding – that she had not understated the extent of her pre-existing back pain to these medico-legal practitioners and that it was the medico-legal practitioners who had recorded the history she gave incorrectly – was not true.

Description of symptoms after the ramp incident

32Rentokil tendered surveillance footage from numerous days between 5 June 2016 and 3 December 2021 showing Ms Repici going about daily activities with little apparent restriction. For example, footage from 2016 showed Ms Repici walking freely without crutches. It showed her walking with greyhounds on a lead and maintaining control of those greyhounds. There was footage from 2017 showing her using a crutch, but not putting a great deal of weight on it and showing her reaching up to close the boot of her car and bending into the car. Footage between February 2018 and December 2018 showed Ms Repici walking freely and briskly to her car on multiple occasions. In January 2019, there was footage showing her walking two greyhounds, confidently and with no sign of discomfort. Between November and December 2020, there was footage showing her walking without any crutches; getting in and out of her car without apparent difficulty; and walking around a supermarket carrying groceries. In November 2021, there was footage of her driving with a child in her car and then pushing a pram with one hand and leaning over to put things in the pram.

33There was a stark contrast between Ms Repici’s appearance in this surveillance, on the one hand, and her description of her symptoms to the medico-legal experts and her presentation during their assessments, on the other. For example:

(a)   Dr Aliashkevich recorded, following an assessment on 16 January 2016, that Ms Repici had a very slow and antalgic gait and required the support of two crutches;[39]

(b)   Dr Soliman recorded, following an assessment on 8 August 2016, that she needed to use crutches as she could not stand on her own; that she suffered from constant back pain of 8.5 out of 10 severity;[40] and that she was not able to do anything at home and was lying on the couch all day;[41]

(c)   Dr Hwang recorded, following an assessment on 20 February 2018, that:[42]

(i)since the initial days after her injury she had been mobilising on double crutches;

(ii)she uses crutches at all times even when going between her bed and the bathroom; and

(iii)on one occasion a few months ago she had tried walking to the letterbox without crutches and she stumbled. She subsequently lost confidence and had not walked any significant distance without using crutches since then;

[39]CB 575

[40]CB 1959

[41]CB 1960

[42]CB 1992-3

(d)   Dr Powell recorded, following an assessment on 26 October 2018, that she currently had a walking tolerance of only five to ten minutes but could walk for up to fifteen minutes with crutches;[43]

(e)   Dr Kennedy recorded, following an assessment on 20 February 2020, that she required an ambulatory aid;[44]

(f)    Dr Simm recorded, following an assessment on 15 May 2019, that her back symptoms remained severe and disabling, and that she used a crutch occasionally indoors and almost constantly outdoors. He recorded that she said that she had not walked a greyhound that year, could walk less than 200 metres, and could negotiate a small number of stairs using her crutch and handrail;[45] and

(g)   Dr Simm recorded, following a zoom assessment on 25 November 2020, that Ms Repici said that her pain was worse than when he last examined her, that she was no longer walking her dogs, and was struggling to walk using two crutches.[46]

[43]CB 2007

[44]CB 1946

[45]CB 2024-6

[46]CB 2035-2036

34Care must be taken when considering surveillance footage. Surveillance footage records a snapshot in time. It may be taken on a good day. A person may be suffering significant subjective pain which is not apparent in their outward appearance. However, the contrast between Ms Repici’s reported symptoms and presentation to the medical experts and the many days of surveillance footage is simply too stark. It is implausible that every day of surveillance was a “good day” and every day she was assessed by a medico-legal expert was a “bad day”.

35I find that Ms Repici has consistently exaggerated her symptoms and limitations and that her presentation when assessed by the medico-legal experts did not provide an accurate portrayal of her capacities. I find that her description of her symptoms and limitations, both to the medico-legal experts and in evidence at trial is not reliable.

Conclusion on reliability of Ms Repici’s evidence

36Rentokil did not submit, in its closing submissions, that I should find that Ms Repici was a liar. I do not do so. However, she has demonstrated a lack of reliability, not just in the histories she has provided to many medico-legal specialists, but also in her descriptions of her symptoms and presentation to the medico-legal specialists and in her evidence given, on oath, at trial. There is a consistent pattern of exaggeration or understatement in order to advance her case. Given the extent of her lack of reliability, it is necessary to treat the entirety of her evidence with caution, particularly where it might be viewed as advancing her case.

Events on day of ramp incident

37In her oral evidence, Ms Repici said that, on the morning of 19 April 2016, she awoke to a sharp stabbing pain in the left lumbar region of her lower back that was unlike any pain she had experienced in the past.[47] Upon reaching for a lunch bag, Ms Repici noticed further pain and stiffness in her back.[48]

[47]T 30, L 9-15; T 31, L 16-18; Exhibit D 25 ‘Report of Rodney Simm’

[48]T 14, L 23-29; T30, L 28-30

38Ms Repici said that she did not want to call in sick because she was still on probation and felt that her supervisor would not believe her. So, she went to work despite feeling that her pain was serious enough that she should call in sick.[49] The first site she was required to service was the Monash Hospital. She said that after arriving and taking a green bin out of the van she went to get some pain relief. She said she then continued on and serviced level three of the hospital. After doing this, she went back to the van and was pushing the green bin up the ramp when the right wheels came off the ramp. She said that she lunged for the bin to stop it falling all over the floor and that is how her back injury occurred.

[49]T 14, L 30 – T 15, L 3; T30, L 18-27

39Ms Repici said that she didn’t report her injury immediately to her manager. Around lunchtime, as she cooled down, she found she was stiff, had pins and needles running down her leg and a sharp pain in her back. She said she took another couple of Panadol tablets and also two Panadeine Forte. She said that she was then asked to return to the depot by her manager. She said that her manager noticed that she was not looking too well. She said that by that stage her face was all red from the pain and she was crying. Her manager asked her to touch her toes and she could not. Ultimately, her manager asked her to complete a WorkCover claim form and she was sent home.

40Rentokil tendered two discharge summaries from the Monash Hospital Emergency Department on the day of the ramp incident. The first recorded that Ms Repici presented at emergency at 7.04am with lower back pain.[50] It recorded that Ms Repici suffered previous chronic low back pain managed with Nurofen; that her back pain had been aggravated for the past week and that Nurofen had not been effective. Ms Repici is recorded as having been prescribed Endone and Paracetamol at 7.30 and discharged to home at 9.11am.

[50]CB 2451-2458; D 13 ‘Monash Medical Centre Emergency Department discharge summary dated 19 April 2016 in relation to admission at 7.04am’

41Ms Repici accepted in cross-examination that this first presentation to the emergency department occurred before the ramp incident. It appears that this presentation is what she described in her oral evidence in chief as “about 8 o’clock I went and got some more pain relief to continue on”.[51]

[51]T15, L 10-11

42The second discharge summary recorded that Ms Repici re-presented to the Monash Hospital Emergency Department at 9.53am and was crying and in pain. It recorded that her pain had worsened and spread down her left leg while she was “waiting in pharmacy line”.[52] It recorded an eight-year history of lower back pain. It recorded that she saw a physio and registrar and was diagnosed with likely acute on chronic discogenic back pain. There was no mention of any incident pushing a green bin up a ramp, although there was reference to pushing heavy trolleys. It was recorded that she was taped and at 10am given Endone and Diazepam. It was recorded that she was discharged to home at 1.50pm.

[52]CB 2447

43Rentokil submitted that the second discharge summary conflicted with Ms Repici’s description of the ramp incident. In particular, the discharge summary described the increase of Ms Repici’s pain as occurring when she was waiting in line at the pharmacy. It contained no reference to any incident pushing a bin up a ramp. The discharge summary did refer to pushing heavy trolleys, but Rentokil submitted that this was not a reference to the ramp incident. It submitted that I should not be satisfied that the ramp incident occurred at all.

44Although, as I have already noted, I am concerned about the reliability of Ms Repici’s evidence, I am not prepared to completely reject Ms Repici’s account of having suffered pain when lunging for a bin she was pushing up a ramp. The second discharge summary was prepared in the context of a, no doubt, busy emergency department and at a time Ms Repici was recorded as being distressed and in pain. In her claim form completed that afternoon she reported that she was injured when pushing a “bin up ramps to work van”.[53] This was only a short time after the ramp incident was said to have occurred.

[53]CB 1230

45In this context, I accept that Ms Repici suffered an increase in pain after lunging for a green bin that she was pushing up a ramp. However, I find that this increase in pain occurred in the context of having already suffered a sharp stabbing pain in her lumbar spine that morning. The sharp stabbing pain Ms Repici experienced before the ramp incident was different to any pain Ms Repici had experienced before. It was severe enough to cause Ms Repici to attend the Monash Emergency Department for treatment and to be provided with Endone and Paracetamol. I also find that the ramp incident occurred in the context of Ms Repici having also suffered an increase in pain while standing waiting in the pharmacy line.

Medical evidence

46In the context of these findings, I turn to consider the medical evidence as to causation.

47Dr Wang was Ms Repici’s treating GP for many years. In his opinion, the ramp incident was a significant contributing factor which aggravated Ms Repici’s pre-existing “lunar disc lesions”. This conclusion seemed to be based largely on the temporal connection between onset of her pain and the ramp incident, and the absence of any other explanation. However, Dr Wang did not have the complete account of the events of the day of the ramp incident. In particular, he was not aware that Ms Repici experienced a sharp stabbing pain before the ramp incident. Although he ought to have been aware of Ms Repici’s long history of back pain, it was apparent from his cross-examination that he had very little specific recollection of Ms Repici’s history. He is a general practitioner without any speciality in spinal pain and acknowledged that he would defer to the specialists. His evidence was generally confused, defensive and difficult to follow. I do not accept his opinion as reliable.

48Dr Ales Aliashkevich was a treating neurosurgeon. He did not give an express opinion as to causation. In any event, he did not have an accurate history of Ms Repici’s history of back pain or an accurate history of the complete events of the day of the ramp incident. His reports do not provide support for a finding that the ramp incident caused any injury to Ms Repici.

49Mr Kevin Sui is a medico-legal neurosurgeon. In his report of 1 February 2019, he accepted that the ramp incident had caused the lumbar spine injury against a background of spondylitic changes. However, he did not have an accurate history of Ms Repici’s history of back pain or an accurate history of the events of the day of the ramp incident. When provided with a complete history, he agreed that the ramp incident may or may not have altered the underlying pathology and that it may have been her degenerative changes that were causing her injury and pain.[54]  

[54]T288, L26-T289, L21

50Dr David Kennedy is a medico-legal sports and industrial physician. In his report of 27 March 2019, he concluded that Ms Repici had sustained an injury to her lumboscral spine and an L4-5 disc extrusion resulting in significant low back pain and left lower limb pain and parasthesia as a consequence of the ramp incident. However, he did not have an accurate history of Ms Repici’s history of back pain or an accurate description of the events of the day of the ramp incident. In cross-examination, he was initially resistant to changing his opinion even when asked to assume a history of back pain and the events of the day of the ramp incident which was quite different to that provided to him in his report. However, he ultimately stated that “on the balance of probabilities … [the ramp incident] may have not resulted in anything extra to what she had prior to the incident, or it may have exacerbated and accelerated significantly the problems at L4/5 that she was experiencing early in the morning…whether the problem was present prior to that incident and would have been present after the Endone had worn off, and whether the incident occurred and exacerbated and accelerated the problem is now more difficult to isolate between one and the other”.[55]

[55]T308, L 31-T309, L17

51Mr Richard Pease is a medico-legal orthopaedic surgeon. In his report of 9 May 2016,[56] he expressed the view that Ms Repici had suffered an acute disc prolapse on 19 April 2016 and that pushing the bin up the ramp was a very significant factor in the onset of her symptoms. However, he too did not have an accurate history of Ms Repici’s history of back pain or a complete description of the events of the day of the ramp incident. Upon being provided that history, he expressed the view that the pain she experienced after the ramp incident could have been “simply… a recrudescence almost of what’s been a long-standing degenerative process… I think that would be unlikely that would have made any difference to the long-standing spondylolisthesis due to bilateral pars defects…before the alleged incident she was clearly in significant trouble anyway”.[57] He also stated “from the history, the details you gave me, it’s a progressing problem, it’s been going on for years and would be likely to go on for years”.[58]

[56]Incorrectly dated 9 May 2015

[57]T250, L1-251, L8

[58]T253, L22-25

52Dr Sam Soliman is an occupational medicine consultant. In his report dated 8 August 2016, he expressed the opinion that the relationship between the ramp incident and her current severe disabling pain was unclear, although the ramp incident may have temporarily exacerbated her underlying condition. As with the other medico-legal specialists, at the time of writing his report he did not have an accurate history of Ms Repici’s back pain or a complete description of the events of the day of the ramp incident.

53Associate Professor Buzzard is a general surgeon. In his report of 8 March 2018, Associate Professor Buzzard expressed the opinion that Ms Repici suffered an aggravation of pre-existing pathology as a result of the ramp incident. As with the other medico-legal specialists, at the time of writing his report he did not have an accurate history of Ms Repici’s back pain or a complete description of the events of the day of the ramp incident. In oral evidence, he said that if she had significant back pain before April 2016 this would bring into question the role of the ramp incident.

54Dr Tim Hwang is a consultant occupational physician. In his report of 20 February 2018, he accepted that Ms Repici’s condition was materially contributed to by a workplace injury on 19 April 2016. However, in a subsequent report dated 29 May 2018 he retracted this opinion, having viewed surveillance footage which he considered inconsistent with Ms Repici’s presentation during her assessment.

55Dr Gerard Powell is a consultant orthopaedic surgeon. In a report dated 3 December 2018, he concluded that Ms Repici’s symptoms would almost certainly have arisen even without the ramp incident. Accordingly, he did not believe that Ms Repici’s injury was work-related. In a supplementary report dated 3 January 2019, he reviewed surveillance footage and noted that it was inconsistent with her presentation to him. This footage did not alter his opinion as to causation (which was that she had not suffered a work-related injury).

56In oral evidence, Dr Powell explained that Ms Repici had significant degenerative changes in her spine before the ramp incident but that there was evidence of a new disc prolapse in the scans of 2016. However, he said that this disc prolapse had been shown on subsequent investigations to have retracted as expected. In his opinion, it was most likely that this disc prolapse occurred on 19 April 2016. However, he said that it was unclear whether it occurred before the ramp incident or as a result of the ramp incident. When told that, before the ramp incident, Ms Repici suffered significant sharp stabbing pain that was different to any type of pain she had experienced in the past he said that it was “more, much more likely that the disc prolapse had started earlier in the morning”.[59]

[59]T326, L2-L6

57Mr Rodney Simm is an orthopaedic surgeon. He had the most accurate history of any of the medico-legal practitioners. In his report of 15 May 2019, he explained that:[60]

Symptoms from the underlying pathology arose spontaneously on the morning of the day of the claimed injury. The symptoms were sufficiently severe for her to have considered not going to work that day. She did go to work, knowing that she could attend the Emergency Department of the Monash Medical Centre and obtain pain-relieving medication to assist her to get through the working day. Therefore the pathology and the pain from that pathology were not work-related. The basis of her claim is that there was a further and severe exacerbation of pain manoeuvring a bin. One would expect that physically loading her back, which was already severely painful, would have understandably increased the pain. I doubt that the increased pain associated with working in the presence of the already established pain altered the underlying pathology, or contributed in a significant way to the subsequent clinical course of that pathology.

[60]PCB 2030-2031

58The medical opinions of the medico-legal experts in this case are only as reliable as the histories provided to those medico-legal experts. None of the medico-legal experts, with the possible exception of Dr Wang, provided unequivocal evidence of causation once provided with complete histories of Ms Repici’s pre-existing back pain and the events of the day of the ramp incident.

59It is possible that Ms Repici suffered some aggravation of her pre-existing back issues in the ramp incident. If she did, it was most likely in the form of a disc prolapse. But it is also possible that she suffered the disc prolapse before the ramp incident or that her symptoms (to the extent they are genuine) result solely from inevitable degenerative changes.

60Dr Powell’s and Dr Simm’s evidence on this issue was particularly helpful and compelling. I find that the more probable inference[61] is that Ms Repici suffered a disc prolapse before the ramp incident, which exhibited itself in the sharp stabbing pain she suffered on waking that morning. I find that the more probable inference is that the increase in pain that Ms Repici experienced in the ramp incident was at most a temporary exacerbation of a pre-existing back condition.

[61]Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1 at [5].

Was the injury caused by the course of Ms Repici’s employment?

61None of the medical experts expressed the opinion that Ms Repici was injured as a result of repeat heavy duties performed by her over the course of her employment with Rentokil (as opposed to the specific ramp incident). In the absence of such expert medical opinion, I am not satisfied that her injury was caused by the duties she performed over the course of her employment.  

Conclusion on causation

62I am not satisfied that Ms Repici has suffered an injury as a result of the ramp incident or as a result of repeat heavy duties performed by her over the course of her employment.

Quantum of damages

63It is not necessary for me to decide this issue as I have found that there was no breach of duty or causation. Ms Repici is not entitled to damages. For completeness, if I am wrong in my conclusion that Ms Repici’s disc prolapse was not caused by a breach of duty by Rentokil, I would have awarded no more than $20,000 for this injury. I am not satisfied that Ms Repici’s self-reported symptoms of ongoing severe disability are reliable. I am not satisfied that any of Ms Repici’s long-term symptoms result from her employment with Rentokil. I accept the evidence of Mr Powell that the effects of the disc prolapse were likely short-lived only and that this prolapse was not responsible for Ms Repici’s long-term symptoms.

Conclusion

64Ms Repici has not met the legal burden upon her to show that Rentokil breached a statutory or common law duty, or that any such breach of duty caused her injury. The proceeding is dismissed and I will hear from the parties on the question of costs.

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Certificate

I certify that these 23 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 28 March 2022.

Dated: 28 March 2022

Coco Weston     

Associate to her Honour Judge Tran