Zivanovic v Kanina Banner Pty Ltd (ACN 082 617 187)
[2020] VCC 1126
•30 July 2020
IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for Publication
Serious Injury List
Case No. CI-19-02887
MIRJANA ZIVANOVIC
Plaintiff
v
KANINA BANNER PTY LTD
(ACN 082 617 187)
Defendant
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JUDGE:
HER HONOUR JUDGE K L BOURKE
WHERE HELD:
Melbourne
DATE OF HEARING:
8, 11, 12, 13, 14, 15, 18, 19, 20 and 22 May 2020
DATE OF JUDGMENT:
30 July 2020
CASE MAY BE CITED AS:
Zivanovic v Kanina Banner Pty Ltd (ACN 082 617 187)
MEDIUM NEUTRAL CITATION:
[2020] VCC 1126
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Workplace injury – manual handling – foreseeability – causation – fibromyalgia – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985; Occupational Health and Safety Act 2004 (Vic); Occupational Health and Safety Manual Handling Regulations 2007 (Vic)
Cases Cited: Southern Colour (Vic) Pty Ltd v Parr & Anor [2017] VSCA 301; Czatyrko v Edith Cowan University (2005) 214 ALR 349; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; Chapman v Hearse (1961) 106 CLR 112; Wyong Shire Council v Shirt (1980) 146 CLR 40; Rosenberg v Percival [2001] HCA 18; 205 CLR 434; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Bonnington Castings Ltd v Wardlaw [1956] AC 613; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Swain v Waverley Municipal Council (2005) 220 CLR 517; Tucker v Westfield Design (1993) 46 FCR 20; GMH Ltd v Whetstone (1998) 50 SASR 199; Victorian Stevedoring v Farlow [1963] VR 594
Judgment: Judgment for the plaintiff.
APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr T P Tobin SC with
Ms A Smietanka
Zaparas Lawyers
For the Defendant
Ms R Annesley QC with
Ms B Myers
Wisewould Mahony
HER HONOUR:
Preliminary
The plaintiff was employed by the defendant as a medical scientist from November 2007 to 1 March 2010 (“the said period”). During that time, she alleges that she suffered fibromyalgia as a result of undertaking ELISA saliva testing duties (“the work duties”) which were repetitive.
The plaintiff seeks damages for pain and suffering and loss of earning capacity. The proceeding was brought both in negligence and breach of statutory duty, namely the Occupational Health and Safety (Manual Handling) Regulations (“the Regulations”) .
The defendant admits employment and now admits that it owed the plaintiff a duty of care at common law and contractually. It also admits that the work duties constituted “hazardous manual handling” pursuant to the Regulations.
The Particulars of Negligence included failing to provide a safe place and system of work, requiring the plaintiff to engage in repetitive movements using a pipette, requiring her to undertake an unreasonable workload and to work at an unreasonable pace, and ignoring her requests and those of her general practitioner for a lighter workload.
The Particulars were amended at trial to include failure to rotate the plaintiff’s duties.
Otherwise, the case was opened on the basis that the work duties were very repetitive, the plaintiff had to work very fast, the working conditions were antiquated – a lot of equipment was outdated or broken, work procedures were poor, there was poor ventilation, she was required to work unpaid overtime to complete her work, she suffered abuse, threats and pressure at the hands of her supervisor, Kyp Nerouppos (“Kyp”), and she made frequent complaints about her workload.
Counsel for the defendant submitted that these matters had not been established and/or the plaintiff had not established that they were causative of any injury to her.
Further, in its Amended Defence, the defendant alleged the plaintiff was guilty of contributory negligence, in that she failed to notify the defendant of any problems with the work duties or any medical problems associated with the performance of those duties.
Legal principles
The Court of Appeal in Southern Colour (Vic) Pty Ltd v Parr & Anor conveniently summarised the applicable principles as to the employer’s duty, factors to consider in determining whether there was a breach of that duty and whether the risk of injury was reasonably foreseeable.
As the employer, the duty owed by the defendant to the plaintiff is well established. It was defined by the High Court in Czatyrko v Edith Cowan University:
“… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”
As the Court of Appeal stated in Southern Colour, in order to determine whether the defendant breached its duty of care to the plaintiff, it is necessary to correctly identify the relevant risk against which the defendant was alleged to have failed to take adequate steps to protect the plaintiff.
Where the Court determines that a relevant risk of injury was reasonably foreseeable by a person in the defendant’s position, the Court is then required to consider the content of that duty thus owed by the defendant to the plaintiff in respect of that risk. In determining that question in Wyong Shire Council v Shirt, Mason J stated, in a passage that has since been consistently applied:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
In Rosenberg v Percival, Gummow J said of the Wyong calculus:
“This reflects the fundamental proposition that the law demands no more than what was reasonable in all the circumstances of the case. In the words of Barwick CJ in Maloney v Commissioner for Railways (NSW):
‘[T]he respondent’s duty was to take reasonable care ... It is easy to overlook the all important emphasis upon the word ‘reasonable’ in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances.’”
For the plaintiff to establish liability on the part of the defendant, I need to determine:
(a) was there any, and if so what, identifiable risk of injury to the plaintiff arising from her work duties?
(b) if so, was it reasonably foreseeable the plaintiff would suffer injury to her upper limbs as a result of undertaking the work duties? (being the identified risk)
(c) if yes to (b), what was the appropriate response of a reasonable employer in the defendant’s position?
(d) If breach is established – (ie if the response was not that of the reasonable employer) – was that breach a cause of the plaintiff’s injury?
The issue of causation is twofold in this case. Firstly, the defendant’s case is that the plaintiff’s fibromyalgia condition is not work related. Secondly, in any event, any response by the defendant to the plaintiff’s alleged complaint would not have reduced or eliminated the risk of injury.
Background – pre injury
The plaintiff, Mirjana Zivanovic, was born in June 1962 in Serbia. She is presently fifty-eight years old.
In Serbia, the plaintiff completed a medical qualification at Novi Sad University, graduating in 1989. During her studies, she took one year off to work as a nurse to earn some money. Following graduation, she practised as a general practitioner.
In 1997, she undertook further studies, completing a Graduate Diploma in Clinical Biochemistry from the University of Belgrade. She then obtained work in a hospital laboratory as a “doctor specialist in clinical biochemistry” as well as continuing to work in general practice. In this role, she analysed results and assisted with diagnosis rather than undertaking testing. She did not do any other rotations in that hospital. She only worked in the laboratory. She worked as a general practitioner after 1997 but “not every day”. Fifteen per cent of her practise was her private patients.
The plaintiff has twin sons, Branislav and Borivoy, born in June 1991, whom she raised whilst a single mother.
In 2003, the plaintiff met Zoran Juric, who was then living in Australia. They formed a relationship, married and the plaintiff migrated to Australia in December 2004 with her sons. At the time, she had formed the view that she wanted to leave Serbia where her sons, who were then nearly thirteen, would be obliged to do compulsory army service. She was also concerned at the time of the bombing by NATO forces using bombs that contained depleted uranium, causing ecological catastrophe.
Upon her arrival to Australia, the plaintiff did not work until her employment with the defendant. She lived in Werribee with her sons and her husband. Mr Juric was employed full time, working in the Sofitel Hotel kitchen. During 2005, the plaintiff was establishing her new life in a new country and did 500 hours of English classes as she spoke very little English before she came to Australia.
In early 2006, the plaintiff began further English studies in occupational English. She was at the time intending to obtain a job in a laboratory using her biochemistry qualifications. She then began a two to three-month course at Victoria University in 2006 in laboratory technician work.
Mr Juric died suddenly on 21 May 2006 and the plaintiff stopped her studies for a period of time. She then completed further studies at NMIT in 2007 in laboratory work and then undertook a work placement at the Royal Children’s Hospital for two to three months, where she did testing.
The plaintiff decided to become a medical scientist rather than transfer her medical qualification to become a doctor in Australia because at that time, she was on her own with two kids and she needed a job as soon as possible to organise their life. The process of recognition of her Serbian degree was time consuming, expensive and very complex so at that time and because she had to look after her boys and organise their life, she just put it as aside.
The plaintiff did not have any intention once she started work as a technical assistant of going back and doing medicine. Her “thinking” was once she got in any laboratory, she would be able to show how capable she was and she would rather stay in the laboratory.
Having been looking unsuccessfully for a job for a long time, the plaintiff commenced work as a medical scientist with the defendant, trading as “PathLab,” in November 2007 in its laboratory in Burwood.
The plaintiff had no health problems, either physical or psychological, prior to the said period.
The plaintiff was very enthusiastic about the job. It was not demeaning and she took it very seriously. However, she thought the tests being conducted were substandard.
The fact of the plaintiff’s employment with the defendant as a medical scientist is not in dispute in this case. The following are also not in dispute:
(a) The plaintiff’s duties were exclusively saliva duties and she was never rotated out of this job;
(b) The process for saliva testing;
(c) The fact that the process of saliva testing was not varied over the said period.
The parties agreed the following “Outline of Process” applied to saliva testing:
(a) a sample of saliva would be received in a test tube (with a screw top lid);
(b) saliva had to be prepared before it was tested. Each test tube would be frozen for at least two hours, then left to thaw at room temperature prior to analysis. This process was called homogenisation, to ensure the saliva samples were equal at the time of testing;
(c) after being thawed and reaching room temperature, there would be various tests undertaken on each saliva sample;
(d) on each sample of saliva there were a number of separate tests/ protocols conducted;
(e) the general process for one test protocol involved:
(i) using a single channel pipettor to place a small amount (example 10 microlitres) of chemical (Standards – 6 and controls – 2 for a total of 8) into the first column on the microplate. To do pipetting for the first column, each microwell is filled using a separate pipette tip in order to prevent contamination;
(ii) place the saliva sample into the microwell. This involved unscrewing the test tube, applying a new tip to the single channel pipettor for each patient, using a single pipette to obtain a sample of saliva, pipette the saliva into a microwell of the microplate, remove the tip from the single pipette to avoid cross contamination and screw close the lid of the test tube;
(iii) adding a chemical to each saliva sample using a multi pipette. The same tip can be used;
(iv) the micro trays are placed on a rotator or agitator to mix the saliva and chemicals;
(v) the micro tray is placed into an incubator for varying times depending on the protocol (up to three to four hours);
(vi) after incubation, the first chemical is emptied out into the sink;
(vii) the microtrap is washed with a solution to neutralise it. This involves using a multi-channel pipette to put the neutral solution into each microwell. The same tip can be used;
(viii) the process of washing out is repeated if necessary;
(ix) a further chemical is added to each of the microwells using a multi-channel pipette, using the process referred to in sub-paragraph (c). The same tip can be used;
(x) the micro tray is placed into the incubator for a second time;
(xi) the washing process is repeated using a multi-channel pipette;
(xii) using a multi-channel pipette, a colour or stop solution is added to each microwell. The same tip can be used;
(xiii) a microtrap is put into the microplate reader – electrophotometer – to count the concentration of hormone. The results are printed out;
(xiv) the results of the analysis are written up onto the worksheet.
During the hearing, there were two slight variations to the agreed “Outline of Process”. The plaintiff added two earlier steps. First, she had to take the samples out of the fridge and they had to be defrosted. Before doing the protocols, she was then required to vortex them for 20 minutes.
Mr Gelagotis added centrifuging of the samples between Stages iii-iv of the agreed process.
However, what is in dispute is the plaintiff’s workload and the number of saliva samples she had to test. Further, whether she worked any, and if so what, overtime after September 2008 is in issue. Ultimately, a crucial matter for determination is whether the plaintiff and or her general practitioner, Dr Gouras, complained to the defendant about any difficulties she was having with performance of the work duties during the said period.
Witnesses and the evidence adduced at trial
Evidence was given by the plaintiff and her twin sons, Branislav and Borivoy.
The only liability witness called by the plaintiff was Dr Brian Stephens, now aged in his 90s. He was the Chief of Integrated Medicine with the defendant for two to three years, twelve years ago.
In terms of the medical evidence, the plaintiff relied on her treaters, general practitioner, Dr Gouras, and physician, Dr Blombery, who both gave evidence. Reports from Professor Littlejohn, rheumatologist, and psychiatrists, Dr Stern and Dr Shan, who saw the plaintiff on behalf of the defendant, were tendered, as were reports from her treating rheumatologist, Dr Stockman, treating psychologist, Dr Hall, and medico-legal psychiatrist, Dr Lewis.
A number of the defendant’s former managers gave evidence on its behalf – Paul Gelagotis, general manager of PathLab, which he commenced through the defendant in the 1990s, Phil Pharonides, National Operations Manager of PathLab between June 2005 and February 2010 and Kyprianos Nerouppos, who was employed as a head of biochemistry from 2007 to February 2010 and towards the end of 2008 to mid-2009, was the plaintiff’s immediate supervisor.
Dr Kostos, medico-legal rheumatologist, also gave evidence.
The reliability of certain witnesses
Plaintiff’s submissions
The Court should view the plaintiff as an honest, hardworking and impressive witness. She is an accomplished woman who has, despite her significant injuries, worked hard to mitigate her loss over the last ten years. She has a strong work ethic and strong work history, as Dr Stephens described.
The plaintiff’s evidence is consistent with what is recorded in the documents and with the evidence of other lay witnesses.
The plaintiff makes concessions regularly against her interest. Examples include her evidence she said she did not see the fax sent by Dr Gouras to the defendant and she says it is “amazing” to be back at work. She does not exaggerate her evidence about the extent of her incapacity nor paint the picture of someone who is completely incapacitated. The bulk of the medical evidence is that she does not display abnormal illness behaviour. To her credit, she has re-trained and since December 2019, obtained work with Peninsula Health.
The plaintiff’s evidence about her work history, her intentions to work in a laboratory in Australia, her lack of intention to study medicine until 2011 and her difficulties around the home is corroborated by the evidence of her sons, who arrived in Australia with little English skills at age thirteen and managed to graduate from prestigious universities and hold down good jobs. The fact they paid for her study and helped in the home is also totally consistent with the plaintiff’s evidence as to her need for help.
Defendant’s submissions
The plaintiff’s case is almost entirely reliant on her evidence as to the system of work, the method of testing, the need to work overtime, and the bullying nature of Mr Nerouppos.
Further, Dr Stephens gave limited supportive evidence on behalf of the plaintiff and in important matters did not support her – such as report of injury, the need to authorise overtime and Mr Nerouppos’ manner.
The Court ought to apply a critical and cautious approach in respect of the plaintiff’s evidence in circumstances where memories fade with time, the defendant ceased trading ten years ago, the understandable lack of documents and those provided having been produced by the plaintiff.
In these circumstances, the level of scrutiny increases, and in considering the plaintiff’s reliability as a witness, the Court ought to have regard to the fact that:
(a) She is a highly intelligent and highly educated woman;
(b) She has worked and continues to work in roles that are intellectually challenging and demanding;
(c) She is a determined and driven woman, who is extremely ambitious for herself and her family;
(d) At all times during the said period, the plaintiff was willing to and did act in a confident manner. A perfect example being her evidence that she was denied a day off for Serbian Christmas. She took the day off anyway and on her own evidence, lied by saying she was sick. Her evidence is inconsistent with the defendant’s letter of 9 January 2009 noting she failed to notify her employer at all. It is inconsistent for a woman who claims to have been “fighting to survive” and desperate to keep her job, to so blatantly snub her nose at her employer. It showed defiance. It showed confidence and it showed an ability and willingness to act independently and as she wanted to. The evidence that she was fighting for her life ought not to be accepted. Any suggestion that the plaintiff was a cowered immigrant worker ought not to be accepted.
The Court ought not to accept the plaintiff as a reliable witness because her evidence demonstrated:
(a) A lack of candour both to the Court and a past tendency to lie when it suited her;
(b) A flawed memory which was at times selective, at times implausible and at times reconstructed;
(c) Inconsistency – both in her own evidence and with the evidence of other witnesses;
(d) Vagueness, and it was unimpressive as to her recollection of what occurred; in particular, the complaints she made.
On the balance of probabilities, it is unlikely to be true the plaintiff had a good memory of events thirteen years ago as she maintained and that she demonstrated considerable lapses in memory, in particular as to the complaints she made.
To the extent there is a divergence in evidence between the plaintiff, on the one hand, and Messrs Gelagotis, Nerouppos, Pharonides and Dr Stephens, on the other, the Court ought to prefer the evidence of these defendant witnesses and Dr Stephens. They were all impressive witnesses who gave evidence in a straightforward manner, making appropriate concessions. Further, none of them really have any relationship now with the defendant.
Findings
The plaintiff is an intelligent, hardworking woman whose efforts have almost been rewarded by obtaining her full qualifications to practice as a doctor in Australia. She has also successfully raised two sons, who were high academic achievers and have now undertaken significant work roles.
However, during her lengthy time in the witness box, I found the plaintiff’s evidence to be unsatisfactory for a number of reasons.
The plaintiff tended to add more detail to her evidence as her case progressed in relation to significant matters such as her knowledge of Dr Gouras’ phone call.
Initially, the plaintiff said Dr Stephens had finished at PathLab by September 2008 but then said he remained there but Kyp became her supervisor.
Further, it became apparent when confronted with her resumé in cross-examination, the plaintiff had significantly understated her work as a general practitioner in Serbia in the seven years leading up to her arrival in Australia. In my view, she did this to support her contention that she intended to work as a medical scientist in Australia, not as a general practitioner. The description of her work in general practice in Serbia went beyond simply “talking up” her experience to try to get a job as a general practitioner in Australia.
The plaintiff also described in her resumé engaging in a range of testing in addition to saliva testing at PathLab. She agreed this was incorrect but it was something that made her look better. Further, she admitted - “It was kind of not true” that she had only worked in a laboratory at the Hospital in Serbia after 1997. She had also worked in a range of different departments as set out in her resumé. She did not lie in her resumé. She selected what would be important to help her and agreed –“it’s selective Yes”.
I do not accept the plaintiff’s explanation that when she “addressed gaps in work/practise history in her resumé” she did not have an intention to practice as a doctor but had to explain the gap in her work and that was an easy way to explain it as AHPRA would not have been interested in her PathLab work.
In my view, the plaintiff also tended to downplay her level of activity after leaving the defendant’s employ. Her viva voce evidence as to her carer role was much less involved than her description in her resumé of looking after an elderly person with “complex medical issues”. As his full-time carer, she was responsible for looking after him during the day, at a time both sons were studying at university.
Further, the plaintiff made no mention of volunteering for St John’s Ambulance, evidence given by her son. This is a role which would involve an extra burden on her arms at a time when she said she struggled to do the housework. Also, the true extent of her involvement in work experience/placements in general practice before 2019, only became apparent in cross-examination.
In the absence of any corroboration, I do not accept the plaintiff’s description of Mr Nerouppos as a supervisor who often screamed at her and threatened her quite often, particularly when Dr Stephens, called on her behalf, described him as a “friendly, quite likeable person”. His evidence was totally inconsistent with the plaintiff’s evidence that there was a culture of pressure and bullying at PathLab.
I do not accept the plaintiff was “fighting to survive” while under Mr Nerouppos’ supervision as she described. This is an exaggerated description of her situation given her ability to continue working without time off or the need for significant medical treatment at that time. It is also inconsistent with Mr Nerouppos’ offer to the plaintiff after the Confidential Memorandum in February 2009 to meet and discuss her work issues. There is no suggestion thereafter, or earlier, by any other witness, of any threat to her job.
I was also troubled by the plaintiff’s explanation of Mr Rokic’s involvement in her litigation, claiming he only attended the solicitor with her because he could not be left alone at home when Branislav agreed he had liaised with solicitors on her behalf, probably since about 2013-2014, before which, Mr Rokic had been basically managing the claim on the plaintiff’s behalf.
The other witnesses
The plaintiff’s sons gave evidence as to her lifestyle and health before and after the said period. They both had limited recall of her condition pre-injury as they were only teenagers. Obviously, the plaintiff and her sons have always been a close family and they have provided support for her both emotionally and financially. Branislav has played a more active role, managing the plaintiff’s case on her behalf since about 2014. He has been critical of her former solicitor’s conduct of the case.
Dr Stephens was a truthful witness who did his best to recall the plaintiff and her involvement at PathLab; however, his memory was very vague, not assisted by his advanced age.
Messrs Nerouppos and Pharonides gave evidence in a straightforward manner, making appropriate concessions. I had some concerns however as to the reliability of Mr Gelagotis’ evidence, given the rather inadequate pre-trial discovery undertaken by him, as became apparent during the hearing, when he had earlier deposed he had made all due and proper enquiries.
Dr Blombery’s evidence was somewhat of a “moving feast” when diagnosing the plaintiff’s condition. His comment that he “popped” in the myofascial diagnosis because he read about it recently was particularly unsatisfactory, as was his remark that he had not bothered to read Dr Kostos’ report.
Although I ultimately rejected his opinion, Dr Kostos’ evidence was straightforward and consistent.
Dr Gouras’ evidence was at times confused and difficult to understand. He clearly had a history of a work involvement in the plaintiff’s condition before 2012, even on his own evidence, but maintained he was not aware until March 2012. Of concern was his very limited notetaking compared to the amount of detail contained in his reports. Further, he was willing to provide a reference for the plaintiff when he knew little about her medical background. However, I accept that he did not intend to deceive by adding a handwritten note in 2019 to the plaintiff’s first clinical entry in September 2008. By that time, he had already provided his original unmarked notes to the defendant’s lawyers. When he was asked, he readily agreed that he wrote the note later. He, however, had written the plaintiff’s job title and employer name at the time of her first visit and also had the history of the plaintiff undertaking constant pipetting from Dr Stockman by 17 September 2010.
ISSUES IN DISPUTE
(A) A number of samples tested daily
The plaintiff’s evidence is that the number of saliva samples that she had to test each day using the ELISA process ranged from 80 to 200. The average was 100 to 120 samples. Most days there would be 700 tests involving 100 samples.
Mr Gelagotis accepted that the plaintiff’s work duties involved repetition. He also accepted that in respect of the movements:
(a) Pipetting one sample into one micro-well involved two pushes of a single pipette;
(b) If there are 120 samples, this involves 256 actions of the pipette to fill up the micro-wells with standard and saliva samples;
(c) If there are 120 samples, for each other event/procedure if there is used a multichannel pipette, there are 32 uses of the pipette;
(d) This would equate to 256 + 32 prior to putting it into the incubator (total – 288);
(e) If these 120 micro-wells had to be washed five times, that would be another 160 pipette actions if you are using a multichannel pipette (5 x 32) (total – 448);
(f) If there are 120 samples and another chemical was added after washing, that is another 32 movements (total – 480);
(g) There was then added then added the stop colour solution – 32.
In summary, there were 512 movements required for each of the 7 protocols.
Dr Stephen’s evidence was that the number of samples that would come in each day would vary. It would also depend on whether there were common hormones to the male profile which were common to the female profile.
Defendant’s submissions
The defendant’s case was that the plaintiff undertook significantly less testing in a working day than she described.
In his answer to Interrogatory 1, Mr Gelagotis, from memory, thought 100 to 150 saliva samples were tested daily. His evidence was to the effect that the number of tests performed on each sample varied – it depended on which individual tests or group of tests was ordered by the relevant doctor. If a group of tests was requested, that would be either a female profile (4, later 6, tests), a male profile (4 tests), or cortisol (5 tests).
However, the best evidence as to the volume of tests performed at the laboratory during the relevant period is the spreadsheet summarising results for July 2008 (“the spreadsheet”). It reveals that over the 23 working days that month, a total 6,511 saliva tests were performed – an average of 283 per day across the whole saliva department.
No successful challenge was made to the accuracy or validity of the spreadsheet figures. This contemporaneous documentary evidence should be preferred to both the plaintiff’s and Mr Gelagotis’ memory on this issue.
Given that there is no evidence that the volume of testing in July 2008 was in any way unusual or that volumes varied materially over time, the Court ought to find that the spreadsheet is indicative of the average test numbers in the Integrated Medicine Department throughout the said period.
283 tests per day equates to about 3.5 assays on average per day (283/88 ) – not 7 or anything like it. The plaintiff’s evidence as to the number of tests she performed each day (700+) is approximately 2.5 times the figure of 283 revealed by the spreadsheet. It is also inconsistent with Mr Gelagotis’ unchallenged evidence that hormones were tested singly or in batches – E1/E2 – rather than doing all possible hormones on each sample in one day.
Mr Nerouppos said there would have been at least two or three other staff involved in saliva testing during the said period. Further, it was not put to him that the plaintiff was required to do 700 tests a day. Dr Stephens did not give evidence that the plaintiff was required to perform 700 tests or that she was required to test 7 hormones on each sample.
Plaintiff’s submissions
The plaintiff’s evidence about the number of tests should be accepted and is supported by Mr Gelagotis’ answer to Interrogatories. It is only following the discovery of the spreadsheet, a number of days into the hearing, that he changed his answer.
The evidence of the spreadsheet should not be accepted as it contains inconsistencies. Mr Gelagotis first said it contained the number of tests conducted by PathLab and then subsequently, in cross-examination, changed to a concession that some of those tests were referred to an overseas laboratory.
Mr Gelagotis’ evidence was that the hormone, androstenedione, was never tested by PathLab, which is inconsistent with the document produced by Mr Bill Anton. He also says that some of the fields recorded as “services” are a text field and not a numerical result.
Mr Gelagotis impresses as someone who has made no real attempt at discovery (despite swearing an affidavit that he made all due and proper enquiries), previously saying that all documents were destroyed, and now in evidence, saying that there was a server that was in fact given to Dorevitch, risk assessments were on that server and that there was an external OH&S consultant involved in the production of the risk assessments.
As the Affidavit of Documents and Answers to Interrogatories were silent as to these documents, the Court should treat this evidence sceptically. The defendant could have made further enquiries, including via subpoena, to obtain these documents and/or alternatively, the plaintiff could have, if this information was provided in the defendant’s answers.
Findings
While it was ultimately conceded it could not be established the defendant was negligent on the basis of simply the amount of testing involved, I am not satisfied the plaintiff undertook 700 tests per day as she described.
The spreadsheet, albeit for only one month, detailed on average 273 tests per day for the saliva department.
The plaintiff’s evidence was she was not the only saliva tester, naming a number of other testers in that department. This was confirmed by Mr Gelagotis, Mr Nerouppos and Dr Stephens and is consistent with the 2 October 2008 minutes detailing a number of attendees at a saliva meeting and a decision to add further staff to the department. The plaintiff attended these saliva meetings which were held every two weeks. Further, Mr Knight was clearly working in saliva testing as his diary entry confirmed.
The warning letter simply confirms that on one particular day, 7 January 2009, the plaintiff was the only worker engaged in saliva testing.
Further, I accept that whatever number of samples tested daily, not every sample required 7 tests.
(B) Overtime – Workload
A lot of time during the hearing was dedicated to whether or not the plaintiff worked unpaid overtime after August 2008. There is no Particular of Negligence which alleges that making the plaintiff do overtime constitutes a breach of the employer’s duty of care. However, the issue of overtime and the plaintiff’s workload over the said period forms part of the factual matrix of her complaints.
Counsel for the plaintiff submitted the need to work consistent overtime was consistent with a heavy workload. Leaving aside the volume of tests undertaken by the plaintiff, the evidence from her and Dr Stephens is that her workload was onerous and as at July 2008, required her to work on average two hours of overtime per day to finish.
Dr Stephen’s evidence
Dr Stephens described the plaintiff’s workload as “quite heavy” and that there was “always pressure at PathLab” and that it was a “very busy section of the general lab”. He described the process as “100 per cent manual”. He would see it every day. When he spoke to the people he was responsible for “it was obvious that it was a very heavy workload”.
Plaintiff’s evidence
After two to three months working with the defendant, the plaintiff began working earlier each morning to do overtime because she had to finish her tasks. She was paid for that work. The pay sheets from November 2007 to September 2008 indicate she was unable to complete her work duties in her 8-hour day.
The plaintiff was regularly paid overtime from the fortnight ending 1 April 2008 to 3 August that year for between 16 and 21 hours, with 29 hours of overtime in the fortnight ending 25 May 2008. This pattern, of about two hours’ overtime a day, continued to September 2008, consistent with the plaintiff’s evidence that she was regularly working 10-hour days, although her shift was 8 hours.
As of September 2008, the overtime payments suddenly stopped. The plaintiff’s evidence was that she continued to work extra hours but was not paid for them. She complained about her workload and complained it was causing her injury.
The plaintiff had no control over her workload, each morning being required to print a list of samples that she would be required to test that day.
The plaintiff had difficulties completing her duties within eight hours because of the workload, the fact the saliva samples were not properly defrosted or prepared and difficulties with equipment, including the multi-channel pipette being blocked by biological materials. She also had difficulty with achieving accuracy of results, and the results were unreliable.
The defendant was aware until September 2008 that the plaintiff was being paid regular overtime and that she could not complete her job in the eight hours. The witnesses all agreed that there was no change in the process or her workload during the said period. The defendant, through its management staff, also knew the plaintiff continued to work overtime as staff would have a clear view of her desk after 2.00pm.
There were entries of overtime in the “Saliva/Endo Comments book” at PathLab in January and February 2009 for which the plaintiff was not paid. Following a saliva meeting, the company owners suggested the book be completed for everyone to put their impressions and comments.
The book was filled out for one month. The plaintiff realised no one was reading the notes so she stopped writing them. The book was not used after February. She did not get any feedback from her comments.
The plaintiff recorded complaints about the samples in the book on 20 and 30 January and 11 February 2009. On 10 February 2009, she noted Kyp was informed about the number of kits. An entry on 23 February 2009 simply read “3.10”.
The following entries related to overtime:
• 13 February 2009 – “its 13th Friday (2.00 am) Sorry guys, I’m really wanting to finish but I cant. The counter is blocked. Why? … .”
• 18 February 2009 - “this morning I found saliva kits out of a cool room. Is not a first time! Its 4.05 pm/10 hours.”
• 19 February 2009 - “6.00 pm/12 hours.”
• 20 February 2009 – “4.00 pm (10 hours) E1/E3 runs (13,17,18,19 Feb didn’t work again).”
There was also one entry by Ken Knight on 22 January 2009. He noted a request for retesting by a Western Australian doctor. He advised that results are to be rung through as soon as available. Results are not to be reported. He also noted the salivary specimen was located in the cold room and was put aside separately in a marked rack.
Further, a “Confidential Memorandum” from Mr Nerouppos to the plaintiff dated 26 February 2009 mentioned, inter alia, that her work was inadequate because of her inability to ensure that all saliva batch assay work was completed by the 2.00pm deadline when her rostered shift ended.
The plaintiff’s evidence is that she generally was unable to take a lunch break or morning tea break because of the nature of her job. She had to complete her workload that day because of turnaround time pressures.
The plaintiff regularly worked overtime - “Because they have so many problem[s] regarding the procedure, the equipment was worn out, the amount of job, the volume of daily job was becoming bigger and bigger …”.
The “two Marias” helped with the workload from time to time but not every day. The plaintiff cried at work as she felt helpless, and this was observed by both Marias.
Plaintiff’s submissions
The plaintiff having done unpaid overtime was totally consistent with fact there was no process change at or after September 2008, as she had to do it to complete her tests up until that time.
The plaintiff’s evidence as to the amount of her workload was also supported by Dr Stephens’ evidence and the documents, including the overtime paid until September 2008 and the communications diary.
The plaintiff’s evidence that management encouraged and/or implemented the communication book is supported by co-worker, Mr Knight’s, entry, a person who Mr Nerouppos says had supervision in the area. Mr Nerouppos, while he cannot recall this specific book, gave evidence that a similar book was used in the Biochemistry area.
Having been taken to the communications diary, Mr Gelagotis accepts that “it’s possible” that the plaintiff was doing overtime on a regular basis to complete the number of tests. He says he recalls the plaintiff “vaguely. Not great in any event.” Mr Nerouppos says he has no memory of the plaintiff at all, so does Mr Pharonides.
Mr Nerouppos does not recall the communications book but says he is “100 per cent sure that something like that would have existed” and agrees that the comments in that book show the plaintiff was working overtime. Mr Gelagotis’ evidence supports the plaintiff’s as to her inability to take breaks due to workload pressure, saying that the protocols are time dependent.
There is no evidence to contradict the plaintiff’s evidence. At its highest, the evidence of the defendant’s lay witnesses is that they do not recall. Notably, the defendant called no evidence from witnesses who worked with the plaintiff, including either Maria, Ken Knight or any other person in the saliva team.
There were a number of further matters relied on in support of a submission that the plaintiff worked alone in saliva; however, as the plaintiff’s own evidence was not to this effect, I reject that submission as noted earlier.
Defendant’s submissions
The issue of overtime in respect of liability is a “complete red-herring”. It can only be of relevance to damages. Further, the only evidence of regular unpaid overtime being worked is given by the plaintiff. The objective evidence does not support such a finding. The plaintiff is not a reliable witness and the Court ought not to accept her evidence on this issue.
Even if the Court accepts the plaintiff’s evidence that she was doing 10-hour days on a very frequent basis post August 2008, it was submitted that nothing turns on whether or not the plaintiff was doing overtime:
• If the system of work was reasonable, it matters not that the plaintiff did it for 8 hours a day or 10 hours a day;
• There is no evidence that can support a finding that doing the work duties for 8 hours as opposed to 10 hours would have reduced the risk of injury or prevented injury to the plaintiff.
The communications book is not evidence which supports a finding that the plaintiff was working very frequent overtime, paid or unpaid. The plaintiff said she filled it out over January and February 2009. The leave records indicate that she had only one day off during that period. She worked a total of 42 days.
The plaintiff produced nine entries she had made during that period. Of the nine, extra hours worked were noted on five occasions. One of the five was approved. Another of the five was the only time in her employment that she was called back in, having previously left for the day. For both of these, she was paid. With respect to the remaining three entries, the plaintiff says she worked overtime and was not paid. It was submitted that 3/42 or 5/42 days is not frequent, let alone very frequent overtime.
The consensus of evidence is that the number of tests remained consistent throughout the plaintiff’s employment. Contrary to what was put to a number of witnesses, that there was no change in the saliva department post August 2008, the department minutes of 2 October 2008 support a finding that a review was undertaken of the saliva testing department, including protocols/staffing levels, and that staff either returned to the department or that additional staff were recruited into the department.
The plaintiff said she could not finish her job on time because “they have so many problem[s] regarding the procedure, the equipment was worn out, the amount of job, the volume of daily job was becoming bigger and bigger”.
This evidence was not put to any witness called on behalf of the defendant as the reason/s that the plaintiff could not finish her job. There was no evidence that over time, the volume of work increased at PathLab. There was no evidence of what unidentified problems the plaintiff had with the procedure.
The plaintiff’s evidence was that she very frequently worked 10-hour days. Her evidence about whether she sought approval for overtime after July 2008 vacillated. She initially said that “Kyp” had refused to sign her overtime and told her if she did not like the job she could go. Subsequently, she agreed that Kyp had told her that he had nothing to do with approving her overtime. She further gave evidence that after the first fortnight of Kyp being her supervisor, she stopped asking for overtime.
The evidence of Messrs Gelagotis, Nerouppos and Pharonides was that overtime had to be approved prior to it being worked. The objective evidence is consistent with their evidence:
• an extra hour was sought, approved and paid; communication book.
• The pay records indicate that the plaintiff was paid overtime in the fortnight ending 15 February 2009 – which coincides with the entries of approved overtime on 11 and 13 February 2009. There is an inconsistency between the hours that the plaintiff said she worked that week by reference to the 2.00am entry on 13 February 2009 – this is more likely to be a mistake by her but is, in any event, immaterial. The fact is when she worked approved overtime, she was paid.
The Confidential Memorandum is consistent with the system of work being that identified by the defendant witnesses. It came to Kyp’s attention that the plaintiff was not finishing on time. It appears that an issue of re-running tests was identified, assistance and instruction was offered and there is no further evidence (other than that of the plaintiff) of continued working of overtime thereafter.
The absence of any further memorandum suggests that any issues which the plaintiff faced in completing her work were addressed and she no longer worked additional hours. It can be inferred from the Confidential Memorandum and Mr Nerouppos’ evidence that if the problem had been ongoing, it would have been addressed. There are no more communication book entries provided after the 23 February 2009.
Findings
I accept the saliva testing was time dependent, as Mr Gelagotis described. There were pressures at PathLab, as in any private laboratory, in terms of turnaround time for samples, as Dr Stephens explained.
It is not in issue that the plaintiff worked on average 2 hours’ overtime per day for which she was paid until September 2008. Thereafter, although she says she consistently worked similar hours, she was only paid for 3.8 hours, overtime approved early in 2009.
I am not satisfied the plaintiff consistently worked overtime after September 2008 for which she was not paid.
All defendant witnesses confirmed that payment of overtime required approval. It would always be paid if approved. There was no reason why the plaintiff would not have been paid overtime if she worked the hours and approval was given. This usual process was followed in early 2009 when she was paid for 3.8 hours that was authorised.
Mr Pharonides agrees if the plaintiff was working overtime to complete her work and not being paid for it, that would be known to lab management including Mr Nerouppos, and it would be completely contrary to company policy.
While the Confidential Memorandum confirms the plaintiff was having difficulty completing the work duties in the normal eight-hour day – by 2.00pm – this does not prove she was regularly working overtime and not being paid for it. The lack of follow up after that letter suggests there was no longer a problem after that date with her completing her work duties in the usual hours.
If the plaintiff was working regular overtime as she claimed, the Comments Book covering 42 days in early 2009 would have contained details of these extra hours on a regular basis. There were only nine entries of extra hours for which she was paid on two occasions – the one authorised by Mr Knight and the other time when the plaintiff was called back in to work after she had finished her daily shift. The last entry in the book was in late February. The plaintiff continued in the defendant’s employ for another year thereafter.
Further, the plaintiff’s evidence as to who authorised the payment of overtime and the manner in which it was paid is contradictory.
(C) Complaints to the Defendant
In summary, the plaintiff’s evidence is that she complained to Dr Stephens and Kyp about her pain and difficulties undertaking the volume of testing. Further, Dr Gouras also made the defendant aware of the plaintiff’s medical condition, asking that “attention be given to her duties, so her symptoms do not deteriorate further”.
Complaint to Dr Stephens
Plaintiff’s evidence
The plaintiff began to experience pain in July or August 2008 in her hands and wrist and this pain was occurring at work during the day, particularly at the end of the day, and since then she has never been free of pain.
Dr Stephens was the plaintiff’s supervisor in the first eight months of the said period. She asked him for help with the “whole procedure and the whole system”. She asked him if it was possible to do the whole job in eight hours. He could not help her. He told her “this job must be done during [the] day. So does not matter what time it takes me to be done.”
Dr Stephens left in September 2008 and then Kyp started supervising her. In cross-examination, the plaintiff said Dr Stephens continued working with the defendant “to the end”.”
Later, in examination-in-chief, when asked the leading question: What did Dr Stephens do when she complained of the pain and not being able to do the job within 8 hours? The plaintiff said he told her: “I understand it, but that we have to finish our job … So stay the time and the hours you needed, just we have to have it done.”
Dr Stephens usually authorised the plaintiff’s timesheet. Sometimes, when she complained to him, he would help her do her work by taking the samples and doing it by himself.
The plaintiff was complaining to Brian Stephens and later on Kyp, and because she was ignored by Kyp, not by Brian Stephens, she did not have enough courage to raise the question at a saliva meeting. Everything remained the same after the October 2008 saliva meeting. Extra staff did not help her.
Dr Stephens’ evidence
Dr Stephens, who is now aged ninety, was the defendant’s Chief of Integrated Medicine for two to three years ten to twelve years ago. He worked with the plaintiff and had a high opinion of her work ethic. He had no criticisms of her whatsoever. She was assigned principally to the salivary hormones endocrinology. He supervised saliva testing. He could not recall helping out with that testing.
Dr Stephens described the management style of Kyp as “one of friendly, a friendly supervision. He was quite a likeable person.”
Dr Stephens described the saliva testing workload as “quite heavy”. There was always pressure at PathLab coming from management. He could recall the plaintiff and another lady from Croatia working in this testing. He thought the whole organisation was below standard “… it was not a very reputable laboratory and [he] was quite happy to leave it”.
Dr Stephens did not recall the plaintiff making complaints to him about her workload. He believes she certainly found the pressure to be pretty heavy and he would certainly support her in that. He could see it every day. It was heavy because of the number of tests that were required and the results to be produced asap. He could not remember the number of tests and the time to get the results.
Dr Stephens agreed the pressure to turn around results is the “central thing in private pathology which is quite different from hospital pathology”. He never had any problems with the plaintiff’s work whatsoever. He would have ensured she was given assistance if she had any difficulties. He did not remember her identifying any injury to him from her work.
Defendant’s submissions
The plaintiff’s evidence regarding complaints was vague, both as to the timing and nature of the complaints made.
In examination-in-chief, her evidence was not clear as to whether she told Dr Stephens about pain in her hands. He could not recall her making any complaints to him about her workload, but would have ensured she was given assistance if she had had any difficulties. He had no recollection of her identifying any injury from her work.
On the evidence, the Court ought not to accept that the plaintiff complained to Dr Stephens about pain in her hands/arms, whether caused by her work or otherwise.
Plaintiff’s submissions
The plaintiff’s complaints started with her complaint to Dr Stephens. He thought the plaintiff was hardworking and did a very manual job. Inferentially, she was having to work 10 hours per week overtime to do her job.
The plaintiff’s evidence is that she asked Dr Stephens while he was her supervisor for help and that she complained about the quality of results and the system and the procedure. He told her that she had to do her job and it did not matter what time it took.
Findings
I do not accept the plaintiff’s evidence that she complained to Dr Stephens that she was experiencing pain as a result of undertaking the work duties.
In examination-in-chief, the plaintiff said she asked him for help with the whole process and procedure, querying whether it was possible to do it in eight hours, and he said he could not help her. He told her the work must be done no matter what time. She was getting paid overtime at that stage.
There was no mention in this discussion about any pain the plaintiff was experiencing. The topic was just her workload.
The plaintiff went on to explain that she first started to experience pain, but did not know what was causing it, in July-August 2008, when she had pain in her hands and wrists, and that Dr Stephens left in September 2008.
Then, in response to the leading question, the plaintiff then revisited this topic. She did not actually say she complained to Dr Stephens of pain, although she said she felt pain.
In my view, the plaintiff’s evidence of any complaint to Dr Stephens was very vague. The only mention of a complaint of pain was inbuilt into counsel’s leading question, not the plaintiff’s evidence which was about her workload being heavy. In any event, Dr Stephens authorised payment of the plaintiff’s overtime consistently in his period as her supervisor.
Further, Dr Stephens’ evidence was of little assistance to the plaintiff. He could not remember any complaint by her to him about her workload. He would have given her assistance if she had complained. Significantly, he could not remember her identifying any injury. Further, he described Kyp as a likeable person, not a bully who screamed at her as she told Dr Hall.
Complaints to Mr Nerouppos
Plaintiff’s evidence
The plaintiff made a complaint to Kyp about doing her work. In his first few months as manager, his response was “something very unpleasant”. He told her she could keep going with her job or she could go. He gave her no other advice about how to do her job.
There was no suggestion by Kyp or others in management that the plaintiff do another task or rotate in her tasks. She tried to ask a couple of times to rotate. Kyp told her there was no chance of a rotation and that she “can just keep going”. The only option she had was “just to keep going with the same job … if [I] don’t want, [I] can go”.
The plaintiff told Kyp about the pain in her hands and the amount of job, which she had difficulty finishing within eight hours. In response, he told her that she can continue with her job, and she can go if she does not like it.
After the first fortnight of work with Kyp, the plaintiff told him she had pain in her hands, and she did not know how she was going with the amount of work and that it was too much for one person.
In response, Kyp “proceeded the problem to the higher level of management, to Phillip”. Phillip then explained to the plaintiff why she could not be paid for the extra hours. He told her she was not capable doing this job. She was working too slowly and it was her problem if she could not finish within eight hours.
The plaintiff thought that she spoke to Dr Gouras later about her difficulties.
At the saliva meetings, the plaintiff did not complain about the workload and processes because she was ignored by Kyp and she did “not have the courage to raise the question at the meeting”.
In cross-examination, the plaintiff confirmed she told Kyp she had a problem with her hands, struggling with the pain. She found it so hard to accept that he could not remember her.
The plaintiff described Kyp as overbearing quite frequently. He screamed at her and told her she was stupid.
Mr Neurouppos’ evidence
Mr Nerouppos has no memory of the plaintiff. He could not recall her raising with him that she was having difficulty finishing her job within eight hours. He could not recall telling her to continue with her job or to go if she does not like it. He did not think that was something he would have said to someone who was complaining about difficulties with their work. The documents show he would have asked the staff member to sit down with him and he would offer any help in terms of improving themselves and getting a grip of what they had to do.
Mr Nerouppos could not recall taking a complaint of pain and difficulties with her workload by the plaintiff to Phillip. He had no memory of the operations manager at any time approaching him in relation to an injury or condition suffered by anyone in the Saliva Department.
Defendant’s submissions
While the plaintiff alleged that she told Mr Nerouppos in September/October 2008 that she had pain in her hands and that he escalated the issue to Philip Pharonides, who spoke to her, Mr Nerouppos did not recall any complaint being made to him by the plaintiff regarding her work duties or injury.
Mr Pharonides did not recall any complaint being made to him by the plaintiff regarding her work duties or injury. He had no recollection of receiving a call or a letter from Dr Gouras.
Mr Gelagotis was not aware of any complaint having been made by the plaintiff regarding her work duties or injury.
Both Mr Nerouppos and Mr Pharonides have long since left the defendant’s employ and have no stake in the outcome of this case.
The plaintiff had numerous opportunities to raise any difficulties she had with her work at regular departmental meetings. In evidence, she suggested that she did not raise issues about difficulties with her work at those meetings because she did not have the courage to do so.
This contention is completely implausible. The fact that the plaintiff did not raise difficulties in that forum is a further basis to reject her evidence regarding complaints.
Plaintiff’s submissions
On the plaintiff’s evidence, from at least September 2008, Mr Nerouppos, on the plaintiff’s evidence, was aware that her duties were causing her physical problems.
Despite her complaints, no changes were made to the system of work, the process or the plaintiff’s workload. All three of the defendant’s witnesses agreed with this, or at least did not remember. There is no evidence that any further training was given or any direction that the plaintiff do her job differently to reduce the workload – particularly pertinent in the context where she had no prior experience with saliva testing and she told the defendant this upon commencing her job.
Around the time Mr Nerouppos started supervising the plaintiff, both he and Phillip said that she was not going to be paid for overtime because of her incapacity to finish the job. The evidence is that the defendant was aware of her incapacity to finish her job at least early into Mr Nerouppos’ supervision around September 2008 when her overtime stops. Mr Gelagotis and Mr Nerouppos agree that the latter was the plaintiff’s supervisor from about September 2008 to mid-2009. The defendant would therefore have known the plaintiff was not being paid for overtime given Mr Gelagotis’ evidence that the process was that timesheets would be approved by the department head, as well as Mr Nerouppos’ evidence that if overtime needed to be authorised, the laboratory manager would go to “Philip” for authorisation.
The Confidential Memorandum and the diary confirm that the plaintiff was not completing the tasks in the allocated time. It is also clear from Mr Pharonides’ evidence that management must have seen when she was working extended hours.
No lay witness from the defendant says that the above did not occur and that the plaintiff made no complaints. Instead, all witnesses say they simply do not recall. Mr Nerouppos simply says he has no recollection of any dealings with the plaintiff despite the fact that there is documentary evidence that he gave her a warning and the memorandum. He does not recall these but agrees that based on the documentation, “it was brought to my attention at some stage obviously that this staff member could not finish the work on time”. He also agrees that Mr Pharonides would have known about the Confidential Memorandum because he would have talked to him about it before the letter was produced.
Findings
The plaintiff says that in about September 2008, she told Kyp of pain, problems doing the work within time, and he told her to get on with it or get out.
Kyp says, however, he cannot even remember the plaintiff. This is somewhat difficult to believe given his involvement in the “Serbian Christmas issue” and the following warning letter he sent to her in which he describes “several breaches which were basically very serious”.
Given the problem finishing her work by 2.00pm noted in the Confidential Memorandum, it is likely the plaintiff would have earlier discussed with Kyp her difficulty finishing her work within her regular hours. However, I am not satisfied that she told him of any physical problems or pain experienced by her when undertaking the work duties or that she asked that her duties be rotated or changed in some way.
Significantly, in his April 2009 fax, Dr Gouras alerted the defendant to the plaintiff’s pain and work difficulties. He then did not suggest any earlier complaints by her that had not been acted upon and that nevertheless, her duties remained unchanged. While the plaintiff’s memory of the Dr Gouras’ phone call is unreliable, on her version, Mr Pharonides did not seem to have known who she was, let alone have been made aware by Kyp of any difficulties the plaintiff was experiencing with the work duties.
Although he cannot recall the plaintiff, Mr Pharonides had signed the Confidential Memorandum in February 2009 and would have been aware of the matters therein when he signed. However, I am not satisfied he was aware of any injury suffered by her at that time.
Had Mr Nerouppos received the earlier complaints from the plaintiff as she described, it is likely they would have been mentioned in the February 2009 Confidential Memorandum. Further, following that correspondence, Mr Nerouppos offered to meet with the plaintiff and deal with her work issues. I can see no reason why his approach would have been different if the plaintiff had made the earlier complaints from September 2008 she alleged.
Further, I do not accept the plaintiff failed to raise any issue with the performance of the work duties at staff meetings because she was too nervous to do so. In my view, she is a strong, intelligent woman who would not have been daunted by a meeting environment to raise any issue of concern to her.
Complaint to Dr Gouras - the phone call/fax
Dr Gouras’ evidence
Dr Gouras’ letter addressed to Phillip Pharonides dated 3 April 2009 read:
“As per our phone conversation I am faxing you some info Re: Mirjana Zivanovic. This lady presents with symptoms of soft tissue injuries in her hands and arms. To exclude suspicion of carpal tunnel I referred her for EMG studies. They were normal. I believe some attention should be given to her duties, so her symptoms do not deteriorate further.”
Dr Gouras wrote this letter to Phillip because, prior to that date, he found that the plaintiff was suffering from pain in her arms which was caused by repetitive and strenuous work. He “wanted to request her employer change her duties or modify them”.
Dr Gouras could vaguely remember that he phoned the defendant “but could not state the contents of the conversation”. He had then formed the opinion the plaintiff’s symptoms were work related.
Dr Gouras does not fax documents himself. His secretary does it. When a letter is faxed, she writes on it or stamps that it has been faxed and the date.
Dr Gouras knew the sort of work the plaintiff was doing and “tried to help the patient and her employer to modify the duties so she can cope with her duties”. He formed the opinion her work was strenuous and he wrote to the employer.
While there was no confirmation the fax was sent, Dr Gouras believed it went to Mr Pharonides because he spoke to him first. Dr Gouras wrote “via fax” on the document. He “did not want to make an argument with the employer and involve Workcover”. He rang the employer “to make the conditions for the patient a bit better. Nothing to do with Workcover.”
Dr Gouras also wrote in the plaintiff’s clinical note of 3 April 2009 “rang her work,” “Phillip” and also a number.
Plaintiff’s evidence
The plaintiff heard Dr Gouras make a phone call during the course of an examination with him. She remembered him talking to Phillip, “a person in higher management of the company. Kyp was the supervisor.” She did not have regular contact with Phillip before that.
The plaintiff was there with Dr Gouras when a phone call was made to Phillip. She never saw a fax sent by Dr Gouras to her employer.
After the phone call to Phillip, the plaintiff does not remember there being any change in work when she went back, and no one ever mentioned the call. Neither Phillip nor Kyp came and talked to her at all about Dr Gouras.
In cross-examination, the plaintiff said that while she was present, she heard the name Phillip repeated by Dr Gouras. Philip just picked up the phone. The plaintiff heard Dr Gouras mention her name and the answer was “who is that person?” Dr Gouras asked about the type of job the plaintiff was doing and the answer was “there was not this type of job and he did not have any idea what Dr Gouras is talking about”.
Before he finished the conversation, Dr Gouras asked Phillip if there was any possibility to change the plaintiff’s job and for her to do something easier for at least some period of time. Dr Gouras told him the plaintiff had problems with her hands. Dr Gouras did implicate her work. The conversation was for maybe ten minutes. She remembered it because she “had a big problem at that time”.
Mr Pharonides’ evidence
Mr Pharonides does not recall any conversation with Dr Gouras. The suggestion that he answered the phone for the main number at PathLab is “completely incorrect”. He also has no recollection of receiving a letter from Dr Gouras “back in April 2009”.
The plaintiff never complained to him about her workload.
Mr Pharonides has no memory of the telephone conversation. He had no knowledge as at April 2009 that the plaintiff was having difficulty completing her work. He signed the Confidential Memorandum, re-signed as operations manager, but has no recollection of that event or the letter.
If the call had been made or fax sent, it would be necessary for him and the company to record that reporting of the injury and do something about it.
The number on Dr Gouras’ letter is PathLab’s fax number.
Defendant’s submissions
While, there is evidence that Dr Gouras telephoned the defendant and spoke to Phillip on about 3 April 2009, Dr Gouras does not recall the conversation.
The plaintiff’s evidence as to the conversation is not credible. First, she suggests that she did not give Dr Gouras the name of any particular person to whom he should speak, simply the main number. Yet, it is alleged that the phone was answered by the Operations Manager, Mr Pharonides.
Secondly, the plaintiff alleges that Mr Pharonides suggested he did not know the plaintiff. Thirdly, that Mr Pharonides denied that the defendant had the type of job Dr Gouras was referring to. Despite this, the plaintiff suggests that Dr Gouras asked whether there was any possibility of changing her job for a period. It makes no sense that Dr Gouras would have done so if the person to whom he was speaking denied knowledge of the plaintiff and her job.
Further, the letter appears only from Dr Gouras’ notes. The defendant does not have the letter and is unable to say whether or not it was received. At the top of the letter is the handwritten notation “via Fax 9808 2247”. The document itself does not record that it was faxed. Dr Gouras did not send faxes himself. The usual system in his surgery was that when a document was faxed, the date it was sent was noted on the document. He could not say whether or not the letter was in fact faxed to the defendant. There is no proof that it was sent.
A fair reading of the letter reveals that it does not purport to set out matters that were discussed in the phone call, but to provide “some info”. The content of the letter is consistent with little or no information having been provided by Dr Gouras to Mr Pharonides during the call. Importantly, the letter does not implicate work as the cause of any injury. Dr Gouras did not make a connection of the plaintiff’s condition to her work until 2012.
The Court ought not to be satisfied that any information regarding symptoms experienced by the plaintiff was imparted in Dr Gouras’ phone call.
On the evidence, the Court ought not to be satisfied that the letter was faxed to the defendant. This finding is supported by the evidence of management that if a report of injury were made to the defendant, it would have warranted an internal inquiry and an investigation as to what needed to be done to address the issue. Given that there is no evidence that such an inquiry or investigation was initiated, a reasonable inference is that notice of injury was not received.
Further, the plaintiff’s purported memory of the overhead conversation between Dr Gouras and Philip is implausible by reason of the passage of time, the fact that she was not a party to it, the limited length of the conversation and the fact that she only heard snippets of the conversation – effectively through what Dr Gouras said.
The plaintiff’s evidence-in-chief was limited only to being in the room when Dr Gouras made the phone call. However, in cross-examination, her evidence expanded when she was pressed, and gave the impression of being made up on the spot. It was inherently inconsistent. It makes no sense that Dr Gouras – in the face of a person denying any knowledge of the patient and/or the existence of any job – to continue a conversation about the work/seek details about it and/or blame work. Further, the conversation was inconsistent with Dr Gouras’ evidence that he did not have any history of the plaintiff’s work in relation to her injury until March 2012.
Plaintiff’s submissions
Following on from this lack of response by the defendant to her complaints, the plaintiff’s evidence is that in the first two to three months of 2009, her symptoms became worse and worse and extended to her neck and shoulders.
This is consistent with the plaintiff seeking further treatment from Dr Gouras during her annual leave, who ordered x-rays and an EMG to exclude carpal tunnel syndrome in March and April 2009.
In April 2009, Dr Gouras made a phone call to Philip Pharonides that was observed by the plaintiff. Dr Gouras then wrote a letter and asked his staff to fax it. This was the defendant’s fax number. The Court should accept, on the balance of probabilities, that the telephone call occurred and that the fax was sent.
No one from the defendant’s camp, including Mr Pharonides, says they did not receive it – they simply say that they do not recall. Mr Nerouppos has no memory of Mr Pharonides approaching him following the fax. Mr Pharonides does not deny the phone call took place he simply says he has no memory of it. He agrees that if either the fax was received or the phone call took place, it would have been necessary for the defendant to report the injury and do something about it, including reviewing the task that the worker was doing.
Further, the contents of Dr Gouras’ letter obviously link the plaintiff’s duties to her symptoms.
Findings
I am satisfied that the telephone conversation took place – with the correct phone number written on the plaintiff’s April 2009 clinical note. Further, it is likely the fax was sent to the defendant’s fax number, as was accurately noted on the letter.
I have no reason to believe that the letter would not have been faxed, although Dr Gouras could not remember doing so. His usual practise was a fax would be sent by his secretary. Further, while Mr Pharonides does not recall receiving the fax, he does not say he did not receive it.
Although Dr Gouras did not mention any WorkCover claim in the fax, it is clear the doctor was linking the plaintiff’s upper limb problems to her work. I am unable to see any other reason why he would ring the defendant and fax the letter in these terms if this was not the case – mentioning the problem with her hands and advising “some attention should be given to her duties, so her symptoms do not deteriorate further”.
In those circumstances, the defendant was placed on notice of a risk of physical injury to the plaintiff arising out of the performance of her work duties.
While I accept the defendant’s criticism of the plaintiff’s evidence of the phone call, I am satisfied, without her evidence, that the conversation took place and the letter was faxed.
Therefore, as at April 2009, the defendant was on notice of the plaintiff’s pain and difficulties with her work duties.
Question 1: Was there a foreseeable risk of the Plaintiff suffering injury to her upper limbs as a result of her work duties?
The first step must be to define the relevant risk. As I see it, the risk is that of injury to the forearms as a result of performing the work duties. The question is then whether this risk was foreseeable by a reasonable employer in the defendant’s position.
Defendant’s submissions
In the plaintiff’s role as a medical scientist, her laboratory work was ordinary and involved very light equipment. Her duties were inherently varied and very light – “she was not standing on a process line in a widget factory”.
The plaintiff required tertiary qualifications to obtain the job. It required skill, considerable technical precision and the ability to scientifically analyse data. It was not amenable to being undertaken at speed, with each assay taking a predetermined amount of time. Like any job, there was repetition; however, the job tasks were inherently varied – producing a work list, retrieving samples, centrifuging, pipetting interrupted by the need to obtain a new sample, open it, pipette, close it, return it before commencing a new pipette, limited further pipetting – incubation, analysis of results, reporting of results, trouble shooting and liaising with stakeholders. So in sum, there was nothing in the job process itself which could have alerted the defendant, or any reasonable employer, to the identified risk of injury to the upper arms as a result of the work.
Moreover, the plaintiff did not adduce any expert evidence to establish that the job was so repetitive as to be likely to have caused injury.
Objectively and prospectively viewed, a reasonably careful employer in the defendant’s situation would not have foreseen a risk of injury from performing the duties.
Plaintiff’s submissions
The defendant knew, or ought to have known, that the repetitive work undertaken and the extent to which overtime was required to complete the work, had the potential to cause injury. It is obvious and admitted that the work was repetitive. That it had the propensity to cause and was causing injury, was consistent with the evidence of all doctors that the repetitive nature of the work duties could cause injury, the evidence that in laboratories rotation is practised, the breach of the Regulations relied on, the plaintiff’s evidence of complaints from mid-2008 associated with her work, Dr Gouras’ phone call and fax and the general community expectation that high repetition of any physical act has the potential to cause injury.
However, in addresses, counsel conceded the requirement to do repetitive work may not be negligent. For the plaintiff to succeed, she would have to prove she complained to the defendant of her difficulties with the work process. As counsel for the plaintiff stated - “If this worker was doing this work and doing it without difficulty and without complaint and did it for an extended period, we would accept that there would be no negligence.” Further, as counsel conceded, “If the Court found there was no complaint, the plaintiff has to fail”.
Findings
In this case, there was no evidence of any prior injury to a worker in the defendant’s employ as a result of the undertaking the ELISA testing process. Further, there was no expert evidence that the work duties undertaken by the plaintiff were excessive and/or likely to cause injury.
In these circumstances, as counsel for the plaintiff accepted, the plaintiff would have difficulty establishing it was reasonably foreseeable she would suffer injury to her upper limbs as a result of undertaking the work duties.
For the plaintiff to establish foreseeability of the risk of injury essentially hinges on an acceptance of the plaintiff’s evidence that she advised the defendant, and or Dr Gouras did so on her behalf, of her physical difficulties performing the work duties. Having been made aware of her complaint, the breach would be the defendant’s failure to act on that advice.
I am satisfied the Dr Gouras’ phone call took place and the subsequent letter was faxed. This put the defendant on notice and thus, in the plaintiff’s circumstances, the risk was reasonably foreseeable as explained in Wyong.
Having been so advised via Dr Gouras’ phone conversation and fax, I am satisfied the defendant knew, or ought to have known, that the work duties undertaken by the plaintiff had the potential to cause injury. In other words, there was a reasonably foreseeable risk of injury to the plaintiff’s upper arms as a result of carrying out the work duties.
The plaintiff’s injuries cause her difficulty doing things at home including cleaning, ironing, cooking (putting things in the oven) and shopping.
The plaintiff has never been pain free since leaving work and is not pain free now. When she tries to do something her symptoms increase.
The plaintiff has been treated extensively by pain specialist, Dr Blombery, from 2012 to date.
The plaintiff has also had a psychological response for which she has been treated by Dr Hall since 2012. Psychiatrists, Dr Lewis, Dr Stern and recently Dr Shan, all consider she has suffered a work-related psychiatric injury.
Before she injured herself, the plaintiff enjoyed knitting, making cakes and cooking different kinds of meals. She has had to stop knitting since her injury. She has to ask her sons to cut vegetables or meat for her if she wants to prepare meals. She has to keep meals as simple as possible.
The plaintiff has had sleeping problems because of her injuries and requires the occasional Valium. She also continues to take medication including Tegretol, Tramadol or Panadol for pain relief.
The plaintiff has ongoing difficulties at her job, including with taking blood, inserting an IV, and she has to wear gloves when doing data entry at work.
It was submitted the plaintiff had an entitlement to substantial damages –
“… even if it is considered she has modest pain, which is a pain that increases with the range of activities which most of us have to do with our arms, and for which she is protected by her sons to a large degree.”
Further, there is no evidence that the plaintiff had any prior problems with her arms or any psychological condition, and no deduction should be made for this in line with the principles in Malec v JC Hutton Pty Ltd.
Counsel for the plaintiff submitted an appropriate allowance for pain and suffering damages was in the range of $200,000 to $250,000.
Defendant’s submissions
There is very little evidence as to what consequences the plaintiff has suffered as a result of any injury. Her condition has not held her back in any meaningful way.
There was very little impact on the plaintiff’s daily activities in terms of how she gets about, how she has been able to study, how she cared for Mr Rokic and how she has been working. Her real complaint is pain and that has been consistently low and is well managed.
The plaintiff’s pain does not stop her from doing a lot of activities. She exercises and likes to walk and there is no suggestion of any impact on her social life. At home, her sons help around the house but so they should as twenty-eight-year-old year old men. Any claimed interference with driving was not made out.
The evidence is that the plaintiff lived an isolated existence in Australia prior to work at PathLab. Her focus was her family and improving her English. Her children were younger, and her husband worked. She worked in the home. She had few friends. She drove only locally. She had not driven for years prior to any injury because she lacked confidence. She liked to cook. She enjoyed knitting but had little time for it once she started at PathLab.
Emotionally, prior to commencing at PathLab, the plaintiff had sadly been widowed. She had naturally grieved for her husband. She was despairing because of her isolation, lack of financial support and the need to care for and provide for her children.
Treatment has been minimal – primarily medication. The plaintiff saw a physiotherapist sparingly and saw a psychiatrist on one occasion on some sort of casual basis. There were no reports from these practitioners.
Medication has managed the plaintiff’s pain very well. Pain has been consistent – at a level of 3 to 4 out of 10. It has not stopped her from getting on with her studies, caring for Mr Rokic, with his complex medical issues, continuing to do housework, engaging in numerous work experience roles reliably and consistently over extended periods of time, volunteering for St John’s Ambulance and engaging in full-time work since December 2019.
The plaintiff says she no longer does the heavy aspects of housekeeping. Her sons say they do it all. It is difficult to see how this equates to a significant loss of enjoyment of life. She agreed she cooks less for her family because they are not at home as often. The boys go shopping with her because she does not drive. The role of the boys is consistent with three adults living in a shared household – the duties are divided up between the family, adult children contribute to the household – financially, physically and emotionally – as anyone might expect. There is nothing particularly unusual about it.
The plaintiff continues to exercise – walking one to one-and-a-half hours several days a week, swimming, going to the beach et cetera. She sees friends at their Sorrento beach house. She did not describe her social life being affected by her pain.
The plaintiff has not undergone any surgery, and no ongoing physical treatments are anticipated. Her medication reduced because of being back at work. She has improved over the last few years, as Dr Gouras confirmed.
The plaintiff’s prognosis is good – now that she is back at work and has got her life back. As she said to Dr Kostos, “It’s amazing to be back at work”.
If the Court finds, contrary to the defendant’s primary submission that the case must fail, then any award for pain and suffering damages ought to be no more than $80,000.
Findings
In my view, this is not a case which warrants pain and suffering damages of the magnitude suggested by her counsel.
While I accept that the plaintiff has had some ongoing pain for many years as a result of her fibromyalgia, as early as December 2012 she rated her pain overall as 4 to 5 out of 10. Of recent times, she consistently rates it as low as around 3 to 4 out of 10.
When she described her pain as 10 out of 10 to Dr Gouras in October 2013, he thought this was a “disconnect”. The plaintiff agreed she was probably exaggerating her pain that day “because she felt bad”.
Later that year, Dr Gouras noted a return to the previous pain level which has continued. He then thought the plaintiff could cope with her daily pain very well and was very happy with her progress. Nothing has changed in his later reports.
In March 2018, Professor Littlejohn thought the plaintiff will have low level symptoms fluctuating for some time years.
When last seen by Dr Blombery in 2019, the plaintiff rated her pain as 3 to 4 out of 10, and she told him it did not waken her from sleep.
The extent of treatment undergone is consistent with this level of complaint. The plaintiff saw rheumatologist, Dr Stockman, in 2010 and 2012. Save for medication, he offered little in the way of treatment, suggesting she do more exercise and housework. She then did not see him again.
The plaintiff has also undergone some acupuncture, noted by Dr Blombery. There apparently has also been some physiotherapy and a visit to a psychiatrist. There are no reports from those treaters.
Dr Blombery, whom the plaintiff continues to see about yearly, simply prescribes medication and has recommended no further treatment. Medication consists of the lowest dosage of Tegretol, intermittent Valium for spasm and occasionally for pain.
For many years – 2010-2016 – the plaintiff was able to act as Mr Rokic’s carer – with his complex medical issues – a significant role as she described in her resumé while also completing her medical studies and household tasks while the boys were studying full time at university.
Although there may be some restriction with heavier household tasks, one would expect the plaintiff’s adult sons, who continue to live at home, would provide some assistance in this regard in any event.
The plaintiff has had some difficulty sleeping, as noted in February this year by Dr Gouras and Dr Kostos. When Dr Blombery last saw her in 2019, she advised her pain did not wake her from sleep. She requires only an occasional Valium to help her sleep.
The plaintiff is still able to exercise, enjoying walking a kilometre and a half daily. She socialises with friends and enjoys hobbies like reading and spending time on the computer. While her ability to do handicrafts she previously enjoyed is limited by her pain, her work at Frankston takes a lot of her time.
I am not satisfied any inability to drive has anything to do with the plaintiff’s physical condition. She was not driving at the time of injury because of a lack of confidence.
There is no suggestion on the medical evidence that there will be any worsening in the plaintiff’s condition in the future. Her pain level has plateaued at a relatively low level for many years.
In addition to her physical injury, an allowance should also be made for the psychological effects thereof. The plaintiff has required ongoing counselling for many years from Dr Hall for psychiatric injury which psychiatrists, Dr Lewis, Dr Stern and Dr Shan, attribute to her work injuries.
Of relatively recent times, Dr Hall has described her psychological problems as “moderate,” noting that by 2017, considerable healing had taken place. She continues to take a moderate dose of antidepressants, prescribed by Dr Gouras, as maintenance.
Now that she is back at work, the plaintiff has got her life back. In her words - “It’s amazing to be back at work”.
Taking into account all the evidence, the figure of $130,000 is an appropriate sum for pain and suffering damages.
Loss of Earning Capacity – Past loss
Plaintiff’s submissions
The plaintiff is entitled to damages for her loss of earning capacity since March 2010 to late 2019 when she returned to work as a general practitioner, save for a small deduction for the contingency that she would have been unemployed for a short period between her redundancy and her next job.
The plaintiff was unable to study or work for the rest of 2010. As at February 2010, she had pain all the time and using her arms made it worse. At the time she was terminated and/or made redundant, she could not do anything because she had constant pain. She was unaware of any job she could do at the time. She was trying to think of what kind of job she could do without using her hands. She had to work on her recovery because of the pain and the disability she felt. She was thinking about a laboratory job she could do without using her hands.
The plaintiff’s intention in Australia was a “laboratory job”. The process of recognition of her medical degree from Serbia was “time-consuming, it is expensive and very complex” and she did not have an intention at that time to return to medicine. Her intention was that once she obtained work in a laboratory, she would be able to show how capable she was and stay in a laboratory. Had she not been injured, she would have continued to work as a laboratory scientist. She had post graduate qualifications in Serbia so she did not think she would get recognition of her medical degree ever because she believed she had her profession already. She saw no other option available to her after March 2010, apart from getting a medical degree.
As at 17 December 2010, Dr Gouras thought that the plaintiff was “unfit for any gainful employment”. In 2011, she began studying but she has only ever studied part time to date.
The plaintiff had difficulty studying and failed a number of exams because of her work-related injuries on her evidence, the evidence of her sons and the evidence of Dr Gouras, who was treating her contemporaneously. His reports (“TWIMC”) refer to her difficulties using her arms.
The plaintiff cannot do a job where she has to use her hands because she has pain.
No doctor says that the plaintiff can do her pre-injury duties or any other employment. No doctor proposes any job that the plaintiff could have done or would have been suitable, save for work as a general practitioner.
The defendant has no evidence in support of its proposition that the plaintiff could have worked in a job that she was qualified for, in the real world between 2010 to 2019. Dr Kostos thought it was likely that she would “never return to work”.
In addition to damages for past loss of earning capacity, the plaintiff should be entitled to a contingency for the fact that she might have been promoted.
Further, the fact that the plaintiff may now have a higher earning capacity, does not entitle the defendant to “offset” any increased earnings against the plaintiff’s past economic loss.
Calculation of past loss
The parties agree that as of 1 January 2010, the plaintiff’s employment as a medical scientist would have been covered by the Health Professionals and Support Services Award 2010 (“the Award”). This agreement, pursuant to Clause 15, mandates minimum wages for health professionals.
The parties agree that according to the offer of employment from Dorevitch Pathology, the plaintiff was classified as a “Scientist Gr 1 Yr. 6”, and that pursuant to the Award, she would have been classified as at 2010 as a Health Professional – Level 1, Pay Point 6.
If the plaintiff had remained a Level 1, Pay Point 6 employee, her wage increases according to the Agreement would have been from $44,460 in January 2010 to $59,550.40 in July 2019. If she had been paid according to the Award (without promotion), her salary excluding overtime would have totalled $464,002 to date.
In addition to this, the plaintiff should be allowed a contingency for the possibility of promotion.
Defendant’s submissions
The evidence supports a finding that the plaintiff intended to have her medical qualifications recognised in Australia. She only worked as a biochemist because she was forced to after the sudden death of her husband.
It was opened on her behalf that after Mr Juric’s death in May 2006, the plaintiff was left without financial support, with poor English and with two sons. She knew she had to obtain employment. Although she had been a medical practitioner in Serbia, she did not see it as possible with her level of English to achieve a transfer of her qualifications to enable her to practice medicine in Australia and so saw her training and qualifications in laboratory work as being the best prospect of being able to support herself and her sons. Her evidence was to similar effect – it was faster than if she went with a medical degree.
The plaintiff’s resumé states clearly that it was always her intention to practice medicine. She needed to be financially independent to do so. When she reached that point in 2010, she did what she always intended to do.
The plaintiff had extensive training and experience as a medical practitioner in Serbia. She had worked as a general practitioner in a clinic, then worked as a doctor in a hospital, whilst completing her hospital rotation. Whilst working in the hospital, she maintained her own private practice. Being a doctor was an occupation she clearly enjoyed.
It is implausible that a relatively young person, with the plaintiff’s education, intelligence and ambition, would forgo the opportunity to practice in her chosen profession, particularly in a country which encourages foreign trained doctors and in circumstances where practicing medicine would be significantly more remunerative than working as a grade 1 scientist. Further, the plaintiff had no experience as a scientist prior to coming to Australia.
The Court ought not to accept the plaintiff’s evidence that biochemistry was her chosen field. She was ambitious to move on from a simple scientist role – even before she commenced. “I believe once I get in any laboratory, I will be able to show – be able there how capable I am.”
Capacity/past loss
The defendant’s case is that the plaintiff has not established that any injury has been a cause of the loss she alleges, as she did not lose her employment at PathLab because of her injury and she did not stop work because of her injury.
The plaintiff accepted a full-time position, full duties doing the same job at Dorevitch. She was retrenched for non-injury related reasons. She then looked for work in the same industry. The evidence does not establish that she was unable to find work because of injury.
The plaintiff then made a decision to take herself out of the workforce to have her medical qualifications recognised in Australia – this was not related to her injuries. It was related to fact that she could not get work.
The plaintiff’s evidence that she “had to” return to work as a general practitioner because she had no other option because she needed a job without the use of her hands, is disingenuous and ought not to be accepted for a number of reasons.
Working as a doctor inevitably involves the use of her hands – to perform examinations, administer medicine, write notes, give prescriptions, take temperature – on a continuous basis. Further, studying to have her qualifications recognised involved significant use of her hands, as did working as a carer.
The assertion in her resumé that it was always her intention to work as a general practitioner is the truth. Her only prior work was as a doctor. The biochemist role was a short-term means to an end. Once the boys were through school and she had some financial independence and support from Mr Rokic, the plaintiff was able to undertake studies. She very quickly made the decision to do so. On her evidence, she commenced studies in mid-2010.
Further, Dr Gouras confirmed that the plaintiff has had a work capacity throughout the last six/ten years. Dr Blombery also opined that the plaintiff had the capacity for full-time work as a medical practitioner throughout the period that he has treated her, from November 2012 to date.
The defendant is not liable to pay damages for the period of time when the plaintiff has taken herself out of the workforce to retrain and not looked for a job.
On the evidence, the Court ought to accept that by 2014, the plaintiff was sufficiently qualified to work as a medical doctor. If she had been able to get a job, she would have worked full time in that role. The reason she did not get a job is not explained, but it was not injury related. Evidence of her son, that because she was foreign trained she was bottom of the pile, is most likely to be accurate. Similarly, the plaintiff struggled to find a job prior to PathLab. There is no evidence that the difficulty finding a job was injury related.
In all these circumstances, no damages ought to be awarded for past economic loss.
Findings
As I indicated during the hearing, I have significant difficulties with the plaintiff’s claim for past loss of earnings.
The plaintiff can only recover damages which are related to the fault of the defendant.
In general terms, I do not accept the plaintiff ceased work as a medical scientist as a result of any injury related to her work duties. Secondly, I am not satisfied it was her long-term intention to make her career as a medical scientist in Australia. In my view, it was a financial necessity at the time to work at PathLab and her ultimate goal was to obtain her medical qualifications and work in general practice as she had done in Serbia in the years leading up to her arrival in Australia in 2004.
The plaintiff ceased work as a medical scientist in March 2010 because she could not find a job, not because of any injury she suffered working with the defendant.
The plaintiff did continue to work after her injury and ceased for reasons unconnected to her injury, although she now says she did so because of her condition.
There is no evidence that the plaintiff would have ceased work with the defendant had it not been soId. She was able to work full time without the need for any time off for the entirety of the said period. She did not seek any certification from Dr Gouras restricting her duties in any way until two years later in 2012 when making a claim for compensation and backdated certificates were provided by him.
Significantly, the plaintiff acknowledged an improvement in her condition when “Nick” took over the supervision of her work duties from October 2009.
This was the plaintiff’s situation at the time the defendant’s staff were all transferred to Dorevitch in early 2010. She was then fit to work full time. There was no evidence that she was not going ahead with the Dorevitch job or that she had any concerns about her physical capability to do so at that time.
There was no recorded worsening of the plaintiff’s condition towards the end of the said period. To the contrary, her evidence is her condition and work situation improved with Nick’s arrival.
There is no mention in Dr Gouras’ notes in early 2010 of any difficulties the plaintiff had working full time or continuing to work because of her condition.
When the plaintiff saw Dr Gouras in early 2010, he did not record an increase in her symptoms at that time or note she was having any difficulty to continue full-time hours. He made no mention of her being unable to work after the redundancy in March. He was unaware of the circumstances in which she ceased work with the defendant and also with Dorevitch, or that she had unsuccessfully sought further work as a medical scientist. In September 2010, he knew nothing of her contemplating medical study and thought she was considering a nursing course.
In her viva voce evidence, the plaintiff said that she was going to “try” the Dorevitch job. There is no evidence that at that time, she intended to do anything but take up that job. There was also no evidence that she was physically unable to do the new job at Dorevitch in the same field.
Further, the plaintiff’s evidence was that, having been made redundant, she sought similar work in the laboratory field, but was not able to get it. There is no evidence that her difficulties obtaining work had anything to do with her physical condition.
Taking these matters into account, I am not satisfied the plaintiff ceased work because of any work-related injury. She ceased work because she could not find a job and decided, as her financial situation was stable, to embark on expensive and lengthy study to obtain her general practitioner qualifications.
Around this time, in mid-2010, the plaintiff decided to commence study to obtain her medical qualification. Her boys had started university and Mr Rokic had moved in with the family, sharing the expenses with her. She also had some funds from the sale of her Werribee house and a redundancy payment from the defendant. Later that year, she received Centrelink benefits.
In my view, in these circumstances, for the first time, the plaintiff was in a financial position to start her medical training and she did so, commencing study in early 2011. This had always been her intention, consistent with her training and work experience in Serbia. It was now available to her, unlike at the time she had to get work with PathLab with financial responsibilities as a single mother, her husband having recently died, and unable to embark on an expensive medical career at that time.
The plaintiff was not undergoing significant treatment in 2010 after ceasing work. She was referred to Dr Stockman in September 2010. He simply prescribed medication and suggested the plaintiff exercise and do more housework – a treatment regime which seems somewhat unusual for a person who claims to be totally incapacitated. She saw him only once again eighteen months later when his advice was in similar terms. Thereafter, the only treatment has been medication and some acupuncture.
Although a number of doctors conclude the plaintiff is totally incapacitated for manual duties, they have reached that view on an inaccurate history; that she stopped work with the defendant as she was unable to physically cope with her duties. Further, they had little detail of the study and work placements undertaken by the plaintiff in that period and, in the earlier years, her significant role caring for Mr Rokic.
Dr Kostos noted in his February 2019 report that the plaintiff advised of ongoing problems and medical treatment which did not help, and her condition steadily deteriorated, and she eventually stopped work in 2010. While he thought she was totally incapacitated after he had first seen her, he had not been told the circumstances in which she ceased work, or her work or study thereafter. He reached that view on an understanding that she had been out of the workforce for nine years. He was surprised when told of the true situation, concluding that patients with fibromyalgia “can function perfectly normally”.
In his letter to Dr Gouras in December 2012, Dr Blombery made no reference to the circumstances in which the plaintiff ceased work. In his January 2017 medico-legal report, he noted the plaintiff last worked on 1 March 2010, when she had to stop because of the severity of ongoing pain. This is incorrect.
When he first saw the plaintiff, Dr Blombery knew it was in the context of a potential claim. He understood she had stopped working because she would barely move and because of pain; she could not sleep, and she could not function readily. This description was simply untrue.
Further, the plaintiff did not tell Dr Blombery that the defendant had been bought by Dorevitch or that she had accepted an offer to do a similar job with it or that she was subsequently retrenched and that she then looked for work elsewhere.
Professor Littlejohn’s history was simply the plaintiff worked until March 2010, and had not worked since that time. She said she battled on at work the best she could for about eighteen months after the symptoms began, and forced herself to keep going through this difficult time, however, significant widespread pain developed.
In my view, the plaintiff’s level of activity after she ceased work was inconsistent with a situation where she was totally unfit for manual work. She was able to successfully complete demanding study for her medical degree which involved a number of work placements and workshops which she also completed. From 2010 to 2016, she was also able to act as Mr Rokic’s full-time carer with his complex medical needs.
I do not accept it was the plaintiff’s ambition to work forever as a medical scientist and that the study of medicine was some sort of last resort as she was too incapacitated to work as a medical scientist. This was not her intention and any level of incapacity related to her condition did not prevent her from continuing in this role in 2010.
As early as July 2010, the plaintiff had decided to commence studies to enable her to practise as a general practitioner in Victoria. From 2014, she has been qualified to have limited registration in Victoria but was unsuccessful in getting work because, as her son described, she was “on the bottom of the pile” given her age and overseas training.
Accordingly, the plaintiff is not entitled to damages for any past economic loss. She did not cease work and having an incapacity for work as a result of injury suffered with the defendant as was submitted on her behalf. She has not lost the capacity to work as a medical scientist and is not entitled to any loss in that regard.
Having made that finding, issues of mitigation and any benefit the plaintiff may have obtained by undertaking medical qualifications, are not relevant.
Future economic loss – Plaintiff’s submissions
The plaintiff is also entitled to an allowance for her loss of earning capacity which may materialise as she has not yet successfully completed her medical placement, she may not upon completing her placement be able to obtain work as has been her experience in the past and she may experience restrictions in her work because of pain and decreased bilateral arm capacity which may restrict her from certain jobs or which may cause her to work part-time and/or retire at an earlier age than she otherwise would do.
There is no guarantee the plaintiff will go on to qualify as a general practitioner. Therefore a Farlow allowance is appropriate. In addition to the fact that she is not fully qualified, the plaintiff gives evidence that she has difficulty putting needles into the vein of patients, including to take blood or when using an IV, difficulty with manual tasks with the fingers and has to take a break if she does keyboard use or typing. She also wears supportive gloves while typing.
These are all circumstances where the plaintiff’s loss of earning capacity may in the future be productive of loss, and so she is entitled to an allowance pursuant to the principles in Victorian Stevedoring v Farlow and Malec v Hutton.
Other claims
While a claim was originally made for the costs of retraining in medicine of at least $20,000, counsel for the plaintiff ultimately did not urge this claim, conceding it was similar in nature to a medical and like expense which could not be claimed under the Act.
Further, a claim for loss of overtime in the particulars of economic loss claim at 7 per cent was withdrawn.
Defendant’s submissions Future loss/Farlow claim
Counsel described the plaintiff’s claim for future economic loss on the basis of Victorian Stevedoring v Farlow as one of the “one of the more ambitious seen”.
The plaintiff is in full-time employment as a doctor, earning a base salary of $3,134 gross per fortnight ($81,500 per annum) plus allowances, overtime and superannuation. The relevant award for general practitioners indicates likely future earnings rising from a base, net of superannuation, of $92,000 in Year 2 to $98,000 in Year 3.
The plaintiff intends to remain in Frankston (having recently purchased her first home in Australia) and intends to continue working in the hospital setting rather than enter private practice, perhaps because she did not pass the ‘PESCI’, (not revealed) or because she prefers the hospital environment.
The plaintiff expects to continue her employment with Peninsula Health. The evidence does not support a finding that her fibromyalgia is likely to interfere with her ability to work full time as a doctor into the future. There is no evidence to suggest that there is any real probability of the plaintiff losing her job at the hospital in the foreseeable future or of her wage being reduced.
The plaintiff has significantly increased her income since commencing work as a doctor in December 2019 – doubling her annual income. To date her pain symptoms have remained constant from 2008 to present. Her pain did not interfere with her capacity for full-time employment at PathLab, Dorevitch, any of her work placements or her present employment. It is unlikely that at some time in the future her injuries will interfere with her prospects of employment or reduce her earnings. The medical consensus is that the plaintiff can work as a medical practitioner.
In those circumstances, there ought to be no award of future pecuniary loss.
Findings
I am not satisfied that the plaintiff will suffer any economic loss in the future as a result of any work-related condition.
There is no evidence the plaintiff will be unable to complete her twelve- months rotation or that there is any risk she will not obtain her full practising qualifications due to any physical or psychological problems.
The plaintiff confirmed there had been no criticism of her work during the rotation and she expected to pass the year. While some work-related tasks may be more difficult for her, she has been able to undertake those tasks in the last year and during her various placements which she has successfully completed.
All doctors agree the plaintiff has the capacity to work as a general practitioner and has had so for some years.
Accordingly, there will be the judgment for the plaintiff in the sum of:
(1) Pain and Suffering: $130,000.00
(2) Economic Loss: NIL.
Appendix A
Appendix B
Appendix C
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