Sally Alanna McKay v Crowther

[2000] QSC 148

SUPREME COURT OF QUEENSLAND

CITATION:

Sally Alanna McKay v Crowther & Ors [2000] QSC 148

PARTIES:

SALLY ALANNA McKAY
(plaintiff)
v
LUCY BLAIR CROWTHER
(first defendant)
and
JUDITH MAY CAESAR
(second defendant)
CRAIG KENNETH BROWN on his own behalf and as Executor of the Estate of DAPHNE DOREEN BROWN
(third defendant)
and
KINROSS NURSING HOME PTY LTD
ACN 010 141 358
(fourth defendant)

FILE NO/S:

1710 of 1992

DIVISION:

Trial Division

DELIVERED ON:

26 May 2000

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2000

JUDGE:

Douglas J

ORDER:

Judgement for the Defendant with costs to be assessed

CATCHWORDS:

TORTS - NEGLIGENCE - PROOF OF NEGLIGENCE - GENERALLY - plaintiff/assistant nurse injured back while employed at defendants’ Nursing Home - plaintiff previously diagnosed with spinal kyphosis - whether defendants in breach of duty.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION - PROOF OF CAUSATION - whether sufficient nexus between plaintiff’s work practices and plaintiff’s pain and suffering - conflict between medical witnesses.

McGhee v National Coal Board [1973] 1 WLR 1
Sherman v Nymboida Collieries Pty Limited (1964) 109 CLR 580

COUNSEL:

Mr C Newton for the plaintiff

Mr M T O’Sullivan or the first, second, third and fourth defendants.

SOLICITORS:

Carter Capner for the plaintiff

O’Shea Corser Wadley for the first, second, third and fourth defendants

1. Douglas J:  The plaintiff, Sally Alanna McKay, was born on  25 March 1966.  At the age of 15 she was diagnosed as having a spinal kyphosis.  As a result she wore a spinal brace for a period of about three years. 

1. During this period she attended a one week work experience program at premises known as Kinross Nursing Home (“the Nursing Home”) where she advised the then proprietors that she had been treated for a kyphosis, and informed them that she was in fact wearing a spinal brace.

1. She left school at the age of 17 having completed year 12 in 1983.  For a short period she was employed at a video store but on 10 February 1984 she was first employed by the first defendant.  The first defendant was then the proprietor of the Nursing Home.  On 15 March 1985 the second defendant, Judith Caesar, took over the Nursing Home licence from the first defendant.  The plaintiff’s employment with the first defendant ceased in May 1985 when her employment began with the second defendant and the third defendant.  She was employed as an assistant in nursing.  On 1 August 1985 she acquired a certificate of achievement as an assistant in nursing.  The third defendant, Daphne Brown, died in October 1987 and as a result her son, Craig Brown, became involved in the plaintiff’s employment.  She remained at the Nursing Home as an assistant nurse/kitchen domestic until 23 September 1989 when she took an overseas vacation.  In the meantime she was also employed at the Country Club Hotel at Strathpine as a bar assistant from time to time.  The plaintiff returned to work at the Nursing Home on 28 October 1990, by which time the fourth defendant had taken over the licence for the Nursing Home.  I do not think it matters particularly how and when the changes in actual employers occurred because there is plainly a constant stream of employment at the Nursing Home, but for the period on an overseas vacation.

1. In September 1991 the plaintiff had four days off work due to the stress and anxiety of her parents’ separation but, importantly, on 21 November 1991 she went off work at the Nursing Home with an acute onset of back pain, which she says she reported to Sister Wise and later to the Director of Nursing, one Marcia Pitman.  I accept that she probably did report the matter.  The plaintiff said that she did occasionally get back pain in the course of her work but particularly so in the week prior to 21 November 1991.  Since she left work the plaintiff has received payments by way of workers’ compensation and has attended a number of rehabilitation courses but is unable, she says, to return to the workforce. 

1. Ultimately the result of this trial depends upon whether her current pain and suffering can be attributed to any negligence or breach of duty on the part of the defendants whilst she was employed at the Nursing Home.  In this respect there is a clear conflict between the medical witnesses called for the plaintiff and those called by the defendants.

1. It is trite to say that the plaintiff in a case such as this must establish the following four elements which together make up her cause of action.  They are:

(i)         the existence of a duty of care;

(ii)       a breach of duty;

(iii)      damage occasioned by the breach (causation); and

(iv)       foreseeability of damage.

There can be no doubt that there existed in this case the relevant duty of care.  Furthermore in the way the case was conducted, I consider that the elements requiring most consideration are those of breach of duty and causation.

1. The damage suffered by the plaintiff must have been caused, or materially contributed to, by the alleged breach of duty of the defendants or any of them: see Sherman v Nymboida Collieries Pty Limited (1964) 109 CLR 580 at 590-1. Furthermore it is clear that the breach of duty must have caused or materially contributed to the injury: see McGhee v National Coal Board [1973] 1 WLR 1 at 5-6.

1. The evidence reveals that during the directorship and supervision of Caesar, which commenced in March 1985, there were periodic and compulsory safety lectures dealing in particular with back care.  Caesar had lectures by a physiotherapist and also demonstrated appropriate techniques to the staff, which seemed to have been conceded by the plaintiff herself.  Indeed the general body of evidence is that there were such safety lectures and demonstrations.  Caesar was a very involved supervisor and it can not be said that she tolerated or encouraged any person to defy any care plan for residents.  The care plan described in some detail the ways in which the residents were to be transferred or moved, for instance by one or two staff or by the use of a hoist.

1. Caesar’s successor, one Pitman, is criticised by the plaintiff for not taking such an active role in the supervision and implementation of the care plan.  The essence of the plaintiff’s case is that the care plan became less important and bad work practices crept in.  She described instances of these practices such as solo lifting; lifting with untrained people; and lifting either with the lack of lifting devices or with inappropriate lifting devices.  She described occasions when a lifting device was not available because it was on the upper floor of the building and it was not brought down, or could not be brought down, in a timely fashion to deal with a particular patient.  However, I accept the evidence of Pitman, and Wise in particular, that there was frequent supervision of staff and that the care plan was adhered to both by way of demonstration and lecture.  The only real challenge to this is the evidence of McAully who asserts that at some time unknown, Pitman must have been aware that the nurses were breaching the care plans.  In this regard I accept the evidence of Wise and Pitman in preference to that of McAully.

1. Putting it at the best for the plaintiff, she says that there were occasions when she acted to her detriment in breach of the care plan.  To some extent this is supported by the witness Smith (called by the plaintiff) who conceded that there were occasions when the care plan was not followed but said it only occurred in “extreme circumstances”.  The plaintiff herself conceded that there were continual lectures and demonstrations in respect to safe lifting procedures.  It was submitted by the defendant’s counsel, Mr O’Sullivan, that in these circumstances it is hard to fathom why on one hand the employer would be so active in these matters and on the other hand, quite inconsistently, allow staff to risk themselves in the workplace.  Such a submission seems apt to me in this case.

1. There is no doubt that working in a nursing home does have the potential for back injury to occur.  However, in this case the plaintiff cannot point to any specific incident and, indeed, her evidence as to her work activities is vague.  There is no complaint of any pain or spinal discomfort until the week immediately preceding 21 November 1991.  There is no objective evidence that the plaintiff has any pathology arising from any incident or trauma.  Indeed Dr Morgan says that her spine does not show, other than for the kyphosis, any damage at all.

1. So far as the medical evidence is concerned the debate depends upon whether I accept on the one hand the evidence of Doctors Gillett and McCombe, or on the other hand Doctors Landy and Morgan.  In assessing this evidence one must always have in mind the fact that Dr McCombe was her treating doctor.

1. As a starting point, I accept that the plaintiff does have lumbosacral spine pain.  I accept that it is such as to prevent her from doing the sort of work she performed in the Nursing Home.  It seems also that a great degree of rehabilitative treatment has not come up with a solution to put her back into the workforce.  However, it is also the case that with her kyphosis the plaintiff was a person who was likely to get this sort of pain at some time in her life and more than likely by now.  That fact was as much as conceded by the plaintiff’s counsel at the trial.

1. At the end of the day I accept the evidence of Doctors Landy and Morgan.  Mr O’Sullivan put the following proposition to Dr Morgan with which the doctor agreed:

“Doctor, there appear to be three scenarios in respect of this matter.  One is that the work practice has nothing to do with her condition, that is her symptomatic condition; two, that the practices contributed greatly to her condition; third, that there may have been some minor contribution from the work activities, whatever they might be - lifting or bending - to her condition.  Would you agree with those three scenarios?”

1. Dr Morgan was of the view that the plaintiff is now suffering pain and discomfort from the symptomatic onset of her pre-existing Scheuermann’s Disease.  He was of the view that it was inevitable that she would suffer this pain, and Dr Gillett was of the view that some 50% of persons with a kyphosis such as the plaintiff’s would probably by now be suffering that sort of pain.  When asked whether he could find comfort in the connection between the work practices and an injury or aggravation of the Scheuermann’s disease Dr Morgan said:

“I am concerned about the direct  link or the chronological nature.  Her Scheuermann’s Disease was destined to become systematic in her adult life.  There has to be some starting point.  Maybe that niggling pain on the 18^th was the starting point, regardless or otherwise of the work.  It may have been provoked by a sneeze or a twist or some other domestic thing.  It may not have been remuneratively linked, but I honestly can’t say whether it was or it wasn’t, but I would be very uncomfortable saying that there is this totally exclusive link with the work practices and starting on the 18^th.”

1. Dr Landy found no evidence of any neurological problem. He expressed the view that assuming she did suffer pain at work, then it would probably be a muscle strain which should have settled in six to twelve weeks.  He was also of the view that there was no evidence of organic damage to the spine other than from her kyphosis.

1. Evidence is also called from a Mr McDonald who was described as an ergonomics expert.  Interesting as the evidence was, it was not of much use to me because the plaintiff herself was not able to describe a particular incident or incidents which she says connected her pain with unsafe work practices encouraged or permitted by the defendants.

1. Ultimately I am unable to conclude that there is any causal link or nexus between the work practices which the plaintiff and McAully describe, and her current pain and suffering.  I find that there was no breach of duty on the part of the defendants which caused or contributed to her current condition.

1. It is probably necessary for me to assess quantum.  If  I am incorrect in the view that the plaintiff’s present condition was not caused, or materially contributed to, by a breach of duty of the defendants, or any of them, then it seems to me that at best for the plaintiff she suffered some form of ligamentous strain or sprain at work which should have cleared up in a period of six to twelve weeks.  I do not accept that there was any long term damage caused by any such incident at work.  In such circumstances it is impossible to be precise about damages, but I would think that an assessment of some $5,000 would be adequate as a global sum to compensate the plaintiff.

1. One further matter which concerned me was the obvious attempt on the part of the plaintiff and her de facto husband to overstate the degree and nature of care and assistance required by her to alleviate her pain.  The claim was clearly contrived.  It also concerned me that in this context her de facto husband left a very good job to take on the role of carer in circumstances where the plaintiff gave birth to two children over quite a short space of time, and where together they are now able to draw on Social Security a not insubstantial sum upon which to live.

1. In the event I give judgment for the defendant with costs to be assessed.