Rudd v Starbucks Coffee Company (Australia) Pty Ltd
[2015] QDC 232
•22 September 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232
PARTIES:
SARAH ELIZABETH RUDD
(Plaintiff)v
STARBUCKS COFFEE COMPANY (AUSTRALIA) PTY LTD
(Defendant)FILE NO/S:
4893 of 2013
PROCEEDING:
Trial
DELIVERED ON:
22 September 2015
DELIVERED AT:
Southport
HEARING DATE:
25 – 27 May 2015; 3 June 2015
JUDGE:
Bowskill QC DCJ
ORDER:
Judgment for the Defendant
CATCHWORDS:
TORTS – NEGLIGENCE – PERSONAL INJURIES – Alleged workplace incident causing injury to right knee – Liability and quantum in issue – Dispute as to whether incident occurred as pleaded – Dispute as to nature, extent and consequences of any injury suffered – Whether any breach of employer’s duty of care – Interpretation and application of ss 305B and 305C of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 ss 305B, 305C, 306J
Workplace Health and Safety Act 1995 ss 27A, 37A and 197Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Benic v New South Wales [2010] NSWSC 1039
Erickson v Bagley [2015] VSCA 220
Faulkner v Keffalinos (1971) 45 ALJR 80
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard
Pty Ltd [2013] 1 Qd R 319
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Perkiss v Crittenden (1965) 114 CLR 164
Prasad v Ingham Enterprises [2015] QDC 200
Seage v State of New South Wales [2008] NSWCA 328
Suncorp Staff Pty Ltd v Larkin [2013] QCA 281
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wyong Shire Council v Shirt (1980) 146 CLR 40COUNSEL:
J Griffin QC with I Klevansky for the Plaintiff
B Munro for the Defendant
SOLICITORS:
Jonathan C Whiting & Associates for the Plaintiff
BT Lawyers for the Defendant
Introduction
The plaintiff worked for the defendant as a barista at its Chermside outlet. She says she injured her right knee at work on 17 August 2011, and by this proceeding claims damages for her injury. Both the defendant’s liability and, if it is liable, the quantum of any damages recoverable, are in issue. In terms of liability, the defendant disputes the plaintiff’s claim entirely, beginning with whether the alleged incident at work on 17 August 2011 happened at all.
In summary, for the reasons set out below, although I have found that something did happen at work on 17 August 2011, I have otherwise found that did not result in the pleaded injury to the plaintiff and that, in any event, there was no breach of duty by the defendant, and for that reason, there will be judgment for the defendant.
The Pleadings
The plaintiff’s pleaded case
The circumstances in which the injury is alleged to have occurred are pleaded in [5]-[9] of the amended statement of claim filed 25 May 2014 (statement of claim) as follows:
“5.On the morning of 17th August, 2011, the Plaintiff attended for her work at the Chermside outlet.
6.The Plaintiff is a tall person of large stature.
7.The immediate task the Plaintiff had to perform was to engage the blenders which had been unplugged for cleaning.
8 (i) The power points utilised for the blenders were located on a wall under a thick bench which was designed with a built-in icebox;
(ii)The lighting and visibility in the vicinity of the power points was poor;
(iii)One of the four power points was malfunctioning; and
(iv)In order to access the power points, the Plaintiff bent and crouched down low, with her left knee on the floor so that her head could get partially under the bench, and with her right foot on the floor.
9 (i) The Plaintiff put a plug into one power point and then reached up and over herself with her right arm to turn on the blender.
(ii)The blender did not operate, and she reached under again to put the plug into another socket;
(iii)At that point the Plaintiff suffered an acute injury to her right knee.”
It is pleaded that the incident referred to in [9] of the statement of claim was caused by the negligence, breach of contract of employment and/or breach of duty of the defendant, the particulars of which are:
(a)failing to provide the plaintiff with a safe place of work;
(b)failing to provide the plaintiff with a safe system of work;
(c)failing to adequately or at all train, warn or instruct the Plaintiff as to the performance of the tasks involved in her employment;
(d)failing to establish a system to enable the work to be done without the need for the Plaintiff to adopt an awkward posture;
(e)failing to adequately illuminate the work area;
(f)allowing the work area to be awkward and cluttered;
(g)failing to organise the plant and equipment so that relevant items were within adequate reach;
(h)failing to instruct the Plaintiff as to the posture she needed to adopt [to] carry out the task;
(i)failing to properly position the socket;
(j)failing to allow appropriate space between the socket and the icebox;
(k)causing or allowing the socket to be partially obscured;
(l)failing to take adequate precautions for the safety of the Plaintiff whilst she was engaged in her work.
It is also pleaded that the defendant breached its duty under s 27A of the Workplace Health and Safety Act 1995, in the respects set out in [12] of the statement of claim. It was not disputed that such a breach (which was denied by the defendant) does not confer on the plaintiff a civil cause of action in respect of loss and damage arising from it,[1] but counsel for the plaintiff maintained that breach of those duties remained relevant as particulars of common law negligence.[2] For the reasons given by McGill SC DCJ in Prasad v Ingham Enterprises [2015] QDC 200 at [42]-[45], I do not accept that as correct. But in any event, no attention was given to these statutory duties in the plaintiff’s submissions and I do not propose to address this further.
[1] Sections 37A and 197 of the Workplace Health and Safety Act 1995.
[2] T 4-34.10.
In [13] of the statement of claim, the plaintiff alleges that as a result of the incident, she suffered the following injuries:
(a)right patella injury and/or right knee injury;
(b)dislocation and or subluxation of the right knee;
(c)aggravation of pre-existing patella instability;
(d)scarring to right knee from surgery;
(e)compensating injury to left knee.
The plaintiff claims amounts for general damages, past economic loss (with interest and lost superannuation), future economic loss (and future superannuation), special damages and an amount for future surgery and future physiotherapy.[3]
[3] Statement of claim [15]-[24].
The defendant’s defence
The relevant duties owed by an employer to an employee are not in issue.[4]
[4] Defendant’s submissions [5]; cf [3] of the defence filed 6 January 2014 (defence).
In so far as liability is concerned, other than admitting the plaintiff was at work on 17 August 2011, the defendant puts in issue the matters alleged in [7]-[9] of the statement of claim. In short, the defendant denies the incident occurred at all, or in the manner pleaded in the statement of claim and, further, says that even if the event did occur as pleaded it did not cause the injuries alleged.[5]
[5] [7]-[9] and [12] of the defence; [5] of the defendant’s submissions.
Although in [7] of its defence the defendant pleaded a specific basis for denying that the incident occurred at all (that the plaintiff did not engage the blenders on 17 August 2011, because in fact another named employee, Dani Stellino, did that), that part of its defence was abandoned in the course of the defendant’s opening, on the basis that the relevant witness did not have a recollection of that.
Even if the incident did occur as pleaded, and did cause the injuries pleaded, or any of them, the defendant denies that there was any breach of the duty of care owed by the defendant.[6]
[6] [10] of the defence.
Further, even if there was a breach of duty, the defendant denies that caused any injury to the plaintiff, on the basis, relevantly, that the plaintiff had a pre-existing right knee condition, described as:[7]
(a)naturally occurring abnormality of the plaintiff’s knee being ligamentous laxity and maltracking of the patella which predisposed the plaintiff’s knee to spontaneous dislocation; and/or
(b)pre-existing injury sustained to the plaintiff’s knee in the course of playing netball whilst a high school student.
[7] [12] of the defence
In so far as quantum of damages is concerned, among other things the defendant pleads that the plaintiff has had an unrestricted capacity to work since 17 August 2011; or alternatively, if there are any restrictions on her capacity to work, that is not a consequence of any injury sustained in the course of her employment with the defendant.
Credibility
A number of issues were raised by the defendant which were said to reflect poorly on the plaintiff’s credibility as a witness. It was submitted that, in various respects, she had shown herself to be a person willing to make statements which are not true in order to advance her own interests; or to deliberately omit relevant facts when they did not suit her position.[8]
[8] Defendant’s submissions at [11].
One of those matters that I find does reflect poorly on the plaintiff’s credibility is her failure to disclose the history of injury to her right and left knees to the orthopaedic surgeons who gave expert evidence at the trial, Dr Ganko and Dr Wallace (as well as in her notice of claim for damages). The evidence is to the effect that she had obtained medical treatment in respect of prior incidents concerning her knees in 2005, 2007 and 2008, as well as a further report of pain in 2010, as follows:
(a)The Telegraph Road Clinic[9] notes,[10] record an attendance on a Dr Bostock-Ling on 29 September 2005, including “Got up from tackle on the ground playing AFL, and heard a loud ‘crack’ in her knee and has been painful since. No locking or giving way”.[11]
(b)The Telegraph Road Clinic notes record an attendance on a Dr Hackey on 25 May 2007, including “hurt right knee when fell on it at netball 2/52 ago; played on; has bruise over tib tuberosity; clicks; nearly gives way; … tender nearly whole knee – esp peri patella”.[12]
(c)The Telegraph Road Clinic notes record an attendance on Dr Daniel John on 4 November 2008, including “she fell off a chair on Saturday evening this is swollen and sore, fell off a bar stool on to her knee; some discomfort limping a bit no external bruising; rule out patella fracture”.[13] There are further records in the Telegraph Road Clinic notes relating to that same incident, on 6, 19 and 28 November 2008.[14] The note on 6 November 2008 refers to the fall having occurred at work (McDonalds), and that the knee was “really painful”. The note on 19 November records “lateral tracking of patella”.
(d)The Aspley physiotherapy notes[15] record, on 20 July 2010, “pain to L knee – history of patella tracking. Told to ice it”.[16] In relation to this, the physiotherapist, Ms Sim, confirmed this would have been on the basis of something the plaintiff told her, although said “patella tracking” were her words, interpreting what plaintiff told her, as opposed to words the plaintiff would use herself.[17]
[9]This being an alternative GP clinic the plaintiff attended, in addition to seeing Dr Heyne, whose evidence is referred to below.
[10] Exhibit 6.
[11] Ibid, p 25 of the notes.
[12] Ibid, p 22 of the notes.
[13] Ibid, p 20 of the notes.
[14] Ibid, p 19 of the notes.
[15] Exhibit 4, tab 20.
[16] Ibid, p 115.
[17] T 3-17.10-.20.
When seen by Dr Wallace, the plaintiff said that prior to 17 August 2011 she had no problems with her right knee;[18] and she did not proffer any history in respect of her left knee.[19] She also failed to tell Dr Ganko about any prior problems with her knees.[20] The plaintiff seemed to explain this on the basis either that she had not recalled the prior incidents until seeing her medical notes in the context of this proceeding, or that they were very different incidents. The plaintiff is a young woman (aged 20 at the time of the subject incident). The prior incidents occurred roughly when she was aged 14, 16 and 17. Although she said she recalled the oldest of the incidents (which occurred when playing Futsal in 2005), and also the netball incident in 2007, she denied any recollection of the more recent injury at work at McDonalds in 2008. Her inability to recall the McDonald’s incident is hard to accept as truthful. She attended on doctors on 4 occasions for this incident; had x-rays; was apparently recommended crutches; and had physiotherapy. The medical records suggest she made a WorkCover claim in respect of it. It was plainly a serious incident, which caused her considerable pain, and it was not that long ago, in the context of a young woman. I do not accept the plaintiff’s evidence of a failure to recall this incident.
[18] Dr Wallace’s report (exhibit 4, tab 10) at p 4.
[19] T 1-44.42.
[20] T 2-9 to 2-10.
Although to a lesser extent, her non-disclosure on her application for employment[21] of what was clearly a serious back condition, for which she was still receiving treatment[22] at the time she commenced work for the defendant, as well as her explanation for this non-disclosure at trial, also reflect poorly. The plaintiff’s evidence at trial revealed a tendency to downplay the significance of her back condition at that time, in the context of justifying why she did not disclose it, in a manner which is not at all consistent with the medical records.[23]
[21] Exhibit 4, tab 2, p 23.
[22]Including pain patches and panadeine forte (in October 2010) and an epidural injection in November 2010: see exhibit 4, tab 22, pp 183-184.
[23] T 2-19 to 2-22.
I do not propose here to address in detail each of the other matters highlighted by the defendant in [11] of its submissions. Where they are relevant in the course of considering the issues to be determined, I will address them below in the context of the other evidence at the trial.
It may readily be observed that human beings, perhaps especially young ones, are fallible and can at times make poor choices, including in terms of truthfulness. That does not mean they are generally dishonest; and I did not form that opinion of the plaintiff. Also, a person may be telling the truth as they see it, although their recollection may not be accurate, having been altered by “unconscious bias or wishful thinking or by overmuch discussion of it with others”.[24] In court the plaintiff presented as an articulate and earnest witness, albeit someone who was clearly very involved in her legal case, as was evident from her tendency to try to answer questions by reference to what is in the medical notes or other documents, or to be asked to be shown those notes or documents before answering questions directed to her own personal experience.
[24] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431.
Although, as will become apparent below, there are aspects of the plaintiff’s evidence which have not been accepted, that has been on the basis of objective analysis of all of the evidence, and consideration of where the balance of probability lies on the basis of that analysis,[25] rather than on the basis of general conclusions about the plaintiff’s credibility as a witness.
[25] Fox v Percy (2003) 214 CLR 118 at [31] and Camden v McKenzie [2008] 1 Qd R 39 at [34].
Liability
The determination of the issue of liability involves the following questions:
(a)Did anything happen on 17 August 2011?
(b)If so, what happened?
(c)Was any injury caused by what happened, and if so what injury?
(d)Was there any breach of the defendant’s duty of care? Which requires consideration of:
(i)Whether the risk of injury was foreseeable;
(ii)Whether the risk of injury was “not insignificant”; and
(iii)What a reasonable person in the position of the defendant would have done in response to that risk.
(e)If there was a breach, did it cause the injury to the plaintiff?
Did anything happen on 17 August 2011?
The plaintiff was aged 20 at the time of the injury, and was 24 at the time of the trial. She is currently studying a Bachelor of nursing. Both whilst she was school, and while she has been studying, she has held various part time jobs.
One of those was working at McDonald’s, as a “crew member” and later “crew trainer”, which she did for about 4 years, from 2006. She gained experience as a barista in that time, working in the “McCafe” part of McDonalds.
She started working for the defendant at the Chermside store in October 2010. She was employed as a barista, and described her tasks as including making coffee, and other beverages (including cold beverages), food preparation, general café duties, stocking the pastry case/food cabinet, dish washing, mopping floors, and generally keeping the café area tidy.
On 17 August 2011, the plaintiff said she started her shift at 8.45am and was to work until 1pm.[26] She said it was a later start that day because it was the Ekka show holiday. She was rostered to open the store. She said that employees (called “partners” by the defendant) are entitled to have a beverage, so the first thing she did that day was to make herself a drink. She intended to use a blender to do that, which first required her to plug the power cord for the blender into a powerpoint which was located underneath the “cold beverage station”. It was as she was doing this, that she alleges she injured her knee.
[26] T 1-24.6-.9.
After the alleged incident, the plaintiff continued to work until her shift finished at about 1pm that day.[27]
[27] T 2-88.3.
Also working on that day with the plaintiff were Dani Stellino and Ryan Ansell, who gave evidence at the trial.
Dani Stellino had worked for the defendant since about 2008, and as at August 2011 was a shift supervisor. She continues to work for the defendant, at its Chermside store. Her “timecard”[28] indicates that she worked on 17 August 2011, starting at 8am on that day (so earlier than the plaintiff),[29] but she could not recall anything about that day. Ms Stellino was friendly with the plaintiff at work, and they socialised outside of work as well. She said the plaintiff did not tell her she had been injured on that day, and could not recall the plaintiff ever reporting the injury to her in any way, even as a friend.
[28]The evidence of Ms Hearn, who is now a district manager with the defendant, and at August 2011 was the store manager at Chermside, was that the time cards are an accurate reflection of the hours worked in any given period, and were used to determine things such as pay and leave: T 3-56.38-.41.
[29]Exhibit 24.
Ryan Ansell had worked as a barista at the Chermside store since 2006. He continues to work for the defendant, but now as a marketing specialist. He was also at work on 17 August 2011, but had no particular recollection of that day.
A third employee who gave evidence, Sebastian Briguglio, was also at work on 17 August 2011, although his timecard indicates he started work at 1pm on that day[30] (around the time the plaintiff finished). He was also a shift supervisor at that time, and continues to work for the defendant as a shift supervisor, now at a different store. He had no particular recollection of 17 August 2011 either.
[30] Exhibit 23.
No one else witnessed the incident, and the plaintiff did not report the incident to anyone at work on 17 August 2011. She said that she “didn’t think that at that time it was a serious matter”, and that in previous times when she had an injury, she would give it a few days and if it did not settle down, then seek treatment.[31]
[31] T 1-25.4.
She did, however, tell her mother. The plaintiff’s mother gave evidence that the plaintiff came home on 17 August 2011, and told her that she had sustained an injury at work during her morning shift. She said she remembered it distinctly because it was Exhibition Wednesday.[32] When it was put to her in cross-examination that she was not so concerned about what the plaintiff told her on that day to drive her to the doctor, she responded “No. We don’t normally run off to the doctor after every little incident”. She confirmed that she thought it was a little incident at that early stage.[33]
[32] T 2-162.46 to 2-163.2.
[33] T 2-165.1-.10.
The plaintiff explained that following 17 August 2011, she had a couple of rostered days off work and then proceeded with her duties as normal.[34] Her timecards for this period confirm that she did have the Thursday and Friday off, and then worked 4 hours on 20 August; 4½ hours on 22 August, 6½ hours on 23 August, 4 hours on 24 August and 4 hours on 25 August (the first day she saw her GP, Dr Heyne, about her knee).[35] The “schedule planner” for the period 22 to 28 August 2011 records that the plaintiff was scheduled to work for 29.5 hours in that period, but actually worked 34.7 hours (meaning that she picked up an extra shift).[36]
[34] T 1-24.40
[35] Exhibit 22, pp 5-6
[36] Exhibit 25; evidence of Ms Hearn at T 3-60.
Going forward from 25 August, the time cards also show that she worked 7½ hours on 27 August, 8 hours on 28 August, 4 hours on 29 August, 8 hours on 30 August, and 6 hours on 31 August. She did not work at all on 1 September (the next time she went to Dr Heyne about her knee).
She went to see her GP, Dr Heyne, on 25 August 2011. The plaintiff said that she worked on the days prior to the 25th, and in working on those days, “noticed the pain again in my knee and that’s what made me seek treatment from my doctor”.[37] She said her knee was swollen on this occasion. During the time prior to 25 August, the plaintiff said she recalled being in pain, but couldn’t recall if she was limping.[38]
[37] T 1-27.3.
[38] T 2-90.12 and 2-93.8.
Dr Heyne’s notes on 25 August 2011 record “Sublixation (sic) right knee at work – had to mechanically ‘unlock’ knee” and, on examination, “Right knee – mild swelling. Bilateral lax patellar ligaments”.[39] Although Dr Heyne recorded that the incident had happened “at work”, she did not record a date. Her oral evidence was that she recalled the plaintiff saying it had happened a week before.[40] Although, for reasons which I will return to below, I have some difficulty accepting that Dr Heyne retains an independent recollection of this, the note she made when she next saw the plaintiff on 1 September 2011 (which records “Incident at 17/8”) does support this.
[39] Exhibit 4, tab 22, p 188.
[40] T 1-80.46.
The plaintiff did subsequently report the incident, by completing an “incident report form”.[41] The plaintiff’s evidence was that this was done on 25 August 2011,[42] although the form records both the date of the incident, and the date it was reported, as 17 August 2011. Having regard to the circumstances in which it appears this form was completed (at work), and the evidence that the plaintiff started work at about 5:30 on 25 August,[43] it may be inferred that this was done after the plaintiff saw Dr Heyne on 25 August 2011. The plaintiff said that “it was her [Dr Heyne] who told me what had occurred… She was the one that informed me what had happened”.[44] It is not clear what Dr Heyne told the plaintiff, however, since her notes recorded “sublixation”, whereas the description the plaintiff wrote on the incident report form was “Twisted/strained knee”.
[41] Exhibit 4, tab 6.
[42] T 2-75.18.
[43] Which appears from her timecards, exhibit 22.
[44] T 2-133.25.
There was contradictory evidence regarding the circumstances in which the incident report form was completed, and it even appeared from some evidence that there may have been another incident form. No such form was located or produced by the defendant, and I proceed on the basis that the document in evidence is the only form.
However, I do not accept some of the plaintiff’s evidence about why that form was completed in the way it was.
The plaintiff’s evidence was that she told Dani Stellino about the incident, on 25 August 2011, when the incident report was filled out. She also said that Loren Ayres was present at the same time, when Ms Stellino was informed, and that Ms Stellino was also involved in filling out the incident report.[45]
[45] T 2-75.20-.28.
The plaintiff identified all of the handwriting on the form as her own, save for her name next to the words “partner or customer involved” and the words “* spoken with Loren. No further action rqd” on the first page.[46]
[46] T 2-97 – 2-98.
As to why she wrote the date “17/08/11” on the second page as the date the incident was reported, the plaintiff said when filling in the form she was told by the shift supervisor, Loren (Ayres), that it had to read the date that it occurred “for some procedural matter, that incidents had to be reported within 24 hours”.[47] She later said she could not recall if it was Dani or Loren who suggested this, because they were both present when she was filling in the form, although she believes it was Loren.
[47] T 1-23.30.
She also said that either Dani or Loren instructed her to write the names of people who were working with her on 17 August in the space on the form for “witnesses”. The plaintiff’s evidence was that one of those 2 people looked at the “partner roster” on the wall, to see who was working at the same time as the plaintiff, and then called Ryan (Ansell) into the office and wrote his name on top of the report form.[48] Although I note that the plaintiff identified that as her handwriting.
[48] T 2-98.39.
Likewise, the plaintiff said Dani Stellino’s name was written down as a witness, with her knowledge, and in her presence. She said she was there with Dani, Ryan and Loren.[49] The plaintiff said she had a specific recollection of filling the report out, and of who was present.
[49] T 2-99.9.
Loren Ayres was the assistant manager at the defendant’s Chermside store in August 2011. She said that although she cannot recall a specific date, she can recall the circumstances in which she learned that the plaintiff alleged that she sustained a right knee injury at work. This happened sometime in August 2011. She said she and the plaintiff were in the back room of the Chermside store; the plaintiff mentioned that she was going to the physio; Ms Ayres asked her why, and the plaintiff said because she had hurt her knee. Ms Ayres asked where she had hurt her knee, and the plaintiff said “at work the other day”. Ms Ayres said that she then assisted the plaintiff to complete an incident report form, and she (Ms Ayres) sent it in that afternoon.[50] Ms Ayres denied that anyone else was present at the time, including Dani Stellino.[51] Although she said it was possible that she told Ms Stellino on that day about the incident.[52] Ms Ayres said she recalled being with the plaintiff (and no one else), and writing on the form. But none of the handwriting on the actual incident report form is Ms Ayres’. Indeed, Ms Ayres said she had never seen that document (in its completed form) before (other than being shown a copy in preparation for the trial).
[50] T 2-148.38.
[51] T 2-153.6.
[52] T 2-154.4.
Ms Ayres did say she took advice from a person called Kelly Grawich, who looked after occupational health and safety complaints from the Sydney “support centre” (effectively, the head office in Australia[53]), as to what to do because the form had not been completed within 24 hours of the incident, which is the “general procedure”.[54] She did not seem to recall what advice she requested or obtained, and did not recall giving the plaintiff any advice about how to complete the form (for example, in terms of naming witnesses, or the date).
[53] T 3-43.29.
[54] T 2-148.41.
Dani Stellino had never seen the incident report form,[55] prior to the morning she gave evidence. She said it is not her handwriting on the form, where her name appears as a witness, and next to the words “faxed by”. She said she did not fax this form anywhere.[56]
[55] Exhibit 4, tab 6.
[56] T 3-117.22.
As already noted, she could not recall working with the plaintiff on 17 August; nor in the week following, although accepted by reference to her time card that she did, and that she had a number of common shifts with the plaintiff. She could not recall observing anything about the plaintiff in that week, and could not recall the plaintiff telling her she had a sore knee or moving in a way that suggested some kind of injury. She said she first became aware of the plaintiff complaining of a sore knee “when she [the plaintiff] spoke to our assistant manager and we found out that they put through an incident report form and were working on the forms or papers that they needed”. She said that was in 2011, but couldn’t remember exactly when.[57]
[57] T 3-118.38.
Ryan Ansell also said he had not seen the “incident report form”[58] on which his name appears as a witness, other than a week before the trial, and said he had no knowledge that his name had been written on that form as a witness.[59]
[58] Exhibit 4, tab 6.
[59] T 3-99.34.
For completeness, I note that Ms Hearn, who was the store manager at the time, was not at the Chermside store on 17 August, as she was working interstate. She did, however, work in the Chermside store on 22 and 23 August 2011.[60] She did not observe anything different about the plaintiff, from the way she had observed her before.[61] She said she became aware of the plaintiff’s claim regarding an injury at work on 17 August, when she was telephoned by Loren (Ayres), the assistant manager, on 31 August, who told her that the plaintiff had come in with a WorkCover certificate regarding her injury, and asking about filling in an incident report form. Ms Hearn said she was not sure about what to do (regarding the date) and asked Ms Ayres to call Kelly Grawich in the human resources section.[62]
[60] Exhibit 25.
[61] T 3-62.31-.42.
[62] T 3-61.34-.40.
Dani Stellino and Ryan Ansell impressed as honest and reliable witnesses, who frankly acknowledged what they could not recall. I accept their evidence that they had no knowledge of their names being written on the form as “witnesses”. It follows that I do not accept the plaintiff’s evidence to the contrary. Although counsel for the plaintiff submitted that writing down the names of persons who were at work on that day as “witnesses”, even if you knew they had not witnessed the incident, is something most honest people would do, I do not accept that. The word “witness” has, in my view, a well understood meaning to ordinary members of the community, meaning someone who saw what happened. But in any event, that was not the plaintiff’s evidence (that is, that she thought it was ok to write down their names, even though they did not witness the event). Her evidence was that Dani Stellino and Ryan Ansell were there with her when she completed the form, and agreed to their names being written down as witnesses. On their evidence, which I accept, that is not what occurred.
As to Loren Ayres, her evidence was less compelling. She was plainly involved in completing the form in some way. No other form has been located, so either she is mistaken about the incident report form which is in evidence, or she is confused about some other paperwork that she filled out. In any event, it seems to me that the plaintiff’s evidence about some discussion occurring about “backdating” the form is supported by both Ms Ayres’ evidence and that of Ms Hearn, to some extent. What advice was given from the person in head office is not known, because no such witness was called. But the inference to be drawn from that, even if it is appropriate to do so, goes no further than that witness’ evidence would not have helped the defendant’s case.[63]
[63]Jones v Dunkel (1959) 101 CLR 298; recently discussed by the New South Wales Court of Appeal in RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [75]-[79].
On balance, I find that an incident did occur, while the plaintiff was at work on 17 August 2011. I am particularly persuaded of that by the evidence of the plaintiff’s mother, which I have no hesitation in accepting. Although there are some unsatisfactory aspects to the plaintiff’s evidence about the incident report form, that too supports the fact that an incident occurred on 17 August.
What happened on 17 August 2011?
Determining what happened is important, because of the impact that has on the opinions expressed by the expert orthopaedic surgeons who gave evidence at the trial, as to the kind of injury that was (or was not) likely to have been sustained.
The context in which the alleged incident occurred is described, and depicted in photographs, in the report of Mr O’Sullivan (the ergonomist who gave evidence in support of the plaintiff’s case).[64] The area is described as the “cold beverage station” by the defendant’s employees (or blender bench in Mr O’Sullivan’s report). As described by Mr O’Sullivan, on p 5 of his report:
“The blender bench is a stainless steel construction consisting of a front shelf for blenders and syrup dispensers; behind this is the icebox with lid (Photographs 2, 3). The bench is constructed such that there is a vertical front which proceeds to slope rearwards after which the underside is horizontal (Photos 4-7).”
[64] Exhibit 2; exhibit 4 tab 8.
The power cords for the blenders pass down the back of the bench, to power points underneath the bench. In the photographs in Mr O’Sullivan’s report, they are shown to be the “outdoor” style of power point (which require the plug to be inserted into the point from below); but the undisputed evidence of the plaintiff was that as at August 2011 they were the standard, flat (indoor) design. There were four power points (one for each blender, and one for the fridge to the right).
The total depth from the front of this bench to the wall was 725mm. However, factoring in the vertical front of the bench/ice box, which slopes towards the rear wall, the distance from the base of the front of the bench to the rear wall is 555mm. The height of the underside of the bench at that point was 420mm.[65] Mr O’Sullivan described the area underneath as being poorly lit.
[65] Mr O’Sullivan’s report at p 5.
The plaintiff is a tall woman, being about 181cm. Photograph 10 on p 8 of Mr O’Sullivan’s report shows the plaintiff standing in front of the blender bench, and seems to indicate the underside of the bench/icebox being at about her knee height. Mr O’Sullivan does not provide the dimensions of the overall height of the blender bench, to the base of the blenders, although in this photograph that appears to be about the mid to upper thigh area on the plaintiff.
As to what actually happened, the plaintiff’s evidence at trial was:
“I chose a cold beverage that day. In doing so I noticed the blender hadn’t been plugged in. Got down to plug the blender in… Knelt down with my left knee on the floor – right foot on the floor to plug the blender cable into the wall. Reached around because I knew that there was an issue with one of the sockets. Reached around to test if the blender had started up. It didn’t, so I removed the blender cable from that power point and plugged it into a different one. Reached around myself again to test if the blender started which it did. It was around about that point that I felt something in my knee change. It locked in position. And in order to be able to stand again I had to physically straighten it with my hands. That was actually more painful than it locking into place. I stood. Didn’t think much of it because it hadn’t happened to me before and continued on with the day. That afternoon went home, told my mum about it, iced my knee.”[66]
[66] T 1-24.12-.40. Emphasis added.
The plaintiff also confirmed that the description she gave to Mr O’Sullivan about what happened was correct. She was interviewed by Mr O’Sullivan on 10 December 2013, at the Chermside store. That description, which appears on p 4 of Mr O’Sullivan’s report, is as follows:
“According to [the plaintiff], one of the 4 powerpoints under the bench had been malfunctioning for a while. She got down in order to reach under the bench to the powerpoints on the wall beneath and behind the bench. Due to the thickness of the bench and resulting poor visibility of the powerpoints, [the plaintiff] had to squat down low, with her left knee on the floor and right foot on the floor and under her body as she leant forwards.
[The plaintiff] put a plug in one powerpoint and then reached up and over herself with her right arm to turn the blender on. The blender did not work and she straightened up while maintaining the squatted posture and saw that the machine had no power. She then proceeded to reach under again to put the plug into another socket.
Whilst in the above posture, [the plaintiff] felt her knee ‘go’, locking into position. She had to manually straighten her knee.”[67]
[67] Emphasis added.
Mr O’Sullivan explained in his oral evidence that, where he says “She then proceeded to reach under again…”, his understanding of what he was told by the plaintiff was that she resumed the same position earlier described (that is, left knee and right foot on the floor, and lunging forwards) and that the phrase “whilst in the above posture” is a reference to that posture, and that in that posture, the right knee is in a fully flexed position.[68] He later added that in his notes he has recorded that, in that position, the plaintiff was moving the knee side to side to try and get herself lower.[69]
[68]T 2-32. See also his report at p 10, which refers to “her right foot on the floor with knee near full flexion”.
[69] T 2-41.39.
What is apparent, from the plaintiff’s description at trial, in her description to Mr O’Sullivan and from the low height of the blender bench in the photographs of the area, is that in reaching up to test if the blender was working, the plaintiff would not have had to rise up from the “crouched down” position she was in (ie with her left knee and right foot on the floor). That position of her legs was maintained, although she would have moved her upper body and arm, between reaching towards the power point under the bench, and then reaching up to test the blender power switch. This is confirmed by the plaintiff’s description in the statutory declaration she made on 9 April 2013, which is attached to her notice of claim,[70] in which she refers to having to “maintain the bent/crouched position for an extended period” and that “[i]n this bent/crouched position I felt my right knee go”.
[70] See exhibit 15, statutory declaration, at [4(f), (g) and (h)].
That one of the power points was not working was disputed by the defendant. The plaintiff said that she had reported it to her shift supervisor, identifying Dani Stellino in particular,[71] and said “I know that at a later date there was a callout for the plug”.[72]
[71] T 2-25.33.
[72] T 105-.38.
Ms Stellino described the process involved when a piece of equipment is malfunctioning in the store, which included logging a job with the support centre, which then follows it up. She said in her experience, once logged the response was quick, but depended on the priority (for a coffee machine, it would be the same day; but if it was a sink, it might be the next day). She had no recollection about a faulty power point, or being told by Ms Rudd about a faulty power point.[73]
[73] T 3-119.18.
I would infer from Ms Stellino’s evidence that, if a problem with the power point had been reported, it would have been dealt with quickly.
However, the defendant’s evidence was otherwise unsatisfactory on this issue. Reliance was placed on a document entitled “risk management register”.[74] It lists five “hazards”, recorded on 3 August 2009, 11 June 2010, 30 March 2011, 25 October 2011 and 27 November 2011. The last of these, on 27 November, is “power socket broken”. This was supported by an email dated 27 November 2011, to “Facilities” (addressed to “Steve / Yvonne”), from S35395Chermside (signed off by “Jordan”), with the subject “Tripping Power Point”.[75] The email reads:
“The powerpoints under our CBS icebin keep tripping. We tried figuring out which blender is the cause, but it trips when 2 of our 3 blenders are plugged in. Could we have a callout first thing in the morning? We’re unable to use the blenders without unplugging the CBS fridge.”
[74] Exhibit 4, tab 34.
[75] Exhibit 4, tab 35.
That is then the subject of a work order, also dated 27 November 2011, the outcome of which is that the blender was shown to be faulty, and the powerpoint ok.[76]
[76] Exhibit 4, tab 36.
Counsel for the defendant indicated that this was the only documentation able to be found in relation to a report of a faulty power point, on the basis of which it was argued that there had not been such a problem prior to 17 August 2011.
However, it was apparent that, either the documentation is incomplete; or alternatively that faults and other problems were not reported or recorded with any degree of precision, such that it would not be reasonable to infer, from the documentation that was produced, that there was no other problem with a power point at an earlier time.
For example, Ms Loren Ayres (who was the assistant manager of the Chermside store as at August 2011) said these registers were completed monthly, that “anything small or big was recorded” and she agreed that it would be expected there would be a lot more incidences than are recorded on the sheet which appears at exhibit 4 tab 34. She explained that if a hazard reported in an earlier month had not been resolved, it would remain on the report for the next month, but even taking that into account, of the document at tab 34, she said “it seems like a really unusual version of risk assessment”.[77]
[77] T 2-156 to 2-158.
Ms Hearn (who was the store manager at August 2011) suggested it is possible the document at tab 34 is accurate, because Chermside was a new store and “we didn’t have any issues with things breaking”.[78] I do not accept this as reasonable. She said the store opened in 2006,[79] and it seems unlikely in the extreme that over the period from then until the end of 2011 there were only 5 incidents to be recorded. She also suggested there were a number of risk management registers in the OH&S folder, and that sometimes people would print off a new one and write something on it and then just put it in the folder.[80]
[78] T 3-69.42 to 2-70.
[79] T 3-70.10.
[80] T 3-69.42-.44.
A further 2 pages were produced at the end of the trial, after the defendant conducted further enquiries (exhibit 27), which do nothing to overcome the evidentiary deficiency.
Although I would expect in a business like the defendant’s a problem such as a faulty power point would be logged and fixed quickly, which is consistent with Ms Stellino’s general evidence, in light of the documentation produced, and the unsatisfactory evidence about that, I am not prepared to infer that the fault logged on 27 November 2011 was the only one, and that it is not possible that there was a fault at the time the plaintiff says there was.
On balance, I can see no reason not to accept the plaintiff’s evidence, and accordingly find that what happened is what the plaintiff described in her evidence at trial, including by reference to what she told Mr O’Sullivan (which is also consistent with her statutory declaration annexed to the notice of claim).
Did that result in an injury to the plaintiff and, if so, what injury?
The plaintiff’s case is that the incident which occurred on 17 August caused a dislocation, or alternatively subluxation, of her right knee.
As explained by the medical experts, Dr Wallace and Dr Ganko:
(a)dislocation is where the patella stays out of position, until it is manually reduced;
(b)subluxation is a spontaneous self-reducing event - the patella just slips out and back in very quickly, it does not stay out.[81]
[81] T 1-53.15-.28 (Dr Wallace) and T 2-115.1 (Dr Ganko)
The alternative posited in the evidence is that what the plaintiff experienced on 17 August was patellofemoral pain only, without any subluxation or dislocation.
The plaintiff’s evidence at trial about what she experienced on 17 August was contradictory. In her evidence in chief, as to why she did not report the incident to anyone at work on 17 August, she said that she “didn’t think that at that time it was a serious matter”.[82] However, when she was being cross-examined about her knowledge of the incident reporting process, she said that:
“when I hurt myself…. reporting it was the furthest thing from my mind. I was in such pain I – the reporting and everything just didn’t come to me. I was in pain and I – I didn’t think of the process of reporting that. That came to me after I’d had a chance to get home and recollect myself. And then, the few days later, see my doctor and just realised that it was as – as serious as it was and it was going to be a long term thing… But at the time, I was just – I was in so much pain I just – that was what was consuming me. I wasn’t thinking of the paper trail at the time”.[83]
[82] T 1-25.4.
[83] T 2-27.37-.47.
I do not accept the plaintiff’s evidence in that regard. It is inconsistent both with what the plaintiff herself volunteered in her evidence in chief; with her mother’s evidence, that at the time she thought it was a “little incident”; with the plaintiff’s own actions on 17 August (of continuing to work until her shift finished at 1pm); with the fact that she did not mention anything to her co-worker and friend Dani Stellino on that day; and with the fact that she did not seek any medical attention until a week later.
In determining what, if any, injury the plaintiff sustained on 17 August, it is necessary to consider the medical evidence, which was called from the plaintiff’s treating general practitioner (Dr Heyne), and also the experts, Dr Wallace and Dr Ganko.
Dr Heyne
The note made by Dr Heyne when she saw the plaintiff on 25 August 2011 was: “Sublixation (sic) right knee at work – had to mechanically ‘unlock’ knee” and, on examination, “Right knee – mild swelling. Bilateral lax patellar ligaments”.
Dr Heyne said, in her oral evidence, that the history given by the plaintiff “suggested that a subluxation had occurred, because there’s not much else that causes a knee to lock and mechanically be unable to be straightened”.[84] She also referred to the result of the patellar apprehension test being positive, which she said is a clinical sign indicative of subluxation.
[84] T 1-68.43.
Her notes of 25 August do not make any reference to doing a patellar apprehension test on that day (in contrast to the notes of 1 September, which do). It was Dr Heyne’s oral evidence, though, that such a test is “a standard part of examination with examining a knee like this” and that she recalled performing the test on 25 August.[85] Whilst I accept Dr Heyne’s evidence as to what her standard practice is, it is difficult to accept that she would have an independent recollection of doing this test on 25 August 2011, and what the result of that test was, in the absence of any recorded note. She seemed to accept as much during cross-examination, despite her initial adamance about having a clear independent recollection.[86] In other respects, and perfectly reasonably, it was apparent that Dr Heyne did not have a clear independent recollection, and depended on her notes.[87]
[85] T 1-80.25.
[86] T 1-80.38.
[87]See, for example, at T 1-72.43 to 1-73.3 and 1-92.26, in relation to whether she saw the plaintiff on 23 March 2012. Although initially Dr Heyne said she did not see the plaintiff on 23 March (because if she had she would have made a note), she later said, by reference to other parts of her notes, that she had seen the plaintiff on that day. What happened when she saw the plaintiff on 23 March is actually recorded under the next entry, for a consultation on 2 April 2012 (see exhibit 4, tab 22, p 192; see also workers’ compensation certificates at exhibit 4, tabs 14 and 31, where the identical text appears).
Dr Heyne also added, during her cross-examination, that she had a clear recollection that on 25 August the plaintiff was limping when she came in. That was not recorded in her notes either.[88] The plaintiff herself could not recall if she was limping.[89]
[88] T 1-85.34-.41.
[89] T 2-90.12 and 2-93.8
Perhaps understandably, given her role as the treating general practitioner of the plaintiff, who had seen the plaintiff over a number of years, Dr Heyne presented with a degree of advocacy in favour of the plaintiff. In the context of her professional practice, she is not to be criticised for that, as it is plainly a desirable characteristic in a treating general practitioner to develop a positive rapport with their patients and be supportive of them. However, it does mean that in the context of the objective analysis the court is required to undertake, some care needs to be taken in assessing her evidence, because the reliability of her evidence is somewhat affected by that.
I accept that her notes were made contemporaneously, and for that reason are a reliable record of events that happened on the relevant dates. But to the extent that Dr Heyne sought to supplement the notes on the basis that she has an independent recollection of particular consultations in late 2011 or early 2012, I do not accept that evidence as reliable, given the passage of time.
The notes of 25 August are consistent with the plaintiff presenting with mild symptoms on that day. She was given medication for a migraine (an ongoing condition she suffered, according to the notes) but no medication, or further treatment of any kind, was suggested in respect of her knee.
Again, in this context, it is difficult to reconcile the plaintiff’s evidence, during cross-examination, of being in “significant pain” at this time.[90] That evidence is also difficult to reconcile with her continuing to work the shifts she did after 25 August, to which reference has been made above.
[90] T 2-91.46
Subsequent events
Before turning to the expert evidence, it is relevant to refer to events subsequent to 25 August, having regard to Dr Heyne’s notes.
On 29 August 2011 the plaintiff saw her physiotherapist, Ms Sim. In Ms Sim’s notes on that date[91] the plaintiff is recorded as (subjectively) reporting “2 weeks since dislocation of knee; had bent over at work and felt kneecap pop out, self relocated by straightening; has had instability and pain since then”. Objectively, Ms Sim recorded “unable to fully straighten leg in standing; lacking full knee ext; … apprehension +; pain on tracking medially and laterally”.
[91] Exhibit 4, tab 20, p 117.
The plaintiff saw Dr Heyne again a few days after this, on 1 September 2011. On this occasion, Dr Heyne recorded “Knee worse – dislocated again. Swollen ++ by end of day – difficulty in standing at work. Incident at 17/8”[92] and, on examination, “Swollen, spasm of lateral ligaments, patella apprehension test positive”. On this occasion, the plaintiff was prescribed pain medication, and also given a Workers Compensation Medical Certificate.[93]
[92] Emphasis added.
[93] Exhibit 4, tab 27.
In this certificate, the diagnosis is “dislocation of right patella” and the clinical notes record “Dislocation of right patella when bending over at work ON 17/8. Managed to relocate patella. Immediate pain and swelling ++”.
In light of the evidence (both of the plaintiff, in chief, at trial; and of what Dr Heyne recorded on 25 August) this certificate seems to overstate the incident on 17 August. On Dr Heyne’s examination, as at 25 August, there was only mild swelling, and no reference to pain (and no prescription for pain medication). The first reference to pain and “swelling ++” was on 1 September, after the knee had “dislocated again”.
Dr Heyne confirmed in her oral evidence that, according to her note made on 1 September, the plaintiff’s knee had dislocated again, in the period between 25 August and 1 September. She said it happened when the plaintiff was at home,[94] although that does not appear in the notes. The plaintiff accepted that her symptoms were much worse on 1 September than they were on 25 August, but denied that she had dislocated her knee again; and had no recollection of telling Dr Heyne that.[95]
[94] T 1-86.34.
[95] T 2-94.15-.26.
Consistently with what I have said above, I accept that Dr Heyne’s contemporaneous notes are reliable, from which it can be concluded that the plaintiff did tell Dr Heyne something more had happened after 25 August, in order for Dr Heyne to record “dislocated again”.
Dr Heyne saw the plaintiff again on 14 September and 11 October 2011 in relation to her knee, and on 11 October 2011 referred her to Dr David Hayes, orthopaedic surgeon.
On 1 November 2011, Dr Heyne’s notes record “Knee settling – no further collapses – less pain. MRI shows no structural damage has been caused – patella tilted – likely acute patellar dislocation”. Dr Heyne explained that the reason for her observation “likely acute patellar dislocation” was that the MRI showed the patella tilted. She said that position was consistent with “dislocation having previously occurred or being vulnerable to that”.
The MRI referred to is an MRI scan that was taken of the plaintiff’s right knee in October 2011 (two months after the incident).[96] The report found that it was an “[u]nremarkable study with no findings to indicate recent patellar dislocation or its complications”.
[96] Exhibit 4, tab 16.
Although Dr Heyne’s alternative conclusion, that the MRI is consistent with the plaintiff being vulnerable to dislocation, is consistent with the views expressed by Dr Wallace and Dr Ganko (as well as Dr Hayes) (that being on the basis of the plaintiff’s particular anatomy, which will be discussed below), her view that the MRI, showing the patella tilted, was consistent with dislocation having previously occurred, is not. Whilst all the experts were essentially in agreement that the MRI being normal is not conclusive of whether or not a previous dislocation may have occurred; they certainly were not of the view that the MRI positively showed evidence that there had been a dislocation.
Dr Wallace, for example, said the MRI may well be normal if there was not a lot of soft tissue damage associated with the dislocation – so the fact that nothing showed up on the MRI did not suggest to him that no dislocation had occurred.[97] Although, of course, he did say that the MRI is consistent with not particularly much damage being done by the event on 17 August 2011.
[97] T 1-34.6.
Dr Hayes likewise said the MRI being normal would be consistent with a person with “anatomical abnormalities which predispose them to instability of the patella”, because it “wouldn’t take very much to cause the patella to slip out”. This is to be compared to a person with normal anatomy, for whom an episode of instability of their kneecap would involve significant trauma to dislocate the kneecap (eg tearing of ligaments, possibly fracture of the cartilage and bone of the kneecap or femur, bleeding within the bone, fluid and blood within the joint).[98]
[98] T 2-46.9-.29.
Dr Ganko said “[w]hilst it is impossible to state absolutely, it is in my opinion unlikely that [the plaintiff] sustained a patella dislocation 2 months prior to this MRI, although the patella may have subluxed”.[99]
[99] Exhibit 4, tab 9 at [8.2].
Dr Hayes reported back to Dr Heyne on 26 October 2011.[100] In this letter, he referred to the incident in the following terms:
“She was bending over at work on the 17th August 2011 and felt a grind in the knee. She had to forcibly straighten the knee to reduce it; the knee swelled at the time and she has ongoing pain.”
[100] Exhibit 8.
Dr Hayes further reported that:
“On clinical examination she had no particular abnormality other than some mild J tracking of her patella.
Her x-rays show some mild tilt of the patella and her MRI scan is normal.
In summary she has resolved her acute episode. It is possible that she had an acute patellar subluxation but there is no direct evidence of that at the moment therefore there is no specific treatment.”
Although the plaintiff was off work for a period of time after September, she commenced a graduated return to work in about October/November, and was given full clearance to return to normal duties and normal hours by 19 November 2011.[101]
[101] T 1-27.31-.45.
She had been planning a trip to the United States with her two best friends for quite some time, and they took that trip from December 2011 to February 2012. Apart from choosing aisle seats, and being “very guarded with activities I did”,[102] she said she was “quite happy with my trip overall”.
[102] T 1-28.33 (the transcript says “guided”, but in context the word used by the plaintiff was “guarded”).
She returned to work at the Chermside store after her holiday, and said her knee was fine up until the end of March, when she “noticed some changes”. The plaintiff said that on 30 March 2012 “the incident occurred again”. She could not say exactly how it occurred, but described “a sudden onset of pain around lunchtime”.[103] In a letter dated 11 April 2012 which the plaintiff wrote to WorkCover, she describes being in a great deal of discomfort on 30 March, and that at about lunch time it got worse and “I felt something change in my knee”.[104] In cross-examination she said it was a different feeling from what she says she felt on 17 August 2011.[105]
[103] T 1-28 – 1-29.
[104] Exhibit 14, p 2.
[105] T 2-127.33.
There was conflicting evidence about when, in 2012, the plaintiff first began to feel pain or instability again; as well as conflicting evidence about what occurred on 30 March 2012. It is unnecessary to deal with that in any detail, however, as it does not impact on the plaintiff’s pleaded claim.
What is clear, however, is that the plaintiff presented at the Prince Charles Hospital on the evening of 30 March 2012, having been seen by her physiotherapist, Ms Sim, to appear to be in considerable pain sometime that afternoon. Although the hospital’s discharge letter refers to a diagnosis of “patella dislocation”[106] being made, both Dr Wallace and Dr Ganko considered this unlikely, having regard to the x-rays which were done on that occasion.[107] In any event, following that, the plaintiff continued to see Dr Heyne in April and May 2012, with pain in her knee for which she was prescribed pain medication, including Norspan patches.
[106] Exhibit 5.
[107]See Dr Wallace’s report at p 7 (exhibit 4, tab 10) and oral evidence at T 1-63.15-.35; see Dr Ganko’s report dated 27 February 2014 at p 12 (exhibit 4, tab 9).
She had patella realignment surgery performed by Dr Hayes on 30 May 2012. There was quite a lengthy recovery period after this surgery, with the plaintiff in a brace and on crutches for 8 weeks, and requiring considerable assistance with everyday tasks and activities.[108]
[108] T 1-99.3-.8.
About three months later, she underwent “manipulation under anaesthesia” because Dr Hayes was not satisfied that her range of movement was progressing as quickly as it should, which then resulted in her “then joining the normal recovery pathway and ultimately experiencing” what Dr Hayes said he considered to be a satisfactory outcome.[109]
[109] T 2-53.27-.43.
It was the plaintiff’s case that, having experienced a dislocation, or subluxation, of her right knee on 17 August 2011, that incident precipitated the subsequent episodes of instability and pain, ultimately necessitating the stabilisation surgery. The medical evidence supported the proposition that, once a knee has dislocated, or seriously subluxed the first time, it is more likely to happen again.
But of course it remains to determine what injury was sustained on 17 August 2011. For that purpose, I turn now to address the expert evidence.
Dr Wallace
Dr Wallace is a general orthopaedic surgeon who gave expert evidence in support of the plaintiff’s case. He prepared a report dated 2 August 2014,[110] having seen the plaintiff on 30 July 2014.
[110] Exhibit 4, tab 10.
The mechanism of injury described by the plaintiff to Dr Wallace is recorded at p 3 of his report as follows:
“Your client states that she was switching on a blender and the power points were under a low bench and access was somewhat awkward and there was another mat in place. One of the sockets was not working and she had to twist down awkwardly to put the plug in place, check the switch, take it out again and put it into the live socket. This having been completed, as she was trying to regain her upright posture she experienced severe pain and realised her right knee had locked. With some difficulty she straightened her knee and continued working however she continued to have pain and the knee then became swollen.”
On the basis of the history given by the plaintiff (set out at p 3), various x-rays, MRI and CT scans, and reports (p 5), and his own examination of the plaintiff, Dr Wallace expressed the following opinion (p 6):
“Your client has sustained injuries to her right knee at work as noted in the body of the text. In the initial event [17 August 2011[111]] it is my opinion that your client sustained a dislocation or subluxation of her patella which relocated.”
[111] See the “further history” at p 3 of Dr Wallace’s report.
In his oral evidence in chief, as to why he concluded there was a dislocation notwithstanding the MRI showed nothing to indicate that, Dr Wallace said: “The history is quite clear. She was in a position where she was weight bearing on a slightly flexed[112] knee, and twisting. Then her knee locked, and she had to physically unlock it. And that is a classic description of a patellar dislocation”.[113]
[112] Flexed refers to bending of the knee.
[113] T 1-32.25-.28.
Dr Wallace said he understood the plaintiff was close to extension[114] of her knee when it happened.[115] He described the “classic move”[116] leading to dislocation, involving the knee being “just short of full extension. So up to about 30 degrees of – of flexion with the knee, load bearing, with the quadriceps tight – the thigh muscle tight and twisting”.[117]
[114] Extension is full straightening of the knee, so that the leg is out straight: T 1-38.20.
[115] T 1-40.13 and .46 to T1-41.9.
[116] T 1-34.42 and 1-37.23-.32.
[117] T 1-38.19-.23.
There are some significant differences between the mechanism described by Dr Wallace here, and the plaintiff’s evidence at trial (including by reference to what she told Mr O’Sullivan). This was drawn to Dr Wallace’s attention during cross-examination. Dr Wallace agreed, based on the mechanism of injury described in Mr O’Sullivan’s report, that this has the knee in almost a fully flexed position (indeed, that was Mr O’Sullivan’s understanding, as appears from p 10 of his report). Dr Wallace confirmed that was not the history the plaintiff gave him.[118]
[118] T 1-52.33-.39.
Dr Wallace said with that mechanism, and the onset of pain at that moment, with the knee in full flexion, it would be unlikely to sublux or dislocate the patellar. He said it may cause pain, but it would be unlikely to dislocate in that position.[119] He said “deep flexion is the most stable position of the patella”, and agreed that even in a person with the morphological features the plaintiff has, it would require major trauma to dislocate in that position.[120]
[119] T 1-52.43-.47.
[120] T 1-50.32.
Further, he agreed that, if she (only) had patellofemoral pain, she would almost certainly be able to keep working that day,[121] which is what she did. Although, he had also said in his oral evidence in chief that, unlike Dr Ganko, he did not find it extraordinary for a person to be able to continue working or driving home, where they had experienced a dislocation, without a lot of soft tissue reaction.[122]
[121] T 1-53.8.
[122] T 1-34.21-.25.
Dr Wallace said that the shape of the plaintiff’s kneecap (what he elsewhere described as patellofemoral dysplasia) does predispose her to having anterior knee pain, and that is due to “chondromalacia patellae… [which] just means softening of the cartilage, and that is associated with anterior knee pain”. He said she certainly could have had episodic anterior knee pain without trauma. And she may have episodic subluxations – subluxations; not complete dislocations – without trauma”.[123]
[123] T 1-34.10-.17.
Dr Ganko
Dr Tony Ganko, an orthopaedic surgeon specialising in the treatment of knees, gave evidence for the defendant. He prepared a number of written reports, having seen the plaintiff on 18 February 2014.
In his report dated 27 February 2014,[124] Dr Ganko recorded that the plaintiff told him that:
“At approximately 8.30am she was squatting or crouching to reach beneath a bench to plug in a blender. She said as she did so, she twisted awkwardly and felt that something happened in her right knee”. (at p 3)
Later in the report, he said:
“It appears that she was squatting and twisting to get beneath the bench when she developed the pain in her right knee.” (at p 11)
[124] Exhibit 4, tab 9.
Of this, he said:
“This particular position would put high loads on the patellofemoral joint. It would be unusual to dislocate in a flexed position without significant trauma and tearing of the medial patellofemoral ligament and medial retinacular structures. When the knee is flexed, the patella moves distally into the trochlear groove where it is deeper. In this position dislocation is much more difficult and evidence of such would be expected on MRI scan with medial tearing and a typical bone bruising pattern. At the time it would normally cause a haemarthrosis, severe knee pain and bleeding and it would be extraordinary for one to continue at work and in fact drive one’s self from work after a complete first time dislocation of the patella.”[125] (at pp 11-12)
[125] Emphasis added.
Dr Ganko’s opinion in this report was that “it is unlikely that her patella dislocated and at most she had an episode of patella subluxation or just developed patellofemoral pain, perhaps from the high load of squatting in a knee at risk of patellofemoral pain” (at p 12). Although he later further explained that:
“the fact that she developed pain with squatting or kneeling suggests this is probably patellofemoral pain due to maltracking and abnormal anatomy and not due to patella subluxation or dislocation. Subluxation or dislocation is more likely to occur with the knee in extension whilst twisting. In effect twisting the knee with it in extension, whilst bending from the waist, would be more likely to cause subluxation or extension.” (at pp 15-16).
In a supplementary report dated 22 September 2014,[126] after being shown Mr O’Sullivan’s Report, Dr Ganko said:
“… I would accept that something happened within her right knee whilst she was in a potentially awkward position whilst squatting to access power points beneath a work bench on 17 August 2011. This caused a degree of patellofemoral pain. This may have occurred as Mr Sullivan has suggested partly because of the awkward position to which she placed herself in order to access these power points but her stature being 181cm tall, her body weight being 115kg and her ligamentous laxity as well as some patellofemoral pathology, would have added to the risk of this occurring.
I remain of the opinion that she did not suffer an over or complete dislocation of her patella. She may have had a subluxation of the patella or may have just developed patellofemoral pain due to the load placed upon her patellofemoral joint in this deeply flexed position under load, again with significant risk factors for patellofemoral problems.
Her MRI scan performed two months later in October 2011 was normal apart from the underlying abnormal morphological features. This showed no evidence of her having damaged the articular cartilage or torn structures about her knee to suggest that there was any major injury at the time of the onset of pain within her knee.
The fact that she had travelled overseas without problems suggested she recovered[ed] from whatever caused pain within her knee at the initial event and developed further knee pain, possibly although not certainly, unrelated to the initial event, in March 2012.”[127] (pp 2-3)
[126] Exhibit 4, tab 11.
[127] Emphasis added.
As to the emphasised passage in the second paragraph set out above, in cross-examination Dr Ganko said he “thought it was unlikely that she had a subluxation of the patella”, and “was expressing the fact that I could not say absolutely categorically that she did [not] sublux the patella on that occasion, but I thought it was unlikely.[128]
[128]T 2-114.20-.36 (note there is a “not” missing at line 34 - Dr Ganko’s evidence was such that line 34 should read “… absolutely categorically that she did not sublux the patella”).
Further, in his 22 September 2014 report, he said:
“The described posture of deep flexion would be, in my opinion, an unusual posture to result in patella instability or subluxation with instability usually occurring in or near full extension. Subluxation of the patella in deep flexion would usually require significant force, such as a direct or high velocity impact in a sporting event. I would not expect that it would be possible to sublux a ‘normal’ patellofemoral joint in the manner described. Squatting would place high loads through the patella in all individuals and in [the plaintiff]’s case may have caused pain similar to that she experienced in 2010 in her other knee, significantly as a result of her patellofemoral morphology which would result in more significant abnormal patella loading.” (at p 4)
This point is again reinforced in the conference note of 19 May 2015, where Dr Ganko said:[129]
“An episode of subluxation is more common when the knee is not flexed at all or moving from extension into flexion with twisting.
When a knee is in full flexion, the knee cap is deep in its groove. It is much more difficult to dislocate a patella in full flexion and would require significant force or trauma.
A person with a maltracking patellar may experience some deep pain while in full flexion, but subluxation is extremely unlikely.”
[129]Exhibit 4, tab 12 (he confirmed the opinions expressed in this note are his own: T 2-113.2).
In cross-examination, Dr Ganko described it as “extremely unlikely” that dislocation or subluxation would occur at 90 degrees of flexion without a direct blow to the patella that was forceful; or that a twisting event in a squatted position would lead to patella dislocation or subluxation; or that a twisting motion in a flex position beyond 30 degrees would lead to dislocation of the patella unless there was extreme force applied.[130] As to why he said only “extremely unlikely”, Dr Ganko replied “Well nothing in medicine is 100 per cent”.[131]
[130] T 2-122.1-.9.
[131] T 2-122.12.
In the conference note, he also said:
“I would expect that the first time a person experiences frank dislocation that it would be extremely painful, associated with pain swelling and significant loss of function in the hours and days following.
On subsequent occasions, if there was only a slight subluxation, the person may hardly notice and recover without residual – more often than not they may just experience some instability.
If I assume that she continued to work until 1:00pm and worked 3 further shifts over the course of the week, was not observed to be impeded, remained on her feet and didn’t limp, I would say that was very surprising if she in fact dislocated or sustained a significant injury to her patellofemoral joint on the date in question.
If I assume that by the time she attended upon the physiotherapist 2 weeks after the event[132] she was experiencing pain, was unable to straighten her knee and required crutches, I would say that that would be far more consistent with an acute subluxation or dislocation. It is reasonable to consider she suffered an acute subluxation event at that point.
…
Deep flexion may cause stress on the knee cap in terms of pain but it would not in my opinion result in dislocation or subluxation.”
[132]This is said in reference to the notes made by Ms Sims of the plaintiff’s attendance on 29 August 2011.
Further to this, in cross-examination, Dr Ganko said that after a complete dislocation, that can be expected to be followed by recurrences (explaining that after an actual dislocation, the tethering structures adjacent to the patella are torn and once those tethers are torn, the patella is much more likely to recurrently dislocate). However, following a subluxation, “the initiating event is probably of less significance because the subluxation is permitted often by those anatomical features and potentially is what occurred in this young lady on previous occasions”. He agreed that whether a subluxation could be the “initiating event” would depend on how serious the subluxation was, but said a serious subluxation would be expected to show bone bruising and tearing of structures around the kneecap, which were not present on the plaintiff’s MRI scan.[133]
[133] T 2-118.19-.46.
Consideration
The difference between the factual context upon which Dr Wallace’s written opinion was based, and the facts as found above in terms of what occurred on 17 August, presents a serious issue for the acceptance of Dr Wallace’s written opinion, because that opinion does not have a “rational relationship with the facts proved”.[134] On the basis of the finding above as to what happened on 17 August, I do not accept Dr Wallace’s opinion that the plaintiff suffered a dislocation or subluxation of her patella on that day.
[134]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64]; applied in Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 at [125]-[126] per McMeekin J.
Dr Wallace’s oral evidence, in relation to the facts as proved, is consistent with that of Dr Ganko. Although Dr Ganko posits subluxation as a possibility at certain points in his written evidence, it is apparent that was on the basis of his candid acknowledgment that nothing is absolutely certain. However, his description of subluxation, with the knee in a fully flexed position, as “extremely unlikely”, together with Dr Wallace’s opinion that it would be unlikely to sublux or dislocate the patellar in that position, which he described as the most stable position of the patella, supports the conclusion that it is more probable that the plaintiff had an episode of patello-femoral pain on 17 August 2011, than that she experienced a subluxation (and, to an even greater degree of improbability, dislocation).
On the evidence of Dr Ganko, which is supported by the oral evidence of Dr Wallace, by reference to the mechanism of injury as proved, on the balance of probabilities, I find that the plaintiff did not dislocate or sublux her right knee on 17 August, but that she did experience patello-femoral pain.
Notwithstanding Dr Wallace’s oral evidence, to support the contrary finding, that the plaintiff did suffer a dislocation or subluxation on 17 August, the plaintiff referred to five things:
(a)Dr Heyne’s diagnosis on 25 August 2011;
(b)the plaintiff’s report that the knee “locked”;
(c)the evidence that the knee swelled;
(d)the evidence that the plaintiff had not had any problems with her knee(s) for about 3 years prior to this, but immediately after she started to have problems; and
(e)the history after August 2011, leading to her needing to have stabilisation surgery.
In terms of Dr Heyne’s diagnosis, I accept Dr Ganko’s opinion that a general practitioner seeing the plaintiff at the time of – or shortly after – the incident would not be in a position to say whether there had been a subluxation or not. He said:
“… a minor subluxation, at very worst, or just some patellofemoral pain that allowed someone to continue at work on the same day and seemingly to continue to work – continue at work in an ambulatory role for a further week, would be very difficult to judge a patellofemoral subluxation as the initiating event of patellofemoral pain under those circumstances, in my opinion”[135]
[135] T 2-114.41 to 2-115.19.
I prefer the evidence of both Dr Ganko and Dr Wallace, in relation to the mechanism of injury proven at trial, to the apparent diagnosis of Dr Heyne made on 25 August 2011.
In terms of the plaintiff’s report of the knee “locking”, it is to be noted that the language used by the plaintiff at various times was different[136] and as Dr Hayes said, the language a person may use to describe an event will vary, is subjective, and does not necessarily bear only one meaning.[137] The significant part of the plaintiff’s description of the mechanism of injury, which leads to the finding above, is that she was crouched down, with her right knee in a fully flexed position.
[136] For example, describing the sensation to Dr Hayes as a “grind in the knee”.
[137] T 2-55.23-.36.
As to the evidence of mild swelling, recorded by Dr Heyne on 25 August, Dr Ganko said “swelling suggests there is some pathology occurring within the knee joint”, and agreed that if it was “immediately after” it would be more likely in the case of subluxation.[138] But of course this was not immediately after, it was a week later. Dr Wallace said there could be many reasons for a knee to swell, injury being one of them; but said anterior knee pain is generally not associated with swelling.[139] In my view, the evidence of mild swelling a week later does not alter the clear effect of the experts’ opinions, in the context of the proven mechanism of injury
[138] T 2-115.30.
[139] T 1-66.6-.15.
The absence of any evidence of problems with the plaintiff’s right knee in the 3 year period prior to August 2011 does not alter it either. On the contrary, if this was the first dislocation or serious subluxation of the plaintiff’s knee, I accept the evidence of Dr Ganko that it is to be expected that she would be in severe pain, which would be apparent to her co-workers, and it is surprising that she did not say anything even to Dani Stellino. In addition, the evidence indicates that something else happened after 25 August and before 29 August, or at least before 1 September – which could well have been the precipitating event to the subsequent history (as opposed to anything that occurred on 17 August).
But the other employees who gave evidence were consistent in describing a process whereby new employees were shown, by demonstration, how to do all the various tasks involved in opening and closing the store, including the unplugging of the blenders. On that basis, I find that the plaintiff would likewise have been shown that. She herself became one of the barista trainers, and having regard to the evidence of Ms Stellino and Mr Ansell in particular, it seems likely, in that role, that she would have been required to demonstrate the various tasks to the new employees she was training. The fact that she crouched down to do this job is consistent with that.
The ergonomist, Mr O’Sullivan, who gave evidence for the plaintiff, did suggest a number of countermeasures which he said would have avoided the need to adopt an awkward posture to access the power points. They included:
(a)Moving the power points to a place above the bench.
(b)Alternatively, affixing a panel under the front of the bench, inset a little so the power points do not project out;
(c)Installing an isolator switch for the bench;
(d)Instructing employees to kneel and lean on one arm, place a torch on the floor facing the power points, and plug or unplug. In this regard, he said kneeling on one knee can be less stressful than all fours if the inside knee is on the floor, leaving clear access over that leg for reaching to the power points.[198]
[198] Exhibit 2 at pp 12-13.
Repositioning the power points above the bench was not a sensible option, as Ms Ketevich explained, because that is “one of the wettest … parts of the store”.[199] Moving the power points from the wall to a panel under the front of the bench, as described by Mr O’Sullivan, would not alleviate the need to kneel down or squat down in some way.[200] The final suggestion is very similar to what in fact I have found does occur, save for the reference to use of a torch. Although Mr O’Sullivan made reference to the poor lighting under the bench, none of the co-workers made any reference to this as an issue.
[199]T 3-111.15. Mr O’Sullivan agreed that he could not be certain of electrical safety in moving the power points above the bench: T 2-37.44.
[200] T 2-39.27-.31.
In terms of an isolator switch, as it turns out, in stores subsequently fitted out, and also now in the Chermside store, the blenders are different, and there is now no longer a need to unplug them from the power point for cleaning. In so far as the Chermside store is concerned, Ms Stellino explained that the power points are still in the same location, but they have new blenders that have a power switch on the base itself and also have a different design within themselves, in terms of seals etc, such that it is not necessary to switch off the power completely in order to clean them. Her understanding of why the blenders were changed was “just because they’re a lot quieter and a lot easier to handle”.[201] She said that happened about 2 years ago. Mr Briguglio described a similar set up in the Garden City store where he works.[202]
[201] T 3-114.10-.39.
[202]T 3-103. See also Ms Ketevich’s evidence at T 3-110.17-.22.
But as s 305C(c) makes clear, the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. In that regard, there was no evidence of that change being made in response to any assessment of risk.
In this case, on the evidence, the probability of the risk of injury occurring when accessing the power points by crouching down in some manner was very low. Similarly, on the evidence, the risk that any injury which may be so inflicted would be serious was also very low: s 305B(2)(a) and (b) WCRA.
In so far as s 305B(2)(c) is concerned, I note for completeness that the evidence of Ms Ketevich was that if a risk was identified, depending on the corrective measure, it would be rolled out across all the stores (she gave an example of a new oven being installed, and that “partners” kept burning themselves on the oven door, as a result of which longer tongs and rubber gloves were provided to all the stores to eliminate the issue).[203] Although counsel for the defendant acknowledged that for an organisation as significant as the defendant’s, the cost of that would not have been prohibitive, there would nonetheless be significant logistical issues associated with this.
[203] T 3-108.38 to 3-109.4.
In this context, the following observations made by the New South Wales Court of Appeal in Seage v State of New South Wales [2008] NSWCA 328[204] at [30] and [32] (per Macfarlan JA, Tobias JA and James J agreeing) are relevant:
“[30] Even if (contrary to my view) a reasonable person in the employer’s position would have assessed the risk as a ‘not insignificant’ one, the reasonable person would not in my view have taken any steps to attempt to reduce or eliminate that risk. That is, the reasonable person would at least have assessed the probability of occurrence as ‘very low’ (see RTA (NSW) v Dederer[2007] HCA 42; (2007) 81 ALJR 1773 at [61)) and would not have taken any action ‘by way of response to the risk’ (Wyong Shire Council Ibid at 47; New South Wales v Fahy[2007] HCA 20; (2007) 232 CLR 486 at [57–8, 125]).
[31] As pointed out earlier, the conduct in question was not of a type peculiarly related to policing duties. On the contrary, being the moving of furniture, it was a commonplace activity likely to be encountered, just as frequently, if not more frequently, in the course of ordinary domestic life than in the workplace.
[32] It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury…”
[204]A case in which the plaintiff, a policeman, injured his back whilst attempting to lift a heavy desk at work.
To similar effect are the comments made by Muir JA (with whom Holmes JA (as her Honour then was) and Philippides J agreed) in Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 at [31]-[35] (in relation to a case in which a person working in a call centre office bumped his right knee on the metal handle of a cupboard under a workbench on which the telephone he was using rested).[205]
[205]Cf Tabcorp Holdings Limited v Dank [2011] QCA 253, which was relied on by the plaintiff as supporting the argument that even in the case of relatively simple tasks, an employer is not immune from the need to conduct a proper risk assessment, or make appropriate changes or give proper instructions. That case involved a plaintiff who injured her back when lifting a box of photocopy paper from the ground (being a box weighing 12.7kg, containing 5 reams of paper). The trial judge’s decision in favour of the plaintiff was upheld on appeal. In contrast to this case, in Dank the trial judge had found, inter alia, that it was clearly foreseeable that the plaintiff risked injury should she lift the box from the floor in the way she did; and that the risk of back injury to employees in lifting objects from the floor was known” (see at [6]).
Although this task did form a part of the employees’ regular duties or activities to perform, it was still a commonplace activity. Beyond ensuring that people did not try to access the power points from a standing position, it does not seem to me that, having regard to the low probability of risk associated with the task, there was any requirement for the defendant to do more than it did.
Causation
If, contrary to my finding above, there was a breach of duty by the defendant, then, consistent with the finding I have earlier made, as to the nature of the injury sustained by the plaintiff on 17 August 2011, I find that any such breach of duty caused an injury comprising patellofemoral pain.
In so far as the evidence suggests the plaintiff has subsequently experienced subluxation, or dislocation of her right knee, I am not satisfied that can be said to be causally related to the incident which occurred on 17 August 2011; and therefore that it is not causally related to any breach of duty by the defendant. In so far as Dr Wallace, in his evidence, linked the subsequent episodes of instability with the incident on 17 August 2011 that was on the basis of his opinion that the plaintiff experienced a dislocation or subluxation on that day.[206]
[206] T 1-54.24-.39; 1-57.39 and 1-58.3.
In so far as the plaintiff pleads that the defendant’s breach of duty also caused a “compensating injury to the left knee”, quite apart from the matters addressed above, the evidence does not establish (i) injury to the left knee; or (ii) any link between any symptoms in the left knee and any injury to the right knee. The evidence was limited to Dr Heyne’s notes recording “pain with locking and instability posteriorly in the left knee” on 13 March 2013[207] and “twinge of pain” in the left knee at times with full extension on 3 June 2014;[208] and Dr Heyne speculating that it might be likely the left knee problem had flowed from the right knee problem.[209] That is speculative and unpersuasive.
[207] Exhibit 4, tab 22, p 195.
[208] Exhibit 4, tab 22, p 201.
[209] T 1-78.9.
On the basis of the foregoing findings, the plaintiff has not established the liability of the defendant, on the balance of probabilities. There will therefore be judgment for the defendant.
Quantum
Notwithstanding my conclusion reached on liability, it is appropriate that I address the issue of quantum in any event.
In deference to the evidence and submissions at the trial, I propose to do so on two bases, albeit briefly. First, on the basis of the finding made, that the injury sustained by the plaintiff on 17 August 2011 was patellofemoral pain only; and secondly, in case a different view is taken of any of these matters in another place, on the basis that the injury sustained by the plaintiff on 17 August 2011 was a subluxation (or dislocation) of her patella.
Injury on 17 August 2011 was patellofemoral pain
On the basis of the finding made, that the plaintiff suffered patellofemoral pain on 17 August 2011, which cannot be said to be the cause of the subsequent events of instability in her knee, I accept the submissions of the defendant that the damages which flow would be limited to a modest sum for pain and suffering as a result of that event.
For the purposes of the assessment under ss 306O and 306P of the WCRA, this injury may be said to fall within item 139 (minor knee injury) in schedule 9 to the Workers Compensation & Rehabilitation Regulation 2003[210] (Regulation) which includes, among other examples, “a twisting or bruising injury”. The range of injury scale values (ISV) provided for is 0 to 5. Dr Ganko said that, on the basis that the plaintiff developed anterior knee pain, there would be no permanent impairment attributable to this event. On the basis of the findings made above, the appropriate ISV would be 2, leading to an award of general damages of $2,420.[211]
[210] It appears the relevant reprint, having regard to the date of the injury, is reprint 4A.
[211]See schedule 12, item 2(a) to the Regulation (injury after 1 July 2011), ISV of 5 or less.
If injury on 17 August 2011 was subluxation of the patella of the right knee
If, contrary to my findings above, the injury sustained by the plaintiff was a subluxation (or dislocation) of the patella of her right knee, then in my view the quantum of damages, had she established the liability of the defendant, would be assessed as follows.
General damages
On the assumption that the injury sustained was a dislocation or serious subluxation, there was not a great deal of difference between Dr Wallace and Dr Ganko in terms of their assessment of impairment ratings under the AMA Guides, 5th edition. They were both of the view that, using table 17.33, the plaintiff would have a 3% whole person impairment. As Dr Ganko noted, AMA 5 does not dictate a reduction in this impairment for underlying anatomical risk factors, such as the plaintiff has.
In addition, both doctors allowed for an additional impairment rating for the surgical scarring on the plaintiff’s right knee. Using table 8.2, Dr Wallace assessed this at an addition 3%; whereas Dr Ganko assessed this at 2%.
It was agreed that it was appropriate to take both of these assessments together, in considering the applicable ISV (as there is not a separate item for scarring). Proceeding on the basis of 6% overall, the injury may be said to fall within item 138 (moderate knee injury) in schedule 9 to Regulation. The range of injury scale values (ISV) provided for is 6 to 10. The comment in item 138 is that an ISV at or near the top of the range will be appropriate if there is a whole person impairment for the injury of 8%. In the circumstances, where the 6% is reached by combining the actual impairment in respect of the knee (3%) and additional impairment in respect of scarring (2-3%), I would assess the appropriate ISV as 6. General damages would therefore be assessed at $7,500.[212]
[212] See schedule 12, item 2(b) to the Regulation, ISV between 5 and 10.
I would not accept the plaintiff’s submission that an ISV of 13 is appropriate[213] because this involves:
(a)incorporating an injury to the left knee, which I have found has simply not been established on the evidence;
(b)arguing for an “uplift” above the range provided for in item 138 in circumstances where the Regulation only provides for this in the case of multiple injuries (see ss 3 and 4); and
(c)item 138 itself provides that an ISV at or near the top of the range (which is 6 to 10) will be appropriate if there is a whole person impairment for the injury of 8% (which is not the case here).
[213] Cf [9.8] of the plaintiff’s submissions.
Past economic loss
In so far as past economic loss is concerned, it would be reasonable to allow the amount claimed to the date of the stabilisation surgery (30 May 2012), for the whole of the recovery period (said to be some 8 weeks), and up to a reasonable time after the “manipulation under anaesthesia” which was done on 31 August 2012 (say, 30 September 2012). On the basis of the figures set out in the amended statement of loss and damage[214] at page 6, this results in an amount of $18,600.[215]
[214] Exhibit 3.
[215]$5,400 + $3,000 + 17 weeks from 30 May 2012 to 30 September 2012 at $600 per week ($10,200) = $18,600.
Future economic loss
In my view, the evidence does not support the plaintiff’s claim for future economic loss.
Under s 306J of the WCRA, if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss, the court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters: s 306J(2).
In order to recover an award for economic loss it must be demonstrated that the injured person’s negligence-caused impairment has resulted in loss in monetary terms.[216] The principle was confirmed in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 per Deane, Dawson, Toohey and Gaudron JJ:
“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in additional to general damages for pain, suffering and loss of enjoyment of life. It is that ‘the diminution of … earning capacity is or may be productive of financial loss.’”[217]
[216]See Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 at [48] and [51] per White JA (although her Honour was in the minority as to the result in that case, the general principles summarised by her Honour were not called into question by the majority’s reasoning).
[217] Emphasis added.
As already noted, the plaintiff is a full time student, studying a Bachelor of nursing. She hopes to work as a nurse in the future.
The evidence was to the effect that the stabilisation surgery carried out in May 2012 was successful,[218] and the plaintiff will not require further surgery in the future.[219] The plaintiff no longer experiences instability in her right knee, although she said she still experiences pain.[220]
[218] Dr Wallace at T 1-61.34; Dr Hayes at T 2-53.41 to 2-54.4; Dr Ganko in his report at ex 4, tab 9, p 16.
[219] Dr Wallace in his report at p 7; Dr Hayes at T 2-54.4.
[220] T 2-136 to 2-137; 2-138.40.
Dr Wallace’s evidence, in his report, was that the plaintiff “should be able to continue with her studies as a registered nurse and work in this capacity and also work in reception as she is doing now providing she is able to get up from the seated position and regularly stretch” and that she should also “be able to undertake the clinical duties of a registered nurse providing she is not required to any kneeling, squatting or heavy lifting”.
In his oral evidence at the trial, Dr Wallace agreed that the only thing that might cause the plaintiff difficulty with work as a nurse is pain, since the other issues (instability) have been resolved by the surgery,[221] saying, “her pain is due to chondromalacia patellae, which she could have developed, probably, in any case”.[222] Dr Wallace also agreed that, having regard to the plaintiff’s long standing history of lower back concern, and the records indicating she had a “reasonably significant back condition”, “she would be likely to have chronic back pain or at least intermittent episodic back pain”[223] which would also be a “pretty significant barrier to work as a nurse”.[224]
[221] T 1-61.37.
[222] T 1-61.29 and .40.
[223] T 1-62.28.
[224] T 1-62.30.
Dr Hayes’ evidence was that in terms of future employment the plaintiff should avoid occupations which involve repetitive bending and kneeling or squatting. He said she should concentrate on sedentary and light active work. In terms of nursing, he said that working as an emergency nurse or a nurse in high care, which involves lifting and transferring of heavy patients would be advised against, but other areas of nursing would be suitable.[225]
[225] T 2-58.
In terms of occupation restrictions, Dr Ganko’s opinion was that the plaintiff:
“… is not of a build or body morphology that would be suited to heavy work or work that required repetitive squatting or kneeling. I believe this is largely attributable to her underlying anatomy and body morphology. She has been treated for back pain in the past.”
Although the plaintiff submitted that, with these restrictions, the plaintiff is likely to be restricted to forms of employment which will be less remunerative,[226] there was no evidence that different types of nursing work are better remunerated than others. As explained by senior counsel for the plaintiff, the argument is that the plaintiff might miss out on employment, if she wanted to get a job with a particular hospital, and the only jobs available were in areas that she could not do the work in.[227] In so far as remuneration is concerned, the argument was that there is difference in terms of nurses who do work that carries overtime, and those that do not (the example given being administrative nurses). But the medical evidence was not that the plaintiff would be restricted to administrative nursing.
[226] Plaintiff’s submissions at [10.8].
[227] T 4-31.43 to 4-32.26.
The plaintiff has not lost the opportunity to pursue her chosen career as a nurse. On the basis of the medical evidence, she will have many options available to her as a nurse, although some of the heavier aspects of nursing may not be suitable. But what the evidence, of both Dr Wallace and Dr Ganko in particular, indicates is that that restriction was probably going to be the case in any event (having regard to her underlying anatomy and body morphology, including her pre-existing back condition).
There was a dispute between the parties, as a matter of legal principle, in terms of whether those matters were merely future possible contingencies, in respect of which there was an evidential burden on the defendant,[228] or whether they are things that have actually occurred, and need to be taken into account.[229] In so far as the evidence is to the effect that:
(a)pain caused by the plaintiff’s underlying anatomy or morphology in respect of her knees (as opposed to the incident on 17 August 2011);
(b)in terms of Dr Ganko’s evidence, the plaintiff’s anatomy or morphology, more generally; and/or
(c)her back condition,
will affect her ability to undertake certain aspects of nursing, those matters are not mere possibilities suggested by the defendant. They are matters which have been established on the evidence, in particular, of Dr Wallace and Dr Ganko. For that reason, it is appropriate that they be factored into any assessment of whether the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury (as contemplated in Faulkner v Keffalinos (1971) 45 ALJR 80 at 85 per Windeyer J).
[228] Which is what the plaintiff argued, by reference to Perkiss v Crittenden (1965) 114 CLR 164 at 168.
[229] As contended by the defendant, by reference to Faulkner v Keffalinos (1971) 45 ALJR 80 at 85.
What is not yet known is whether the plaintiff will actually suffer any loss of earnings in the future. But what is established, on the evidence before the court, is that if that does happen, because of an inability to carry out the “heavier” aspects of nursing, that cannot be said to be solely on the basis of an injury to her knee sustained on 17 August 2011. Any ongoing issues associated with that injury would be, at most, as the defendant submitted, just one potential contributor amongst a range of other imponderables.[230]
[230] Defendant’s submissions at [126].
On balance, on this basis, I would accept the submission for the defendant that a modest global award of $25,000 would be appropriate.[231]
[231] Defendant’s submissions at [129].
I would also accept the defendant’s submissions regarding past special damages,[232] with the addition of the WorkCover expenses paid in 2012 of $3,063.08.
[232] Defendant’s submissions at [131].
In so far as future special damages are concerned, the claim for future surgery is not established on the evidence. Nor is the plaintiff’s claim for physiotherapy costs supported on the evidence. None of the orthopaedic surgeons referred to any need for ongoing physiotherapy. The plaintiff’s GP, Dr Heyne, had recommended ongoing physiotherapy “to help keep the muscles strong, to support the knee, and also to manage the pain that is persisting”.[233] However, as already noted, the evidence is that stability is no longer an issue, and the pain that is persisting is, as explained by Dr Wallace, something the plaintiff would probably have experienced in any event. The claims otherwise for amounts for equipment and medication are not particularised. I would therefore also accept the defendant’s submission that a nominal amount for future expenses be allowed, reflecting that portion of the plaintiff’s future pain which may be found to be connected with the work event[234] (having regard to Dr Wallace’s evidence that the plaintiff would probably have experienced that pain in any event). I would however consider an amount of $4,000 to be appropriate (combining an amount for possible future pain medication, and possible future physiotherapy, but factoring in the low probability of this being related to the work event).
[233] T 1-78.32.
[234] Defendant’s submissions at [137].
Orders
There will be judgment for the defendant. I will hear the parties as to costs and to that end propose to direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within 14 days.
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