Tristram-Howard v Morris Corporation (Aust) Pty Ltd
[2023] WADC 60
•9 JUNE 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TRISTRAM-HOWARD -v- MORRIS CORPORATION (AUST) PTY LTD [2023] WADC 60
CORAM: BURROWS DCJ
HEARD: 26 MAY-3 JUNE, 19 SEPTEMBER & 4 OCTOBER 2022
DELIVERED : 9 JUNE 2023
FILE NO/S: CIV 3520 of 2017
BETWEEN: ELISHA TRISTRAM-HOWARD
Plaintiff
AND
MORRIS CORPORATION (AUST) PTY LTD
Defendant
Catchwords:
Negligence - Duty of Care - Breach of duty - Harm alleged as a result of repetitive bending to pick up debris from runway - Back injury - Central sensitisation - Whether secondary psychological injury result of childhood trauma - Assessment of damages - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA)
Result:
Judgment for the plaintiff
Damages assessed in the amount of $1,337,537.76
Representation:
Counsel:
| Plaintiff | : | Mr B L Nugawela & Ms J H Craig |
| Defendant | : | Mr A P Hershowitz |
Solicitors:
| Plaintiff | : | Eureka Lawyers |
| Defendant | : | McCabes |
Case(s) referred to in decision(s):
Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
Brocx v Mounsey [2010] WASCA 196
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Colonel Clints Bargain Stores Pty Ltd (t/as Clints Crazy Bargains) v Molero (1997) Aust Torts Reports ATR 81-407
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Hargrave v Singh [2019] ACTSC 139
Hollier v Sutcliffe [2010] NSWSC 279
Houlahan v Pitchen [2009] WASCA 104
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jongen v CSR Ltd (1992) Aust Torts Rep 81-192
Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v SGIC (1995) 182 CLR 1
Pavicic v Webb [2013] ACTSC 41
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Pugh v Hanson [2013] ACTSC 12
Purkess v Crittenden (1965) 114 CLR 164
Scattergood v Commonwealth [2022] TASSC 21
Shorey v PT Ltd (as Trustee for McNamara Property Trust) (2003) 77 ALJR 1104; (2003) 197 ALR 410
Stanford v Dermejian [2020] ACTSC 151
State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81‑003
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Watts v Rake (1960) 108 CLR 158
Winiarczyk v Tsirigotis [2011] WASCA 97
Wright v Shire of Albany (1993) Aust Torts Rep 81‑239
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Table of Contents
Introduction
Witnesses at trial
Issues arising for determination
Liability
Injuries
Loss and damage
Plaintiff's credibility
Preliminary remarks as to the plaintiff's evidence and challenge to credibility
Plaintiff's background/work history
Previous physical issues - GP entry 13 August 2013
Did the plaintiff fail to disclose a pre-existing back condition?
Did the plaintiff fail to disclose to Hays taking antidepressant medication and receiving counselling?
Induction
Ground maintenance duties
The events of 18 October 2014
Sophie Brown
Finding as to frequency of bending
Investigation of the Incident
Findings as to the Incident
Breach of duty of care
The pleaded cases
Relevant law as to breach of duty of care
Was the risk of injury from repetitive bending a foreseeable risk which the defendant knew or ought to have known?
The plaintiff's evidence
Mr Dupeux's evidence
Wendy Catherine Pietrocola, ergonomist
What steps a reasonable employer would take to avoid the risk of injury in the discharge of the duty
Failure to advise
Failure to provide the plaintiff with adequate or suitable equipment to undertake the ground maintenance duties
Failure to enforce a system of regular rest breaks and the rotation of duties
Did the defendant's breach of duty of care cause the plaintiff to suffer injuries?
Plaintiff's work and medical treatment - Post-Incident October 2014
Beverly Wilson
Stephen Hollow
Steroid injections and rhizotomies
Surveillance footage
Plaintiff's medical treatment
Dr Patrick Martin Garratt, general practitioner
Dr Chin-Wern Chan, pain specialist and anaesthetist
Dr Priya Chowalloor, consultant rheumatologist
Dr Sanjay Nadkarni, interventional radiologist
Depression and Anxiety
Noreen Lange, clinical counsellor
Marika Van Renselaar, counselling psychologist
Dr Raymond Wu, clinical psychiatrist
Sunila Peterson, counselling psychologist
Dr Inglis Howe Synott, consultant psychiatrist
Did the plaintiff suffer with pre-existing anxiety and depression due to childhood trauma? If so, should that impact on the assessment of damages?
Assessment of damages
Background
On what basis should damages be assessed?
Relevant law to assessing economic loss
Past loss of earning capacity
Past loss of superannuation
Special damages
Loss of future earning capacity
Further award for future economic loss
Loss of future superannuation
Past and future travel expenses
Future treatment expenses
General damages
Interest
Summary
BURROWS DCJ:
Introduction
The plaintiff commenced employment in an airport check-in and utility worker role at the Solomon Gold Mine on 25 August 2014 (the Site). She was employed by Hays Specialist Recruitment Pty Ltd (Hays) in an administration role and provided services to the defendant under a labour hire agreement.[1] The defendant was the manager and operator of the airport which services the Site.
[1] Exhibit 6, index page 24.
On Saturday 18 October 2014 the plaintiff was working at the airport. As it was a weekend no flights were scheduled to land. The plaintiff was instructed to undertake ground maintenance duties of sweeping the approximately 2.1 km long runway for debris. This involved walking the length of the runway whilst holding a bucket and bending down to pick up sticks, leaves or litter from the runway. It is the plaintiff's case that after undertaking such duties for three to four hours she suffered back spasms (the Incident). After resting for a period, the plaintiff continued to work. On 19 October 2014 the plaintiff again worked performing ground maintenance duties. On 20 October 2014 she worked for a period before she was seen by the onsite medic and placed on modified duties.[2] She was flown back to Perth on 23 October 2014[3] and completed a workers' compensation claim form on 24 October 2014.[4]
[2] Exhibit 24, the plaintiff was seen at 16:30 on 20 October 2014.
[3] Exhibit 34.4, page 1.
[4] Exhibit 13.
The plaintiff's injuries are particularised as:[5]
5.1.Soft tissue injury to the lower back involving the activation of symptoms at the L4/5, L5/S1 discs, and/or sacroiliac joints;
5.2.Secondary psychological injury with severe depression and anxiety;
5.3.Central hypersensitivity and/or functional overlay (the injuries).
[5] Statement of claim, pars 5.1 - 5.3.
Witnesses at trial
At trial the plaintiff gave oral evidence over three days. On the day the trial was scheduled to commence, 26 May 2022, the plaintiff tested positive for COVID‑19. The plaintiff wished to give evidence and for the trial to proceed despite having COVID‑19. I allowed the plaintiff's application for her evidence to be taken by audio‑video link from her home over the defendant's objection. Both the video and audio‑link to the plaintiff were clear throughout her evidence. I had the opportunity to observe her movements during breaks in the proceedings and at times when the plaintiff requested to get up so she could move and stretch to relieve discomfort. Despite exhibiting symptoms similar to a cold or flu I was satisfied that the plaintiff was not deprived of the ability to properly give her evidence or to understand and respond to questions asked of her. I am satisfied that the plaintiff giving evidence by audio‑visual link has not in any way impeded my ability to assess her credibility.
On the issue of liability, the plaintiff called Wendy Catherine Pietrocola, an ergonomist who gave expert evidence.
The plaintiff called a number of medical professionals who had treated the plaintiff physically: Dr Chin Wern Chan, an anaesthetist and pain specialist who performed sacroiliac joint injections on the plaintiff; Dr Sanjay Nadkarni, an interventional radiologist who performed joint injections and rhizotomies on the plaintiff; Dr Priya Chowalloor, a consultant rheumatologist who saw the plaintiff at the request of Dr Chan and Dr Patrick Martin Garratt who is the plaintiff's current general practitioner (GP).
The plaintiff also called a number of professionals who had been involved in her psychological/psychiatric treatment: Dr Raymond Wu, a psychiatrist who saw the plaintiff three times in 2016; Sunila Peterson who has been the plaintiff's counselling psychologist since 2020 and Marika Van Renselaar who was the plaintiff's counselling psychologist in 2015 - 2016.
The plaintiff called two lay witnesses; Stephen Mark Hollow and Beverly Wilson. The plaintiff had worked with Ms Wilson at The Salvation Army and currently works with Mr Hollow at the Rockpool Restaurant in Crown Entertainment Complex.
The defendant called four witnesses: Dr Inglis Howe Synott, a psychiatrist who saw the plaintiff for the purposes of conducting a medicolegal assessment; Johann Dupeux who was the Health, Safety Environment and Quality (HSEQ) adviser for the defendant stationed at the Site at the time of the Incident; Sophie Brown, a co‑worker and the plaintiff's supervisor on 19 October 2014, the day after the Incident and finally, Noreen Lange, a counselling psychologist who saw the plaintiff for nine sessions before the Incident and continued to see her until February 2018.
I take into account when assessing the evidence that the plaintiff and lay witnesses were recalling events that happened over seven and a half years before they gave evidence at trial. This significant passage of time has impacted on the ability of witnesses to recall details surrounding the Incident and in respect of the plaintiff, details of attendances at her GP in 2013 and 2014. This is understandable and to be expected.
Issues arising for determination
Based on the pleadings, submissions and the statements of issues filed, the following issues arise for determination.[6]
[6] The plaintiff filed an amended statement of claim on 4 May 2022 and an amended defence was filed on 11 May 2022. The plaintiff's response to request for further and better particulars was filed on 27 June 2018. The defendant provided answers to the plaintiff's request for further and better particulars of the amended defence filed 11 May 2022 orally at the commencement of the trial on 26 May 2022. Each party also filed written opening and closing submissions and a statement of issues. The parties filed an agreed schedule of special damages. A schedule of special damages not agreed was agreed at the hearing of closing submissions which took place on 4 October 2022. The parties filed an agreed chronology on 23 September 2022. The plaintiff filed an updated particulars of damage on 27 September 2022.
Liability
1.Did an injury involving the plaintiff's back occur on 18 October 2014?
2.If so, was it caused by the defendant's breach of duty of care?
3.If so, what specific way(s) did the defendant relevantly breach the duty of care it owed to the plaintiff?
Injuries
1.If the defendant breached the duty of care owed to the plaintiff, did that breach cause the plaintiff to suffer the injuries?
Loss and damage
1.If the defendant's breach of duty of care caused any of the injuries, are they compensable at law? If the answer is yes, what loss and damage has been suffered by the plaintiff?
2.Did the plaintiff suffer with pre‑existing anxiety and depression due to childhood trauma? If so, should that impact upon the assessment of damages? If so, to what extent?
Plaintiff's credibility
1.What, if any, adverse credibility findings should be made in respect of the plaintiff's evidence?
Preliminary remarks as to the plaintiff's evidence and challenge to credibility
Throughout her evidence, the plaintiff presented with a calm demeanour. She was a good historian and not prone to emotion or exaggeration. She presented as well groomed, neatly dressed and fit in appearance. My observations of her when breaks in proceedings took place was that she was able to walk with relative ease and to get up and down. She walks in an upright manner. Throughout her evidence she regularly adjusted her shoulders by rolling them back. These observations are made in the context that the plaintiff had undergone rhizotomies performed by Dr Nadkarni in March 2022 which provided significant pain relief. The plaintiff was clearly nervous when giving evidence‑in‑chief. I ascertained this from the rapid manner of her breathing at times.
The plaintiff gave evidence over three days. She was cross‑examined for two days. The cross‑examination focussed in detail on documents signed by the plaintiff when she applied for the job at the Site, her Incident Witness/Involved Persons Statement (the Statement[7]) and notes made by her GP and counsellor Ms Lange.
[7] Exhibit 12 'the Statement'.
In closing submissions the defendant made several challenges to the credibility of the plaintiff which they submit, if accepted, render her an unreliable witness. The defendant's submissions can be divided into four broad categories.
In the first category the defendant made submissions to the following effect:
1.That the plaintiff deliberately misled Hays by not disclosing that she was on medication for depression or seeing a counsellor when she completed the pre‑employment medical form.[8] They say this demonstrates the plaintiff is willing to lie to advance her career and sign documents declaring them true when they are in fact not.
2.That the plaintiff misled Hays when she said she had not taken more than two days of sick leave in the 12 months preceding August 2014 when she had in fact taken 7 or 10.[9]
3.That she misled Dr Synott and Dr Wu by denying having a pre‑existing psychiatric condition. The defence position is that the notes of Ms Lange, GP notes, her report to Ms Peterson that she had chronic depression for 10 years prior to 2021 and the fact she was prescribed antidepressants Lexapro and Valdoxan demonstrate she had a pre‑existing condition.[10] The defendant accepts there was never a formal diagnosis of depression prior to the Incident.[11]
4.That the plaintiff's assertion that she only went to see Ms Lange following a relationship breakup is implausible due to the lapse in time between the relationship breakup and her first attendance.[12]
5.That the plaintiff's continued denial of previous back pain is inconsistent with documented complaints to her GP and having a lower back scan prior to the Incident.[13]
[8] Exhibit 6, page 36; ts 1082.
[9] ts 1084.
[10] ts 1084 - ts 1087.
[11] ts 1086.
[12] ts 1085.
[13] ts 1084.
In the second category the defendant submits that the timing of events by the plaintiff in the Statement and her failure to report the injury immediately are not consistent with an injury having occurred in the way the plaintiff asserts that it did.[14]
[14] Exhibit 15 'Surveillance Footage'; ts 1066, ts 1071.
In the third category the defendant submits that the plaintiff's description of her pain and physical limitations is inconsistent with the physical activities she can be seen undertaking in the surveillance footage.[15]
[15] ts 1088.
In the fourth category, the defendant submits that the inconsistencies between the way in which the plaintiff and Ms Brown describe the task of sweeping the runway, in particular, how often bending was required and the amount of debris collected indicate the plaintiff has a propensity to embellish or exaggerate in her evidence.
I do not accept the defendant's submissions that the plaintiff is not a credible or reliable witness. I found the plaintiff to be an honest witness, not prone to exaggeration or embellishment. In these reasons I will deal with each challenge to the plaintiff's credibility when dealing with the relevant evidence. It is necessary for me to canvass in some detail the plaintiff's evidence and the relevant documentary exhibits before setting out my findings in respect of what occurred on 18 October 2014.
Plaintiff's background/work history
Much of the evidence given by the plaintiff concerning her background was not in dispute at the trial, what was in dispute was whether events in the plaintiff's past had left her with pre-existing back pain, depression and anxiety.
The plaintiff was born 12 May 1993. She is now aged 30. She was 21 at the time of the Incident. She attended Lesmurdie Senior High School, completing Year 12 in 2010.
The plaintiff was raised by her mother and has two older sisters.[16] Growing up, the plaintiff had no contact with her biological father and does not know who he is. Her mother had a partner who left when the plaintiff was a child aged between 7 and 10 years old.
[16] ts 149.
The plaintiff lived with her mother until 2017. She returned to live with her mother at the end of 2020 for approximately four or five months. She now lives on her own in an apartment with her dog.
The plaintiff described her family relationship as close. She said both of her sisters struggled with drugs and she observed their struggles. Financially, things were difficult as she was growing up.
The plaintiff gave evidence that after leaving school she worked as an administrator/receptionist on a full‑time basis at Diverse Engineering for six months until June 2011. For the second part of 2011 until January 2013 she worked as a receptionist at the Central City Dental Clinic in Perth. The plaintiff also commenced worked at Embers restaurant on a casual basis for one to three shifts per week in 2011. This work involved setting up the restaurant, taking orders, delivering food, cleaning the restaurant and bathrooms and restocking.[17]
[17] ts 152 - ts 153.
The plaintiff was involved in a motor vehicle accident in February 2013 (the MVA) when she fell asleep at the wheel of her car. Her uncontested evidence was that she was tired from working two jobs. Following the MVA she had some pain in her neck and shoulders. She undertook physiotherapy. The defendant's case is that the plaintiff suffered a back injury in the accident. They submit her injuries were not limited to the neck and shoulders.
After the accident the plaintiff commenced a seven‑week training program with Network Aviation to become a flight attendant. Network Aviation services remote mine sites in Western Australia. The plaintiff completed the training, passed the physical requirements, and was employed to work approximately 30 hours a week. The plaintiff accepted that she had undertaken manual handling training in the course of her employment with Network Aviation including training on how to lift luggage into overhead compartments and carrying bags.[18] The plaintiff's duties were to assist loading the plane, check that the plane was clean, clean the bathrooms, do safety checks, have a briefing with the flight crew then wait for the passengers to board. If there was no flight or the flight was cancelled she was sent home as there was no work to do on the ground at the airport terminal. There were occasions where she was given a five or six‑hour break until a flight would return from site. During these layover periods she was not required to carry out any other tasks at the relevant mine site. She did not perform any maintenance work in her role at Network Aviation.[19] When she flew to remote mining sites in the course of her employment she was never made aware of the other duties people who worked at airports servicing such sites undertook.
Previous physical issues - GP entry 13 August 2013[20]
[18] ts 260.
[19] ts 153 - ts 159.
[20] Exhibit 20, page 20.
The plaintiff was cross‑examined in relation to an entry in the GP notes on 13 August 2013 while she was working at Network Aviation. On examination by the doctor, several resolving blisters to the medial arches of both feet were observed.
The plaintiff gave evidence that she had done a 10 km obstacle course before the attendance at the doctor. She went to the doctor because she was required to wear high‑heeled shoes at work and required a medical certificate so she could wear flat shoes.
The plaintiff was referred to a further note in the GP records on 28 October 2013 when she attended the doctor after doing a Mudder (obstacle) course. She was experiencing pain when extending her calf and her knee hurt. I am satisfied based on the GP notes that the plaintiff again requested a medical certificate because her employer required her to provide one before they would permit her to wear flat shoes.
The tenor of the cross‑examination was the plaintiff lacked resilience and was prone to attend her GP over trivial matters.[21] I do not find this to be so.
[21] ts 255.
The plaintiff denied having any physical issues which impacted on her work at Network Aviation. The evidence was, which I accept, that the issues she experienced were from strenuous exercise. The plaintiff needed a medical certificate before her employer would allow her to wear flat shoes. She attended on her GP and obtained the required certificate.
This, in my view, does not demonstrate a lack of resilience. To the contrary, that the plaintiff was able to do such strenuous physical activity outside of work demonstrates resilience on her part. Further, I do not consider that these attendances by the plaintiff at her GP suggest she was unable to perform the tasks required of her as a flight attendant. I find the plaintiff experienced muscle ache after physical exercise and was struggling to lift her arms above her head when she went to the GP because of the exercise. This does not indicate she had any pre‑existing injury and I am satisfied she was fit to perform her job as a flight attendant.
Whilst working for Network Aviation the plaintiff also continued to work at Embers restaurant. She worked as a flight attendant until April 2014. The plaintiff gave evidence that after leaving Network Aviation she went to China for two weeks where she undertook volunteer work. The plaintiff left Network Aviation because of her concern over three emergency situations that she thought were not handled appropriately and not by reason of any physical limitations or because she was travelling to China.[22] I accept her uncontradicted evidence that this is the reason she left her employment.
[22] ts 258.
During her employment with Network Aviation the plaintiff became aware from communicating with ground handlers at various mine sites that a check‑in position was available at a remote airport through Hays. She applied for the position which had a fly‑in/fly‑out roster of two weeks on followed by one week off. She met Kelly Hewitt in the Hays office in Perth and went through the position description. The plaintiff had never worked at a mine site airport before. The plaintiff's understanding of the role was that it involved checking in customers at the airport, answering customers' enquiries, setting up the aerodrome for check‑in, tagging bags, weighing bags and some light cleaning duties of the aerodrome. Her understanding was that the physical requirements of the job would be similar to what she was doing as a flight attendant.[23] The plaintiff's evidence was that she was not told she would be collecting debris from a runway.[24] I am satisfied based on the uncontradicted evidence of the plaintiff that she was not aware of the full extent of the ground duties she would be required to perform until she attended at the Site. I accept her evidence that she was not provided with a document listing these duties by Hays.[25] Ms Hewitt was not called to give evidence at the trial. No representative from Hays gave evidence to contradict the plaintiff's evidence in this regard.
[23] ts 163.
[24] ts 163.
[25] Exhibit 23.
The plaintiff had no dealings with the defendant before she arrived at the Site. She underwent a pre‑placement medical assessment with a doctor engaged by Hays on 14 August 2014.[26] Part of the assessment involved the plaintiff answering various questions in the pre-placement medical assessment form (the Hays Form). The plaintiff disclosed the neck and shoulder injury from the MVA. She described having soft tissue damage from a car accident and neck pain/whiplash in the Hays Form.[27] She noted having 'ongoing physio to treat neck and shoulder injury from car accident (2013)'.[28]
[26] Exhibit 6 'The Hays Form'.
[27] Exhibit 6, index pages 28 ‑ 31.
[28] Exhibit 6, page 35.
The plaintiff passed the physical assessment. At this time the plaintiff disclosed she was going to the gym five or six times a week, playing netball once a fortnight and walking her dog three or four times a week.[29] This level of exercise is relevant when considering the lethargy that she disclosed to her GP and Ms Lange in July 2014, a month before the assessment. I am satisfied she had resumed active gym attendance by 14 August 2014.
[29] Exhibit 6, page 26.
I am satisfied based on the physical examination conducted on 14 August 2014 that the plaintiff was fit and physically active at the time she commenced employment at the Site.
Did the plaintiff fail to disclose a pre-existing back condition?
The defendant alleges the plaintiff suffered from a back injury prior to the Incident and failed to disclose this in the Hays Form. They say this inference can be drawn from:
(a)the plaintiff's GP record dated 9 February 2009 when she was 16 years old which records a complaint of lower thoracic central pain made worse when sitting on chairs at school;
(b)the existence of a lumbar spine X-ray from June 2014; and,
(c)on the basis that the MVA left her with low back pain.
The GP records from 9 February 2009 reveal that upon examination a slight curvature of the plaintiff's spine could be seen when bending in forward flexion.[30] A diagnosis of backache was made and a referral for an X-ray of the thoracolumbar spine was made. There is no evidence before me that such X-rays were done. There are no further references to backache in the GP notes until after the Incident when the plaintiff attended on Dr Thyer on 23 October 2014.[31] I am satisfied any issues the plaintiff may have been experiencing in February 2009 had resolved without the need for further attendance on her GP and that spinal curvature was not causing her any issues prior to the Incident.
[30] Exhibit 20, page 16.
[31] Exhibit 20, page 23.
On 30 June 2014 the plaintiff underwent an X-ray of her lumbar spine at Perth Radiological Clinic. The referral was from her physiotherapist, Mr Barnes. There is no reference in the GP notes from this time of the plaintiff complaining of back pain. The report from that X-ray records under clinical details 'low back pain, no neurological or disc signs. Some tenderness over L5/S1, Exclude Spondylitis'.[32] The plaintiff explained under cross‑examination that she had undergone this X-ray because she felt her back was tender, not because she had ongoing back pain. The plaintiff's evidence was that she was sore from exercise and weightlifting.[33] She specifically rejected the proposition that she had the scan due to low back pain.[34] The plaintiff said she could not recall having any lower back pain prior to getting the job at the Site.[35]
[32] Exhibit 14.
[33] ts 430.
[34] ts 430.
[35] ts 178.
The defendant's contention is that the plaintiff had sustained an injury to her back as opposed to her neck and shoulders in the MVA.[36] The plaintiff rejected this proposition repeatedly in cross‑examination. She reiterated that she had neck and shoulder pain in her upper back.
[36] ts 408, ts 429, ts 425.
The defendant's contention raises two issues, the first is whether the plaintiff had a pre‑existing back injury and the second is if she did, does the way she disclosed or omitted to disclose that back injury impact on her credibility?
Relevant to the first issue, the plaintiff gave evidence that at the time of the MVA she was working for Network Aviation and at Embers. Her evidence was that within 24 or 48 hours of the MVA she was back at work and back at the gym.[37] She gave evidence that following the MVA she had no issues completing her work at Embers or the physical requirements of the Network Aviation training course.[38] I am satisfied based on the plaintiff's evidence that following the MVA she had no functional limitations or ongoing pain in her lower back and that she went about her life as usual very soon after the MVA. There is nothing in the plaintiff's GP records that indicate she was suffering with lower back issues following the MVA. The fact she underwent an X‑ray for low back pain in 2014 does not establish she had an injury to her lower back.
[37] ts 152.
[38] ts 153.
I am satisfied the plaintiff did not have a back injury at the time she filled in the Hays Form or at the time of the Incident. I accept the plaintiff's evidence that she had shoulder and neck pain which she disclosed to Hays. I do not accept the defendant's submission that the plaintiff lied in the Hays Form. I find the plaintiff was active physically, exercising, going to the gym and performing challenging obstacle courses which caused her muscle tenderness in June 2014.
A doctor employed by Hays examined the plaintiff's spine and reported that it was normal. She was assessed by the doctor as being a 'low risk level'. The doctor noted 'occasional shoulder (both) aches and pains requiring physio but functionally no limitation on assessment today'.[39] This assessment was not challenged and it accords with the plaintiff's evidence, which I accept. I am satisfied that when the plaintiff commenced employment at the Site she was not suffering any functional limitations.
Did the plaintiff fail to disclose to Hays taking antidepressant medication and receiving counselling?
[39] Exhibit 6, index page 34.
I turn now to the contention that the plaintiff failed to disclose in the Hays Form that she was taking antidepressant medication and was seeing a counsellor.
The plaintiff commenced seeing a Christian counsellor, Noreen Lange in July 2014. Her evidence was that she had suffered a relationship breakup that caused her to struggle emotionally. She last saw Ms Lange in February 2018.[40] The plaintiff said in counselling sessions with Ms Lange she discussed the issues she had faced being raised by her mother and the family not being financially secure.
[40] Exhibit 35.2.
There are two entries in the GP records that assumed significant focus in the trial. It is appropriate to set them out in full at this point:
Surgery consultation
Recorded by: Warren Thyer Visit date: 17/07/2014
Date Recorded: 26/01/2017
History:
Has recently been seen bya [sic] counsellor last week (Noreen Lange) ‑ scored quite highly on questionnaire [sic]
Difficult break up last year, Has been drinking excessively-stopped 3 weeks ago, Working long hours ‑ Embers.
Poor sleep, Quite agitated
Feels flat all the time ‑ 12months;
Worse 1 month ‑ stopped going to gym, no motivation
Tearful at times
Fhx - Sister has been on Zoloft for 12 years - keen to avoid this.
Not Suicidal.
Appetite - has been eating poorly, No other recreational drugs
Plan:
See in 2 weeks
Actions:
Prescription - 28 - Lexapro (tablets) 10mg
Surgery consultation
Recorded by: Warren Thyer Visit date: 20/07/2014
Date recorded: 26/01/2017
History:
Since last consult has not been sleeping well at all - very unsettled awakens feeling wrecked. No other SEs - no nausea
Has been going to counselling - quite exhausting.
Plan:
Stop lexapor and willing to try valdoxan
See in 4 week
Actions:
Prescription - Valdoxan (tablets) 25mg
Diagnosis - Mood disorder
The plaintiff gave evidence she was drinking a lot after the relationship breakup but had stopped drinking three weeks prior to the GP consultation on 17 July 2014. This is consistent with the plaintiff's evidence that she was not drinking excessively when she filled in the Hays Form. By that stage she was having one to two drinks per week.
The plaintiff said in cross‑examination that she had a relationship breakup in January or February of 2014.[41] This estimate of when the breakup was is inconsistent with the plaintiff describing the breakup as happening 'last year' to her GP in 2013 and telling Ms Lange the breakup had occurred two years prior in a counselling session on 9 July 2014. She later said in re-examination the breakup of her relationship occurred in February or March 2012.[42] She said it was not a sudden breakup.
[41] ts 288.
[42] ts 513.
I find the breakup of the relationship occurred between 1 - 2 years before the plaintiff's attendance on her GP and Ms Lange in July 2014. The state of the evidence is such that I am not able to be more precise.
The plaintiff accepted that she told her GP on 17 July 2014 that her sleep was poor. She said she struggled to sleep at night but had never been medicated or tested in relation to that issue. She agreed that she had told her GP she had been feeling flat and that this had been going on for 12 months.
I am satisfied based on the plaintiff's evidence, the GP notes and Ms Lange's evidence that the plaintiff experienced difficulties as a result of a relationship breakup. These included poor sleep, lack of motivation to go to the gym, feeling flat and eating poorly. These difficulties led her to consult her GP after her first counselling session with Ms Lange on 9 July 2014. When she attended the GP on 17 July 2014 the plaintiff was prescribed 10 mg of Lexapro.
The GP entry two weeks later on 30 July 2014 recorded the plaintiff reported not sleeping well and being unsettled, that she had been going to counselling, she was exhausted and had stopped the Lexapro.[43] She was prescribed Valdoxan at a dose of one 25 mg tablet per night and given a script for two repeats. I am satisfied the plaintiff had been prescribed Valdoxan at the time she completed the Hays Form on 14 August 2014.
[43] ts 289.
In the course of the trial Dr Wu, gave evidence that Lexapro is a selective serotonin reactor inhibitor termed as an antidepressant which is used as a first line treatment for anxiety and depression for major depressive disorder. Dr Wu gave evidence that a 10 mg dose would be the starting dose.[44]
[44] ts 484.
He said Valdoxan is also an antidepressant. He said it has melatonergic activity which helps a person sleep and has an antidepressant effect.[45] He said GPs like to prescribe Valdoxan because it generally has very few side effects and it helps a patient sleep better.[46]
[45] ts 488.
[46] ts 488.
The plaintiff was required to disclose in the Hays Form if she had taken any cough cold medication, sleeping tablets, or pain killers in the last 10 days. The plaintiff disclosed she had taken Mersyndol for menstrual pain. There was no requirement to disclose any other prescribed medication such as antidepressants. I am satisfied that the plaintiff did not mislead Hays in this regard.
The plaintiff asserted in the Hays Form that in the four weeks prior to 14 August 2014 she had not been feeling depressed, tired out for no reason, hopeless or worthless.[47] The defendant submits this was misleading in light of what she told her GP and Ms Lange in July 2014. I accept that the plaintiff's responses in the Hays Form were inaccurate. It is evident from the GP notes that she had experienced some of those feelings in the four-week period before 14 August 2014. I am satisfied that by the time the plaintiff completed the Hays Form she had been taking Valdoxan for two weeks and had seen Ms Lange on five occasions, the last of which was on 29 July 2013. She next saw Ms Lange on 20 August 2014 where no complaint about sleep or mood was made. The plaintiff reported being pleased to be out of home and told Ms Lange about her new job. By this stage the counselling sessions focused on issues concerning the plaintiff's stepfather.
[47] Exhibit 6, page 31.
The plaintiff agreed that she saw Ms Lange every couple of weeks from July to October 2014. She continued to attend counselling with Ms Lange when she returned from her swings at the Site. She said she was taking medication. She gave evidence that she had no recollection of being diagnosed with depression; she said she was going through a rough patch. She denied wilfully misleading Hays when completing the Hays Form in order to gain employment.[48] I find that the plaintiff did not complete the Hays Form in this regard accurately. I am not satisfied that she did so deliberately in order to mislead Hays. I find that at the time of completing the form and undergoing the medical assessment the plaintiff was no longer experiencing the issues she discussed with her GP and Ms Lange in July. She was medicated by this time. I accept her evidence that she did not consider herself to have been diagnosed with depression. She was being treated for her mood and lack of sleep appropriately, had resumed her gym activity and was not suffering any functional limitations other than those noted by the doctor employed by Hays. My assessment of the plaintiff as an honest witness is not altered.
[48] ts 297.
A similar line of cross-examination was pursued when the plaintiff was asked about a response in the Hays Form where she had ticked a box declaring she had not had in excess of two days sick leave in the last 12 months.[49] The GP notes reveal that she was given a certificate for sick leave for five days between 23 December 2013 and 27 December 2013 (which included the public holidays of Christmas day and Boxing day).[50] She had an upper respiratory tract infection at that time. She was also provided with a medical certificate for four days from 28 ‑ 31 January 2014 when she sustained and injury to her chest after a person collided with her on the aircraft slide at Network Aviation. The plaintiff's evidence was that she could only recall having a couple of days sick leave over the period of 12 months. I find that the plaintiff's evidence is consistent with her having made an honest mistake about the number of days she had taken off, in particular noting that the first period of sick leave was over the holiday period, and find that the honest mistake does not cause me to doubt the plaintiff's credibility.
[49] Exhibit 6, index page 30.
[50] Exhibit 7.1, exhibit 20, page 21
In summary I find:
(a)the plaintiff did not have a pre-existing back injury before the Incident;
(b)the plaintiff did not deliberately mislead Hays in order to obtain employment; and
(c)I make no adverse findings in respect of the plaintiff's credibility in relation to the completion of the Hays Form.
Induction
The plaintiff was offered the position and started working at the Site on 25 August 2014. The plaintiff gave evidence that she had an induction at the Fortescue Metals Group (FMG) building in Perth. In cross‑examination the plaintiff could not recall attending a course on lifting techniques.[51] She could not recall details of the topics and modules covered in the training which she undertook on 19 August 2014.[52] This is hardly surprising given the seven and a half year time lapse between August 2014 and the plaintiff giving evidence in May 2022. She recalled when speaking to the ergonomist, Ms Pietrocola, that manual handling was covered in a PowerPoint presentation and there was no practical component to the training.[53]
[51] ts 349.
[52] Exhibit 9.
[53] Exhibit 30, page 7.
When she arrived at the Site the plaintiff said she was taken to the airport and given the Occupational Health and Safety (OH&S) files to look through which contained policies and procedures. She did not believe there was a face‑to‑face induction.[54] The plaintiff said she was provided with a document that had a section on correct lifting techniques.
[54] ts 352.
Sophie Brown was employed by the defendant at the time of the Incident. She could not recall if training about lifting or bending practices were part of the FMG induction. Ms Brown said there was also a folder of safe work instructions which employees were required to read and sign before commencing work.[55]
[55] ts 1049.
Mr Johann Dupuex was also employed by the defendant at the time of the Incident. Mr Dupeux explained that the Site was operated by FMG and the defendant was responsible for providing services such as catering, cleaning, maintenance and airport services. Mr Dupuex explained that his role was to support the health and safety systems of the defendant. This involved carrying out investigations, conducting safety meetings, conducting inductions with new employees and participating in safety meetings which addressed hazards raised by employees. Mr Dupuex was not involved in the management of the airport or aerodrome area. The airport services team of five or six undertook the roles of cleaning, maintenance and check‑in duties at the airport.[56]
[56] ts 965.
Mr Depeux gave evidence that any new inductee would have documentation made available to review, such as the manual that is exhibit 31 and any relevant safe work instructions.[57]
[57] ts 963.
I find that the plaintiff was provided with a document similar to the 2017 version of the Hazardous Manual Tasks document.[58] The relevant manual task document in force in 2014 was not adduced at trial. Neither party submitted the failure to produce the Hazardous Manual Tasks document in place for the period of August - October 2014 was an issue.
[58] Exhibit 31.
The Hazardous Manual Tasks document outlines the systematic risk management process of hazard identification, risk assessment and risk control. It also provides guidelines for safe lifting.
I am satisfied from the material provided on induction at the Site that the plaintiff was provided adequate training in lifting techniques. The plaintiff's counsel did not press a pleaded allegation of failure to train in lifting techniques at trial. This was a properly made concession in light of the evidence.
Ground maintenance duties
The plaintiff gave evidence that within a few days of arriving at the Site she became aware that she would be required to undertake ground maintenance duties.[59] The plaintiff understood her duties to include check-in roles, cleaning of the aerodrome and maintenance work on the runway.
[59] ts 356.
The plaintiff's roster was increased from two to three weeks on, one week off. The plaintiff worked 12‑hour shifts and was given one day off in the third and final week of the swing.[60] The shift hours were 4.00 am - 4.00 pm Monday - Friday and 6.00 am - 6.00 pm on Saturday and Sunday.
[60] ts 179.
The plaintiff said during the week staff would attend a pre‑start meeting in the aerodrome shed and then would get the aerodrome ready for check‑in as flights went out. The aerodrome was situated in the mine village, not at the runway. They would make sure the cones were lined up, get equipment out, go over the times of flights, open the aerodrome and then work in pairs to check people in, weigh and tag bags and load the bags onto a trailer to be taken to the runway. The number of flights each day varied. Sometimes there were two or three, sometimes more. The plaintiff said she would attend to pre‑flight requirements until about 9 or 10 in the morning depending on the number of flights.[61]
[61] ts 185.
The duties the plaintiff undertook at the aerodrome included sweeping, mopping and wiping down benches every shift. At the runway there was an office in a donga which would be cleaned and wiped down. There was a gazebo near the runway where passengers waited for their flight. Utilities staff were tasked with removing rubbish, cleaning the toilets and hosing down the gazebo on weekdays. On one day each weekend the gazebo and toilets were cleaned which took approximately two hours.
The plaintiff described that as part of the ground maintenance duties she was required to 'sweep' the runway. Sweeping the runway involved a team of four or five staff spreading out across the runway and walking from end to end. They would bend down and pick up all sticks, twigs, debris and anything else that was on the runway and place these items into a plastic bucket. The plaintiff said that she would bend down to pick up debris every step.[62] Once the bucket was full, they would walk to the side of the runway, empty the bucket and then walk back onto the runway and keep going. No tools were provided to assist in this task.[63]
[62] ts 366.
[63] ts 186.
The staff sweeping the runway were told they could take water breaks when they wanted to. The water bottle was kept in the car.[64] The car was parked either at the beginning or at the side of the runway and would be moved. Normally the supervisor, Emma Stewart, would move the car so that the staff could sit in the car, turn the air conditioner on, and have some water.
[64] ts 366.
The plaintiff said that sweeping of the runway would take up five to six hours of the 12‑hour shift. Breaks comprised approximately one hour of the shift. She said on the weekend all they did was manual labour.[65] There were only three or four different tasks to perform.[66] Other ground maintenance duties included weeding using a spray pack two to three times a week for two to three hours at a time and painting the runway for two to three hours once a month. She said she was not weeding the runway using spray equipment on the day she was injured or painting. The only task performed was sweeping the runway.[67] I accept the plaintiff's uncontradicted evidence that no other duties including cleaning the gazebo were performed on 18 October 2014 before the plaintiff commenced sweeping the runway.
[65] ts 368.
[66] ts 368.
[67] ts 367.
The plaintiff described the ground maintenance duties as being physical and strenuous resulting in her feeling tired physically and left aching and sore.[68] She said at the end of each shift she had to fill in a safety observation check list where she made two or three safety hazard observations that she had been exposed to during the shift. She said she constantly recorded the physical, manual labour and lack of rotation of tasks as hazards in her observations. She said the cards were given to Ms Stewart.[69] She said the hazards identified by her in the cards were never raised at any of the pre‑start morning meetings.
[68] ts 189.
[69] ts 190.
A call was made for production of these cards by counsel for the defendant in the course of the trial. No cards were produced by either party during the trial. It was put to the plaintiff in cross‑examination that no such cards were completed by her at all. That submission was not pursued when it became clear from the evidence of Ms Brown that such cards were completed at the morning safety meetings.
Ms Brown explained that before doing a task out in the field, workers would do a 'safety check' to evaluate the task that they were about to complete. The staff ticked off things concerning the task and identified hazards and how they as a worker would control the hazard. These forms would then be handed to the supervisor at the end of the day.[70] The evidence of Ms Brown that such forms existed and were filled in by staff each day is consistent with the evidence of the plaintiff.
[70] ts 1055.
Mr Dupuex said that aside from supervisors, Morris employees had no obligation to complete any safety document at the end of a shift.[71] He said that there was a requirement to do a 'take five analysis' at the work site in order to ascertain any hazards and controls at a particular site. He explained that these would not be filled in at the pre‑start meeting but at the work site. They were handed to the supervisor at the end of a shift and then provided to the HSEQ adviser the following day.[72]
[71] ts 970.
[72] ts 1002 - ts 1003.
The plaintiff's counsel conceded in closing that the plaintiff had erred in the timing of when the cards were completed. This error in timing does not impact my assessment of the plaintiff's evidence about the contents of the cards. I find the cards were completed by the plaintiff and the defendant was on notice that the lack of job rotation and the physical nature of ground maintenance duties including sweeping were issues which she identified as being potential hazards. The completion of those cards is relevant to whether the risk of injury was reasonably foreseeable in this case.
In the lead up to 18 October 2014, the plaintiff described herself as sore and achy. She said in the three to four days before the Incident she did not go to the gym or the pool which she usually attended daily to exercise. She said she was physically in a lot of pain which was worse than normal.
The plaintiff limited her case at trial to the risk of injury from the repetitive nature of the sweeping duties without adequate breaks and failure to supervise by lack of rotation of duties. The case was not pleaded or run on the basis that a cumulation of the check-in and ground maintenance duties caused the plaintiff's injuries. I am satisfied that the plaintiff's duties were physically demanding and resulted in generalised soreness and aching in the lead up to the Incident. I am satisfied that she was not suffering with any injury to her lower back which prevented her from performing the physical aspects of her role. There is no evidence that she was suffering with any anxiety or depression that impeded the performance of her role at the time of the Incident.
The events of 18 October 2014
The plaintiff gave evidence that on 18 October 2014 her shift started at about 6.00 am.[73] The team had the morning briefing at the mine accommodation village. The pre-start meeting was short as there were no flights coming in. Staff were asked how they slept, how everyone was feeling and took breathalyser tests. The utilities team were then taken to the airport runway strip, which took approximately 10 minutes, obtained equipment from a sea container at the airport and commenced work sweeping the runway at 6.30 am ‑ 7.00 am.[74]
[73] ts 193.
[74] ts 369.
The plaintiff gave evidence that she worked for three to four hours with one or two 5 - 10 minute water breaks. She said that it was a hot day, about 40 degrees, and that the tarmac would add an extra 10 degrees to that heat. The plaintiff rejected the suggestion in cross‑examination few twigs and debris were typically found on the runway. She said the branches were of all sizes, mostly small, and of a weight that did not cause strain when being picked up. She agreed the task was simple and repetitive, bending down to pick up debris.[75] She said prior to feeling the back spasm, she was sore and achy.[76] She bent down to pick up a stick from the runway and felt her whole back spasm. She felt pain the whole way down her back and down her leg. She said she had never experienced pain like that before and felt faint.[77] She asked the shift supervisor, Ms Stewart, for a break. Ms Stewart said that she could go to the office donga.[78] It was not suggested to the plaintiff in cross‑examination that there was any significant period between when she felt the back spasm and when she asked Ms Stewart for a break.
[75] ts 398.
[76] ts 369.
[77] ts 194.
[78] ts 371.
The plaintiff gave evidence that the break was for about 45 minutes to an hour in the air conditioned donga where she applied an ice pack and deep heat.[79] The plaintiff was asked if she was alright to continue work. She said by this stage the sharp spasm had subsided. She said she was still in pain but said she could continue. She then went back out to sweep the runway whilst still in pain and was slower. She finished her shift that day.
[79] ts 194 - ts 195.
The plaintiff said she did not tell Ms Stewart or her co-workers about her back spasm as she was not comfortable telling them about it. She was afraid of being judged.[80] She did not want it to be seen that she could not keep up with her co‑workers.[81]
[80] ts 372.
[81] ts 369.
The following day, Sunday 19 October 2014, the plaintiff commenced her shift at about 6.00 am. She attended the pre‑start meeting and then drove to the airport runway strip to commence sweeping the runway. The plaintiff described being in a lot of pain. She did not mention anything about her back pain at the morning toolbox meeting.
The supervisor on Sunday 19 October 2014 was Ms Brown. On that day Ms Brown was present when the plaintiff applied ice packs during the lunch break and stretched on the floor. The plaintiff told Ms Brown that she was in pain and struggling. She said she was okay to continue working after lunch as she did not want to come across as young, weak and unable to keep up with the team. The plaintiff said she told Ms Brown that if she could go slower and take breaks she could continue and that Ms Brown was fine with that.[82]
[82] ts 195.
On Monday, 20 October 2014, Ms Stewart returned as the supervisor. The plaintiff told Ms Stewart during the morning meeting that she was in pain and struggling. She performed her check‑in duties and then went out to the runway where they were to commence sweeping. The plaintiff was unable to perform the work and advised Ms Stewart. She was not taken to the medic until 4.30 pm in the afternoon.[83] She was then placed on light duties.
[83] Exhibit 24.
I find the plaintiff's explanation for her failure to report the back spasm, which I am satisfied occurred whilst she was sweeping the runway on 18 October 2014, to be entirely plausible. The plaintiff was young and inexperienced, she was performing manual labour on a remote mine site with more experienced co-workers. This was only her third swing on Site. I am satisfied the plaintiff's youth and inexperience in a remote environment in conjunction with the lack of response to concerns raised by her in the hazard cards is why the plaintiff did not immediately complain of the pain she experienced. My findings in this regard are supported by the plaintiff's efforts to continue working for the next two days whilst in obvious discomfort. Despite resting on the floor and using ice packs in the presence of supervisors she was not taken to the medic until the afternoon of 20 October 2014. This supports the plaintiff's evidence that she felt an expectation to continue working and not complain.
I refer to the observation of Madgwick J in Colonel Clints Bargain Stores Pty Ltd (t/as Clints Crazy Bargains) v Molero[84] that:
… such matter as eagerness to please when jobs are scarce, the tendency of young people to deny their own vulnerability, a culturally induced preparedness to do whatever seems necessary to get the job done, or a mind merely wandering from work which is less than absorbing, are not to be undervalued.
These observations as to the tendencies of young or inexperienced employees hold as true today as they did in 1997, if not more so.
Sophie Brown
[84] Colonel Clints Bargain Stores Pty Ltd (t/as Clints Crazy Bargains) v Molero (1997) Aust Torts Reports ATR 81-407 [63,734].
The plaintiff gave evidence she was working with Sophie Brown on 18 October 2014.
Ms Brown prepared a statement after the Incident. She could not recall if she prepared that statement on the same day or the day after the Incident. She did recall being with the plaintiff on the runway on a day the plaintiff said she was feeling unwell but had no independent memory of the date or the Incident itself, nor could she recall whether she was the supervisor on that particular day.[85] Ms Brown said that she had been asked to cover for Emma Stewart who was sick as the supervisor on a day in October. She was unable to say which day this was. She said the supervisor would also be working during the sweeping process and that if someone was feeling unwell or had a difficulty, they would speak to the supervisor about that.
[85] ts 1048 - ts 1049.
I find Ms Brown's evidence to be of no assistance in determining what occurred on 18 October 2014. The passage of time has clearly impacted on her memory as one would expect. Unlike the plaintiff 18 October 2014 would not have been a day of any significance to Ms Brown, it was simply another shift on Site. Her evidence as to the general procedures and sweeping tasks performed is however relevant to the issues of the duty owed and any breach thereof.
Ms Brown gave evidence she was employed by the defendant from December 2012 to 2015 at the airport in the role of 'airport utility'. Consistent with the evidence of the plaintiff, Ms Brown said the role involved doing check-in for flights in mornings and cleaning and maintenance duties between flights or if there were not any flights. She said she would generally work 11 ‑ 12 hours each day according to the flight schedule. She confirmed the plaintiff's evidence that there were no flights on the weekend.[86]
[86] ts 1034.
Ms Brown gave evidence when she was working at the runway Airport Reporting Officers (AROs) employed directly by FMG also worked there. She said the AROs would do daily checks of the runway before flights which involved driving along the runway to check that there was nothing foreign on it. She said the AROs would direct the utility staff as to which maintenance tasks they were to do.[87] One such task was to clear the runway. Ms Brown was unable to say how often this task was done. She said it was not necessarily a daily task but was dependant on how much debris was on the runway. If there were high winds, tumbleweeds and sticks were blown onto the runway. If there was nothing on the runway, the sweeping was not required. Ms Brown said it was not necessarily a requirement for the runway to be swept every Saturday.[88] Ms Brown accepted that when there were no flights on a Saturday, there was more time available for maintenance duties like sweeping the runway.
[87] ts 1036.
[88] ts 1037.
Ms Brown said that one person in a team of three to four would drive the vehicle while the rest of the team walked along the runway carrying buckets. They would pick up any debris and place it in the buckets they carried, then empty the buckets into the tray of the vehicle when they were full. Ms Brown said she did not find the work challenging, but that it did become more difficult in hot weather. She said that in hot weather they would take breaks at perhaps 20‑minute intervals which involved either getting into the trailing vehicle or going back to the donga for water and rest. She said they would not go on for hours without stopping. Ms Brown said that if someone was feeling fatigued or tired, they would be taken out of the heat and given fluids to rehydrate. She said the team would work in sections and then one person would drive the vehicle to where they were.[89] She could not recall a time where the buckets had to be emptied by walking to the end of the runway.[90] In cross‑examination, Ms Brown agreed it was possible that debris was tipped out of the bucket on the side of the runway.[91] She was unable to say if the entire runway was swept in one day.[92] She could not recall how many buckets she would fill over a shift.[93] She did not think she would fill a bucket every few minutes. Ms Brown did not give evidence of the frequency with which she was required to bend to pick up debris.
Finding as to frequency of bending
[89] ts 1040.
[90] ts 1040.
[91] ts 1051.
[92] ts 1041.
[93] ts 1049.
It is necessary to determine the frequency of bending involved in sweeping the runway. The plaintiff's evidence as to frequency is every step involved bending to pick up debris.[94] I accept her evidence in this regard. Ms Brown was unable to assist in determining this issue. As to whether the buckets were emptied on the side of the runway or in the vehicle tray, this is not an issue that impacts on my finding regarding the frequency of bending. The buckets were emptied from a standing position. The fact that there is a divergence in evidence between the plaintiff and Ms Brown does not affect my assessment of the plaintiff's credibility. I found the evidence of the plaintiff to be clearer and more detailed than that of Ms Brown as to the manner in which the sweeping was carried out, the length of time it took and the days it was undertaken proximate to the Incident. I prefer the plaintiff's evidence for these reasons.
For the purpose of determining this application, I make the following findings:
(a)The case was not unduly complex or difficult. The liability issues were defined by the time of commencement of the trial. I do not accept that the issues upon which the case was litigated were unclear, they were clearly defined by the close of proceedings on 26 May 2022 after issues such as the scope of Ms Pietrocola's expert opinion evidence were canvassed. The defendant elected to challenge the assumptions the plaintiff's ergonomic expert based her opinions on but did not object to the admissibility of her report.[329] I am satisfied the defendant was aware of the case it was to meet and chose to litigate the matter accordingly. The fact that the plaintiff failed to succeed on a particular of negligence, namely the failure to advise (see [158] - [164] of the primary judgment) is not sufficient to warrant the exercise of the discretion to displace the default position;
(b)The result of trial was difficult to predict. The defendant challenged the credibility of the plaintiff based on a number of documentary exhibits and surveillance footage. The credibility of the complainant was significant in the determination of the issues of liability and assessment of damages. That is not an unusual situation in cases of personal injury in this court; and
(c)The defendant believed it had a reasonable prospect of success based on the matters set out in [17] hereof.
[329] ts 91 - ts 92.
Taking into account the principles set out at [9] above, there is nothing in the matters raised by the defendant to warrant the exercise of the discretion to displace the default position.
This was not a case where there was a conflict in expert evidence on the issue of liability. There was no significant conflict between the opinions of the medical experts in this case. There is no suggestion that the defendant did not have an informed opportunity to assess the chances of doing better than the offer.[330]
[330] Roche v Steven Constantine Varnavides in his capacity as Executor of the Estate of the late Lillian Rose Varnavides [2004] WASC 164 (S) [19] - [27] (Newnes M).
I am not satisfied in this case that the defendant has demonstrated sufficient reason to justify the exercise of the discretion to 'otherwise order' in DCR r 42A(4).
I accordingly decline to exercise the discretion.
I make an order that the defendant pay the plaintiff's costs in respect of the claim from 26 May 2022 to be taxed if not agreed, as between a law practice and its client.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows
13 JULY 2023
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