Prasad v Ingham's Enterprises Pty Ltd

[2015] QDC 200

DISTRICT COURT OF QUEENSLAND

CITATION:

Prasad v Ingham’s Enterprises Pty Ltd [2015] QDC 200

PARTIES:

ROSELYN PRASAD
(plaintiff)

v

INGHAM’S ENTERPRISES PTY LTD
(defendant)

FILE NO/S:

BD 2892/11

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

7 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24 July 2014; 4 December 2014

JUDGE:

McGill SC DCJ

ORDER:

Judgment for the defendant.

CATCHWORDS:

EMPLOYMENT LAW – Injury of employee – liability of employer – plantar fasciitis – whether caused by conditions at work – whether alleged features of work proved – whether breach of employer’s duty – whether if no breach injury would probably not have occurred – employer not liable.

EMPLOYMENT LAW – Contract of service – implied term – whether term to be implied that employer will comply with statutory obligations concerning workplace safety.

Workplace Health and Safety Act 1995 s 37A.

Amaca Pty Ltd v Ellis (2010) 240 CLR 111 – applied.
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 – applied.
Driver v Stewart [2001] QCA 444 – cited.
Gramotnev v Queensland University of Technology [2015] QCA 127 – distinguished.
Kuhl v Zurich Financial Services Aust Ltd (2011) 243 CLR 361 – applied.

COUNSEL:

G J Cross and A S Katsikalis for the plaintiff (July)
P Hackett and A S Katsikalis for the plaintiff (December)

M T O’Sullivan for the defendant

SOLICITORS:

Matthew Gibson Legal for the plaintiff

B T Lawyers for the defendant

1. In early 2010 the plaintiff was a process worker at the defendant’s plant when she developed increasing pain in her feet.[1]  By March 2010 her feet were so sore she was unable to continue her work, which she performed standing.  She spoke to a supervisor and was referred to the medical centre at the plant, where she was treated with heat packs.  She later attended doctors and a podiatrist, and it is common ground that she was found to be suffering from plantar fasciitis.  She still has this condition, though her symptoms have abated somewhat after she ceased process work at the defendant’s plant, and received treatment.  She is now doing a different type of work, and working only part-time: p 39.  She alleged that she developed this condition because of the negligence or breach of contract of the defendant.  Liability and quantum are both in issue; in particular, there is an issue as to causation. 

   [1]Plaintiff p 1-20: this was more than the usual pain at the end of a day’s work: p 1-47.

Facts

1. The plaintiff originally worked for the defendant from 1994 to 1997, and returned to work in 2000: p 19.  From then she was mainly working in a room packing chicken pieces into plastic trays so that they could be wrapped, crated and placed into a cold room for storage until dispatched.  She used to work five days a week, 37 hours per week, starting at 6 a.m.: p 20.  Each day she worked four sessions of 84 minutes, interspersed with breaks of 10 minutes, 15 minutes and 35 minutes: p 21.  Halfway through each work session she did stretches for a couple of minutes, and rotated to the other side of the conveyor belts: p 27, p 91.  The effect of this was that for half the time she was reaching to her left and for half reaching to her right.  Sometimes she worked at other positions, but mostly packing breast meat: p 91.

1. The area where she worked was kept cool to 13°C and the plaintiff dressed warmly under a food hygiene uniform provided by the defendant.[2]  This included rubber boots[3] as shown in Exhibit 1, photos 1 and 2.  Her workplace is also shown in the photographs Exhibit 1; when packing she would take chicken pieces from a conveyor and place them in the plastic trays, putting the filled trays onto a higher conveyor belt: p 25.  At times the higher belt stopped, and if this was for any length of time she was not able to continue her normal work.  When that occurred, she was expected to load wrapped chicken pieces onto trolleys and push them into the cold room: p 28.[4] 

   [2]Plaintiff p 19.  The temperature was admitted on the pleadings: statement of claim para 2(c)(i); defence para 2.

   [3]The plaintiff referred to these in evidence as gumboots or as Wellington boots.

   [4]Ms Sinha said this happened five to six times each lap i.e. work period, and when it occurred they stacked product in crates: p 2-27, 28.  Cf.  Ormsby p 2-85, p 2-94.

1. The boots issued by the defendant could be replaced when they were worn out: p 22, p 50.  They came with insoles,[5] which could also be replaced when worn out: p 23.  Because her feet became cold while standing, she would wear two pairs of socks inside the boots, and this led in time to her obtaining larger sized boots: p 19, p 22.  At one time the workers used to stand on square, perforated rubber mats, but in 2006 these were removed, they were told for health and safety reasons: p 21.  The mats used to protect her feet from the cold floors to some extent, and after they were removed she would stand on sheets of cardboard, but was then told that they were not allowed: p 22.  There were a number of low metal stands available which workers could stand on, and she said that she used one when one was available, but only had access to one about 25% of the time: p 24, p 27.[6]   

   [5]At least for some time, but not from 2000: p 1-49.

   [6]Under cross-examination however she agreed she was able to get a stand at least 80% of the time: p 55.  A stand is shown in Exhibit 1 photo 6.

1. She said that when they were moving stacks of crates to the chiller, these were loaded onto trolleys which were difficult to push: p 29, p 36.  She attributed this difficulty to two matters: first, that there were often pieces of chicken on the floor and that sometimes these would get caught in the wheels of trolleys, and second, that the wheels on the trolleys did not pivot freely so that it was difficult to get them to change direction.  Her description of the arrangement with the wheels was not very clear, but there was one wheel in the middle of each side of the trolley, all fixed to face the same direction.  That strikes me as an odd arrangement, but its existence was confirmed by the evidence of Mr McDougall, and of a supervisor, who said that in practice the wheel arrangement worked well and the trolleys were easy to manoeuvre.[7] 

   [7]Msalm p 2-105; see also Exhibit 19.

1. The plaintiff reported her problems at work in March 2010, and when reporting her condition signed a form which was prepared by someone else: Exhibit 11.[8]  At that stage her heels were swollen and red, the one on the right side being worse: p 37.  She saw a podiatrist who provided treatment, and subsequently saw a general practitioner who referred her to an orthopaedic surgeon, Dr Walsh: p 38.  After a time she tried to return to work, but found it too painful to do her normal job.  She was transferred to light duties where she remained for a couple of months, but it appears that her employment was terminated on 26 June 2010.  She subsequently had treatment to her heels in hospital, four treatments on each side, which produced some improvement: p 39, p 40.  She also used creams to ease the pain (p 41) though it appears that the main source of pain relief was through not having to stand as much as she did when working full time.  She has been working part-time from January 2012, but is limited to 15 to 20 hours per week, otherwise her feet become too sore: p 39.  She said she would like to do more work, and at one time tried, but is not up to it: p 41.

   [8]Page 41.  She claimed not to have read this first: p 47.

Medical evidence

1. The plaintiff was treated by a podiatrist, Mr Lane, from 16 April 2010, to 12 July 2011, though most of the attendances were in the early part of 2010: Exhibit 5.  He had not seen the plaintiff since July 2011: p 1-82.  He had then referred her for medical treatment: p 1‑83.  On 16 July 2014 he signed a file note of a telephone conversation on 15 July 2014[9] concerning the plaintiff: Exhibit 5.  He said that she came on the recommendation of the defendant, with a letter from them.  He has been a podiatrist for 17 years, and has a particular interest in the biomechanics of the foot: p 1-72.  In that time he had treated thousands of cases of plantar fasciitis including several in people working for the defendant.  He said that this was one of the most common conditions of heel pain, involving inflammation of the plantar fascia, a ligament that runs along the sole of the foot between the heel bone and the base of the toes.  It provides support to the arch of the foot and has an important role in foot mechanics during walking.  It is placed under greater tension when one stands or walks or runs. 

   [9]See Lane p 1-72.

1. When the ligament is overloaded or overstretched this causes small tears particularly where it is attached to the heel bone.[10]  This can also be triggered by various activities including sports or pushing furniture or large items, or intense training.  Footwear that does not provide enough arch support could contribute to the condition.  Factory workers or others who were frequently on their feet are at risk of suffering the condition as are persons who do a lot of walking or standing on hard surfaces.[11]  It is also a condition associated with excessive pronation of the foot.  Among his patients the condition had been caused in a lot of ways but he had noted some association with working on hard surfaces such as concrete, and thought that pushing and pulling heavy loads may also cause the condition.[12]  The condition would also be aggravated by prolonged standing: p 1-89.  He thought that the boots that were worn did not offer a lot of cushioning and support.[13]  He expressed the view that pushing a fairly heavy trolley five or six times a day could have prompted the condition.  He thought that standing on rubber matting would be better than standing on a concrete floor, and that standing was one of the hardest things[14] because the body was designed more to move.  Most people with the condition recovered within a period of a few weeks but there were individuals who suffered chronic symptoms.  A small percentage of patients do not respond to treatment: p 1-78.  People who recovered were more vulnerable to the problem if placed again in the same situation. 

   [10]See also Dr Werner Exhibit 24 p 9.

   [11]In oral evidence he gave a list of prompting factors including prolonged standing, shoes with poor support, increasing time on hard surfaces and overuse: p 1-73.  Also standing on the toes: p 1‑77.  The condition was once known as policeman’s foot: p 1-83.

   [12]He explained the mechanism for this at p 1-76.

   [13]They would do so only when new: p 1-74.  But he had not seen them: p 1-84.

   [14]In terms of irritation to the plantar fascia: p 1-75.

1. In oral evidence, he said that anti-fatigue mats for someone standing on a hard floor had a cushioning effect, which reduced the need for compensation in the ankle: p 1‑74, 75.  Any process which put greater than normal load on the ligament predisposed it to injury in the form of microtears: p 1-75.  He would classify the condition as an overuse injury: p 1-77.  Cold would restrict the blood flow in the foot, and impair healing: p 1-78.  Under cross-examination he conceded that he would defer to an orthopaedic surgeon in dealing with an orthopaedic injury: p 1-80.  He agreed that plantar fasciitis is a constitutional condition: p 1-81.[15]    

   [15]He meant by this that it was related to issues of alignment in the structure of the legs and the feet: p 1‑86.  That is not necessarily inconsistent with an external cause in law.

1. The plaintiff was seen by Dr Locke, a sports and exercise physician, on 10 December 2010, on referral from Dr Walsh; he wrote to Dr Walsh on 13 December about the outcome of his examination: Exhibit 15.  Dr Locke in the letter expressed the opinion the plaintiff had plantar fasciopathy, confirmed by features detected on an ultrasound examination.[16]  There was then some discussion of treatment options, but no discussion of the cause of the condition.  He noted that symptoms had been present from April that year: p 102.  In December the plaintiff was complaining of pain, significantly worse on the right side: p 103.  Dr Locke was aware of an x-ray report of 14 April 2010 revealing the presence of bilateral calcaneal spurs on the plaintiff’s heels, but was unable to tell without seeing the x-rays whether or not these were related to the plantar fasciitis: p 104.  He was also aware of an MRI report which showed a small tendon bursa, but thought it was not of significance because it was in a different area from her soreness: p 104. 

   [16]He preferred this term for the plaintiff’s condition to plantar fasciitis, but this was just different terminology for the same condition: p 105. 

1. On 21 July 2014 a solicitor spoke to Dr Locke and prepared a file note which he subsequently amended and verified: Exhibit 14.  Some people with this condition have ongoing problems but the majority will recover.  There was some research literature suggesting that individuals who spent the majority of their working day on their feet experienced a risk of developing the condition which was 3.6 times larger than other individuals.  Dr Locke agreed with the proposition that pushing off with the foot when walking or pushing something would be likely to cause microtrauma to the plantar fascia.   

1. The plaintiff was seen by Dr Langley, an orthopaedic surgeon, on 6 April 2011 for the purposes of a report: Exhibit 9.  She was then complaining of continuing aching on the underside of both heels which had prevented her from working, and which was interfering with her work around the house and recreational activities.  She was limited to standing for a period of 30 minutes, and to walking for between 30 and 40 minutes.  She also had difficulty with stairs and with lifting including of laundry baskets, and avoided driving a car.[17]  Her sleep was affected and she woke in pain.  Dr Langley diagnosed her as suffering from plantar fasciitis, and said this condition often develops in people when they are standing on hard surfaces.  As a result she had ongoing impairment but this was said not to be assessable under the AMA guides.  Her symptoms were due to her work with the defendant, on the basis that the condition often develops in people working on concrete floors, so he believed her employment was a major contributing factor.  He recommended a course of treatment including injections and physiotherapy, costing up to $2,000. 

   [17]She has since overcome this, and spends quite a bit of her time driving: p 2-19.

1. Dr Langley saw the plaintiff again on 25 March 2013 for the purposes of an updated report: Exhibit 10.  She was then still suffering from much the same symptoms, although her ability to perform household duties had improved a little.  She had not returned to various recreational activities, but she was able to stand for two hours, provided that she was able to move around; walking was limited to 25 minutes, and she needed to use a handrail on stairs.  She avoided lifting, and was limited in driving a car to 25 minutes, but her sleep was better than it had been.  He confirmed the previous diagnosis, and expressed the same opinion in relation to work on a concrete floor being a major contributing factor.  Unfortunately since giving these reports Dr Langley has passed away (Exhibit 4), and was therefore not cross-examined on aspects of the defendant’s case as to the cause of the plaintiff’s condition. 

1. The plaintiff was examined on 10 June 2010 by Dr Halliday, an orthopaedic surgeon, for the purposes of a report to WorkCover: Exhibit 31.  Dr Halliday noted that the plaintiff had been working full time as a process worker for nearly 10 years and that she began to develop pain in January, which by March was becoming more pronounced and she was having some swelling in the heels.  Despite some time off work and some physiotherapy and treatment from a podiatrist she said her condition had not improved.  She wore shoes with supported arches, no longer used any strapping, and was taking Panadol and Voltaren to control the pain.  The pain was present all the time but made worse by standing and walking which limited her to about 15 minutes walking or 10 minutes standing. 

1. On examination there was bilateral tenderness in the heel pad and the sole of the foot in the region of the insertion of the plantar fascia, but no demonstrable swelling.  He diagnosed bilateral plantar fasciitis, and noted the presence as well of calcaneal spurs on both heels, said to be a constitutional condition.  He considered the treatment she had received to be appropriate.  He expressed the opinion that the plantar fasciitis was not work-related, saying that it was a relatively common condition which occurs in middle age.  He appeared to be of the opinion that the symptoms of these conditions which he regarded as constitutional were preventing her from returning to her process work, essentially because prolonged standing on sore heels was likely to make the condition worse. 

1. There was a further examination of the plaintiff by Dr Halliday on 22 August 2011 for the purposes of a report to the defendant’s solicitors: Exhibit 32.  There was an indication that her symptoms had improved since mid-2010, in circumstances where she was resting a lot, and where she thought that her symptoms had benefited from external shockwave lithotripsy.  She was taking painkillers on most days.  At that time she was suffering pain in both heel pads on standing or walking, but not when sitting or lying down; she could walk for about 30 minutes until stopped by pain. 

1. Dr Halliday noted that there were no inconsistencies in the examination, that since the last examination the pain associated with the calcaneal spurs had resolved completely, but there were some continuing complaints associated with the plantar fasciitis, which was not work-related, and was said in the AMA guides not to involve a permanent impairment.  The two conditions were said not to interact.  The treatment being received was appropriate for her condition.  Her ability to return to pre-injury employment depended on the resolution of this condition, which was impossible to predict.  Dr Halliday identified a number of factors associated with increasing incidence of plantar fasciitis, including excessive walking, but not prolonged standing for work.  This was consistent with the continuation of the symptoms even after prolonged standing had ceased.  He noted that plantar fasciitis was typically a transient condition, though it may take many months to resolve, and was difficult to predict.  Eventual recovery was said to be almost certain. 

1. The plaintiff saw Dr Halliday again on 22 October 2012 for the purposes of a further report: Exhibit 33.  At that stage the plaintiff complained of pain in the heel pads with prolonged standing, but no pain in the feet at rest, no night pain and no paraesthesia in the feet.  The plaintiff was continuing to work on a part-time basis, three to four hours per day which she found left her foot pain tolerable.  On examination there was mild tenderness to both heel pads, but otherwise essentially the examination was normal.  The heel lumps were now pain-free, produced no continuing impairment, and were constitutional in nature, not relating to the wearing of the rubber boots.  He did note that the bony lumps may be aggravated by rubbing on abnormal or poorly fitting footwear.  The history of the symptoms was consistent with a diagnosis of plantar fasciitis, but there were no clinical features of significant plantar fasciitis on examination at that time.  There was no permanent impairment associated with it.  It was in his opinion not a work-related condition, though the condition can be temporarily aggravated by prolonged standing.  No additional treatment was required.  He thought the condition had improved since his previous examination, and that it was no longer present to a significant extent in either foot. 

1. The plaintiff was seen by Dr Halliday again on 25 October 2013 for the purposes of an updated report.  At that stage the plaintiff complained that her symptoms were the same as in October 2012, though she had had no further treatment, regularly took paracetamol and occasionally panadeine if her symptoms were worse.  Her pain was aggravated by wearing shoes with a heel, or by not wearing anything on her feet.  She was still working part-time as a personal carer, and felt unable to extend her hours.  On examination the heel pad was not tender and provocative tests for plantar fasciitis were negative.  Dr Halliday thought that there was then no clinical evidence of plantar fasciitis, or any continuing need for treatment.  In other respects his opinion remained the same as it had been previously.  He did however add the comment that the plaintiff’s reported disabilities far outweighed any demonstrable orthopaedic pathology.  Essentially, his attitude was that the plaintiff had suffered two conditions which were not work-related, and had recovered from them. 

1. On 4 September 2014 Dr Halliday prepared a further report, after considering an amended file note of Dr Locke, Exhibit 14.  He agreed with a number of the things stated in that document, but disagreed with the proposition that pushing off when walking or pushing items using force would be likely to cause microtrauma to the plantar fascia.  He thought the former was unlikely to cause this; the latter could cause it only if a large, significant weight, such as a car, were being pushed. 

1. He said that the condition plantar fasciitis was common, affecting up to 10% of the population, and is now identified as essentially a degenerative process.  It is associated with abnormal alignment of the foot, obesity, diabetes, lack of physical exercise, and sudden increase in strenuous activity in athletes.  Most cases resolve in time, and it is more common in middle age and in women.  He referred to an academic paper by Gyton et al. which looked at a range of industrial causes of various conditions including heel pain, in respect of which it was said that the data was scant and contradictory.  He noted that the AMA guides concluded that there was insufficient evidence for standing and walking as risk factors for plantar fasciitis.  Overall he remained of the opinion that the condition was most likely to have been present regardless of work activities, though standing for long periods would be uncomfortable and difficult to tolerate if she developed painful heels. 

1. The plaintiff put in evidence a report from Dr Robert Werner, an American doctor who was a practicing physician and who also held various academic appointments within the University of Michigan: Exhibit 24. He had reviewed the medical records and read the transcript of the plaintiff’s evidence in the trial, and had also referred to the reports from Dr Halliday, Dr Walsh and Dr Langley. He had not examined the plaintiff personally, but did speak to her during a video-link consultation on 18 September 2014. He gave evidence by telephone on the last day of the trial. Dr Werner noted the history of symptoms and treatment referred to earlier. At that stage she complained of persistent heel pain with prolonged standing and walking, worse in the mornings and at the end of the day, and related to the amount of walking and standing. She was able to tolerate her present part-time job because she is frequently off her feet. Walking more than 10 minutes significantly increased her pain,[18] and some aspects of housework were difficult for her. She used painkillers and anti-inflammatories, and treated her feet routinely with ice, and kept them elevated whenever possible during the day.

   [18]This was worse than her position as reported by Dr Langley in 2011 (Exhibit 9 – 30-40 minutes) and 2013 (Exhibit 10 – 25 minutes), and Dr Halliday in 2011 (Exhibit 32 – about 30 minutes).  See also Ms Scudamore in 2014 (Exhibit 3, para 3.1, 30 minutes).

1. Dr Werner considered that her presentation was consistent with chronic plantar fasciitis; he regarded the posterior heel spur and the cyst noted in the MRI as of no relevance.  He thought that she was limited in her ability to work, but that there were possible treatments including steroid injections and injections of platelet-rich blood plasma, and nitro-glycerine patches.  Assuming she did not benefit from these treatments, she should be considered permanently unable to do the work she was doing previously, and he would estimate this as 20% total disability. 

1. In the report Dr Werner expressed the opinion that the plantar fasciitis was strongly associated with prolonged standing and walking.  There were only a limited number of scientific studies that had evaluated this association, but the majority were said to demonstrate a strong association with prolonged standing.  He referred to a study he had been involved in which related standing on a hard surface to a significantly increased risk of plantar fasciitis, controlled for age, gender, walking, BMI and tenure at work, which indicated a threefold increase in the risk for those standing on a hard surface for the majority of the day.[19]  This study involved determination of workplace activities by videotaping rather than by using the recollection of the workers.  There was found to be a linear relationship between the length of time the worker stood on a hard surface and the risk of developing the condition.  On the other hand, rotating footwear during the workweek reduced the risk significantly.  He also noted that use of an arch support was often effective as a treatment but said that was not available to her because he understood that wearing it was prohibited at the worksite.  The cushioning insert provided by the company would not have assisted in this way as it did not support the arch, and hence did not lower the tension across the plantar fascia. 

   [19]In that study the most significant factors were identified as standing on a hard surface, prolonged walking and forefoot pronation: p 14.

1. Pushing heavy trolleys also created a higher risk in his opinion, though the amount of the higher risk had not been quantified by any academic study.  Reaching up to a height above her head and standing on tiptoes to do this would increase the stress on the plantar fascia and also place her at greater risk of developing this condition, as would working in a cold environment, although again this has not been the subject of specific study for plantar fasciitis.  Dr Werner expressed the opinion that the work environment definitely contributed to the development of the plantar fasciitis.  He thought that the environment placed her at much higher risk of developing the condition, because of the standing on hard surfaces, having to carry heavy loads, pushing a trolley on a floor surface that was frequently covered with chicken parts and could jam the wheels, having to stand on her toes at times,[20] not being able to rotate shoes, and working in a cold environment[21] were all independent risk factors and cumulatively the risk was much greater. 

   [20]Werner p 17; this places extra force on the plantar fascia.  He may have misunderstood the context in which this occurred: line 16. 

   [21]This makes the tendon less flexible and more prone to microtears (p 17) and also limits blood flow, which reduces the capacity for healing: p 18; p 21; based on studies on other tendons.

1. Dr Werner was of the opinion that the plaintiff was permanently unable to work in any environment that required significant walking activities or prolonged standing, and her ability to perform household activities normally had diminished, unless she responded to the therapies he suggested.  He gave some evidence as to the cost of those treatments in the United States, which is I think of no real relevance.  In his opinion plantar fasciitis is a biomedical problem which is the result of excessive strain on the plantar fascia over time resulting in microtears to it: p 14. 

1. On 25 November 2014 Dr Halliday prepared a supplementary report written in response to the report of Dr Werner: Exhibit 36.  Dr Halliday noted that, of the possible treatment options that had not been attempted, the plaintiff had previously refused steroid injections for fear of rupture of the plantar fascia, a rare but possible side effect, and the other proposed treatments were not mainstream treatments in Australia, and were not regarded as having any significant prospect of success.  He strongly disagreed with a 20% total disability which he said was the equivalent in the context of the AMA guides to the amputation of the entire forefoot.[22]  He noted that the finding of the study of a lower prevalence of plantar fasciitis with rotation of footwear was a novel and unexpected finding, and that rotation of footwear has not yet been evaluated as a means of prevention.  It was also noted that the study contained a qualification that a longitudinal study would be necessary to demonstrate causation.[23]  Dr Halliday also noted that a discussion of work-relatedness of plantar fasciitis in the occupational medicine practice guidelines referenced by Dr Werner did not confirm that plantar fasciitis was work-related.  Dr Halliday confirmed his previous opinion that the plaintiff’s plantar fasciitis was a constitutional condition, that it was not work‑related, and that when he last saw her it had clinically resolved. 

   [22]The AMA guides are not measures of disability but measures of impairment, a very different thing, despite the enthusiasm of legislators for tying compensation to impairment, in the interest of reducing awards.  They essentially ignore impairment produced by pain: Werner p 12.

   [23]Dr Werner conceded this, although this seems to me to be essentially a matter of scientific rigour rather than a requirement for proof of causation in law: p 16.

1. The plaintiff was seen by an occupational therapist, Ms Scudamore, on 13 April 2011 for the purposes of a report to her solicitors: Exhibit 2.  At that stage the plaintiff complained of swelling to both feet although the symptoms were said to have reduced since she ceased work and was spending less time on her feet.  She was able to tolerate standing for half an hour, but she had to push herself to stand for as long as one hour, and then would need a significant break.  She avoided walking long distances and using stairs, and was very sore in the mornings.  She found the use of an icepack and elevating the feet helped, and she was taking Voltaren and Panadol at the time, and using Voltaren cream at times. 

1. After an examination and assessment the plaintiff was considered to be subject to occupational limitations in the form of reduced capacity for tasks involving carrying items any distance or over uneven surfaces or up or down stairs, a reduced capacity for sustained standing, a reduced capacity for sustained walking and a reduced capacity for heavy pushing or pulling activities.  She was currently incapable of working in her previous occupational duties, or any other occupation which would require an unreduced capacity in the respects identified.  She experienced some difficulty in doing more substantial work in the home, and an allowance for assistance of two to three hours per fortnight for completion of heavier chores would be reasonable.  The plaintiff had a current capacity for work in a sedentary role, but she had little history in that role and she was thought unlikely to be competitive for such employment.  It was thought that she would benefit from the assistance of an experienced vocational rehabilitation provider. 

1. The plaintiff saw Ms Scudamore again on 7 July 2014 for the purposes of an updated report.  There had been some decrease in symptoms following treatment, but the symptoms were aggravated if she attempted to walk or stand for greater than about 30 minutes, and that she was conscious of wearing supportive footwear.  She used heat packs each morning and massage cream at night.  She was at that stage coping with work on a part-time basis, but an attempt to extend her hours had aggravated her symptoms to the point where she returned to her former hours, notwithstanding her financial situation.  The assessment of her capacity for work and prospects remained essentially the same. 

Plaintiff’s credibility

1. There were some aspects of the plaintiff’s evidence which I thought were unsatisfactory.  On one occasion she appeared to agree in cross-examination with a proposition which was quite different from what she had said earlier in evidence.[24]  I wondered whether this may have been due simply to her not properly understanding the questioning, but generally she appeared to be giving responsive answers, and there were other occasions when she disagreed clearly with propositions put to her in cross-examination.[25]  In her evidence she distinguished between “trolleys” as shown in figure 9 of Exhibit 1, and “wheels” as shown in figure 8: p 94.  She said that the former could be manoeuvred easily but not that latter (p 94) and that the wheels on the latter did not turn as easily when they were loaded: p 95.[26]  Mr McDougall said that the design of the wheels of the things in figure 8 and figure 9 was identical: Exhibit 21 p 7.  They certainly look the same to me, and I cannot see how there could be any difference in terms of ease of pushing. 

   [24]How often she had a stand; see [62] below.

   [25]See for example p 98, p 99.

   [26]That is, did not rotate as easily; both the “trolleys” and the “wheels” had wheels fixed in one direction.  Ms Sinha drew the same distinction in terminology: p 2-28.  She did not distinguish between them in terms of ease of pushing: p 2-29.

1. When shown the video Exhibit 19, which shows 14 crates on a set of “wheels” being pushed and manoeuvred without apparent difficulty, the plaintiff agreed that it was the same type of “wheels” as she pushed, but denied that the ones she pushed moved in the way shown: p 2-17.  She claimed that the crates shown did not look fully loaded, but so far as I can tell they look loaded to me.[27]  I found her explanation unconvincing.  She claimed that there was always chicken pieces on the floor, and that, although they were cleaned up during breaks, as soon as they started work again the meat goes on the floor: p 2-24, 25.  I also found that unconvincing.  Besides, the loose chicken would drop in the area where it was being packed, as shown in Exhibit 1 photo 10, but it was surely rare in the areas where the chicken had been packed, and between there and the chiller.  The plaintiff claimed at one point to be able to pack 100 trays with chicken a minute, which I cannot accept.[28] There was some inconsistency in her complaints to doctors about how long she could walk, noted above at [22]. It was not shown that the plaintiff was deliberately exaggerating her symptoms, or inventing them, but overall I am cautious about the reliability of her evidence.

   [27]See also Sinha p 2-39, also referring to the absence of chicken on the floor.

   [28]Page 69.  This is almost two trays per second.  Perhaps she meant 100 trays per hour.

Engineering evidence

1. The defendant’s premises were inspected by Mr McDougall, an industrial safety engineer, on 14 June 2013 for the purposes of a report: Exhibit 21.  The report set out the plaintiff’s description of her working conditions, essentially in the terms described by the plaintiff, although he said the plaintiff found working on the metal stand more comfortable because her feet were not as cold: p 5.  He said the stands were about 1½” high: p 2-53.[29]  Mr McDougall’s report included a discussion of various matters concerning plantar fasciitis.  As I indicated when objection was taken to these passages, I do not regard them as medical evidence about the plaintiff’s condition, or about the question of causation.  The significance of Mr McDougall’s evidence is as to the information available to a reasonable employer in the position of the defendant at the time, which is relevant to the question of whether the defendant breached its duty of care to the plaintiff in relation to the system of work in place at the time.  The evidence was therefore received for that purpose.[30] 

   [29]According to the defendant’s witness they varied in height: Msalm p 2-96.

   [30]See also pp 2-47, general ruling.

1. Reference was made to the compilation by the UK Health and Safety Executive in 2009 (on p 13), the Manual Tasks Advisory Standard 2000 (p 15) and other publications.  In his report Mr McDougall gathered a number of published comments about associations between prolonged standing and various injuries, though not specifically plantar fasciitis, and about the effect of working in cold temperatures.  The various extracts talk about the problems associated with continuous standing, or standing for prolonged periods of time without intermittent walking or sitting, or standing still for an extended period of time.  Part of the difficulty with this sort of discussion is that it leaves unclear to what extent these general statements were applicable to the situation of the plaintiff.  Although she was essentially just standing at one work position while she was working on the breast line, she was not required to stand like a guardsman on parade, and could no doubt have engaged in the varying and asymmetrical postures referred to in the quote on p 16 of Exhibit 21. 

1. There were work breaks, and if as she said five or six times during a work period she would be engaged in moving crates of packs of chicken, and pushing trolleys to the chiller,[31] there was some activity which broke up extended periods of standing in a way which seems to be consistent with what some of the passages quoted regard as desirable.  The document from the Health and Safety Executive when talking about risk reduction strategies suggests that shock absorbing insoles are of limited effectiveness, but does not mention insoles that provide additional support to the arch of the foot.  All it says about anti-fatigue matting is that it may require careful consideration; the comment does not seem to have been made specifically in the context of a workplace with the particular hygiene issues of this one. 

   [31]Plaintiff p 33 cf. cross-examination p 96; see also Sinha p 2-27, p 33.

1. The OHS reference guide for the Australian Meat Industry, quoted on p 17, speaks of concrete floors and steel work stands increasing discomfort particularly for workers whose work requires them to stand in one position for extended periods of time.  It goes on however to point out that boots with thick rubber soles, among other things, can reduce the discomfort significantly.  The boots issued to the plaintiff would appear to meet that description: Exhibit 1 photo 2.  Overall, the material presented by Mr McDougall does support a general assertion that there is industry guidance available to the effect that workers who stand at one place at a work station in 13°C on hard concrete floors for most of their working day are at risk of developing a range of musculoskeletal disorders, and I accept that plantar fasciitis, or simply sore feet, has been identified as included in a broad spectrum of such disorders. 

1. Nevertheless, the material presented does not suggest to me that the problems are such that it would be inappropriate for any reasonable employer to arrange work in the plant so that it involves for most of the working day standing on a concrete floor or a steel stand, bearing in mind the regime of breaks and rotation identified in the evidence, and the extent to which the plaintiff was from time to time required to do other duties which did involve some walking.[32]  Part of the problem in this area is that there seems to be no clearly identified standards for things such as for how long a worker can reasonably stand at a particular position without either being rotated into a different position not involving similar extended standing, or being given a seat, or being dealt with in some other way which has the effect of substantially altering the working conditions.

   [32]Although prolonged walking itself is a risk factor for plantar fasciitis, some of the passages quoted suggest intermittent walking as a means of breaking up extended periods of prolonged standing.

1. Mr McDougall then identified the potential for acute injuries from over-exertion in relation to manual pushing tasks.  No doubt that is the case, and I accept that trying to push a trolley which has a jammed wheel could well produce excessive exertion on the part of the plaintiff, but there was no indication that the plaintiff suffered any acute injury in this way.  Persistent excessive pushing could also lead to an overuse injury, and in the opinion of Dr Werner the risk of that injury would be significantly higher if the trolley was stuck on something on the factory floor or the smooth rolling of it was otherwise obstructed: Exhibit 24, p 7.  The matter particularly addressed in the report, and of which Mr McDougall was critical, was the fact that the wheels on the trolley are fixed and do not castor.  There was however no comparison between the forces required to push the trolley examined and the forces required to push an equivalent trolley with castor wheels.  There is no reason to think that the use of castors on the wheels would diminish any maintenance problems with the wheels, or the effect of a wheel making contact with a piece of chicken meat or some other obstruction on the floor. 

1. Mr McDougall at p 28 addressed the issue of “post symptom management”, but this seemed to be based on the knowledge of the employer of the symptoms being experienced by the employee.  In this case it appears that as soon as the plaintiff complained she was taken off the sort of work that was causing her problems, and never returned to that work on a fulltime basis.  There was no time when there was no response by the employer to symptoms of which it was aware.  There was no evidence to support (or logical justification of) the proposition that a reasonable employer would have engaged in a practice of investigating unreported symptoms.

1. It does occur to me that the fact that the plaintiff was doing various things at work which put some stress on the plantar fascia may well have aggravated her symptoms or aggravated the development of her plantar fasciitis, and may have made the condition worse, or even be responsible for making it chronic, though there was no particular medical evidence dealing with this issue.  In a summary Mr McDougall identified the existence of material supporting a conclusion that someone like the plaintiff who stands at one place at a workstation on 13°C hard concrete floors for most of the working day is at risk of developing a range of musculoskeletal disorders including plantar fasciitis.  The trolley pushing tasks also had a potential to result in acute musculoskeletal injury including plantar fasciitis.  It is possible that one particular instance of wheel jamming on the trolley produced over exertion which triggered the plaintiff’s plantar fasciitis, which was then aggravated and continued by the work she was doing generally, but there was simply no evidence to support such a conclusion, and any such finding would be speculation on my part.

1. Mr McDougall said a range of measures could have been used to reduce the risk of prolonged standing, namely anti-fatigue mats, footrests and sit-stand stools.  It is difficult to see how footrests could have been helpful unless the plaintiff was allowed to work seated.  He noted that he had not assessed the potential for task rotation into non-standing activities (and there was no evidence of the existence of non-standing activities in the processing plant) and the potential for increased temperature in the workplace (a matter not pleaded as negligence or the subject of evidence as to the significance of the temperature for other reasons).  He suggested that castor wheels would be likely to have reduced the steering and pushing forces to below guidance values, or the loads on the trolleys could have been reduced or electric tugs provided, and in any event there should have been training in trolley handling.[33]

   [33]The plaintiff said nothing about whether there was training given.  

Plaintiff’s pleaded case

1. The plaintiff relied on the existence of the usual duties of care owed to an employee, and also pleaded the existence of certain obligations under the Workplace Health and Safety Act 1995, in particular that ss 28 and 30 of the Act imposed certain duties on the defendant, and ss 26 and 34C imposed certain obligations on the defendant.[34] The defendant relied on ss 37A and 197 of the Act as establishing that there was no cause of action for breach of statutory duty available to the plaintiff in respect of any duties imposed by the Act. I accept that the effect of those sections is that there is no cause of action for breach of statutory duty available to the plaintiff in respect of the duties imposed by the Act.

   [34]Statement of claim, paragraphs 4A-4D. 

1. A failure to comply with those duties and obligations was nevertheless pleaded as a particular of negligence, and it was alleged that it was an implied term of the contract of employment that the defendant would comply with its obligations pursuant to the Act.  In circumstances where the Act itself imposed a regime leading to certain consequences by reference to the existence of an employment relationship, there is in my opinion no necessity to imply such a term in order to make the contract of employment efficacious, and in those circumstances the test for the implication of a term is not met.[35]  Accordingly I do not accept that the contract of employment had the implied term alleged in paragraph 3(f) of the statement of claim. 

   [35]Byrne v Australian Airlines Ltd (1995) 185 CLR 410. I am aware of the analysis in Gramotnev v Queensland University of Technology [2015] QCA 127, but that decision concerned the interpretation of an express term and is therefore distinguishable.

1. As to whether reasonable care at common law required the employer to comply with the duties and obligations imposed under the Act, in my opinion it would be inconsistent with the express exclusion of a cause of action for breach of statutory duty to say that the common law duty to take reasonable care extended to an obligation to comply with the Act. Despite the superficial attractiveness of the proposition that it must be reasonable for an employer to comply with a statutory obligation binding upon it as an employer, in circumstances where the effect of adopting the statutory requirements as amounting to reasonable care for the purposes of the common law obligation would be in substance to make a failure to comply with the requirement actionable for damages, contrary to the express provision of the Act s 37A, in my opinion that argument must be rejected.

1. There may well be some overlap between circumstances which would give rise to a failure to take reasonable care at common law and those which amount to a failure to comply with a duty or obligation under the Act, but in my opinion one does not prove negligence at common law simply by showing that there was a failure to comply with some duty or obligation under the Act.  At most, such a failure may be evidence of negligence.  In this case however there was the further difficulty for the plaintiff that no specific breach of a specific obligation under one of these sections was shown.  Arguing that a breach of an obligation expressed in general terms is evidence of negligence is not going to be helpful in showing that the employer was negligent in accordance with the common law test.

Causation 

1. The pleading alleged that as a consequence of performing certain duties, in certain conditions, without rubber matting, the plaintiff suffered personal injury: paragraph 24.  The injury relied on was identified as bilateral plantar fasciitis and bilateral heel spurs: para 26.  The latter can be dealt with concisely: the uniform medical evidence was to the effect that the bilateral heel spurs that the plaintiff had were a constitutional condition, the existence of which had nothing to do with any work that the plaintiff had done.  Their presence might mean that some care was needed when selecting footwear, but that was a matter for the plaintiff.  I do not accept that the bilateral heel spurs were something caused by the performance of the various duties referred to in paragraph 24 of the statement of claim. 

1. The evidence on the other hand was in conflict as to whether the plantar fasciitis which the plaintiff suffered was something caused by the performance of the work duties referred to, in the conditions alleged, without rubber matting.  Dr Halliday’s opinion was that the condition was not caused by the work done or the way it was being done, though he did agree that once the condition emerged the fact that at work the plaintiff was required to stand would have aggravated her symptoms.  Dr Langley expressed the view that working on a concrete floor, presumably standing on a concrete floor, was a cause of the condition.  Dr Werner identified a number of features of the workplace which put her at a higher risk of developing the condition.  Standing on hard surfaces, carrying heavy loads, pushing a trolley which for whatever reason proved particularly difficult to push, and working in a cold environment were all risk factors, and their combined effect would make the risk much greater.  Dr Locke said that there was an association between standing all day, walking and pushing things and the development of plantar fasciitis.  Mr Lane also thought that there was an association with prolonged standing, particularly on hard surfaces, and pushing and pulling heavy loads, and that working in a cold environment would impair healing, though he did not relate the cold specifically to the development of the condition. 

1. There was some discussion of the nature of the condition in the evidence.  It was at one time thought to be an inflammation of the tendon, hence the name “fasciitis”, but more recent research has produced a change in the understanding of the condition, and it is now regarded as a degenerative condition, where a number of microtears are experienced in the tendon.  Hence some change of terminology to fasciopathy (Dr Locke) or fasciosis (Dr Werner – p 22) was preferable. 

1. I consider that the condition from which the plaintiff was suffering would be the sort of thing which would be particularly within the expertise of an orthopaedic surgeon, so I would be more inclined to attribute significance to the opinions of Dr Langley and Dr Halliday.  It is not clear that Dr Werner is the American equivalent of an orthopaedic surgeon, though it did appear that his practice does involve treating patients with this condition.  His evidence however was of significance because he has undertaken research specifically to investigate the existence of an association between various things including some work activities relevant to the plaintiff’s case and the development of plantar fasciitis.  Dr Locke as a sport and exercise physician could well be expected to have some expertise in the area, as could the podiatrist, particularly one who has made a particular study of the biomechanics of the foot. 

1. Part of the difficulty in this area no doubt is that this is a fairly common condition, and the effect of the evidence was that there were a wide range of matters which could place unusual stress on the ligament and could lead to the condition.  It does appear that most of the factors identified as being associated with the condition are not present in the plaintiff’s case.[36]  

   [36]The only exceptions, apart from something connected with her work, were being middle aged (almost) and being female. 

1. It was submitted for the defendant in the present case that at best the plaintiff established that there was an increased risk of developing this condition because of the conditions in the workplace, but that that was not the same as showing that the particular condition suffered by the plaintiff was caused by those conditions.  There certainly is a distinction,[37] but in circumstances here where there were a number of features of the workplace which, on the basis of the expert evidence led, were associated with an increased risk of suffering this injury, and where there were a number of other factors commonly associated with development of the condition which were not present in the case of this plaintiff, the evidence does support an inference that the combination of workplace conditions were a cause of the development of the condition on this occasion. 

   [37]See the discussion in Amaca Pty Ltd v Ellis (2010) 240 CLR 111.

1. The real significance of Dr Werner’s evidence is that he has been engaged specifically in research to investigate the existence of associations between this condition and certain relevant features of a workplace, and that his research does support the existence of an association.  That is insufficient to demonstrate causation in a scientific sense, but it can provide an adequate evidentiary basis for an inference of causation, in circumstances where it is sufficient to draw that inference on the balance of probabilities.  A person who has actually undertaken research with a view to identifying the existence of a relationship between certain workplace activities and this condition is I think particularly well-fitted to express an opinion on the existence of a causal relationship, or on the existence of factors which suggest a causal relationship. 

1. There are some curious features about the circumstances under which the plaintiff came to develop the condition.  The effect of her evidence was that she had been working in much the same way for about 10 years before the development of symptoms in her heels, and that those symptoms themselves developed over a period of some months.  The only identified change in the working conditions was that some years earlier rubber mats which she had previously been standing on were removed.  If this were related to the development of the condition, it took some years for it to emerge.  There would also appear to be a large number of other workers in a similar position to the plaintiff.  Mr Lane said that he had treated other people working for the defendant with plantar fasciitis, but there was no evidence about whether or not there was any difference between the incidence of the condition in those workers doing work comparable with that done by the plaintiff and the general community. 

1. The American research paper which was relied on as establishing that there was a greater risk for development of the condition if one worked standing up all day apparently still found that three-quarters of the sample who had plantar fasciitis did not work in that way, a factor relied on by Dr Halliday as making the conclusion doubtful: p 38.[38]  Dr Halliday had referred to an AMA guide to the evaluation of disease and injury causation, which indicated that there was insufficient evidence to link static foot pressure with the development of plantar fasciitis.  A more recent edition of that guide, published in February 2014, still contained that statement but noted a paper indicating a higher incidence of the condition among those involved in standing or walking at work, although it added that a possible explanation for this may be that persons in jobs of that nature who develop the condition have more pain, seek care more often and thus are overrepresented in the group: Exhibit 38, p 359. 

   [38]Statistically, what is significant is the difference between the proportion of such people in the sample and the proportion of such people in the control group.  If 10% of the population work standing on hard floors, and 30% of plantar fasciitis patients worked in that way, that suggests that such work is a cause, but not the only cause, of the condition.  This is based on my own understanding of statistical analysis, confirmed by Exhibit 27 p 873 col 2.7.

1. Under cross‑examination Dr Halliday conceded that the two pieces of scientific literature he had referred to in his report as supporting the absence of an association between prolonged standing for work and increased incidence of plantar fasciitis did not expressly state that: p 42.  Dr Halliday agreed that the conclusion in the review paper in 2005, Exhibit 25, was different from his opinion, that there was no association with standing: p 45.  Dr Halliday agreed that the plantar fascia would be more susceptible to tearing in a colder environment than in a warmer environment (p 47), and that there was no arch support in what was described as a Wellington boot, presumably the type of boot that the plaintiff was wearing at the relevant time: p 46.  Dr Halliday conceded that pushing a trolley which had a jammed wheel so that additional force had to be applied to it may cause increased strain on the plantar fascia: p 47.  He also agreed that the plantar fascia would be subjected to increased force from standing as opposed to sitting, and that elevating the toe in order to carry a stack of cardboard boxes on it would also place increased strain on the plantar fascia: p 48.  The same would apply to standing on tiptoes: p 48.  Activities that placed increased strain on the plantar fascia could have made plantar fasciitis in the plaintiff symptomatic: p 48. 

1. Dr Halliday’s approach appeared to be that the existence of a causal relationship between these matters and the development of plantar fasciitis had not been demonstrated scientifically by methods of research which were appropriate for demonstrating the existence of a causal relationship.  In those circumstances, it could not be regarded as a proposition which had been scientifically demonstrated.  That approach may well be appropriate in the scientific and medical context, but it does not involve the application of the test that I have to apply.  In my opinion the appropriate conclusion in the light of all of the evidence is that, more likely than not, the conditions under which the plaintiff was working were a cause of the plantar fasciitis from which she suffered.  This involves a preference for the evidence of Dr Langley, Dr Werner and Dr Locke, and Mr Lane, and because of the absence of any significant explanation for the condition other than her work.

Working conditions alleged

1. I do need however to deal in a little more detail with the question of just what the conditions were under which she was working.  There is no doubt that her ordinary work involved standing during her work periods, and this occurred in a cold environment, that is, an environment kept at 13°C. 

1. The statement of claim alleged that the boots issued to the plaintiff that she was require to wear were ill-fitting and had no or no adequate shock-absorbing sole: para 7.  The plaintiff complained that the boots were too small, but the defendant’s system operated on the basis that boots were available in a variety of sizes, and it was a matter for the plaintiff to choose the size that suited her.  The position seemed to be that she used to get size 6 boots, but when she began wearing a second pair of socks she found that size too small, and subsequently began to get a size 7 boot: p 22.  She conceded that in 2010 the boots she was wearing were comfortable, and that she could change her boots if they were not comfortable: p 93.  There was no evidence that the plaintiff was required to wear a size 6 boot when she needed a size 7 boot, and indeed no evidence that wearing a boot which was too small had anything to do with the development of plantar fasciitis. 

1. There was some criticism of the boots in relation to the cushioning effect they provided in the evidence of Mr Lane, but Dr Werner, although critical of the boots, did not speak of an absence of cushioning, but rather of an absence of support to the arch of the foot, which is a different matter.[39]  He spoke about the plaintiff not being allowed to wear an arch support at work, but there was no evidence of that.  Mr Lane had not seen the particular boots issued by the defendant, and at one stage was speaking about a recommendation that people change their footwear annually (p 78), which seemed to be the practice of the plaintiff anyway: p 50.[40]  In those circumstances, it is by no means clear that his evidence, which was to the effect that when the boots were new they would offer sufficient cushioning, did not apply during the period that the boots in fact had been worn.  On the whole I am not persuaded that the boots issued by the defendant were defective in that they provided no adequate shock-absorbing sole. 

   [39]This was not pleaded as a particular of negligence, and it was not clear that the effect of his evidence was that all workers should be provided with boots providing support for the arches. 

   [40]See also Ormsby p 2-76; Msalm p 2-98.

1. The first goes back to the issue of the removal of the mats.  The difficulty with this argument is that it is essentially the same issue as the risk assessment argument: there is no evidence about the implications in terms of hygiene, other than the fact that some food processing plants do have such matting.  It does occur to me as well that there is some potential for matting to be a trip hazard, a potential which is not necessarily going to be eliminated by bevel edges, though it would certainly be reduced by them.  Overall therefore this is not a case where the considerations in relation to a suggested course of remedial action are all one way, or substantially one way.  In my opinion there are significant considerations either way, and the plaintiff has not shown that a reasonable employer would have concluded that anti-fatigue matting would be provided, notwithstanding the implications in terms of food hygiene, and the potential for a trip hazard.  The photo in Exhibit 1 shows a thick rubber sole, with a heavy tread, and it is difficult to see why this would not have been the equivalent of an anti-fatigue mat with more conventional footwear.  In my opinion, therefore, the plaintiff has not shown that there was negligence in failing to provide anti-fatigue matting.  Apart from that, on the state of the evidence, assuming that there was negligence in failing to provide anti-fatigue matting, the medical evidence does not support a finding that, if it had been provided, it would probably have made a difference. 

1. Although Mr McDougall mentioned footrests, I cannot see how this is of any relevance to a worker who is otherwise standing; such a worker can only rest one foot at once, and there was no evidence that that would be of assistance overall.  Although footrests do appear in some of the diagrams used to illustrate his report, they are in the context of a worker who is already seated or partly seated.  The other significant issue is the provision of sit-stand stools.  The effect of his evidence was that this is something that could be done, but his evidence did not suggest that this was a common course followed by employers, and it does occur to me that it would involve quite a substantial modification of the workplace.[57]  To the extent that stools were based on additional floor supports, they would complicate the process of cleaning the floors, something which is of some importance for hygiene considerations in a food processing plant, and there may be difficulties in providing stools of any other kind in this particular plant. 

   [57]See Kuhl vZurich Financial Services Aust Ltd  (supra) at [94].

2. The mere fact that there is some identifiable risk of injury, and that there was something which could have been done about it, does not necessarily mean that an employer was negligent if the employer failed to take that step.  It is recognised that in some cases an appropriate response to a foreseeable risk of injury could be to do nothing.  There is also the consideration here that, although plantar fasciitis is a relatively common condition, most of the factors with which it is or has been associated are factors which do not involve conditions in the workplace, and taking this step would not necessarily avoid the development of plantar fasciitis among workers.  Further, some of the discussion in the material in Exhibit 21 of the hazards of standing appears to be related to the hazards of standing still in one particular position, rather than doing work which offers the opportunity from time to time to move around.  The plaintiff’s evidence about the need from time to time to leave the workstation to stack and push trolleys, commonly several times a day at least, suggests that there was in practice some rotation away from standing still for an extended period, even apart from the formal breaks in that period. 

3. It is not clear to me from Dr Werner’s study that walking from time would not provide a form of rotation away from a standing work position, and Mr Lane’s evidence about the different biomechanics of standing and walking suggests that there would be some variation in the effect of these.  This does appear to be an area where the medical understanding is developing as a result of recent research, which seems to be still at a relatively early stage, and in these circumstances it may be difficult to be confident that any particular change in the workplace would produce any significant change in the risk.  I acknowledge that the risk of tendon damage would be increased by the low prevailing temperature in the plant, but nevertheless I am not persuaded on the evidence that an employer exercising reasonable care to avoid the risk of musculoskeletal disorders would have probably arranged the workplace in a way which did not require workers such as the plaintiff to stand while performing their processing work.[58]  I am not persuaded therefore that there was an absence of negligence in that regard. 

   [58]One issue not touched on during the trial was whether there are countervailing considerations in relation to the health of workers because of any adverse health risks of sedentary work.  These issues should not be considered in a vacuum. 

4. As to the other two matters noted, I have already said something about task rotation between standing and walking; on the evidence there were no sedentary positions available in this workplace so that rotation through sedentary activities was not a practical option.  As to increasing the temperature in the workplace, that I assume would have considerations for food hygiene which Mr McDougall does not appear to have assessed, and I am not persuaded that there was negligence in maintaining the plant at a temperature of 13°C.  This in substance covers all the matters relied on as particulars of negligence.  Overall, no negligence has been shown, and the plaintiff’s claim fails.

   Causation (2) 

5. There is the further difficulty for the plaintiff, that the evidence of causation is very vague.  It is one thing to say that the plaintiff was doing various things which increased the risk of plantar fasciitis, and those things together produced a cumulative increase in the risk, and that in those circumstances, and bearing in mind the absence of evidence of non-work based predisposing factors, the inference is open that it was a combination of the workplace activities which probably caused the plaintiff’s condition.  It is another to say that any particular change in those workplace activities would probably have led to the plaintiff’s avoiding the development or seriousness of that condition.  The medical evidence did not establish that any particular change would probably have produced a different outcome, even if it follows from the finding I have made that if all of the factors identified had changed there would probably have been a different outcome.  In these circumstances, where the plaintiff has not proved negligence in relation to the presence of all of those factors, the plaintiff has failed to show any relevant causation.  For that reason also, the plaintiff’s claim fails. 

   Quantum

1. In case a different view may be taken elsewhere, I shall assess quantum on a precautionary basis.  The plaintiff was born on 2 December 1971 and is currently 43: p 18.  After leaving school she did a secretarial course and worked as a secretary and accounts clerk for three years in Fiji before she moved to Australia in 1994.  She worked for the defendant at a different plant from 1994 to 1997, when she left work for a time, but in 2000 she began to work again for the defendant, and remained in that employment until late June 2010.  She was not employed then until January 2012, when she began doing part-time work as a carer.  The plaintiff after complaining about her pain in March 2010 was seen by a general practitioner and referred to an orthopaedic surgeon.  She was also referred by the defendant to a podiatrist, Mr Lane, who provided some treatment which did not overcome the problem. 

1. The plaintiff was seen in July and October 2010 by an orthopaedic surgeon, Dr Walsh, for the purpose of treatment, and he referred her to Dr Locke, as referred to above.  The plaintiff subsequently underwent four sessions of lithotropsy on each foot, which were regarded as successful in terms of mitigating her symptoms, but did not effect a complete cure: p 40.  She remained, and remains, in a position where her symptoms increase if she has to stand for more than 30 minutes, and finds walking, climbing or descending stairs, and driving a car, more difficult.  She has difficulty if she wears high heeled shoes, or if she goes barefoot.  She uses heat packs and strapping, and massages her feet with cream, and takes anti-inflammatory tablets or painkillers.  She estimated that she spends an average of $10 per week on creams and painkillers by way of pain management: p 44; Exhibit 12.

1. One matter that concerns me is that the only evidence that I have from a doctor who has actually examined the plaintiff in recent years is the evidence of Dr Halliday, which is to the effect that the plaintiff is no longer suffering any objective signs of plantar fasciitis.  Although in other respects I prefer the evidence of other doctors, there is no particular reason to reject his opinion that on an examination in October 2013 the plaintiff’s reported disabilities far outweighed any demonstrable orthopaedic pathology, or any clinical evidence of plantar fasciitis.  Although there was a video conference with Dr Werner in September 2014, and he did his best with her self‑reporting (p 12), obviously Dr Werner was not in a position properly to examine the plaintiff’s feet. 

1. Dr Langley saw the plaintiff in March 2013, and the notes of his examination in Exhibit 10 read like a normal examination except for the proposition that she was tender over the calcaneal bones in both sides of her feet.[59]  By way of contrast, Dr Langley in Exhibit 9 identified on examination tenderness over the calcaneum particularly on the under surface.  In Dr Halliday’s first report (Exhibit 31) he said that on examination on 10 June 2010 the plaintiff was tender in the centre of the heel pad in the sole of the foot in the region of the insertion of the plantar fascia on both sides: p 3.  This was regarded as indicative of plantar fasciitis.  It is not obvious to me that what Dr Langley was describing in Exhibit 10 was the same thing as Dr Halliday found in 2010, which he evidently did not find in 2013.  In 2010 Dr Langley described her as “suffering from plantar fasciitis”, whereas in Exhibit 10 he said the plaintiff “suffered plantar fasciitis … from January 2010 and over a period of time.”  It is clear from the report however that at that time the plaintiff was complaining of ongoing symptoms in both feet.  One of the consequences of the unavailability of Dr Langley is that it is not possible to ask him to clarify the situation, but on the face of it his report in 2013 is to the effect that the plaintiff had, rather than has, plantar fasciitis.  In those circumstances, his report does not clearly contradict that of Dr Halliday, even apart from the fact that it was from an examination some months earlier.

   [59]Dr Werner described pain at the anterior aspect of the calcaneus, that is the front, as a classic symptom for plantar fasciitis: p 12, p 13.  See also Exhibit 21 p 12 figure 12.

1. In circumstances where I have doubts about the plaintiff’s reliability, and there appears to be an absence of objective justification for the severity of her current complaints of symptoms, I think there is some element of exaggeration in the plaintiff’s evidence, perhaps unconsciously, and I am not prepared to accept her evidence, including her evidence as to the extent of her current disability, at face value. 

1. Assessment of general damages is to be undertaken at common law.  The medical evidence was to the effect that there was no impairment assessed in accordance with the fifth edition of the AMA guide, but that is not given legislative significance in this matter.  The AMA guide is a guide to physical impairment, and assessments are made essentially disregarding impairment due to pain.[60]  For that reason it is not a reliable guide to the extent of impairment in a case such as the present, where the effect of the plaintiff’s condition (to the extent her complaints of symptoms are genuine) is that she is prevented from doing things because of increasing pain in her feet.  In any case, it is clear that damages at common law are assessed by reference to disability rather than just impairment, and accordingly percentages based on different measures of impairment are really of very little use.[61]  It does seem to me that Dr Werner’s assessment of impairment at 20% must involve some process of assessment which is not comparable with that used in the fifth edition of the AMA guide. 

   [60]Werner p 12.

   [61]See Driver v Stewart [2001] QCA 444 at [13].

1. Overall I accept that the plaintiff developed quite painful heels which for a time significantly interfered with her ability to do things, but that the symptoms were significantly reduced in 2011 following the course of treatment she then received.  Thereafter she has effective been controlling her symptoms by being very careful about what she does, and by adopting an invalid role.  As long as she does not attempt tasks which require prolonged standing or walking, or other activities which particularly stress her feet, it seems likely that the symptoms will remain quite manageable. 

1. In those circumstances, I assess damages for pain and suffering and loss of amenities at $25,000, of which I apportion $10,000 to past loss.  That amount would carry interest at 2% per annum for 4.3 years, $860.  The payment summary for the 2009-2010 financial year from the defendant indicated a net income during that financial year of $32,168;[62] it is not clear whether her income would have been greater from the defendant if she had not been injured.  One would have expected earnings to increase somewhat since 2010, but there is no evidence of increased earnings.  The plaintiff’s calculations of loss of past income were based on this figure, which in the circumstances is probably a conservative figure because it assumes there was no tax refund,[63]  and for four financial years comes to $128,672.  In three of those financial years however there was some income from other employment, and the tax returns show net income, derived in the same way, during that period of $45,943: Exhibit 7.  So the loss of net income was $82,729, though there should be some adjustment for vicissitudes of life, and I would round the figure down to $80,000.  I would allow interest on this sum at 5% per annum for five years, $20,000.  There should be a further 9% to cover the loss of superannuation, $7,200.

   [62]$37,362 gross, minus $5,194 tax withheld.

   [63]Exhibit 7 showed a significant refund in each of the 2008 and 2009 years.

1. With regard to future economic loss, in the 2014 financial year the plaintiff earned $20,304 net, which can be compared with the income during the 2010 financial year of $32,168. That suggests a loss of $11,864 per annum, the equivalent of $228 per week. The plaintiff’s claim for future economic loss was based on 22 years loss of future income, which would take her to 65. I think however that it is quite unlikely that the plaintiff would have continued working in what strikes me as a fairly physically demanding occupation anyway until she was about 65, even assuming she did not suffer any particular injury which prevented her from so working. I think a more realistic estimation of her prospects if she had not been injured would be one based on a working life till 60, a further 17 years.

1. Discounting at 5% per annum over 17 years produces a multiplier of 603[64] and hence a figure of $137,484. This figure needs to be discounted for the ordinary vicissitudes of life, and also because of the possibility that, in the future, the plaintiff will obtain sedentary work, which she could do on a full time basis,[65] and which may well prove to be more remunerative to her than the work that she is currently doing. I accept that in view of the absence of much history of sedentary work it would probably be difficult for the plaintiff to obtain that work, and accordingly I do not think that a very large allowance should be made for this possibility, but I expect that sedentary work obtained on a full time basis would be likely to produce a situation where there was no continuing economic cost, so this is a factor which ought not to be ignored. Overall, for vicissitudes of life I would discount to $120,000, but reduce that by a further $30,000 because of the possibility of obtaining sedentary employment. Accordingly, I assess future economic loss at $90,000. I would allow a further 11% of this figure for loss of future superannuation benefits, $9,900.

   [64]Luntz, “Assessment of Damages for Personal Injury and Death” (4^th edition 2002) table 2 page 603.

   [65]Scudamore p 2-14.

1. The plaintiff claims special damages in the form of pharmaceutical expenses of $1,746.92 (Exhibit 12), travelling expenses of $191.60 (Exhibit 12), an amount refundable to Medicare of $838.50 (Exhibit 8), and an amount refundable to WorkCover of $1,770.28. The defendant’s submissions had a figure of $2,434.28 for the refund to Medicare, all said to be within the scope of special damages. Exhibit 6 shows a total for rehabilitation expenses of $1,045.28, which would also be refundable. There is also a total of $1,527.90 which appears to relate to reports from Dr Halliday and someone else, possibly an occupational therapist, which I have not seen; these I would have thought were part of the costs of investigating the claim, WorkCover’s costs rather than the plaintiff’s expenses but they are refundable so the amount properly included is, in my opinion, $2,573.18, which when added to the Medicare refund and the uncontroversial amounts produces a total special damages of $5,350.20. Of this sum the amount of $1,938.52 was out of pocket expenses, of which I will allow interest at 5% for four years, $387.70.

1. The plaintiff claimed a range of pain relief tablets and creams, together with the cost of special footwear, which for the balance of her life expectancy produced a discounted present value of $7,551.72: Exhibit 12. There was no medical evidence justifying this expenditure, though the plaintiff gave evidence that she has been using the creams, tablets and heat packs and buying the special footwear: p 42-43. This proved the cost actually incurred on footwear the plaintiff does wear, but it was not shown that these costs were greater than what the plaintiff would otherwise expend on footwear anyway, and I would not allow these amounts, which come to $1,437.51. I would however allow the balance, of $6,114.21.

1. Accordingly my precautionary assessment may be summarised as follows:

(a)	General damages	$25,000.00
(b)	Interest on $10,000.00	$860.00
(c)	Past economic loss	$80,000.00
(d)	Interest on past economic loss	$20,000.00
(e)	Past loss of superannuation	$7,200.00
(f)	Future economic loss	$90,000.00
(g)	Future loss of superannuation	$9,900.00
(h)	Special damages	$5,350.20
(i)	Interest on $1,938.52 out of pocket	$387.70
(j)	Future pharmaceutical expenses	$6,114.21
SUBTOTAL	$244.812.11
Less WorkCover refund	-$2,573.18
TOTAL	$242,238.93

1. For the reasons given earlier however there will be judgment for the defendant. I will invite submissions as to costs when these reasons are published.