Watson v Gippsland Community Health

[2021] VCC 651

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CI-18-01266

LEANNE WATSON

Plaintiff

v

GIPPSLAND LAKES COMMUNITY HEALTH

and

LATROBE COMMUNITY HEALTH SERVICE LIMITED

First defendant

Second defendant

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JUDGE:	Her Honour Judge Tran
WHERE HELD:	Melbourne
DATE OF HEARING:	10-12 March; 15-19 March and 22-24 March 2021
DATE OF JUDGMENT:	28 May 2021
CASE MAY BE CITED AS:	Watson v Gippsland Community Health & Anor
MEDIUM NEUTRAL CITATION:	[2021] VCC 651

REASONS FOR JUDGMENT
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Subject:  TORT - NEGLIGENCE

Catchwords:            Duty of care – In home personal care worker – Where plaintiff alleged client’s electric bed broken for two months – Whether inference that employer knew bed broken – Where employer knew of pre-existing history of cervical fusion surgery – Whether breach to assign to high risk clients – Causation – Assessment of Damages

Legislation Cited:        Occupational Health and Safety Regulations 2007

Cases Cited:Pasqualotto v Pasqualotto [2013] VSCA 21; McLean v Tedman (1984) 155 CLR 306; Swain v Waverley Municipal Council (2005) 220 CLR 517; Govic v Boral Australian Gypsum Ltd (2015) 47 VR 430; Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; State of Victoria v Kozarov [2020] VSCA 301; Duma v Mader International Pty Ltd (2013) 42 VR 351; Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; Sahin v Victorian WorkCover Authority [2017] VSCA 13; Fox v Wood (1981) 148 CLR 438

Judgment:                Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Hevey RFD with Mr C Hangay	Arnold Thomas & Becker
For the First Defendant	Mr P Elliott QC with Mr S Scully	Minter Ellison
For the Second Defendant	Ms B Myers	Lander & Rogers

HER HONOUR:

1In March 2011, Leanne Watson commenced work as a trainee personal carer with the defendant, Gippsland Lakes Community Health (“Gippsland Lakes”). Ms Watson’s job was to provide in-home domestic assistance and personal care to the clients of another agency, Latrobe Community Health Service (“Latrobe”). Among these clients were women and men who were profoundly disabled, but continuing to live in their homes thanks to the love and commitment of their families and the support of personal carers such as Ms Watson. It was at times physically highly challenging work, but it was work which Ms Watson found very rewarding. Ms Watson said that she loved the job; and loved being able to support and care for people and make a difference in their lives.[1]

[1]        Transcript (“T”) 51, Lines (“L”) 14-16

2On about 7 December 2011, Ms Watson was working together with another personal carer to care for a client named Janelle Edwards. Ms Edwards was a young mother who had been almost totally paralysed by the effects of a stroke. Ms Watson and the other carer had just manoeuvred Ms Edwards back into bed with the assistance of a hoist. While Ms Watson was reaching up with her hands to unhook the straps from the hoist, she heard two “big loud cracks” in her neck and felt sudden pain and dizziness (“the 7 December 2011 incident”). Ms Watson completed her shift, but the pain increased. The next day she had trouble standing.

3Ms Watson says that since the 7 December 2011 incident she has suffered ongoing and incapacitating pain and other symptoms in her neck, and has effectively been unable to work. Ms Watson says that she has suffered this injury as a result of a breach (or breaches) of duty of care by her employer Gippsland Lakes. She has brought these proceedings claiming an entitlement to an award of damages.

4Gippsland Lakes does not dispute that Ms Watson suffered an injury on 7 December 2011 in the course of her employment, although the extent of the injury and its ongoing impact is disputed. However, reaching up to unhook straps was a relatively innocuous event. As lead counsel for Ms Watson acknowledged, it would be difficult to contend that Gippsland Lakes had breached any duty of care to Ms Watson if her injury was caused merely by reaching up to unhook straps from a hoist.

5Another client that Ms Watson worked with from time to time prior to the 7 December 2011 incident was Daryl Warford. Mr Warford was a young man suffering a terrible degenerative disease called Duchenne muscular dystrophy. By the time Ms Watson was caring for him, Mr Warford could speak and use his fingers and hands, but was otherwise totally reliant upon his family and personal carers to attend to basic needs, such as moving him from his bed to his chair and back again, toileting, dressing and undressing, and eating and drinking. Three vital pieces of equipment assisted Mr Warford’s carers to provide Mr Warford with this care:  an electric wheelchair, which Mr Warford could steer himself; an electric bed, which had a back which could be lowered and raised at the press of a button to move Mr Warford from a prone position into a seated position and back again; and a hoist which was attached to tracks leading from the bed to the bathroom. Moving Mr Warford from the bed required him to be brought to a seated position using the electric bed, then attaching the straps of the hoist around him so that it could be used to manoeuvre him to the bathroom or his chair.

6Ms Watson says that in the two months (or approximately 9 weeks) prior to the 7 December 2011 incident, Mr Warford’s electric bed was not working. She says that the back of the bed could no longer be electronically raised and lowered to move Mr Warford from a prone position to a seated position and back again. Ms Watson says that she was required to manually raise the back of the bed (weighed down by Mr Warford’s body) to manoeuvre Mr Warford into the required position to attach the straps of the hoist around his body and support the whole top of Mr Warford’s body from behind, while she manually lowered the bed to later return him to a prone position. It was this manual manoeuvring, and the associated strains on her back, which Ms Watson says aggravated her existing degenerative changes in her cervical spine and has led to her ongoing issues. The reaching up to remove the straps from the hoist for Ms Edwards was, it was submitted, simply the straw that broke the camel’s back.

7The most significant issue in this case is whether or not Mr Warford’s electric bed was in fact broken for two months prior to the incident. A related issue is whether Gippsland Lakes knew, or ought to have known, that the bed was broken. Gippsland Lakes accepted that, if the answer was yes to both of these questions, then it had breached its duty of care to Ms Watson.[2]

[2]T691, L1-6

8If the bed was broken, I must also consider whether I am satisfied that the broken bed caused an aggravation of degenerative changes to Ms Watson’s cervical spine at C4-5.

9Ms Watson claimed to have a cause of action against Gippsland Lakes for damages even if I did not accept that she had suffered an injury as a result of a broken bed.[3] As part of the application process, Ms Watson had disclosed to Gippsland Lakes that in 2004, after a car accident, she had surgery to fuse her cervical vertebrae at C6-C7. Ms Watson submitted that, even if the bed was not broken, it was a breach of Gippsland Lakes’ duty of care:

(a)   to fail to perform an adequate risk assessment of Mr Warford’s home (or any risk assessment at all);

(b)   to fail to ensure she was adequately trained; and

(c)   in view of her prior cervical fusion, to assign her to work with high-needs’ clients such as Mr Warford and Ms Edwards.

[3]Although the broken bed was clearly viewed as the most significant issue by all parties, see: T2, L18-24; T18, L7-17; T29, L2-9; T317, L10-12 - “So if the bed is not broken, your client doesn’t have a case … I wouldn’t think so, Your Honour”.

10Again, if I am satisfied that these matters amounted to a breach of duty, I must consider whether I am satisfied that this breach caused an aggravation of degenerative changes to Ms Watson’s cervical spine at C4-5.

11Finally, I must determine the sum in which the Court should assess any pain and suffering damages and past and future economic loss.

12In these reasons I address each of the above issues. Having done so, I conclude that Ms Watson is not entitled to an award of damages and the proceeding should be dismissed.

Was Daryl Warford’s bed broken in the nine weeks prior to the incident?

Witnesses’ evidence

13Ms Watson said that about two months prior to the 7 December 2011 incident (and sometime after 6 September 2011), she was asked to come into the Gippsland Lakes’ office. One of the Gippsland Lakes’ supervisors, who she thought was Sheree Smith,[4] told her that Mr Warford’s bed was not working. Notwithstanding this, Ms Watson said that she was instructed to go and complete a shift as a personal carer for Mr Warford.

[4]        T75, L8-17; T143, L18-19; T158, L27-30

14Ms Watson said that she attended for a shift at Mr Warford’s home that evening. Mr Warford was in his wheelchair and needed to be assisted back into bed. Once Mr Warford was manoeuvred with the hoist into a seated position on the bed, Ms Watson was required to support the whole top of Mr Warford’s body from behind while she manually lowered the bed. When required to move Mr Warford from the bed into the hoist (for example, for toileting), Ms Watson had to lift the bed, weighted down with the top half of Mr Warford’s body, into a sitting upright position with the assistance of her co-worker, and then lock it in position with two little locks on the side.

15Ms Watson said she immediately started feeling pain in her neck upon being required to perform these tasks.[5]

[5]        T159, L21-28

16Ms Watson said that she expected the bed to be fixed pretty quickly. However, after three or four shifts went by and the bed had still not been fixed, she complained to the supervisors in the Gippsland Lakes’ office. As the weeks passed and the bed was still not repaired, she said that she made regular weekly complaints to the Gippsland Lakes’ supervisors, both in relation to the broken bed and to the pain she was suffering as a result. Still, she said, the bed was not fixed. Ms Watson said her complaints were all verbal. Ms Watson said that Jenny Clark, who was then the Manager at Gippsland Lakes, “was very aware of it”.  Ms Watson said that a supervisor, Sheree Smith, told her that she was emailing Latrobe the information and that that was all she could do. Ms Watson also said that she heard Ms Smith, or one of the other Gippsland Lakes’ staff members, speak to Jackie Lowe from Latrobe on the telephone about the issue.

17Ms Watson relied upon corroborative evidence from three lay witnesses. Donna Wooby was a personal care worker also employed by Gippsland Lakes from around 2008 or 2009 until February or March 2012. Ms Wooby gave evidence that while she was working with Mr Warford there was a period of “I’m thinking it was about three months” when the electric bed was out of action. When asked who worked with her on the bed, she said “it would have been Leanne, Julienne – I can’t remember the other workers”. Ms Wooby was able to describe the physical process of manually raising and lowering the bed. When asked whether she reported the broken bed to Gippsland Lakes, she said:

“No, because I’m – I turned up to work and that’s when I was notified the bed wasn’t working, so someone else presumably before me, when the bed actually broke, had reported it. So it had already been reported the next time I went into work.”

18Under cross-examination it was put to Ms Wooby that:  “you haven’t got really any idea of the time frame that you worked on the bed with Ms Watson; is that right” to which she replied “Yeah, I can’t, you know it was - how many years ago, it’s impossible”.

19Sharon Dempster was Mr Warford’s mother. In 2019 she had an aneurysm bleed and a stroke, which affected her memory. Nevertheless, Ms Dempster recalled that there were times when her son’s electric bed was not working and was able to describe the physical process she was required to go through of pulling Mr Warford forward when the bed was not working. When asked if she could remember any of the carers who came to assist while the bed was not working she said “The workers didn’t really change. I had Leanne, I had Donna, and a few others would come in”. She thought she had got in touch with Gippsland Lakes to report the bed but she couldn’t remember the “case manager’s name”.  Subsequently, she accepted it could have been Latrobe which she contacted.[6] She was unable to give evidence about how long it took to fix the bed on any particular occasion other than saying “it took a while”.

[6]        T275, L7-15

20Julienne Pitt was a personal care worker employed by a different agency, Australian Home Care, who also provided personal carers to Mr Warford. She said she worked with Mr Warford for approximately two-and-a-half years, sometime between 2010 and 2014. She said there were “numerous times” when the electric bed was not working. She was not sure who she was working with when the bed was broken, other than being able to name one as “Carol Goyen”. She was not able to say when the bed was broken, but on one occasion it was quite a few shifts, another a bit longer, but “tops, a week”.

21Gippsland Lakes called four lay witnesses. Sheree Smith and Melanda Webb were home care supervisors employed by Gippsland Lakes when Ms Watson worked as a personal carer. At the time, there were around four such supervisors working in the Gippsland Lakes’ office. Each supervisor was allocated staff to supervise and to roster on to specific clients (although there were no rigid demarcations and one supervisor might at times communicate with staff allocated to another supervisor).

22Ms Smith gave evidence that she was Leanne’s supervisor “at a period of time”. Ms Smith said that progress notes were kept in relation to Mr Warford and that anything significant would be recorded in those progress notes. She said that she had reviewed the progress notes for Mr Warford for 2011 and there was no reference to a broken bed or any reference to Ms Watson injuring herself. She denied ever calling Ms Watson into the Gippsland Lakes’ office and telling her that the bed was broken, and that Ms Watson would have to go to work on the bed. She denied that Ms Watson ever subsequently attended the Gippsland Lakes’ office and complained of pain or injury from working on a broken bed at Mr Warford’s house. She denied ever making notes on the Gippsland Lakes’ computer system about a broken bed, or pain suffered by Ms Watson working on a broken bed; contacting Latrobe in order to get a broken bed at Mr Warford’s premises fixed; or telephoning Jackie Lowe at Latrobe to report a broken bed.

23When asked what she would have done if a report had been made to her by Ms Watson, she said:

“To start with, I wouldn’t have staff working in a client’s home with broken equipment of such significance but if someone did report to me that the bed was broken, I would certainly, in this situation, contact Latrobe Community Health. I would document in Daryl’s notes. I would ask the worker to document it on a communication form. I would speak with the case manager at Latrobe and ask them to look into it and if the bed was broken I would not want Gippsland Lakes staff returning to that client’s home until the problem had been resolved … If the bed was broken in a way that’s going to impact the way that they can perform their duties safely, I would not have staff going into that home.”

24Malanda Webb worked as a Home Care supervisor for Gippsland Lakes from 2005 until 2012. She “vaguely” recalled Ms Watson, but did not recall her as a worker she specifically supervised. She said that if there was a problem with equipment at a client’s home, she would ask the case manager (for example, at Latrobe) to investigate it and “would normally cease services if it’s dangerous for the staff to go back in to perform their duties”. Ms Webb did not recall Ms Watson coming into the office and being told by a supervisor that Mr Warford’s bed was broken or Ms Watson complaining of pain from being required to work on a broken bed with Mr Warford. Ms Webb said that if there had been a broken bed and an injury it would have gone into the progress notes for Mr Warford. 

25Jennifer Clark was the home care manager when Ms Watson worked as a personal carer. She worked one to two days in the Bairnsdale office (which is where Ms Watson was based) and three to four days in the Lakes Entrance office. She was on leave from approximately mid-August 2011 to the end of October 2011.

26Ms Clark said that in 2011 Ms Watson did not report to her, and Ms Clark was not aware, that the bed at Mr Warford’s house was broken or that Ms Watson was suffering pain as a result. She said, if a piece of equipment was broken in a client’s home, the worker would let them know and they would not use that equipment “as per our policies”. She said that Gippsland Lakes would let Latrobe know that Gippsland Lakes wouldn’t be providing service until that piece of equipment was fixed.

27Ms Clark said she did not ever become aware that Mr Warford’s bed broke, and that if a worker had let Gippsland Lakes know that the bed was broken, an incident report would be completed and it would be faxed to Latrobe. She also said staff would be stopped from going in if it was not appropriate to send staff in.

28The other lay witness called by Gippsland Lakes was Barbara Williams. She had been named by Ms Watson as a supervisor working at the time Mr Warford’s bed was broken. Her evidence was that she did not start working for Gippsland Lakes until July 2012.

Parties’ submissions

29In light of the corroborative evidence of Ms Dempster and Ms Wooby, Gippsland Lakes accepted that there was something wrong with the bed at a time when Ms Watson was working on it.[7] However, Gippsland Lakes did not accept that it was broken for anything like the nine-week period claimed by Ms Watson, or that the period in which the bed was broken was temporally linked with the 7 December 2011 incident.

[7]        T700, L18-24

30Gippsland Lakes submitted that Ms Watson was shown, if not a liar, to have “confabulated” – that is invented an imaginary experience to fill gaps in memory[8] ꟷ and was a wholly unreliable witness, whose evidence ought not be believed without corroboration. Gippsland Lakes relied, in particular, upon:

[8]Shorter Oxford English Dictionary (1973) Vol 1, Oxford, Oxford University Press, Clarendon Press

(a)   the lack of any record of any mention of pain by Ms Watson arising from the broken bed in the clinical notes of Dr Jessica Adams, the general practitioner who saw Ms Watson the day after the 7 December 2011 incident, aside from a mention of pain and stiffness which had been building up over the “last 2 weeks”;

(b)   the lack of any mention by Ms Watson of the broken bed in the clinical notes of her general practitioner until 19 August 2013, over eighteen months after the incident;

(c)   the lack of any record of complaint by Ms Watson about the broken bed in the records of Gippsland Lakes for 2011;

(d)   the lack of complaint by Ms Watson to Gippsland Lakes about the broken bed in the period when she returned to work after the 7 December 2011 incident;

(e)   Ms Watson’s insistence in oral evidence that she was not able to work after the 7 December 2011 incident until after she had had further neck surgery, which was clearly incorrect in light of the numerous and quite detailed references to her working in that time period in the clinical records of her general practitioner;

(f)    Ms Watson’s insistence in oral evidence that she tried to work fifteen hours but could not even do that, which was again contradicted by the clinical records of her general practitioner, which record, for example: “coping with her modified duties”; “unable to get more hours”; “asked for her hours to be increased”;

(g)   Ms Watson’s complete inability to recall a significant incident on a bus in Queensland in November 2019, which led to her being taken to hospital, when asked about it by a medico-legal neurosurgeon in February 2021;

(h)   Ms Watson’s oral evidence that she had not sought treatment for that incident, when the medical records indicated that she had sought treatment from her general practitioner, Dr Amer Nabi;

(i)    Ms Watson’s initial oral evidence admitting that she had been on a ride in an amusement park in 2016, but denying she had been injured, when:

(i)according to the clinical notes of her general practitioner this amusement park ride had aggravated her neck pain;

(ii)she was subsequently referred for an MRI scan; and

(iii)on review by her neurosurgeon, he concluded “her pain is related to excessive physical activity associated with cleaning her rental house and a ride in the amusement park”;

(j)    Ms Watson’s evidence that she had not sought treatment for two falls subsequent to the 7 December 2011, when in fact she had sought treatment from Mr Tiew Han; and

(k)   Ms Watson’s evidence that she was present while phone calls were made to Jackie Lowe at Latrobe Community Health Services and that Barbara Williams was a supervisor whilst she was working as a personal carer for Gippsland, when neither were in those roles at that time.

31In the circumstances, Gippsland Lakes submitted that I should prefer the evidence of Ms Smith, Ms Clark and Ms Webb that Ms Watson had never complained of the broken bed, or pain, to them, to the evidence given by Ms Watson.

32Lead counsel for Ms Watson submitted that Ms Watson was not in any sense a malingerer, but rather was a woman who had had a hard life, but had overcome many challenges through hard work. He accepted that Ms Watson had given evidence that was demonstrably wrong, but said that I should not find that she was lying, but rather a woman who was doing her best to recall things nine years down the track and was at times mistaken. He submitted that I should accept the evidence of Ms Watson that the bed was broken for approximately two months, particularly in light of the corroborative evidence of Ms Wooby, Ms Pitt and Ms Dempster, whose recollection had not been challenged under cross-examination.

Findings

33Having had the opportunity to view Ms Watson in the witness box at length, I accept that, with allowance for some exaggeration and self-serving evidence, she was attempting to tell the truth. She was not a liar or perpetrating a fraud. Her evidence that she had not returned to work for Gippsland Lakes between the 7 December 2011 incident and her neck surgery in February 2012 was plainly wrong. However, I observed her to be genuinely confused to be shown the general practitioner records demonstrating that she had returned to work between February 2012 and November 2012. It is unlikely she would tell deliberate untruths about not working for Gippsland Lakes when there would be clear records in existence that she worked in this period. Similar considerations apply in relation to matters such as the Queensland bus incident.

34However, Ms Watson was plainly a highly unreliable historian. I accept Gippsland Lakes’ submissions in that regard. Her memory difficulties extended not just to an inability to recall events which in fact occurred and which one would ordinarily expect to be recalled (such as the incident on the bus in Queensland which led her to being taken to hospital; or receiving treatment for significant falls), but also to a positive – and stubborn - insistence that facts were different from reality. Her suggestion that she had not returned to work in the period between the 7 December 2011 incident and her neck surgery in November 2012, provides a good example. Even when presented with the numerous and detailed notes of her general practitioners, which clearly showed that she had returned to work and, indeed, at times was requesting additional hours, she maintained that this was not possible and that she had not returned to work until after her neck surgery in November 2012, because her injury had been such that she was totally unable to work. Ms Watson had indeed “confabulated”, in the sense that she had filled gaps in her memories with imagined memories that fit in with her view of the world.[9]

[9]        T246 L7-21

35Given her demonstrably unreliable memory, I treat her evidence as to past events with great caution and only accept it when corroborated, or there are other good reasons to view that evidence as reliable.

36Ms Watson’s evidence about the broken bed is corroborated by the evidence of Ms Wooby. However, even in evidence-in-chief, Ms Wooby’s evidence was couched in quite uncertain terms, using phrases such as “I’m thinking” and “it would have been Leeanne”. Ms Wooby said she worked from 2009 to February 2012, but was unable to remember when it was that the bed was broken. In cross-examination, Ms Wooby accepted that she didn’t really have any idea of the time frame she had worked on the bed with Ms Watson. This is entirely understandable given she was asked to recall these matters for the first time about six weeks ago. However, it does call into question the reliability of her evidence.

37Ms Pitt’s evidence did not corroborate the evidence of Ms Watson. She did not identify Ms Watson as a person she had worked with using a broken bed. She also gave evidence that the bed had been broken for “tops, a week”.

38Ms Dempster, who was Mr Warford’s mother, gave evidence that the bed was broken but was not able to say when or for how long. Ms Dempster plainly struggled with memory due to her own health issues. What was clear, however, was that she was a forthright and direct person and was a strong advocate for her son. The broken bed impacted not just on the personal care workers and herself but also on her son’s capacity to independently move from the lying to sitting position in his bed at the press of a button. If Mr Warford’s bed was broken, Ms Dempster would have notified the relevant agencies and demanded it be repaired. If it remained broken for a period of nine weeks, Ms Dempster would have followed up on multiple occasions.

39There was no evidence that there was any complaint by Ms Dempster of the bed being broken in 2011 in the records of Gippsland Lakes or Latrobe.

40Ms Watson was also forthright and assertive. If the bed was indeed broken for such an extended period of time, and causing her pain, she would have complained to her employers and taken action if the situation was not remedied. Indeed, intertwined with Ms Watson’s evidence that the bed was broken was her evidence that she had complained of both the broken bed and neck pain. Ms Watson spoke particularly of complaining to Ms Smith, but said that the other supervisors were in an open plan office and could overhear her complaints. However, there was no record of these complaints in the Gippsland Lakes records and neither Ms Smith, Ms Webb nor Ms Clark had any recollection of any such complaint. Nor was there any evidence in the records of Gippsland Lakes that any other of the numerous personal care workers who would have worked with Mr Warford over a two month period had complained about a broken bed in 2011.

41I accept that the recollections of Ms Smith, Ms Clark and Ms Webb may also be somewhat unreliable given the effluxion of time. However, I do not have the specific concerns with their evidence which I have with the evidence of Ms Watson. It is likely that they would have recalled something as significant as Mr Warford’s bed being broken for a period of two months (as opposed to, say, a few shifts or a week) and would have recorded that in their progress notes. I prefer the evidence of Ms Smith, Ms Webb and Ms Clark that they received no complaint from Ms Watson (or anyone else) in relation to the broken bed, to the evidence of Ms Watson.

42There was also no record of the email, which Ms Watson said she was told that Ms Smith was sending, reporting the broken bed to Latrobe. There was no record of the phone call which Ms Watson said she observed between Ms Smith and a person that she said she was told was Jackie Lowe at Latrobe.

43Ms Watson’s evidence in relation to suffering and complaining of neck pain from the start is inconsistent with her contemporaneous report to her GP which refers to only two weeks build-up of pain prior to the 7 December 2011 incident. If the 7 December 2011 incident indeed happened in a context of pain arising from working on a broken bed for two months, one would have expected Ms Watson to tell her GP of this (rather than raising the possibility of a TAC claim). One would also have expected her to include this information in the Incident/Hazard reporting form and her subsequent Workcover claim. She did not.

44It is very difficult to know exactly what happened eleven years ago, where even the best memories may be fallible. However, having considered all of the circumstances described above, I am not satisfied, on the balance of probabilities, that Mr Warford’s bed was broken for an extended period of approximately two months, during the time that Ms Watson was working as his personal carer. However, in view of the concession made by Gippsland Lakes, I accept that the bed was broken on at least one occasion whilst Ms Watson was working on it.

45Ms Pitt gave evidence that she worked with Mr Warford for two-and-a-half years sometime between 2010 and 2014. Her evidence was that the bed was broken for “tops, a week”. This evidence was unchallenged under cross-examination, and I accept it.[10] It provides the best evidence I have of the duration of any breakages of the bed. I am not satisfied that the bed was broken for any more than a week whilst Ms Watson was working on it.

[10]        Pasqualotto v Pasqualotto [2013] VSCA 21 at paragraphs [243]-[246]

Whether Gippsland Lakes knew, or ought to have known, about the broken bed

Parties’ submissions

46I consider this question on the basis of my finding that I am not satisfied that the bed was broken for any more than a week.

47Gippsland Lakes submitted that I should accept the evidence of Ms Smith, Ms Webb and Ms Clark that a broken bed was not reported to them during the period of Ms Watson’s employment; that if it had been reported to them it would have been recorded in the progress notes; and that there was no record of a broken bed in the progress notes in the relevant period. It also submitted that it was not unreasonable for an employer to rely upon its employees for the reporting of malfunctions in machinery or injury. It submitted that Gippsland Lakes had a system of work where problems were reported by completing an Incident/Hazard Reporting form or communication sheet.

48Ms Watson submitted that I ought to accept Ms Watson’s evidence that the broken bed was reported to her supervisors. If I did not accept that evidence, she submitted that Gippsland Lakes was under a non-delegable duty to ensure a safe system of work and it could not delegate that to its employees or to Latrobe, or to any other person or agency.

Findings

49Gippsland Lakes was under a non-delegable duty to provide a safe system of work. This included taking reasonable steps to ensure that equipment required for the safe performance of work tasks was operational. This obligation is underscored in Regulation 2.1.1(1) of the Occupational Health and Safety Regulations 2007, which provides that a person “who is required by these Regulations to use any particular measure to control risk must ensure that the measure is properly…used and maintained.”

50In McLean v Tedman,[11] Mason, Wilson, Brennan and Dawson JJ said:

“The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer … And in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”[12]

[11] (1984) 155 CLR 306

[12]McLean v Tedman (supra) at 313; applied in Govic v Boral Australian Gypsum Ltd (2015) 47 VR 430 at [16]

51Gippsland Lakes sent its personal carers to work in places which were not under its direct control and were attended, in addition to its own workers, by personal care workers from different agencies; and for clients who were not directly its clients but whose principal points of contact were other agencies such as Latrobe, and another agency called SWEP. It is apparent from the evidence of the supervisors and manager called by Gippsland Lakes, that Gippsland Lakes wholly delegated the task of reporting any equipment failures to its workers and other agencies (such as Latrobe) involved in Mr Warford’s care. Neither the home care manager nor the supervisors saw it as part of their role to inspect, check or enquire as to the functioning of any equipment.

52In such circumstances, Gippsland Lakes could not discharge its obligation by merely assuming that its employees and others would notify it that any equipment was not operational. Gippsland Lakes was under a positive duty to put in place proper systems to ensure that it knew of any equipment failures. This duty could not be delegated to Latrobe; it could not be delegated to any other agencies; and it could not be delegated to its employees.

53I accept that all of Gippsland Lakes’ personal care workers underwent training, and part of that training was in relation to the “Incident/Hazard Reporting Form” and the necessity to complete it. However, it was apparent from the evidence of Ms Clark, that what was initially described as two weeks of intensive training, actually involved very much less than two full weeks of training.

54There was no evidence that workers were specifically trained in the necessity to complete the Incident/Hazard Reporting Form in relation to equipment breakages, nor in relation to the necessity to report equipment breakages on each shift, even if the equipment breakage occurred prior to that shift. The words “Incident/Hazard” would not of itself necessarily make it clear to a personal care worker that broken equipment (that did not create an immediate danger) would require submission of such a form, particularly if it was known by the personal care workers that Ms Dempster had reported the bed as broken to some other agency and was doing her best to get it fixed.

55This is supported by the evidence of Ms Wooby, who said that she did not report the broken bed because it was already broken when she arrived at her shift “so someone else presumably before me, when the bed actually broke, had reported it”.

56The Home Care Staff Policy and Procedure Manual, which was in evidence, contained a one-and-a-half page section on Occupational Health and Safety on page 42 of a 44-page document. That manual required staff to “Report Incidents/Accidents near misses and changes via due process”. It did not refer to a specific necessity to report equipment failures. The manual also referred to a policy and procedure on “Accident/Incident Reporting” which was said to be located on a shared drive of Gippsland Lakes’ computing system. To access this policy, workers would have had to proactively log onto a computer in the Gippsland Lakes' office in their “downtime” and seek out the policy. In this regard, I note Ms Watson’s evidence about her very limited computer skills, which it is reasonable to assume will have been common to at least some of the other personal care workers.

57For the reasons outlined in the previous section of these reasons, I have found that Mr Warford’s bed was broken on a number of occasions, including once during the course of Ms Watson’s employment (although for no more than a week).

58Ms Watson and Ms Wooby are therefore not the only Gippsland Workers who would have worked shifts with Mr Warford on a broken bed. Ms Webb gave evidence that Gippsland Lakes sent in personal care workers to Mr Warford’s home on a daily basis and, if not, certainly several times per week. Each shift at Mr Warford’s house was attended by two personal care workers, and there were two shifts per day. During the periods in which Mr Warford’s bed was broken, many shifts must have been performed, not just by Ms Watson, but also by other personal care workers employed by Gippsland Lakes and by other agencies. In addition, I am satisfied that Ms Dempster, as a plainly devoted mother to her disabled son, would certainly have reported any malfunction of the bed to at least one of the agencies involved with his care on each occasion it was broken, although I cannot be sure to which agency.

59Yet the evidence from at least two of the lay witnesses called by Gippsland Lakes was not only that there was no record of the bed being broken during the time that Ms Watson was employed, but that they had no knowledge that Mr Warford’s bed had ever been broken.

60In the circumstances, if Gippsland Lakes did not have actual knowledge that the bed was broken, I infer that its failure to know was due to a breach of non-delegable duty in failing to put in place systems or procedures that specifically prescribed, warned, commanded and enforced obedience to the command that all personal care workers must report, in writing, not just discrete “Incidents/Hazards” but also equipment failures observed to be present at any shift (even if the breakage did not occur during the shift or was known to have been reported to other agencies).

61Each of Ms Clark, Ms Smith and Ms Webb gave evidence that had they known that the bed was broken they would immediately have taken steps to ensure that Gippsland Lakes workers were safe, including stopping staff working with Mr Warford. Ms Smith said that this would have been done even if it meant Mr Warford had to go to hospital.

62In the circumstances, I am satisfied that at some time during Ms Watson’s employment, Gippsland Lakes breached its duty of care to her by allocating Ms Watson shifts with Mr Warford when they knew or ought to have known his bed was broken.

63For completeness, I note that I am also satisfied that this constituted a breach by Gippsland Lakes of Regulations 2.1.1, 3.1.1 and 3.1.2 of the Occupational Health and Safety Regulations 2007.

Did the broken bed cause an aggravation of degenerative changes in Ms Watson’s cervical spine?

Parties’ submissions

64Gippsland Lakes submitted that I ought not be satisfied that there was any causal link between the broken bed and the neck pain suffered by Ms Watson. In support of this submission, it relied upon the following matters:

(a)   the failure of Ms Watson to mention the broken bed in the Incident/Hazard reporting form completed on 8 December 2011; the Worker’s Injury Claim Form completed on 28 December 2011; or in any contemporaneous record of Gippsland Lakes;

(b)   the failure of Ms Watson to mention the broken bed or neck pain in the clinical notes of Ms Watson’s general practitioner in the months prior to the 7 December 2011 incident, despite the fact that she visited the general practitioner on at least three occasions;

(c)   while there was mention of “2 weeks” of pain in the clinical notes of the general practitioner Ms Watson consulted after the 7 December 2011 incident, there was nothing in those notes to link that pain to the broken bed (and, indeed, the general practitioner seemed to be considering a Transport Accident Commission claim, as though the pain might be linked to previous car accidents);

(d)   the first mention of the broken bed in the clinical notes of her general practitioner was made over eighteen months after the incident;

(e)   none of the lay witnesses (including Ms Wooby, Ms Dempster and Ms Pitt) gave evidence that Ms Watson had complained to them of neck pain arising from a broken bed; and

(f)    there was a complete gap in the medical evidence in terms of establishing causation arising specifically from the broken bed.

65Ms Watson submitted that causation was an inescapable inference in circumstances where:

(a)   the bed, whose very purpose was to enable safe manoeuvring of Mr Warford, was broken;

(b)   Ms Watson was, prior to the bed being broken, fit and healthy, having passed a fitness test at the commencement of her employment. She was also not engaging in any significant physical activity outside her employment;

(c)   Gippsland Lakes’ own lay witnesses stated that if the bed was broken it would be so unsafe that they would not allow their workers to attend the site, even if it meant Mr Warford was required to be admitted to hospital;

(d)   Ms Watson suffered contemporaneous pain for at least two weeks, which was corroborated by her general practitioner’s clinical notes of 8 December 2011; and

(e)   the evidence of Mr Han, her treating neurosurgeon over many years, was that manoeuvring Mr Warford while his bed was broken was “no doubt … absolutely” the sort of work which could have led to the injury which he operated on in November 2012.[13]

[13]T492, L15-23

Findings

66There is no direct expert evidence that the broken bed caused an aggravation of degenerative changes in Ms Watson’s cervical spine. The highest it is put in the oral evidence of Mr Han is that working on the broken bed “could” have led to her injury.

67Given this, I must determine whether, having regard to all the possible causes of the injury, the more probable inference is that, but for the broken bed, Ms Watson would not have suffered that injury. I must consider the combined weight of the facts in their totality, rather than considering any one fact in isolation. My conclusion must be based on evidence not speculation, however the fact that there are other possible causes for Ms Watson does not prevent me drawing an inference that the more probable cause for the injury was the broken bed.[14]

[14]Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88 at paragraph [101]

68In doing so, I bear in mind my findings above that I am not satisfied that the bed was broken for a period of approximately two months but only that, at some stage during Ms Watson’s employment, the bed was broken and then for no more than a week.

69There are a number of possible causes for the neck pain suffered by Ms Watson on and from the 7 December 2011 incident. It might have been the result of inevitable degenerative changes in Ms Watson’s neck. It might have been the result of the duties engaged in by Ms Watson over the entirety of her employment with Gippsland Lakes. Or it might have been the result of her work on the broken bed.

70Although I have found that Ms Watson worked on a broken bed and that this was a breach of Gippsland Lakes’ duty of care, I have not accepted that it was broken for anything near the two months that Ms Watson claimed it was broken. The most I am prepared to accept is that the bed was broken for no more than one week. An inference of causation may be drawn from breach of duty of care,[15] however it must still be the more probable inference in all the circumstances.

[15]        Duma v Mader International Pty Ltd (2013) 42 VR 351 at [2]

71In view of my concerns as to the reliability of Ms Watson’s memory, I do not accept Ms Watson’s uncorroborated evidence that she experienced pain from the first shift working on the bed or complained regularly of that pain. I am also unable to determine when it was during her period of employment with Gippsland Lakes that she worked on a broken bed. Given this, there is no necessary temporal link between her work on the broken bed and the 7 December 2011 incident or even with the two weeks build-up of pain that Ms Watson reported to her GP.

72Ms Watson is not a medical expert and it is not for her to give direct evidence as to causation. As said in Govic v Boral Australian Gypsum Ltd:

“… It cannot be assumed that an injured worker will be a good historian or that [they] will realise the true significance of elements of [their] history when first giving instructions.”[16]

[16] (2015) 47 VR 430 at [81]

73However, the fact that Ms Watson did not think to report the broken bed in the Incident/Hazard reporting form or in the Workcover claim form, and did not think to report the broken bed to her GP for over 18 months, does suggest that there was a lack of contemporaneity between the broken bed and the 7 December 2011 incident or her experiences of pain.

74Mr Han gave oral evidence that he was in “no doubt” that assisting Mr Warford while the bed was broken was the sort of work which “could” have led to the injury which he operated on in November 2012. However, this evidence was given in the context of being asked by lead counsel for Ms Watson to accept that Ms Watson worked on a broken bed for 9 weeks. I have found that I am not satisfied that the bed was broken for more than one week. Given this, Mr Han’s evidence does not provide significant support for an inference that working on a broken bed was the more probable cause of Ms Watson’s injury.

75Both Mr Han and Mr D’Urso (a medico-legal neurosurgeon called by Ms Watson) gave evidence that it was possible that the heavy and repetitive duties which formed part of Ms Watson’s normal duties as a personal care worker caused an aggravation of Ms Watson’s cervical spine. In his report of 20 April 2020, Mr D’Urso said Ms Watson’s heavy duties were likely to have caused an aggravation of Ms Watson’s cervical spine.

76It is also possible that Ms Watson’s neck pain was the result of inevitable degenerative changes following on from the prior injuries to her neck, particularly the car accident which led her to having a cervical fusion in 2005. Indeed, Mr D’Urso gave oral evidence that the 2005 operation by Mr Han was a failed operation from which Ms Watson remained symptomatic.[17] Associate Professor Graeme Brazenor, a medico-legal neurosurgeon called by Gippsland Lakes, gave evidence that any cervical degeneration was not due to Ms Watson’s employment with Gippsland Lakes.

[17]        T604, L8-21

77On this issue, I prefer the evidence of Mr Han to the opinions of Mr D’Urso and Professor Brazenor. Mr D’Urso’s opinion that the 2005 operation was not successful was not a view that any of the other neurosurgeons expressed. I accept that Mr Han, as Ms Watson’s treating neurosurgeon both in 2005, when she had her first cervical surgery, and in 2012, had a deeper understanding of Ms Watson’s cervical spine. This is demonstrated by Mr D’Urso’s evidence that Ms Watson had a congenital fusion at C5-C6, when it was apparent from the scans that this was a fusion which occurred after the 2005 operation.

78Associate Professor Brazenor did not have the benefit of Mr Han’s long therapeutic relationship with Ms Watson and his conclusions were plainly informed by his view that Ms Watson was a malingerer and perpetrating a rouse. I have formed a different view. In his reports, and in his oral evidence, Associate Professor Brazenor also strayed beyond the ordinary scope of an independent expert witness into something more akin to cross-examination or advocacy for a cause.[18]

[18]        Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305 at [77]

79Nevertheless, even accepting Mr Han’s evidence, it remains possible that Ms Watson’s neck pain was the result of inevitable degenerative changes and was not causally related to her duties as personal care worker.

80Having regard to the totality of the circumstances described above, I am not satisfied that the more probable inference is that, as a result of working with a broken bed, Ms Watson suffered an aggravation of degenerative changes in her cervical spine.

81Given this, Ms Watson does not succeed in her claim for damages for injury caused by Gippsland Lakes requiring her to work with Mr Warford when his bed was broken.

Is Gippsland Lakes liable for any other breaches of its duty of care?

Factual context

82Back in 2003, Ms Watson was injured in a car accident. She ultimately consulted her treating neurosurgeon, Mr Han, who recommended a fusion at C6-7. The fusion was performed on 11 July 2005. The evidence of Mr Han is that it was a successful operation.

83As part of her application to work for Gippsland Lakes, on 20 December 2010, Ms Watson completed a “Pre-existing injury or disease disclosure statement” form.[19] The form included two statements, one of which Ms Watson was requested to delete:

“I    have suffered no prior injuries that may recur or deteriorate, accelerate or be exacerbated or aggravated by the employment.”

OR

“I have suffered the following conditions that may recur or deteriorate, accelerate or be exacerbated or aggravated by the employment.”

[19]        Exhibit P2

84Immediately following on from the second statement, there was a box in which Ms Watson was requested to list details of pre-existing conditions.

85Ms Watson did not in fact delete either of the two statements on the form. She did, however, write “NECK FUSION C6-C7. SURGERY 2005” in the box for pre-existing conditions.

86On 28 February 2011, Ms Watson underwent a pre-employment physical screening by a physiotherapist. The screening consisted of a medical history, range of movement observations, a fitness test and some simulated home care tasks. The report provided to Gippsland Lakes[20] by the physiotherapist concluded:

"Summary of range of movement/pain levels:

Nil issues with pain, some restrictions in neck movements due to cervical fusion – 2004 – Nil concerns

Summary of performance on simulated Home Care tasks…

…Good…

Performance on fitness test:

Average fitness, managed well on step test”

[20]        Exhibit P5

87For much of the trial, the parties proceeded under the misapprehension that this screening was performed by a medical doctor.[21] However, in cross-examination of Ms Clark on the sixth day of trial, it became apparent that the screening was in fact performed by a physiotherapist. Had the screening been performed by a medical doctor, this issue might not have gained the prominence it ultimately attained in closing submissions.

[21]        See, for example, T46-49; T56, L24-32; T145, L21-27; T149, L14-17

88Ms Clark was not informed that Ms Watson had a previous cervical fusion. In oral evidence, she accepted that it would have been advisable if she had been told that Ms Watson had had a cervical fusion operation. Ms Smith said that she did not get a copy of the report, but knew at least that Ms Watson had had a previous injury as a result of a car accident. Regardless, no modifications of Ms Watson’s duties were adopted as a result of her previous cervical surgery.

Parties’ submissions

89Numerous particulars of breach of duty were provided in the Amended Statement of Claim. However (putting the broken bed to one side), it was apparent from Ms Watson’s closing submissions that these allegations of breach of duty boiled down to three essential matters:

(a)   there had been a lack of any adequate risk assessment by Gippsland Lakes in relation to Mr Warford’s premises, who instead delegated any risk assessment to Latrobe;

(b)   Gippsland Lakes failed to ensure that Ms Watson was adequately trained before placing her with high-needs clients. In particular, while the home care manager of Gippsland Lakes initially asserted that Ms Watson was given two weeks’ intensive training, the actual evidence was that she received very much less than that; and

(c)   Gippsland Lakes knew that Ms Watson had suffered a prior cervical spinal injury involving a fusion at C6-C7 and therefore knew, or ought to have known, that she was susceptible to further injury to her cervical spine, but failed to take this into account.

90The difficulty with these submissions was the lack of evidence in relation to the reasonably practicable alternative[22] that Gippsland Lakes ought to have adopted in the circumstances to reduce the risk of injury to Ms Watson. There was, for example, no evidence from an OH&S expert in relation to what a risk assessment would have shown in relation to the tasks performed by personal care workers at Mr Warford’s premises, or from a medical practitioner in relation to Ms Watson’s capacity to perform the tasks of a personal care worker in 2010, given her prior C6-C7 cervical fusion. While it did seem that Ms Watson’s training was significantly less than the ‘intensive two weeks training’ it was initially claimed by Ms Clark that she was provided, there was no evidence in relation to any specific gaps in Ms Watson’s training that might have made a difference to her injury.

[22]        See Swain v Waverley Municipal Council (2005) 220 CLR 517

91In the end, Ms Watson submitted that (particularly in the context of Ms Watson’s past history of a cervical fusion at C6-C7), it was a breach of Gippsland Lakes’ duty of care to assign Ms Watson to work with high-needs clients, particularly large clients such as Daryl Warford and Janelle Edwards. Ms Watson submitted that I could draw this inference from my own general life knowledge, without any expert evidence, because it was obvious.

92Gippsland Lakes submitted that what was absent from this case was any expert evidence from an ergonomic expert or engineer as to what the alternative system of work should have been. In the absence of such evidence, it submitted that I could not be satisfied that any particular activities should reasonably have been avoided in order to lessen or reduce the risk to Ms Watson.

Findings

93Special precautions may be required to avoid an injury if an employer knows that an employee has a predisposition to that injury.[23] However, the onus of proof remains on Ms Watson.

[23]        Govic v Boral Australian Gypsum Ltd (supra) at paragraph [18]

94I accept that it was a breach of Gippsland Lakes’ duty of care to do no more than send Ms Watson for assessment by a physiotherapist when informed that she had a prior history of significant cervical surgery. It is apparent from the report prepared by the physiotherapist that he was predominantly engaged to perform a fitness test on Ms Watson – i.e.: an assessment of whether Ms Watson was fit to perform the tasks of the role in the present moment, rather than a considered assessment of whether repetitive performance of those tasks might risk aggravating degenerative changes in her cervical spine. Gippsland Lakes ought to have at least obtained a report from a general practitioner, if not a neurosurgeon.

95I am also accept that it was a breach of Gippsland Lakes’ duty of care not to perform a risk assessment at Daryl Warford’s home, or at least to ensure that a risk assessment was regularly performed.

96However, without any evidence of what such a report from a general practitioner or neurosurgeon, or risk assessment, might have said, these breaches are not causally linked to any injury and do not give rise to an entitlement to damages.[24]

[24]        See Duma v Mader International Pty Ltd (supra) at paragraph [65]

97Further, I am not prepared to rely upon my common knowledge and experience (without any expert evidence) in relation to the relative differences in strain and risk of injury for a person with a prior cervical fusion between:

(a)   heavy and repetitive work such as vacuum cleaning and carrying shopping bags (for which Ms Watson submitted that she was suited); and

(b)   the work involved in caring for high-needs clients with the assistance of functional ergonomic equipment (which Ms Watson submitted it was a breach of duty of care for her to be required to perform).

98Treating neurosurgeon, Mr Han, was asked to comment on whether the heavy and repetitive work performed by Ms Watson in the course of her employment was contributory to her neck injury. However, that work was described as “domestic assistance such as vacuuming and cleaning as well as looking after many patients with high needs”.[25] It was apparent from his oral evidence that Mr Han viewed vacuuming as heavy and repetitive work, which it was possible had caused injury to Ms Watson’s cervical spine.[26] I accept that physically manipulating large clients such as Mr Warford and Ms Edwards to attach and remove hoists and dress and undress them would also be heavy and repetitive work, which it was possible had caused injury to Ms Watson’s cervical spine. However, even setting to one side the need to ensure Gippsland Lakes is not judged with the benefit of hindsight, it would be speculative for me to infer that the one was significantly more heavy and repetitive – and likely to cause injury to Ms Watson – than the other, such that it was a breach of duty of care by Gippsland Lakes to assign her to work with high-needs clients.

[25]Letter of Instruction to Mr Tiew Han dated 28 March 2018, First Defendant’s Third Further Supplementary Court Book; see also in relation to Mr D’Urso at T597, L6-14 and T600, L22-23.

[26]        T513, L5-9; T516, L2-8

99This is so particularly in a context where:

(a)   her treating general practitioner gave evidence that, as at 19 October 2010, there was no reason why she wouldn’t have been able to work as a personal carer;[27] and

(b)   her treating neurosurgeon, Mr Han, gave evidence that her surgery in 2005 was successful, she had fully recovered and he would assume she was able to lead a normal life.[28]

[27]        T385, L31-T386, L2

[28]        T496, L25-T497, L1; T499, L16-19

100In the circumstances, I am not satisfied that it was a breach of duty of care to assign Ms Watson to work with high-needs clients. Any other breaches of duty (including breaches of the regulations arising from the failure to conduct a regular risk assessment) cannot be causally linked on the evidence to Ms Watson’s injury.

101Ms Watson does not succeed on any of her other claims for damages for breach of duty.

Assessment of damages

Parties’ submissions

102In view of my findings above, Ms Watson is not entitled to an award of damages. However, for completeness, and in deference to the helpful and detailed submissions by junior counsel for each of the parties, I will record my findings on the quantum of loss suffered by reason of the aggravation of Ms Watson’s cervical spine which manifested in the 7 December 2011 incident (“the injury”).

103The parties agreed the quantum of past and future economic loss on the assumption (which was denied by Gippsland Lakes) that Ms Watson was totally incapacitated. Submissions were then made on the amount by which this quantum should be reduced.

104Gippsland Lakes submitted that I could not be satisfied any ongoing incapacity for work was caused by the injury for the following reasons:

(a)   Ms Watson had successfully returned to part-time modified duties both before and after her spinal surgery in November 2012, only ceasing because her employment was terminated;

(b)   as at 30 October 2015, her treating general practitioner recorded that she was attending bingo, talking about voluntary work at local op shops and the local hospital kiosk, and interested in commencing a beauty course. He had observed that she was walking around the river and was not using any prescription analgesia. Under cross-examination, he accepted that she was fit for part-time work in positions such as an office clerk administrator, customer service officer, retail consultant, local area coordinator or bank teller;

(c)   since that time, Ms Watson had a number of incidents which aggravated her cervical spine condition:

(i)the neck pain she suffered after going on an amusement park ride in 2016;

(ii)falls while she was walking her dog in 2017 or 2018; in February 2019 and November 2019; and

(iii)the incident on the bus in Queensland on 28 November 2019, which led to her being taken to hospital by ambulance and another significant fall in February 2019;

(d)   from 2018, Ms Watson commenced complaining of symptoms which were not attributable to her cervical spine condition, including pain down her legs and lack of bladder and bowel control;

(e)   Ms Watson was diagnosed with a large lumbar L4-5 disc extrusion by her current treating neurosurgeon, Mr Timms, in mid-2020, which lead to lumbar spine surgery in October 2020. This was continuing to incapacitate Ms Watson for work; and

(f)    in the circumstances, the worsening in Ms Watson’s condition since 2015 could not be attributed to the injury.

105In all the circumstances, Gippsland Lakes submitted that economic loss damages should not be awarded past October 2020 and that there should be a further reduction of 80 per cent in any amount awarded.

106Ms Watson submitted that the usual reduction for vicissitudes was 15 per cent.  Ms Watson accepted that there should be some additional reduction in the amount of damages awarded to her as a result of her pre-existing degenerative condition and her lumbar spine condition. However, Ms Watson submitted that her pre-existing degenerative condition was stable and asymptomatic prior to her employment with Gippsland Lakes and the lumbar spine operation. Ms Watson further submitted that there was no evidence of pathological change arising out the other subsequent incidents, such as the falls and the Queensland bus incident.

Findings

107For the reasons given above, I have found that Ms Watson was not a liar but was a highly unreliable witness. I do not accept her evidence as to her prior symptoms unless corroborated by contemporaneous reports to others or there is other good reason to accept her evidence. Where her current evidence conflicts with her contemporaneous descriptions of her symptoms as recorded in the clinical notes or medical reports, I prefer her contemporaneous descriptions of her symptoms.

108Given this, I find:

(a)   Ms Watson experienced a sudden onset of severe neck pain on 7 December 2011;

(b)   since that time, Ms Watson has experienced ongoing neck pain, of varying severity and frequency;

(c)   Ms Watson was able to successfully return to part-time light duties with Gippsland Lakes in about February 2012;

(d)   Ms Watson’s neck pain was sufficient to justify cervical surgery on November 2012;

(e)   that operation was at least partially successful in reducing the severity of Ms Watson’s symptoms. There were times when she was virtually pain free. She was able to return to work in about February 2013 and continued to work with Gippsland Lakes on part-time modified duties until December 2014. She ceased work because she was terminated rather than because she was incapable of performing the required duties;

(f)    as at 2015, she was capable of performing part-time work which did not involve heavy lifting. She was capable of enjoying walks and was not using any prescription analgesia;

(g)   there was a worsening of her condition after 2016 and the onset of new symptoms, such as lower back pain, leg pain and incontinence issues. The new symptoms, such as lower back pain, leg pain and incontinence issues, are not attributable to the workplace injury;

(h)   by late 2019/2020, her predominant issue was with lower back pain, leg pain and incontinence issues, rather than neck pain;

(i)    in October 2020, she had lumbar surgery. Her lower back pain, leg pain and incontinence issues have largely resolved since that date, although it is too early yet to ascertain if the operation has been a complete success. Her symptoms of neck pain are ongoing, however she retains a capacity for part-time light duties’ employment; and

(j)    although it has been of variable severity, Ms Watson’s cervical pain has been ongoing now for nearly ten years, despite significant surgery in 2012. It is likely that Ms Watson will continue to suffer neck pain, of varying degrees of intensity, for the foreseeable future.

109Ms Watson has lost a career she loved and the capacity to engage in many activities. She suffers ongoing pain and restrictions in her normal activities of daily life. However, her case is not on the same level of severity as cases where an injury has caused severe unremitting pain or total incapacitation. Pain and suffering damages must also be discounted for:

(a)   the possibility that she would have developed cervical pain in any event, whether as a result of degenerative changes in her cervical spine arising from her previous car accidents or as a result of falls and other incidents which may have aggravated her pre-existing cervical spine condition; and

(b)   the possibility that other conditions, such as her lumbar spine condition, would have also restricted her capacity to engage in activities.

110In all the circumstances, I assess pain and suffering damages at $180,000.

111The Court of Appeal said in Sahin v Victorian Workcover Authority:[29]

“The assessment of an injured plaintiff’s claim for loss of earning capacity suffered as a result of bodily injury involves questions of fact and degree, and requires estimates and judgments to be made, about matters upon which reasonable minds might differ … .”

[29] [2017] VSCA 13 at paragraph [37]

112In relation to past economic loss, I am not satisfied that Ms Watson has been totally incapacitated by reason of the injury since December 2011. Up until 2015 she had a demonstrated capacity for part-time work in light duties. I accept that there has been some worsening of her symptoms since that time. However, her treating general practitioner remained of the view that she had a partial capacity for work. Mr D’Urso also expressed the view that she had a partial capacity for work, at least up until 2019.

113In the three years from 2012 to 2014, Ms Watson was able to earn approximately one third of her usual income working part time on light duties for Gippsland Lakes. I accept that this was modified duties and not employment obtained in the open market and that Ms Watson will face significant hurdles in finding employment, given her restrictions and lack of computing skills and office experience. I also note that the amounts Ms Watson earned between 2012 and 2014 have already been accounted for in the calculations of damages agreed by counsel. However, I have concluded that it is appropriate to reduce the amount assessed for damages for her retained (but not utilised) capacity for income earning between 2015 and 2021.

114I do not accept Gippsland Lakes’ submissions that there should be an absolute cut off on loss of income in October 2020, when Ms Watson had lumbar spine surgery. The evidence in relation to her lumbar spine condition and the effectiveness of the surgery performed in October 2020, is currently in a state of uncertainty. However, it is likely that the lumbar spine condition would have rendered Ms Watson unsuited to work as a personal carer. It has also reduced her capacity to work in any occupation since 2018 (and for some of that time rendered her completely incapacitated for employment). I have concluded that it is appropriate to reduce the amount assessed for damages for past loss of income for these matters.

115Even accepting that the various falls and other incidents did not have a long-term impact, at least part of Ms Watson’s past incapacity to work is attributable to the impact of falls and other incidents. Some discount should also be applied for the possibility that she would have developed cervical spine pain between 2012 and 2021 in any event, given her prior history. I have concluded that it is appropriate to reduce the amount assessed for damages for these matters. 

116The parties agreed that Ms Watson’s total foregone salary since December 2011 was $450,219.63 and total foregone superannuation was $39,960.32. Having considered all of the above, I assess damages for past loss of wages in the sum of $247,620.80 and for lost superannuation at $21,978.18 (a discount of 45 per cent on the total foregone salary and superannuation). From this must be subtracted $35,978 in income received; and superannuation payments of $3,953. In addition, the Fox v Wood[30] head of damages was agreed at $300.

[30] (1981) 148 CLR 438

117In relation to future economic loss, I consider a reasonable retirement age in the circumstances is sixty-five. Her total future earnings, applying the agreed multiplier, would have been $453,455 and total future superannuation would have been $40,266. While I acknowledge the difficulties Ms Watson will have at her age in obtaining alternative suitable employment,[31] I am of the view that her workplace injury has not totally incapacitated her from employment. Accordingly, I have reduced this figure by 20 per cent for Ms Watson’s retained capacity for part-time employment. This gives a figure of $362,764 for lost earnings and $32,212.80 for lost superannuation. To these figures I apply a discount for vicissitudes of 35 per cent, giving a total figure of $235,796.60 for lost earnings and $20,938.32 for lost superannuation. I have applied a higher than usual discount for vicissitudes in light of:

(a)   the possibility that Ms Watson would have suffered cervical pain in any event, given her pre-existing history of car accidents and cervical spine surgery;

(b)   the possibility that Ms Watson would have suffered other aggravating injuries to her cervical spine such as falls; and

(c)   the possibility that Ms Watson’s lumbar spine condition will continue to severely restrict her income-earning capacity in the future.

[31]        See Dr Slesenger’s report dated 16 April 2020.

118Although contributory negligence was pleaded, no submissions were made by Gippsland Lakes in support of this defence. I am not satisfied that the damages awarded to Ms Watson should be reduced for contributory negligence.

119The table below sets out the total damages assessed.[32]

[32]        These figures do not take account of any statutory reductions

Head of damage	Amount claimed	Amount awarded
Pain and suffering	$300,000	$180,000.00
Past loss of wages[33]	$414,241.63	$211,642.80
Past superannuation[34]	$36,007.00	$18,025.18
Fox v Wood	$300.00	$300.00
Future loss of wages	$493,044.00	$235,796.60
Future loss of superannuation	$43,782.00	$20,938.32
TOTAL	$666,702.90

[33]        Net amounts, less income received

[34]        Net amounts, less superannuation received

Conclusion

120The proceeding should be dismissed. I will hear from the parties in relation to costs.

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