Victorian WorkCover Authority v Epworth Foundation
[2014] VCC 853
•20 June 2014
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-05807
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| EPWORTH FOUNDATION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 May, 2 and 3 June 2014 | |
DATE OF JUDGMENT: | 20 June 2014 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Epworth Foundation | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 853 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Claim for indemnity against third-party tortfeasor – whether the worker’s injury, for which compensation has been paid, was caused under circumstances creating a liability in the defendant to pay damages.
Legislation Cited: Accident Compensation Act 1985, s138; Occupational Health and Safety (Manual Handling) Regulations 1999; Occupational Health and Safety (Manual Handling) Regulations 2007.
Cases Cited:Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40; Griffiths v Kerkemeyer (1977) 139 CLR 161; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529.
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A M Sheehan | Russell Kennedy |
| For the Defendant | Mr I D McDonald with Ms M S Tait | Moray & Agnew Lawyers |
HIS HONOUR:
1 In August 2007, Ms Harjit Bains was employed by Precision Recruitment Pty Ltd (“Precision”). Precision was a labour-hire company which hired out employees to its clients.
2 On 28 August 2007, Ms Bains was performing work in the course of her employment with Precision at premises operated by the defendant (“Epworth”), a body corporate, known as Epworth Rehabilitation Brighton (“the premises”). She claims to have injured her shoulders on that date when attempting to move a bed.
3 Ms Bains lodged a claim for WorkCover benefits. Her claim was accepted by the plaintiff. Pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”), the plaintiff has paid weekly payments in respect of her incapacity for work and has paid medical and like expenses in respect of her injuries.
4 In this proceeding the plaintiff claims, pursuant to s138 of the Act, an indemnity from Epworth in respect of those benefits paid and payable by it in respect of Ms Bains’ injuries.
Section 138 of the Act
5 Section 138 of the Act provides, insofar as is relevant to this proceeding, as follows:
“(1)Where an injury … for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages … in respect of the injury …, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
…
(3)The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury …; and
(b)the amount calculated, were it not for the provisions of this Act, …, in accordance with the formula—
where—
X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury …;
A is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury …) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury …;
B …
C is the amount paid by the third party in respect of the injury … to the worker … under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.
… .”
6 The parties agreed that, up to 31 May 2014, the amount of compensation paid by the plaintiff to or on behalf of Ms Bains under the Act in respect of her injuries was $130,364. It was agreed that Figure C in the formula was $16,000 and that Figure B had no application here. Figures A and X were in dispute.
7 The plaintiff alleges that Ms Bains’ injuries were caused by the negligence of Epworth and also by a breach by it of the Occupational Health and Safety (Manual Handling) Regulations 2007. Epworth denied such negligence and breach of statutory regulations on its part.
8 Further, the plaintiff alleged a breach on the part of Epworth of the duty set out in s14B(3) of the Wrongs Act 1958 relating to occupiers’ liability. I have formed the view that that section has no relevance to this claim as, although the defendant was the occupier of the premises, the claim did not involve any injury by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. Accordingly, I shall not consider that aspect of the claim further.
9 The issues to be determined by the Court are:
(a) Was the injury to Ms Bains, for which compensation has been paid, caused in circumstances creating a liability in Epworth to pay damages in respect of her injuries?
(b) If so, what is the liability of Epworth when assessed in accordance with s138 of the Act?
Background to the injuries
10 In August 2007, Ms Bains was aged fifty-two. She was born in India and came to Australia with her family when aged about twenty-two. Initially, she worked on her father’s chicken farm near Brisbane and moved to Melbourne soon after marrying in 1980. She has two children, born in 1982 and 1986.
11 Since, Ms Bains has worked as a packer, on a production line and as a machinist. In the mid to late 1980s she worked with Toyota for some time. Later, she and her husband operated a milk bar for about eight years.
12 From about 2003, Ms Bains was employed on a part-time, casual basis by a number of labour-hire companies, performing cleaning duties at premises to which she was sent. She was employed by Del Conway’s Home Helpers Pty Ltd, Healthforce Consulting Pty Ltd, Healthcare Staffing Services Pty Ltd and by Precision. Each of those employers sent her to various premises to perform cleaning duties. On occasions, she was also required to help out with food services.
13 For some years leading to 2007, Ms Bains had performed general cleaning duties at premises including hospitals, nursing homes and rehabilitation centres.
14 Ms Bains commenced her employment with Precision in early 2007. She attended an interview at its office in St Kilda Road prior to commencing work for it. From time to time someone from Precision would telephone her to advise of available work and where and when to attend.
15 Ms Bains recalled that she had worked at the premises on one day in early August 2007, on which occasion she performed general cleaning duties. She next worked at those premises on 28 August 2007, the date of her alleged injuries. On that date, she was met by a female representative of Epworth who told her what duties were to be performed by her. She was told that she was required to clean a number of rooms. In addition, she was told that she was required to disinfect one room from which a patient had recently been discharged. This was referred to as a “discharge clean”. It required a more thorough clean, in the sense that it required disinfecting (also known as “carbolizing”) and more thorough vacuuming. In particular, she was required to move the bed in the room out from the wall so that vacuuming could be done in the area behind and beneath the bed head.
16 Ms Bains gave evidence that she had not been required to perform duties involving carbolizing or the moving of beds previously at any other hospitals, rehabilitation centres or nursing homes at which she had worked. She said she had not been trained to perform such work.
17 She alleged that, on 28 August 2007, in the course of moving the bed out from the wall in order to perform more thorough vacuuming of the area, she injured both of her shoulders. Her evidence was that the bed was extremely hard to move, notwithstanding that it was on wheels.
18 Ms Bains’ evidence was that the injury occurred at about 11.00am and she ceased work at approximately 2.30pm on that day. She stated that she reported her injury on the day to a person named “Anne Marie” who was described on her Claim Form as being a “manager nursing station”. On the same day, she notified Precision of her injury.
19 The next morning Ms Bains attended a general practitioner, Dr Sheriff, who prescribed painkillers for her and referred her for an ultrasound scan.
20 In due course, she was referred to Associate Professor Martin Richardson, an orthopaedic surgeon.
21 Ms Bains returned to work on light duties at Precision’s office in St Kilda Road. It seems that she there performed limited duties such as dusting, wiping and placing papers in envelopes. After six weeks of performing these duties, she was advised by Precision that there was no work available for her. She has not worked since.
22 In October 2008, Ms Bains underwent surgery to the right shoulder in the form of an arthroscopic subacromial decompression. She has since experienced problems with persistent right capsulitis (frozen shoulder). She has continued to suffer pain and restriction of movement in her shoulders, especially her right shoulder.
23 She has also developed depression and anxiety.
24 She continues to live at home with her husband. He had been in full-time employment with the Australian Federal Police until 2012, at which time he was aged sixty-two. His evidence was that he retired from that employment in order to assist Ms Bains at home with regard to her physical and psychological problems.
The bed
25 There was some uncertainty as to the type and features of the bed that Mrs Bains was required to move on the date of her alleged injuries. I accept the evidence that:
(a) In May and July 2007, Epworth had replaced all of its 64 beds with Medicraft beds.
(b) That, as at August 2007, there were two types of beds in use at the premises:
§ four Medicraft FE 5000T beds (“5000”); and
§ sixty Medicraft HLE 8000 beds (“8000”).
(c) Both these beds were of a type generally seen in hospitals and nursing homes. They featured electrically-operated raising and tilting mechanisms, enabling patients to lie flat and also to sit up. Both models were set on four wheels, two at either end.
26 Brochures pertaining to the 5000 and 8000 models were tendered.[1] From those brochures, it appears that the main differences between the two models, insofar as were relevant to this claim, were:
[1]Exhibit 2
(a) The four wheels on the 5000 were reasonably narrow, of relatively small diameter, and had a rubber surface. The 8000 had wheels which were of a quite different design. They were larger in diameter and they were broader in width. It is not clear from the brochure or other photographs of the wheels on the 8000 as to the nature of the surface of the wheels.
(a) Both models had wheel locking and braking mechanisms, but of different designs.
(b) In the case of the 5000, the operator was required to press either red pedals or green pedals situated immediately above each wheel. A central locking/braking system was activated by depressing either of the red pedals above the wheels at the foot of the bed. The effect of this was that the two wheels at the foot end of the bed, and one of the wheels at the head end of the bed, were locked from swivelling and rotating. To release the brakes, it was necessary to depress a green pedal above either of those wheels. At that point, all four wheels would rotate and swivel freely. A steering lock (as opposed to a brake) could be applied by depressing either of the green pedals at the foot end of the bed. This enabled all four wheels to rotate, but one wheel at the head end of the bed was locked into a non-swivel mode which made it easier to steer the bed when it was pushed.
(c) The 8000 model had a different system. There was a horizontal bar extending between the two wheels at the foot of the bed. It had three horizontal positions – high, centre and low. When the bar was depressed to the low position, a brake operated so that the two foot end wheels and one head end wheel were locked from both swivelling and rotating. To release the brakes, that bar was lifted (by use of a foot or possibly by hand) to the centre position, allowing for four wheels to rotate and swivel freely. To apply a steering lock, the horizontal bar was lifted again to the higher position, resulting in one wheel at the head end of the bed to lock into a non-swivel position, thus allowing straight steering when pushing the bed. To release the steering lock, the horizontal bar was depressed until it returned to the centre position, allowing all four wheels to rotate and swivel freely.
(d) The 5000 weighed 140 kilograms. The 8000 weighed 110 kilograms.
27 In August 2012, whilst attending a view of the premises with Mr Lightfoot, an engineer retained by her solicitors, Ms Bains identified Room 41 as being the room in which she suffered her injuries. She identified the type of bed she moved on the date of her injuries as being of the type depicted in Photographs 1, 2 and 3 taken by Mr Lightfoot at that time.[2] Photograph 3 shows the bed to have wheels of the smaller variety, consistent with the diagram in the 5000 brochure, but having the locking and braking system depicted in the 8000 brochure. This is somewhat confusing.
[2]Exhibit N
28 In May 2012, Epworth engaged bio-mechanics, Don Meikle and Geoffrey Hosford, to investigate the incident in which Ms Bains was injured. They conducted tests in Room 41 at the premises. They were shown a bed by Epworth staff which they identified as an 8000 by reference to a serial number on the base of the bed.
29 Ms Griffith, the manager of nursing and cleaning staff at the premises in August 2007, gave evidence that the bed in room 41 in May 2012 might or might not be the same as the bed in that room in August 2007.
30 On the evidence before me, I am able to conclude only that the bed that Ms Bains moved on 28 August 2007 was either a 5000 or 8000 model and weighed either 110 kilograms or 140 kilograms. It had a braking/locking system of the type depicted in one or other the brochures pertaining to the 5000 or the 8000.
The force required to move the bed
31 Four expert witnesses gave evidence. Mr Lightfoot, a consulting engineer, and Dr Short, a bio-mechanical engineer, had been retained by the plaintiff. Their reports were tendered and they gave oral evidence. Epworth retained a firm, Accident Analysis (“AA”), which provided reports co-authored by Mr Meikle, an expert in structural and applied anatomy, and Mr Hosford, a bio-mechanic. The reports of AA were tendered. Mr Meikle gave oral evidence; Mr Hosford was overseas and did not.
32 Tests were carried out by Mr Lightfoot and by AA to determine the force required to move a bed of the type described by Ms Bains. The bed was not necessarily the same one as handled by Ms Bains but was similar in design.
33 Mr Lightfoot concluded that the force required to initiate movement of the bed was 16 kilograms. AA conducted more detailed tests involving different positioning of the wheels of the bed and concluded that forces of between 8.7 kilograms and 12.8 kilograms were required to move the bed, depending on the position and angle of the wheels. Each of those tests were conducted with the brakes and locks of the bed disengaged.
34 AA also conducted further tests away from the premises on a different make of bed showing an even lower force required to move the bed. Although similar in style, the bed and carpet were different to those on which the earlier tests were conducted, and I place little weight upon those later results.
35 Evidence was given by three of the defendant’s permanent cleaning staff – Ms Lorraine Drew, Ms Anne Marie Nesci, and Ms Jane Horsburgh. They were presently employed by the defendant as cleaners and had been so employed for several years prior to August 2007. The evidence of each was that moving a bed at the premises was an easy task, assuming that the brake was disengaged. Ms Nesci and Ms Drew said beds were able to be moved using only one hand. I consider that the evidence of those witnesses was consistent with the tests carried out by Mr Lightfoot and by AA.
36 The current Nurse Unit Manager at Epworth, Dianne Griffith, also gave evidence. In August 2007, she was the manager in charge of both cleaners and nursing staff at the premises. She described moving the beds at the premises as an easy task.
37 In August 2007, all beds at the premises had been situated on carpet squares. New carpet had been laid throughout the premises at some time after 2007 with a similar low pile carpet. The force tests referred to above were conducted whilst the bed was on the newer carpet. Each of Ms Drew, Ms Nesci and Ms Griffith stated that the new carpet had no effect on the ease in which beds could be moved. If anything, I consider that a newer carpet would be likely to have a denser pile than an older, more used, carpet and would require more force to move a bed than on an older carpet.
38 Ms Drew, Ms Nesci and Ms Griffith each gave evidence that if one was attempting to move a bed, one would instantly become aware if the brakes were on. They each doubted whether a bed could be moved with the brakes engaged. However, none of them had actually tried to do so. This is not surprising. If, by unexpected resistance, the brakes were understood to be engaged, a person with knowledge of the braking system would promptly disengage the brakes before attempting further movement of the bed. In other words, none of those witnesses had ever made a genuine attempt to move a hospital bed with the brakes engaged.
39 Mr Lightfoot was of the view that the bed would be very difficult to move if the brakes were engaged. Neither he nor AA had conducted tests to establish the force required to move the bed with the brakes engaged.
40 Dr Short had not conducted any tests on beds at the premises or elsewhere. Nevertheless, he was able to calculate the likely force required to move the bed with brakes engaged, based upon his knowledge of the likely co-efficient of friction for a dry short pile carpet. He calculated that a force of between 41 and 66 kilograms would be required to move the bed, depending on the relevant co-efficient of friction.
41 I interpret the evidence, as a whole, as indicating that it would have been difficult but not impossible for Ms Bains to move the bed with brakes engaged. I find that it would have been a very heavy task for her.
Causation
42 Ms Bains’ evidence was that she knew nothing of any braking or locking systems relating to the beds at the premises. Although she had worked at other hospitals and nursing homes, she was adamant that she had never been required to move beds before. She had worked at the defendant’s premises once before, about four weeks before the date of her injury. Her evidence was that she had not been required to move any beds on that occasion. Whilst at first glance the concept of a hospital cleaner not being required to move beds might seem surprising, I accept Ms Bains’ evidence in relation to that aspect. Three matters assist me in coming to that conclusion:
(a) Firstly, I formed the conclusion that Ms Bains was an honest witness.
(b) Secondly, the evidence of the defendant’s staff was that, although each room at the premises was cleaned daily, it was not necessary to move a bed during such daily cleaning. Beds were only moved on occasions when a patient had been discharged from the facility. When a “discharge clean” was carried out, a far more thorough cleaning operation was required, including the disinfecting of all surfaces with different chemicals from those used in the daily cleans, and a more thorough vacuuming of the room involving the moving of the bed so that all floor surfaces could be vacuumed. The evidence was that patients stayed at the premises on average for between five and ten days, with some staying up to four weeks. In aged care facilities, I consider that patients are likely to stay for relatively long periods before discharge.
(c) Thirdly, the evidence of the Epworth staff was that discharge cleans were considered to be of some importance and that the regular staff preferred to undertake such work themselves rather than have unknown agency cleaners do it. An agency cleaner would rarely be asked to do a discharge clean and would only be asked to do so if the regular staff was particularly busy. Epworth only called in agency cleaners to the premises eight to ten times per year.
43 On the basis of that evidence, I do not find it surprising that an agency cleaner such as Ms Bains had no experience in moving beds.
44 AA conducted a number of tests (using a different but similar bed) as to the muscles or muscle groups used by a person in pulling or pushing such a bed. They concluded that such actions would not involve the supraspinatus tendons. Epworth submitted that such evidence should lead to the conclusion that pushing or pulling such a bed on a carpet surface would not have caused the injuries that Ms Bains was later found to have suffered. Mr Meikle was of the view that, whilst a lifting motion was likely to have engaged the supraspinatus tendons and could have led to her injuries, Ms Bains had not described any lifting action when moving the bed.
45 AA considered that such injuries were more likely to have been caused in the course of her past employment with Toyota when she worked on the production line, a job likely to have involved lifting tasks.
46 A number of medical practitioners disagreed with AA’s opinions concerning causation of her injuries.
47 Mr Doig, orthopaedic surgeon, considered that the mechanism of injury (pulling and pushing the bed) was consistent and had caused her shoulders to become symptomatic.[3]
[3] WCB 133b
48 Dr Bloom, an occupational physician, was given a history of an onset of pain when pulling and pushing a bed. He considered that work was a significant contributing factor to Ms Bains’ shoulder symptoms, aggravating pre-existing degenerative changes in the rotator cuffs of both shoulders.[4]
[4] DCB 96, 97.
49 Dr Baynes, an occupational physician, had been given the same history and also considered the pulling and pushing was a cause of the shoulder injuries.[5]
[5] DCB 109.
50 Mr Schutz, a general surgeon, was not of the opinion that Ms Bains’ injuries were consistent with “the stated cause”. He had not examined or spoken with Ms Bains. His report was provided “on the papers”. He had been provided with radiology reports, reports from Dr Sheriff and Mr Richardson and the AA report. He agreed with AA that when moving the bed at the various heights used in its tests, the supraspinatus would not be endangered. He disagreed that the supraspinatus would not be involved at all in such pulling and pushing but considered that it would not be subjected to forces that would cause damage.
51 Ms Bains’ evidence was that she had suffered no previous injury to her shoulders or shoulder pain before 28 August 2007. She was not challenged on this, and I accept that evidence. Her evidence was that she experienced shoulder pain whilst attempting to move the bed and when manoeuvring it back into place. She reported her injury to Epworth on that day. She attended her general practitioner with complaints of shoulder pain the following day. She promptly lodged a WorkCover claim in respect of the injuries, which was accepted. I am satisfied that Ms Bains injured her shoulders in the sense that they became symptomatic in the incident on 28 August 2007 whilst moving a bed at the premises.
52 I accept the evidence of Epworth’s witnesses that, with the brakes disengaged, the beds on the premises were very easy to move, and could be easily moved using one hand. They were persons with considerable experience working at the premises. I consider their evidence is supported by the evidence of the tests conducted by AA and Mr Lightfoot. Each of Mr Lightfoot, Dr Short and Mr Meikle (AA) expressed the view that the moving of a bed at the premises, with its brakes disengaged, would not have constituted an unsafe or unduly heavy task.
53 I have formed the view that, if Ms Bains had attempted to move the bed with the brakes disengaged, she, too, would have found such task an easy one. She would have been most unlikely to have experienced any difficulty or to have injured herself.
54 I find it far more likely that the reason why Ms Bains experienced difficulty moving the bed was because the brakes on it were engaged. I accept that she was unaware of this. In such circumstances, the bed would have been extremely difficult to pull, push or otherwise move. Although in her evidence she did not state she had performed any lifting motion, I think it unlikely that she would have been able to recall the precise actions she had taken in her efforts to move the bed. She said that she had intended to pull the bed towards her and away from the wall at the head of the bed. She described having to pull and push the bed trying to achieve this and using what she described as “excessive force” in doing so. I consider it likely that her injuries were caused or at least contributed to by a variety of actions on her part which may well have included some lifting actions in the process of her attempts to move the bed. The whole incident would have taken place relatively quickly. I am not surprised that she is unable to recall the precise mechanism or “choreography” of her movements.
55 Further, I find that when the bed had previously been moved by cleaning or nursing staff, it would have been re-positioned so that the bed head was near the wall of the room and that the brakes would then have been engaged. It follows that when Ms Bains approached the bed with the intention of moving it, the brakes on it were engaged.
56 In summary, I am satisfied that Ms Bains suffered injury to her shoulders as a consequence of her attempts to move the bed on the day in question.
Instructions provided to Ms Bains
57 When Ms Bains arrived at the premises on 28 August 2007, she reported to reception and was referred to another person who appears to have been part of the regular cleaning staff. This may have been Ms Nesci but may have been another of the cleaning staff. I accept that Ms Bains was shown which rooms she was required to clean. It is likely that the same thing occurred on the previous occasion she had worked there.
58 On this occasion, I accept that she was told that she was required to perform a discharge clean involving the disinfecting process and that she was required to move the bed out from the wall to enable a more thorough vacuuming under it. I accept that Ms Bains told the person giving her those instructions that she had had no experience or training in such tasks. She was adamant she was not told anything about the system of brakes or steering locks on the bed. Each of the other rooms she was to clean required only the normal daily clean which she had previously performed at the premises and at other health care facilities.
59 Ms Nesci was a regular full-time cleaner at the premises and had worked there since 2002. Ms Bains had worked at Epworth twice. Notwithstanding, Ms Nesci had no recollection of her or of having spoken with her on any occasion. Ms Nesci’s evidence was only of her usual practice when greeting agency cleaners, and what instructions she usually gave to them.
60 She said her usual practice was to show an agency cleaner how to clean the basin, toilet and bathroom. She said that if it was the agency cleaner’s first time there, she would physically demonstrate those procedures. Further, she said she would show an agency cleaner how to use the brakes on the beds and how to lock them.
61 Ms Nesci said she had previously worked at Caulfield Hospital and at The Avenue Hospital as a cleaner and had regularly been required to move beds at those hospitals. She had never had any problems moving beds.
62 I accept Ms Bains’ evidence as to the nature of instructions given to her. I am satisfied that she was given no instructions concerning the braking or locking mechanisms on the bed she was required to move. In coming to that decision, I have taken into account that:
(a) Ms Nesci had no memory at all of Ms Bains, the event or conversation in issue, but was merely stating what instructions she would usually give.
(b) Ms Nesci was plainly of the view that agency cleaners with any experience would have known how to perform a discharge clean. It follows that detailed instructions concerning movement of beds might not have been seen by her as particularly important.
(c) On most occasions when a discharge clean was required it would be performed by regular staff and not by agency staff. Agency staff were only brought in eight or ten times per year in total and I conclude that requesting an agency cleaner to perform a discharge clean would have been a rare event. In such circumstances, evidence as to “usual practice” has a lesser weight than might be the case where such instructions were given more regularly.
(d) That Ms Bains had a clear memory of what she was told comes as no surprise. She suffered injuries that day, unlike other days on which she worked; injuries which led to treatment and surgery of a type not previously experienced by her. It is not surprising that she would have a good recall of events of that day.
(e) Epworth only brought in agency staff when they were extremely busy. It follows that it is likely that, on 28 August 2007, they were extremely busy. In such circumstances, instructions to an agency cleaner may not have been given in a careful and thorough manner.
63 I am satisfied that the braking/locking system was not something that was or would have been obvious to a person such as Ms Bains. Although she had worked in a number of hospitals and nursing/rehabilitation facilities before, she had not moved beds. Whilst she had previously performed daily cleans in hospital rooms, it is unlikely that she would have had the opportunity of observing other hospital staff moving beds at such times.
64 Hospital beds had various types of braking and locking mechanisms. Ms Sharon O’Neill, an experienced nurse, gave evidence that she was aware of three or four different types of brakes on beds.
65 On the basis of the photographs and diagrams tendered, I do not consider that the braking and locking mechanisms displayed would be readily apparent to an inexperienced person.
Negligence
66 Counsel for Epworth conceded that it owed to Ms Bains a duty of care to:
(a) provide a safe system of work;
(b) provide safe plant and equipment;
(c) provide a level of supervision appropriate to the circumstances; and
(d) provide some amount of instruction to her as to the work she was to perform and how she was to perform it.
67 The evidence of Ms Nesci, Ms Drew, Ms Griffith, Ms Horsburgh and Ms O’Neill was that if they had attempted to move a bed without realising that the brakes were on, that fact would have become immediately apparent to them and they would have desisted. They would not have persisted in their attempt but would have disengaged the brakes and then continued. However, I have come to the conclusion that a person such as Ms Bains, lacking knowledge of the existence of a braking system, could easily have concluded that the bed merely required additional force to move it. Having been instructed to move the bed out from the wall, I do not find it surprising that she persevered in her attempts to do so.
68 Ms Nesci’s evidence was that she would usually have specifically instructed an agency cleaner as to how the bed braking system worked and demonstrated it to her. I consider that such evidence amounted to a concession that such instructions should have been given to an agency cleaner such as Ms Bains. For the reasons set out above, I am satisfied that such instructions and/or demonstration were not provided to her.
69 I have concluded that the risk of musculo-skeletal injury to a cleaner attempting to move a bed with the brake on was neither fanciful nor far-fetched.
70 Failing to provide instructions concerning the braking system involved a risk that the agency cleaner may not know of the existence of such brakes and the risk that such person would apply considerable force in attempting to move the bed without first disengaging the brakes. Both were, in my opinion, reasonably foreseeable.
71 In determining what the reasonable rehabilitation provider would have done in response to that risk, I have had regard to the principles laid down in Wyong Shire Council v Shirt & Ors.[6] Here, the steps required to reduce or virtually eliminate the risk were simple, and of no cost whatsoever. Even if the risk of injury, in the absence of instruction, was not considered to be particularly high, I am of the view that the reasonable provider of such services would have given simple instructions to agency staff concerning the brake system before leaving them to perform the task.
[6](1980) 146 CLR 40 at pages 47-48
72 I conclude that Epworth, in order to discharge the duty owed by it to Ms Bains, ought to have provided her with instructions as to the operation of the brakes and instructions that the brakes should be disengaged before attempting to move a bed.
73 For these reasons, I find that there was negligence on the part of the defendant and that such negligence was a cause of Ms Bains’ injuries
Breach of statutory duty
74 In view of my findings with regard to negligence, it is not strictly necessary to examine whether there was a breach of the Occupational Health & Safety Regulations 2007. Notwithstanding, I have reached the view that there was such a breach for the following reasons:
(a) I am satisfied that the activity of moving a bed is “manual handling” as that term is defined in Regulation 1.1.5.
(b) At the time Ms Bains was requested to move the bed, the brakes on it were engaged.
(c) I am satisfied that the activity of moving a bed when its brakes are engaged is “hazardous manual handling” as that term is defined in Regulation 1.1.5.
(d) I am satisfied that, had the defendant taken steps at any relevant time after 1 July 2007 to identify hazards associated with the moving of beds at its premises it would have identified a risk of musculo-skeletal disorder associated with the task of moving such beds if the brakes of the bed were engaged (Regulation 3.1.1 and 3.1.2).
(e) I am satisfied that the risk could have been reduced, or at least controlled, by altering the system of work whereby cleaners were required to move beds so that they were instructed regarding the method of operation of the braking/locking system and the importance of ensuring that the brakes on beds were disengaged before attempting to move them (Regulation 3.1.2 (3) and (4)).
Section 138(1)
75 For the reasons expressed above, I am satisfied that:
(a) Ms Bains’ injuries are injuries for which compensation has been paid, or is or may be payable, by the Authority;
(b) Her injuries were caused in circumstances creating a liability in Epworth to pay damages in respect of them; and
(c) The Authority is entitled to be indemnified by Epworth in accordance with s138 of the Act.
76 A certificate pursuant to s239A of the Act was tendered showing the amount of compensation paid up to 31 May 2014 was $130,364.98.[7]
[7]Exhibit CC
Section 138(3)
77 Section 138(3) provides that the amount which the defendant is required to pay as indemnity under s138(1) is the lesser of—
(a) the amount of compensation paid or payable under the Act in respect of the injury ($130,264.98); and
(b) the amount calculated in accordance with the formula set out therein.
Value of Figure A
78 For reasons that follow, I consider Figure A should be calculated as follows:
· Pain and Suffering damages $150,000
· Past Loss of Earnings $90,000
· Future Loss of Earnings $48,775
· Past medical and like Expenses $66,368
· Future medical and like Expenses $35,922
· Griffiths v Kerkemeyer Damages:[8]
[8]Damages calculated pursuant to the principles laid down in Griffiths v Kerkemeyer (1977) 139 CLR 161
Past $70,000
Future $200,000
_______
Total $661,065
79 With regard to pain and suffering damages, Ms Bains’ general practitioner, Dr Sheriff, gave oral evidence and was cross-examined. In addition, I have read a large number of medical reports that the parties tendered.[9]
[9]Reports of Dr M Bloom, Dr D Ho, Mr Shutz, Dr Sherriff, Dr Ibrahim, Associate Professor M Richardson, Dr D Li, Dr J Karamanos, Mr S Doig and Ms K Greene
80 Ms Bains suffered physical injuries to both shoulders. Those injuries and the pain associated with them appear to have led to severe depression and anxiety.
81 Ms Bains’ shoulder pain did not improve in the months following August 2007. She had difficulty sleeping. She was referred to an orthopaedic surgeon, Mr Richardson.
82 MRI scans were reported as showing a partial thickness tear of the right supraspinatus tendon and a small 6-millimetre full thickness tear of the left infraspinatus and a partial thickness tear of the left supraspinatus tendon. A repeat MRI scan in March 2009 showed no evidence of any full thickness tear but some calcification was reported, consistent with capsulitis.
83 In March 2009, Ms Bains saw Mr Li, orthopaedic surgeon, for a second opinion. He ordered a hydrodilatation and came to a similar view to Mr Richardson. She was also referred to Dr Stockman, a rheumatologist.
84 In October 2010, Ms Bains underwent surgery in the form of a right subacromial decompression and was later referred for occupational therapy and hydrotherapy. She developed post-surgical capsulitis (frozen shoulder) and later underwent a second hydrodilatation.
85 She has remained symptomatic.
86 Ms Bains has been examined by a number of specialists on a medico-legal basis. Some were of the view that she may well have had damage to her shoulders in the form of asymptomatic tendinopathy prior to August 2007, but that it is likely that manoeuvring activity on 28 August caused her shoulders to become painfully symptomatic.[10]
[10]Mr Doig (Exhibit U); Dr Bloom (Exhibits 8) and Dr Baynes (Exhibit 9)
87 Ms Bains has been noted to have a significantly reduced range of shoulder movements, especially in movement involving use of her arms above shoulder height. She has difficulty washing her hair and in styling her hair.
88 There is no evidence of Ms Bains having any clinical anxiety or depression prior to August 2007. She developed such symptoms later and was referred to Mr Karamanos, a psychologist, in early 2009. He was of the view that her depressive and anxiety symptoms were precipitated by and secondary to her bilateral shoulder injuries.
89 In June 2011, Ms Bains was referred by her general practitioner to a psychiatrist, Dr Ibrahim. She has seen him on many occasions since and continues to see him for treatment up to the current time. She has been prescribed anti-depressant and anti-anxiety medication. Dr Ibrahim has reported that she suffers from Major Depression with significant anxiety.[11] In July 2012, Dr Ibrahim considered she was unlikely to be capable of performing duties of gainful employment of any kind, and that her prognosis was not favourable.
[11]Exhibit C
90 Although there was no later report from Dr Ibrahim, I accept Dr Sheriff’s evidence that there had been no recent changes in her psychiatric condition.
91 In August 2007, Ms Bains was aged fifty-two. She is currently aged fifty-nine. The parties agreed she probably had a life expectancy of about thirty more years.
92 On the evidence before me, there is little prospect of any significant improvement in her psychiatric condition.
93 The extent of Ms Bains’ condition was described in her husband’s oral evidence. I accept that on many occasions, her anxiety has been such that she is unable to leave the house. I accept that her social life and her ability to perform normal activities of daily living have been substantially reduced.
94 Epworth submitted that an award of $50,000 was adequate for pain and suffering. I consider such a figure would be grossly inadequate. The plaintiff submitted an amount of $150,000 would be fair and reasonable. I agree. I am satisfied that she continues to suffer from shoulder pain and have a substantial loss of movement in her right shoulder. I am satisfied these problems are likely to continue in the foreseeable future.
95 The parties were in agreement as to past and future medical expenses. The future figure is appropriately based upon the annual cost of current treatment, the use of an actuarial multiplier and a discount of 15 per cent to reflect vicissitudes of life. I have adopted the figures calculated by the parties.
96 With regard to loss of earnings, there was little agreement between the parties.
97 Exhibit L was a summary of Ms Bains’ earnings for the years leading up to her injury. Her earnings were modest. She had worked for various labour-hire companies on a part-time casual basis. Her gross earnings were:
· 2003-2004 - $3,276
· 2004-2005 - $7,680
· 2005-2006 - $5,030
· 2006-2007 - $14,141
98 In the year ending 30 June 2007 (shortly before the date of her injuries), Ms Bains had worked for Bivouc Pty Ltd, Health Force Consulting Pty Ltd, Huston Management Services Pty Ltd and for Precision. In terms of income, her major employer was Health Force Consulting Pty Ltd, with which she had earned $9,806 or about 70 per cent of her income that year.
99 Epworth submitted that Ms Bains had not worked very often with Precision in the first half of 2007. However, she obviously had worked with other employers in that period. The plaintiff submits that the appropriate starting point is that she had a capacity to earn $14,141 gross (or $12,920 net of income tax) in the year prior to her injury – an average of about $248 per week net. I consider it is reasonable to apply that figure in calculating her loss of income to date. The parties were in agreement that an additional 9 per cent should be allowed to reflect mandatory superannuation contributions. The past period was agreed to be about 348 weeks.
100 Accordingly, I assess Ms Bains’ past loss at $90,000. I have made a deduction for the income apparently earned by her in the following financial year, although there was little or no evidence as to what work she performed in that period other than her light duties for the defendant prior to her dismissal.
101 In terms of the future, I am not satisfied that Ms Bains would necessarily have continued working at the same rate as in the 2006-2007 year, especially after her husband’s planned retirement in 2015. I allow an ongoing loss of income of $200 per week inclusive of superannuation. Applying a multiplier of 286.9 (applicable to age sixty-five) and deducting 15 per cent to reflect normal vicissitudes of life, I allow $48,775 for future loss of earnings.
102 Griffiths v Kerkemeyer damages appear to be a major issue of contention between the parties. The plaintiff seeks a total of more than $435,000 under this head. The defendant’s assessment is less than $115,000.
103 The plaintiff’s claim is largely based upon the evidence of Ms Bains’ husband.
104 Mr Bains had previously worked 12-hour shifts when employed by the Federal Police up until 2012. His evidence was that prior to her injuries, his wife had been active and in good health. After, she was restricted in what she could do and suffered from depression. He continued working until mid-2012, when he retired aged sixty-two. I accept that this was about three years before he had intended to retire and that he did so because of his wife’s condition. I accept that he was genuinely concerned about her and wished to spend more time with her.
105 Before he retired, he regularly helped her do her hair; he cooked on his days off; he took some time off work, especially in the period soon after her surgery, when she was not coping well. He attended to all gardening tasks, but he had done so before his wife’s injuries.
106 Mr Bains described Ms Bains as sometimes having difficulty getting up when her depression was bad.
107 Since his retirement, he does all the shopping, all the cooking, attends to her hair, helps her dress, especially if there are rear buttons to reach, takes her to the temple if she feels like going, and occasionally takes her to visit friends once every two to three months. He said he had never counted the hours spent assisting his wife.
108 The evidence was that Ms Bains receives home help about 3 hours per fortnight funded by WorkCover (the cost of which is included in the medical and like expenses referred to above). Previously she received assistance from a personal carer for a few hours per week but this has now ceased.
109 The evidence as to what Mr Bains did for his wife and how long that assistance took was far from precise. Doing the best I can, I find that he assists her with her hair for about 5 minutes each day; he helps her wash her hair two to three times per week; he cooks all meals; he drives her to her medical appointments with her general practitioner and psychiatrist about once every four to six weeks; he is generally on hand when sundry assistance is needed. Some of these tasks I consider he would probably have done in any event. His journeys to the temple and to visit friends and family I do not include. Although he was apparently not a talented cook, I consider it likely that he would have assumed at least some responsibilities for cooking, shopping and general domestic duties upon his scheduled retirement in any event. There was little medical evidence concerning specific needs for assistance.
110 Doing the best I can, on somewhat vague evidence, I allow 3 hours per week for the two years following the injuries (about 104 weeks), and 7 hours per week (or an hour per day) from mid-2009 to date (about five years or 260 weeks).
111 The parties were in agreement that an hourly rate of $33 should be allowed for such assistance.
112 Accordingly, in respect of past gratuitous care, I allow $70,000.
113 In respect of future gratuitous care, I also allow 7 hours per week. Applying a multiplier to calculate that amount to anticipated date of death (1030.8) and discounting that sum by 15 per cent for vicissitudes, I allow an amount of $200,000.
Value of Figure X
114 The employer’s duty to an employee is non-delegable. In Ms Bains’ case, she received no training whatsoever in relation to the movement of beds or as to braking systems on beds. It is unclear as to whether Precision knew that Ms Bains would be required to move beds in the course of her cleaning duties. If it had no knowledge of what her duties would be, it ought to have made specific enquiries before sending her off to the host employer.
115 I find that the reasonable and prudent labour-hire employer would have made enquiries as to what her duties at the premises would consist of and would have ensured that Ms Bains had adequate knowledge and training to perform such work safely.
116 Epworth led evidence from Ms Maguire of Precision. The thrust of her evidence was that all such instruction was left to the host employer to whom Ms Bains was hired.
117 Further, Ms Bains received no instructions as to what she should do if confronted with a work system or with work tasks that she considered were unsafe. I find that a reasonably prudent labour-hire employer would have instructed its employees that, in the event of them being requested by the host to perform tasks for which they were inadequately trained or which they considered were, for any reason unsafe, they should contact the employer before carrying out such work. In that event, it is likely that an employer would contact the host and arrangements would be made to ensure that the task was safely performed.
118 I am satisfied that both Precision and Epworth breached the duty of care owed by them to Ms Bains.
119 When assessing apportionment between Precision and Epworth, I have considered their respective degrees of departure from the standard of care expected of them and the relative importance of their respective acts or omissions that were causative of Ms Bains’ injuries.[12] In the circumstances of this case, I consider their responsibility for her injuries should be borne equally.
[12]See Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 494
120 Epworth also alleges that the negligence of Ms Bains was a cause of her injuries. It alleges that she was negligent in failing to follow instructions and demonstration of work tasks provided to her by it; and further, in failing to implement manual handling instructions with regard to brakes of beds received from the defendant. For reasons previously given, I have found that no such training or demonstrations were given or shown to Ms Bains. I am not satisfied that there was any negligence on the part of Ms Bains that was a cause of her injuries. Whilst some cleaners might have noted that the bed was difficult to move and proceeded to investigate the cause of resistance before continuing, I do not consider that her vigorous attempts to move the bed amount to negligence on her part. She was merely attempting to do the work she had been directed to do as quickly as she could.
121 For the reasons expressed, I consider that the value of Figure X is 50 per cent.
Conclusion
122 In line with my findings, the formula set out in s138(3) becomes:
[$661,065 - $16,000] x 50 per cent = $322,532.50.
123 I shall hear the parties as to the Orders to be made so as to reflect these findings, together with any consequential Orders sought.
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