Deans v Maryborough Christian Education Foundation Ltd [2018] QDC 123

DISTRICT COURT OF QUEENSLAND CITATION: Deans v Maryborough Christian Education Foundation Ltd [2018] QDC 123 PARTIES: DEBBIE ANN DEANS (plaintiff) v MARYBOROUGH CHRISTIAN EDUCATION FOUNDATION LTD (defendant) FILE NO/S: 1093/17 DIVISION: Civil PROCEEDING: Trial DELIVERED ON: 25 July 2018 DELIVERED AT: Brisbane HEARING DATE: 11 and 12 April 2018; Written submissions received: 8 May, 14 May, and 21 May 2018. JUDGE: Farr SC DCJ ORDER: 1. The plaintiff’s claim is dismissed. 2. I will hear the parties as to costs and any submissions in that regard should be in writing and filed within 14 days. Alternatively, if the parties agree on the order as to costs a draft order to that effect should be filed within 14 days. CATCHWORDS: TORTS – NEGLIGENCE – PERSONAL INJURIES – where plaintiff claiming damages for personal injury from employer following workplace incident – where plaintiff slipped on a grape walking in school foyer – liability and quantum in issue – whether the defendant breached its duty of care as an employer – whether the risk of injury was foreseeable – interpretation and application of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305, s 305B, s 305C, s 305F, s 305H, s 305I Benic v New South Wales [2010] NSWSC 1039 Brisbane Youth Services Inc v Beven [2017] QCA 211 Campbell v CSR Limited & CSR Plain Creek Pty Ltd [2002] QSC 266 Clarricoats v JJ Richards & Sons Pty Ltd [2017] QSC 214 Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 -- 1 of 31 -- 2 Fox v State of Queensland [2016] QDC 146 Lusk v Sapwell [2011] QCA 59 Moreton v Ivor Fritz Removals Pty Ltd & Ors [2013] QDC 293 Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 Samways v Workcover Queensland & Ors [2010] QSC 127 Sharman v Evans (1977) 138 CLR 563 Solomona v No 1 Riverside Quay Pty Ltd [2016] QDC 289 Strong v Woolworths Ltd (2012) 246 CLR 182 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 Todorovic v Waller (1981) 150 CLR 402 Woolworths Limited v Grimshaw [2016] QCA 274 Wyong Shire Council v Shirt (1980) 146 CLR 40 COUNSEL: J M Sorbello for the plaintiff S P Gray for the defendant SOLICITORS: Morton & Morton Solicitor for the plaintiff HopgoodGanim Lawyers for the defendant Introduction [1] The plaintiff, was employed by the defendant, as a school teacher at the Riverside Christian College (“Riverside”) in Maryborough and she claims damages for an injury allegedly sustained during the course of her employment on 4 March 2015. [2] She sustained that injury on the morning of that day after she walked from a classroom, through a foyer area adjacent to classrooms which were being used by five and six year old children who were having a “fruit break”, and slipped on a grape fracturing her left patella. [3] It is not contested that at around 9.00 am students in the area take a “fruit break” and to do so they leave their classroom and obtain fruit from their bags which are stored in bag racks in the foyer area. [4] Both liability and quantum are in issue. The pleadings [5] The plaintiff pleads as follows:1 “4. Further, in the premises pleaded in sub-paragraph 2(c) above, the defendant owed the plaintiff a duty of care to: (a) take reasonable care for the plaintiff’s safety; (b) instruct the plaintiff in the correct and safe methods of carrying out her employment; 1 Paragraphs 5-8 Amended Statement of Claim. -- 2 of 31 -- 3 (c) establish, maintain and enforce safe methods and systems for the plaintiff to carry out her employment; (d) supervise the plaintiff so as to ensure she carried out her employment safely; (e) warn the plaintiff of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury; (f) provide a safe work environment within which the plaintiff was required to perform her duties; (g) not require the plaintiff to perform work where the defendant knew, or ought to have known, that the carrying out of the work may cause injury to the plaintiff. 5. Around 9:05 am on 4 March 2015: (a) the plaintiff was performing her duties at the College; (b) the plaintiff was walking from a classroom known as F3 through the foyer area adjacent to F3; (c) as the plaintiff walked through the area she slipped on a grape in the foyer area (“the incident”). 6. Prior to the incident, the defendant was aware that; (a) the foyer area adjacent to F3 is a higher volume pedestrian traffic thoroughfare; (b) children between the ages of five and six years old would access the area during the “fruit break” and traverse the area with fruit and other snacks; (c) it had no system of cleaning the foyer area following “fruit break”. 7. As a consequence of the incident, the plaintiff suffered personal injury, namely, a fracture of the left patella (“the injury”). 8. The injury was caused by the defendant’s breaches of its obligations and duties pleaded at paragraphs 3 and 4 above as the defendant failed to: (a) take reasonable care for the plaintiff’s safety; -- 3 of 31 -- 4 (b) establish, maintain and enforce safe methods and systems for the plaintiff to carry out her employment; (c) supervise the plaintiff so as to ensure she carried out her employment safely; (d) warn the plaintiff of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury; (e) provide a safe work environment within which the plaintiff was required to perform her duties; (f) not require the plaintiff to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to the plaintiff; (g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area; (h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.” [6] The plaintiff claims amounts for general damages, special damages, past economic loss (with interest and lost superannuation), future economic loss (and future superannuation) and future expenses for pharmaceutical, physiotherapy, medical, travel, household assist and household assistance expenses. The defendant’s pleadings [7] The defendant pleads:2 “3. The defendant denies the allegations in paragraph 4 of the Statement of Claim because the defendant owed the plaintiff a duty to take reasonable care to avoid exposing her to foreseeable risks of injury during the course of her employment. 4. The defendant does not admit the allegations in paragraph 5 of the Statement of Claim because: (a) the alleged incident was not witnessed; 2 Paragraphs 4-9 Further Amended Defence. -- 4 of 31 -- 5 (b) despite reasonable enquiry the defendant is unaware of the truth or otherwise of those allegations. 5. As to paragraph 6 of the Statement of Claim, the defendant: (a) does not admit the allegations in sub-paragraph (a) because the allegations are unclear and the defendant requires further and better particulars in order to answer the same; (b) admits the allegations in sub-paragraph (b); and (c) denies the allegations in sub-paragraph (c) because the system of work was: (i) the teachers, including the plaintiff, were responsible for identifying rubbish, including food scraps, in the school grounds; (ii) the defendant employed ground staff; (iii) if the teachers, including the plaintiff, identified rubbish, including food scraps, in the school grounds they could either pick up the rubbish themselves, direct the students to pick up the rubbish or arrange for the grounds staff to attend to the rubbish. 6. As to paragraph 7 of the Statement of Claim, the defendant: (a) admits the plaintiff suffered a fracture of the left patella (“the injury”); (b) does not admit the cause of the injury and repeats and relies on paragraph 4 of this Defence. 7. The defendant denies the allegations in paragraph 8 of the Statement of Claim because: (a) it took reasonable care for the plaintiff’s safety by implementing the system pleaded at paragraph 5(c) of this Defence; (b) it established, enforced and maintained safe systems of work as pleaded at paragraph 5(c) of this Defence; (c) the defendant was not reasonably required to provide the plaintiff with constant supervision during her working day as she was an experienced and qualified teacher; -- 5 of 31 -- 6 (d) any failure to supervise the plaintiff, which is not admitted, did not cause the injury; (e) If the allegation in paragraph 6 of the Statement of Claim is correct, which is not admitted: (i) the risk of injury was obvious within the meaning of sections 305H and 305I of the Workers Compensation and Rehabilitation Act 2003 (“WCRA”); (ii) the plaintiff was aware of the risk of injury; (iii) the defendant was not reasonably required to provide the plaintiff with specific warnings in relation to the risk of injury; (iv) any failure to provide a warning, which is denied, did not cause the plaintiff’s injury; and (v) the plaintiff caused or contributed to her injury by failing to take reasonable care for her own safety by keeping a proper lookout. (f) it provided a safe work environment by implementing the system pleaded at paragraph 5(c) of this defence; (g) its duty of care did not extend to removing the plaintiff from the place of work having regard to the seriousness and probability of the relevant risk of injury in accordance with section 305B of the WCRA; (h) it denies there was a higher probability of slip hazards being created in the area because such allegation is untrue; (i) if there was a high probability of slip hazards being created in the area, which is denied: (i) the risk of injury was obvious within the meaning of sections 305H and 305I of the WCRA; (ii) the plaintiff was aware of the risk of injury; and (iii) the plaintiff caused or contributed to her injury by failing to take reasonable care for her own safety by keeping a proper lookout. 8. The defendant does not admit the allegations in paragraph 8(h) of the Statement of Claim because the allegations are unclear -- 6 of 31 -- 7 and the defendant requires further and better particulars in order to answer same. 9. If the allegations in paragraph 8(h) of the Statement of Claim are correct, which is not admitted, any such failure did not amount to a breach of duty by the defendant because the defendant was not reasonably required to take the alleged step having regard to the seriousness and probability of the relevant risk of injury in accordance with s 305B of the WCRA.” [8] Insofar as quantum of damages is concerned, the parties have agreed upon quantum for some of the heads of damage. Liability [9] To determine the issue of liability the following questions need to be answered: (a) Did the plaintiff slip on a grape and fall to the floor in the foyer area on 4 March 2015? (b) Did the plaintiff suffer a fracture to her left patella as a consequence of that fall? (c) Did the defendant owe the plaintiff a duty of care? (d) Was there any breach of the defendant’s duty of care? (e) If there was such a breach, did it cause the injury to the plaintiff? Did the plaintiff slip and fall on a grape on 4 March 2015? [10] There has been no dispute that on the morning of 4 March 2015 the plaintiff, when walking in the foyer area, stepped on a grape on the floor, slipped and fell. That allegation has been proved to the requisite standard. Did the plaintiff suffer a fracture to her left patella as a consequence of that fall? [11] Again, there has been no dispute that the plaintiff suffered the injury alleged as a consequence of the aforementioned fall. That allegation has been proved to the requisite standard. Did the defendant owe the plaintiff a duty of care? [12] It is not disputed that 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. Paragraph 4 of the Amended Statement of Claim appears to be the plaintiff’s alleged particulars of such a duty specific to this matter. [13] Such a duty however is not one of strict liability, rather it encompasses only a delegation to take reasonable steps for the safety of its workers. An employer is not an insurer of his/her employees against danger.3 3 Clayton v Jetcrate Oz Pty Ltd [2017] QDC 3 at paragraphs [53]-[54] as per Morzone QC DCJ. -- 7 of 31 -- 8 Was there any breach of the defendant’s duty of care? [14] As was stated by Bowskill QC DCJ (as her Honour then was) in Rudd v Starbucks Coffee Company (Australia) Pty Ltd4: “[1] Under the common law principles, in considering whether there has been a breach of the duty of care owed, it is first necessary to consider whether a reasonable person in the defendant’s position would have foreseen the risk of injury and, if so, to determine what a reasonable person would do by way of response to the risk. As explained by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–48: ‘A risk of injury which is quite unlikely to occur…, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. 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…the existence of a foreseeable risk of injury does 4 [2015] QDC 232 at [147]. -- 8 of 31 -- 9 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.’” [15] Additionally, the liability provisions of the Workers Compensation and Rehabilitation Act 2003 (“WCRA”)5 must be applied when determining whether there was any breach of the duty of care owed to the plaintiff. [16] Section 305 of the WCRA defines a duty of care to mean: “a duty to take reasonable care or to exercise reasonable skill (or both duties)”. [17] The WCRA also provides: “Division 2 General Standard of Care 305B General Principles (1) A person does not breach a duty to take precautions against a risk of injury to a worker unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)— (a) the probability that the injury would occur if care were not taken; (b) the likely seriousness of the injury; (c) the burden of taking precautions to avoid the risk of injury. 305C Other Principles In a proceeding relating to liability for a breach of duty— (a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and (b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and 5 Chapter 5 Part 8 of the WCRA. -- 9 of 31 -- 10 (c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.” Was the risk of injury foreseeable? [18] The provisions of the WCRA require that the court determine foreseeability of risk by having regard to what was known, or ought to have been known, by the defendant at the time the injury was sustained. These matters are to be determined prospectively, and not retrospectively with the wisdom of hindsight.6 [19] The risk is not confined to the precise set of circumstances in which the plaintiff was injured, rather what must be reasonably foreseeable is “the nature of the particular harm that ensued, or, more relevantly the nature of the circumstances in which that harm was incurred”.7 [20] The first step necessary is to identify the “risk of harm”. It is only through the correct identification of risk that one can assess what the reasonable response to the risk would be.8 [21] The plaintiff says that on the morning of the incident, she was preparing to go to a prep class and collected a large chart book with pictures which was about one metre by .5 of a metre in dimension. It had a spiral bind and hook and she was holding it by the hook at about eye level.9 All the plaintiff remembers is that she was coming from Classroom G6,10 through the foyer and her leg went forward and she slipped and fell to the floor landing on top of the book.11 [22] The plaintiff said that at the time she got the book, there were children in the classroom and it was about 8:55 am.12 When asked what the children were doing in Room G6 at the time she entered to collect the book, the plaintiff said that the children were sitting on the floor eating their fruit. She also said that the children in one of the other adjacent classrooms were moving in and out.13 [23] Having regard to that evidence and to the plaintiff’s pleadings, the relevant risk of harm can be appropriately defined as a risk that an employee might sustain an injury because of slipping on a piece of fruit whilst walking through the foyer area of the classroom block at the time a fruit break was occurring. [24] In Benic v New South Wales,14 Garling J said in relation to s 5B(1)(a) of the Civil Liability Act 2002 (NSW), which is identically worded: 6 Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 at [149] and following; Fox v State of Queensland [2016] QDC 146 at [72]; Solomona v No. 1 Riverside Quay Pty Ltd [2016] QDC 289. 7 Erickson v Bagley [2015] VSCA 220 at [33] and [40]; Hawkins v Ross Human Directions Ltd [2015] NSWCA 265 at [13]; Rudd v Starbucks Coffee Company (Australia) Pty Ltd at [150]. 8 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330. 9 Transcript p 1- 24, ll 30 – 45. 10 Exhibit 2. 11 Transcript p 1 – 25, ll 10 – 20 and Transcript p 1 – 25, ll 35 – 45. 12 Transcript p 1 – 25, ll 20 – 25. 13 Transcript 1 p – 25, ll 25 – 45. 14 [2010] NSWSC 1039 at [92]. -- 10 of 31 -- 11 “In my opinion, the plaintiff must satisfy the court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case that may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant’s position and the obviousness or the likelihood of the event happening when using common sense.” [25] As Bowskill QC DCJ noted in Rudd v Starbucks Coffee Company, the question as to whether the relevant risk was a risk that the defendant ought to have known is to be determined objectively, taking into account the particular facts and circumstances subjective to the defendant.15 [26] The plaintiff alleges that the foyer area in question can appropriately be described as a high volume pedestrian thoroughfare at and around the time of “fruit break” each morning. The plaintiff’s unchallenged evidence was that it was an area accessed by at least 84 persons at that time each morning.16 [27] As pleaded, the plaintiff submits that there was no system in place for cleaning that foyer area following “fruit break” and that the defendant’s denial of that allegation should be disregarded because the denial does not actually assert that there was a system for cleaning the foyer area following “fruit break”, rather the system that was pleaded would be more appropriately described as a generic instruction that applied to the school grounds as a whole. [28] The plaintiff further submits that there is ample evidence before the court to establish the risk as being foreseeable and refers to the following: (a) the plaintiff gave unchallenged evidence that in her time as a teacher she has observed that “students are prone to not worry about papers, anything coming out of their bags. It’s usually a spillage of everything imaginable” and they do not usually pick it up once it is dropped;17 (b) the former Principal at Riverside, Ms Anne O’Brien gave evidence that teachers had to be rostered to monitor a specific area during recess breaks because children drop rubbish and teachers were required to request students to pick up litter;18 and (c) the Head of Junior College at the school, Mr Gary Bentley gave evidence that the students would retrieve their fruit, either a piece of fruit or a whole item of fruit and bring it back to the classroom (as opposed to containers or school bags),19 that it was unusual for fruit to 15 See also Erickson v Bagley [2015] VSCA 220 at [46]. 16 Transcript p 1 – 23, ll 45 – Transcript p 1 – 24, l 25. 17 Transcript 1 – 35, ll 5 – 10. 18 Transcript p 2 – 6, l 15. 19 Transcript p 2 – 20, ll 1 – 5. -- 11 of 31 -- 12 come in a container,20 and that grapes were not excluded and were one of the easily edible foods consumed by the children.21 [29] With these evidentiary features in mind, the plaintiff submits that there is an inescapable conclusion that there was a foreseeable risk that pedestrians may slip on dropped fruit in the foyer. [30] I note though that neither Ms O’Brien nor Mr Bentley had ever received any notification about someone having suffered an injury associated with “fruit break”, or of anyone having slipped in the foyer area outside the classrooms where “fruit break” is conducted.22 [31] Mr Bentley explained that “fruit break” was introduced approximately eight years ago because of a trend in education at the time, which had a perspective that children were not eating enough fruit and vegetables and it was designed to get more of that type of food into children.23 The classes participating in the “fruit break” were from Prep to Year 3 and, in some cases, Years 4 and 5.24 [32] Mr Bentley said that, as at March 2015, the practice at Riverside was that the “fruit break” occurred right at the start of the day. Once the children were established in the class, the teacher would mark the roll. After that, the children would be directed to get their “fruit break” out of their bag, bring it into the classroom and then have five minutes to eat it. Mr Bentley explained that any rubbish left over from the “fruit break” would typically go into the bin in the classroom.25 [33] Mr Bentley said that from his experience, the children mostly had whole items of fruit, but occasionally there would be fruit in a container which had been pre-prepared for a child.26 [34] In determining the issue of reasonable foreseeability I of course note that the onus of proof rests on the plaintiff on the balance of probabilities.27 [35] The plaintiff relies heavily upon the general notoriety of young children dropping things and leaving them on the floor. I note though that there is no evidence before the court that over the approximate period of five years that “fruit break” had been taking place prior to the time of the incident, that fruit had been dropped and allowed to remain on the floor. [36] Furthermore, I have no reason to believe or infer that the children were inadequately supervised at any stage when “fruit break” was taking place. It follows, that if adequate supervision was occurring, then if any fruit was dropped on the floor, it should be picked up either as a result of a child being directed to do so or by a teacher doing so himself or herself in accordance with the general school policies. 20 Transcript p 2 – 21, l 45. 21 Transcript p 2 – 23, ll 30 – 35. 22 Transcript p 2 – 6, ll 30 – 40; Transcript p 2 – 22, ll 1 – 10. 23 Transcript p 2 – 19, ll 25 – 35. 24 Transcript p 2 – 22, ll 25 – 30. 25 Transcript p 2 – 19, l 40 – Transcript p 2 – 20, l 15. 26 Transcript p 2 – 21, ll 40 – 45. 27 S. 305E WCRA. -- 12 of 31 -- 13 [37] The evidence does not support the allegation that the defendant knew, at the relevant time, of the alleged foreseeable risk. Neither, does the evidence support the contention that the defendant ought to have known of such risk. There has been no evidence placed before the court as to problems at other schools that may have arisen from “fruit break”, there is no evidence of public notoriety of the dangers of such a system or of any particular risk of harm arising from it. There is no suggestion that there are publications, or workplace safety manuals or academic knowledge which might be expected to inform the defendant as to the potential danger. [38] Furthermore, the lack of any previous incident involving someone slipping on a piece of fruit, notwithstanding that “fruit break” had been taking place for approximately five years until the time of this incident, is strongly suggestive that the incident was not reasonably foreseeable, although of course it is not determinative of the issue.28 [39] For these reasons, I am not satisfied that the risk was foreseeable as that term is defined in section 305B(1)(a). [40] I should comment upon one further submission the plaintiff has made in respect of this matter. That relates to the defendant’s plea that the risk, which is denied, if accepted was an obvious risk for the purposes of a finding of contributory negligence. The plaintiff submits that if it is an obvious risk to a worker, then it must necessarily also be an obvious risk to the employer, in that the employer must know or ought to know of the risk either through direct perception or imputed knowledge of its employees. The plaintiff submits that for that reason the defendant has essentially conceded that there was a foreseeable risk of injury and in fact has asserted it to be so significant as to categorise it as an obvious risk. [41] I do not accept that argument. Such an approach ignores the statutory definition of “obvious risk” contained in section 305I of the WCRA. Furthermore, the practical effect of the plaintiff’s submission is that a defendant pleading contributory negligence against a plaintiff impliedly concedes the elements of sections 305B(1)(a) and 305B(1)(b) of the WCRA, which is a proposition denounced by the unanimous decision of the High Court in Thompson v Woolworths (Queensland) Pty Ltd,29 where the court said: “37 The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, work inclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.” 28 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [82]; referred to in MR & RC Smith Pty Ltd v Wyatt (No. 2) [2012] WASCA 110 at [101] per Pullin JA. See also Erickson at [43] and [45] and Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 at [26]-[27] per Muir JA; Rudd v Starbucks Company (Australia) Pty Ltd at [177]. 29 (2005) 221 CLR 234, Gleeson CJ McHugh, Kirby, Hayne and Heydon JJ. -- 13 of 31 -- 14 [42] Contributory negligence “involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk”.30 Contributory negligence therefore involves a failure on the part of a plaintiff to take reasonable care for his or her own safety. Negligence, is a failure to take care to avoid a foreseeable risk of injury to another where there is a duty to do so. [43] For these reasons I do not accept the plaintiff’s submission that the defendant has essentially conceded the foreseeability of the risk in question. Was the risk of injury not insignificant? [44] Notwithstanding that my finding in relation to the issue of reasonable foreseeability of risk is sufficient to dispose of the plaintiff’s claim I will nevertheless consider the other issues that would ordinarily require determination in a matter such as this. [45] The phrase “not insignificant” has been held to be more demanding for a plaintiff than the common law test, although “not by very much”, but is still designed to ensure that liability is not imposed on a defendant too readily.31 [46] The court does not determine this question retrospectively, from the nature of the harm sustained by the person, but “on the probability of the risk of that harm eventuating”.32 [47] In Fox v State of Queensland, Bowskill QC DCJ said: “[85] Although the fact that there was no evidence of previous complaints, or injuries sustained as a result of raising the bedrails does not necessitate a conclusion that the risk of injury is slight, when that is considered with the fact that the raising of bedrails on patient’s beds is something that happens many times, in the course of each shift; and that turning patients is also a routine, regular task, it is reasonable to conclude that the degree of probability of the risk of harm eventuating was very low, such as to be “insignificant” within the meaning of section 305B(1)(b).” [48] Similar observations were made by Dorney QC DCJ in Solomona v No 1 Riverside Quay Pty Ltd:33 ““[42] But if it is necessary to have recourse to s 305B(1)(b) and the determination of whether the risk was “not insignificant”, relevant appellate authority does suggest that this requirement does modify the common law. Any resultant modification is “designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable” and, as such, is a more demanding test for a plaintiff, although “not by very much”: see Rudd v 30 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at p. 570 per Mason J. 31 Benic v State of New South Wales [2010] NSW SC 1039; Rudd v Starbucks Coffee Company (Australia) Pty Ltd at paragraphs [182]-[184]; Erickson v Bagley [2015] VSCA 220 at [36]; Fox v State of Queensland [2016] QDC 146; Solomona v No 1 Riverside Quay Pty Ltd [2016] QDC 289. 32 Per Bowskill QC DCJ in Fox v State of Queensland [2016] QDC 146 at paragraph [84]. 33 [2016] QDC 289. -- 14 of 31 -- 15 Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 at [181]-[184]. As remarked in Erikson, the statute has sought to ensure that liability is “not imposed on a defendant too readily”: at [36], citing noted authority. [43] Again, there is not to be retrospective reasoning as to the nature of the harm sustained: see the remarks of Gummow ACJ in Tabet v Gett (2010) 240 CLR 537 at 563 [61]. As Fox has noted, although the fact that there was no evidence of previous complaints about, or injuries sustained as a result of, such ice, that does not necessitate a conclusion that the risk of injury is slight: at [85]. But when that fact is considered together with the fact that this implementation of the planogram was a routine task, I conclude that the degree of probability of risk of harm by way of any appreciable personal injury was sufficiently low as to be “insignificant” within the terms of the provision. Because I have not accepted his expert evidence, it is unnecessary to explore Dr Buckley’s opinion that a person (such as the plaintiff) “who already has degenerative disc disease would be at a higher risk of having a rupture as a result of an incident like lifting the icecream basket”. No cogent examination of the nature of any “higher risk” was undertaken in any event.” [49] In this matter, given that “fruit break” had occurred for approximately five years prior to the plaintiff’s injury, and the fact that there is no evidence of any previous complaints of injury sustained because of the “fruit break” being conducted nor even any complaints of anyone slipping on the floor surface in the foyer area due to the “fruit break” being conducted, the reasonable conclusion is that the degree of probability of the risk of harm eventuating was low. When that evidence is considered together with the fact that during that period of time the area would have been traversed by thousands if not tens of thousands of people at and around the relevant time leads to the almost inevitable conclusion that any such risk could only be categorised as “insignificant”, as that term is defined in section 305B(1)(b). In the circumstances, would a reasonable person in the position of the defendant have taken precautions? [50] I must of course consider this issue in case I am mistaken in my conclusions regarding reasonable foreseeability and insignificance of risk. [51] In Coca Cola Amatil (NSW) Pty Ltd v Pareezer,34 Mason J said: “In a case of breach by omission the plaintiff must clearly identify what should have been done and proved that it was unreasonable in the circumstances not to do it (cf Vozza v Tooth & Co Ltd (1964)112 CLR 316 at 319). A breach enquiry is not satisfied merely by positing, with the benefit of hindsight that something more might have been done.” 34 [2006] NSWCA 45 at [3]. -- 15 of 31 -- 16 [52] The question to be asked is whether the defendant’s failure to eliminate or minimise the relevant risk showed a want of reasonable care for the safety of the plaintiff’s personal property. [53] As Margaret Wilson AJA pointed out in Lusk v Sapwell:35 “…in order to succeed in an action for damages for breach of (an employer’s duty) the employee must establish both the breach and that the employer’s conduct materially caused the injury. Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.” (footnotes omitted) [54] That it “could” or “might” have avoided the harm is not enough.36 [55] It is also important to bear in mind that the plaintiff needs to prove not that the work activity caused the injury but rather that a breach of duty was causative. The mere fact that the plaintiff was injured in the course of employment is not enough. The plaintiff needs to prove a lot more than simply that the injury occurred in the course of employment.37 [56] In Clarricoats v JJ Richards & Sons Pty Ltd,38 McMeekin J observed that a finding that there was a foreseeable risk of injury does not conclude the matter. Breach is only shown if a reasonable person would have taken the suggested precautions after bringing into account the probability and seriousness of the potential injury as required by section 305C(2). [57] As stated by McMurdo JA in Brisbane Youth Services Inc v Beven,39 the duty owed by an employer is not to avoid the risk, but to act reasonably in response to it: “[186] … a court must identify what a reasonable person would have done, rather than looking backward to identify what would have avoided the injury. A finding of negligence does not inevitably follow from a failure to eliminate a risk that was reasonably foreseeable and preventable. The trial judge did not consider the critical question, which was whether the only reasonable response to this risk was to discontinue the provision of services to this young woman.” [58] To determine this issue I must therefore consider each of the submissions made by the plaintiff in her pleadings as to the conduct she suggests the defendant should have undertaken to reasonably overcome the risk. 35 [2011] QCA 59 at [76]. 36 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [26]-[27]; Woolworths Ltd v Perrins [2016] 2 Qld Reports 276 at [173]. 37 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [26]-[27]; Turner v South Australia (1982) 56 ALJAR 839 at 840; Duyvelshaff v Cathcart and Richie Ltd (1973) 47 ALJR 410 at 416-417, 419; Woolworths Ltd v Perrins [2016] 2 Qld Reports 276 at [173]; Prasad v Ingham’s Enterprises Pty Ltd [2016] QCA 147 at [89]-[98]; Hayes v Queensland [2016] QCA 191. 38 [2017] QSC 214 at [104]. 39 [2017] QCA 211 at [186]. -- 16 of 31 -- 17 Paragraph 8(a) of Amended Statement of Claim – failing to take reasonable care for the plaintiff’s safety [59] This extraordinarily broad and rather generic submission is of no assistance to the plaintiff in this matter and I need comment upon it no further. Paragraph 8(b) of Amended Statement of Claim – failing to establish, maintain and enforce safe methods and systems for the plaintiff to carry out her employment [60] Again this is a very broad non-specific allegation but I will nevertheless give consideration to it. [61] The defendant says that it took reasonable care for the plaintiff’s safety by implementing and enforcing a system particularised in paragraph 5(c) of the Further Amended Defence as: “(1) the teachers, including the plaintiff, were responsible for identifying rubbish, including food scraps, in the school grounds; (2) the defendant employed grounds staff; (3) if the teachers, including the plaintiff, identified rubbish, including food scraps, in the school grounds they could either pick up the rubbish themselves, direct the students to pick up the rubbish or arrange for the grounds staff to attend to the rubbish.” [62] The plaintiff submits that the risk of injury could readily have been prevented, with minimum or no cost, by taking any one of the following preventative measures: “(a) changing the floor coverings to carpet – as did occur following the plaintiff’s injury; (b) requiring the children to partake in their “fruit break” in a different area of the school; (c) instructing the teachers responsible for the children partaking in “fruit break” to provide supervision of the children before and after they obtain their fruit for “fruit break” and ensuring that any spillages are quickly cleaned up; (d) instructing either of the two grounds staff to provide supervision and clean up services whilst the children partook in “fruit break”; (e) refraining from undertaking a “fruit break” and instead having the children wait for morning tea when they ate in a designated area to consume their fruit; -- 17 of 31 -- 18 (f) making arrangements for the five and six year old children to store their bags and “fruit break” snacks in an area that was not a high traffic pedestrian area.” [63] Furthermore, the plaintiff submits that the defendant employed a workplace health and safety officer but did not call that person to establish that any risk assessment had been performed. It is submitted therefore that an inference in accordance with Jones v Dunkel40 ought to be drawn that that officer’s evidence would not have assisted the defendant’s case. [64] As to that last point I do not draw such an inference because: (a) nothing had been pleaded in the plaintiff’s case about a causal connection between the incident and any risk assessment; (b) an Incident Notification Report Summary was admitted as part of an agreed bundle; (c) the workplace health and safety officer’s identity and contact details were evident from the Incident Notification Report Summary form; and (d) if that officer’s evidence was required, the plaintiff was in as good a position to produce such evidence as the defendant, but failed to do so. [65] In evidence, the plaintiff agreed that there were arrangements in place to supervise the students during the regular breaks at school and teachers were regularly rostered on to do yard duty that required the teachers to keep a look out for rubbish that might be dropped in the grounds and to direct students to pick it up, or for the teacher to pick it up themselves.41 [66] No evidence was led to dispute that that system was implemented and enforced. The plaintiff’s case is that the system was inadequate because it did not specifically account for the prospect of a spillage occurring during “fruit break”. [67] Ms O’Brien said that part of her role was to organise the roster for all of the breaks and to make sure that the grounds were kept clean, which would involve speaking to the staff about cleanliness of the grounds. Teachers were rostered on to supervise during the recess breaks and they were expected to patrol the areas and ask students to pick up litter or pick it up themselves and just make sure that general cleanliness is maintained.42 [68] When cross-examined about that system, Ms O’Brien said that whilst she had not issued a specific instruction for teachers to watch the children as they access their “fruit break” lunch boxes, she had done so in an overall way, by saying that the grounds need to remain clean. She said that the teachers that are responsible for the three classrooms that lead out onto the foyer area have the responsibility to ensure that it is kept clean.43 40 (1959) 101 CLR 298. 41 Transcript p 1 – 56, l 35 – Transcript p 1 – 57, l 5. 42 Transcript p 2 – 6, ll 5 – 15. 43 Transcript p 2 – 12, ll 15 – 25. -- 18 of 31 -- 19 [69] The defendant submits therefore that the evidence demonstrates that it had a system in place which was reasonable. The teachers were responsible for making sure that the foyer area was clean. Other than for the fact that this incident occurred, there is no evidence that supports a finding that the system was ineffective or that the foyer area where the “fruit break” was conducted was unsafe. [70] Insofar as the contention that the two ground staff should have been allocated to provide supervision and clean up services when “fruit break” was taking place, that ignores the system already in place and the responsibility of the teachers. [71] It follows that I am not persuaded that the defendant failed to establish, maintain and enforce safe methods and systems for the plaintiff to carry out her employment. Paragraph 8(c) Amended Statement of Claim – failing to supervise the plaintiff so as to ensure she carried out her employment safely [72] The plaintiff led no evidence about what supervision would have been expected or suitable for someone in her position, to enable her to more safely discharge her duties. The plaintiff was not a classroom teacher, but rather she mentored other teachers. The evidence is that she was very proficient in the performance of her duties and her skills and abilities were highly regarded. [73] It should be noted also, that at the time, the defendant employed 53 full-time teachers and 10 part-time teachers. [74] No evidence was led as to why it is suggested that the absence of such supervision is unreasonable, nor was any led to explain how such supervision could reasonably occur or how such supervision would have prevented the incident. [75] It is quite apparent that the plaintiff was not someone who required such supervision, and additionally, I am not satisfied that such supervision would have prevented the occurrence of the incident. Paragraph 8(d) – Amended Statement of Claim – failing to warn the plaintiff of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury [76] At the time the event occurred, the plaintiff was walking from one classroom to go to another which was in a different area of the school complex. There can be no doubt that this would be an ordinary, every day task performed by teachers in schools throughout this country. [77] In Campbell v CSR Limited & CSR Plain Creek Pty Ltd,44 Dutney J said: “[20] I am not persuaded that the failure on the part of the first defendant to instruct Ms Campbell on the correct method of walking up and down the stairs is sufficient to render it liable. Walking up and down an ordinary internal staircase such as this one is such a basic concept that unless I am bound by authority (no such authority being cited) I would 44 [2002] QSC 266. -- 19 of 31 -- 20 not find that an employer who failed to tell a competent adult how to do so was negligent.” [78] In Moreton v Ivor Fritz Removals Pty Ltd & Ors,45 McGill SC DCJ observed that: “…saying that some steps should have been taken to ensure that extra care or proper care was taken on this occasion would involve falling into the trap of looking at the issue of breach of duty retrospectively.” [79] In Solomona v No. 1 Riverside Quay Pty Ltd,46 Dorney QC DCJ wrote: “[32] Because of the way in which this proceeding was conducted, despite the ambit of the particulars in Paragraph 3 of the Statement of Claim (as to duty) and the particulars in Paragraph 6 (as to breach), from a survey of the expert evidence led in this case concerns primarily a failure to warn and, or alternatively, instruct. As to that, as noted by Dixon CJ in O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 (at 229): ‘the defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the (employee) by providing proper and adequate means of carrying out (the employee’s) work without unnecessary risk, by warning (the employee) of unusual or unexpected risks, and by instructing (the employee) in the performance of (the employee’s) work where instructions might reasonably be thought to be required to secure (the employee) from danger of injury.’ [33] As reiterated recently in South Sydney Rugby League Club Ltd v Gazis [2016] NSWCA 8, before such modification as there is of common law principles with respect to duty, breach of duty and causation, the general obligation was one “to ensure safety at work: it is an obligation to take reasonable care to avoid exposing a worker to unnecessary risk of injury” with the “scope of that obligation” to “vary depending upon the nature of the nature of the working environment”: at [117] per Basten JA, with whom MacFarlan and Simpson JJA agreed. It provides the background to understanding the statutory provisions. [34] Further, apart from any consideration of the statutory overlay to the common law principles, an employer is entitled to expect that an employee will exercise care in carrying out “straight forward” activities…” 45 [2013] QDC 293 at [22]. 46 [2016] QDC 289. -- 20 of 31 -- 21 [80] Those observations are apposite in this case. There was nothing about the duties that the plaintiff was required to perform, or the manner in which she was obliged to perform them that required any warning or instruction from the defendant. Any suggestion that the plaintiff did require a specific warning or instruction falls into the trap of looking at the issue of breach of duty retrospectively. Paragraph 8(e) Amended Statement of Claim – failing to provide a safe work environment within which the plaintiff was required to perform her duties [81] As I understand the submission, the plaintiff points to the fact that at some time after the incident the defendant arranged for the linoleum flooring which had been in place at the time of the incident to be replaced by carpet. No other “work environment” has been referred to in submissions. [82] An immediate problem with this submission is that it appears to be based entirely on the benefit of hindsight. [83] Additionally, it ignores the unchallenged evidence of Ms O’Brien who stated that when the flooring was changed it was due to the fact that the linoleum floor had been in place for 17 years and was due for replacement and was not replaced as a response to the incident. [84] Accordingly, there is no evidential foundation for this submission and it is rejected. Paragraph 8 (f) Amended Statement of Claim – failing to not require the plaintiff to perform work where the defendant knew, or ought to have known, that the carrying out of the work may cause injury to the plaintiff [85] The defendant has pleaded that, having regard to the seriousness and probability of the relevant risk of injury in accordance with s 305B of the WCRA, its duty of care did not extend to removing the plaintiff from the place of work.47 [86] I agree with that submission. Furthermore, no evidence was led on this issue nor was it the subject of any meaningful submission by the plaintiff. Paragraph 8(g) Amended Statement of Claim – failing to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a high probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area [87] In Strong v Woolworths Ltd,48 French CJ, Gummow, Crennan and Bell JJ, dealing with a slip and fall claim, wrote about the nature of Woolworth’s duty of care as occupier: “Woolworths’ negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area…Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.” 47 Transcript p 2 – 7, ll 15 – 35. 48 (2012) 246 CLR 182 at p 196. -- 21 of 31 -- 22 [88] In this matter, the plaintiff’s evidence is that the incident occurred at 8.55am; a time at which “fruit break” was still occurring. Clearly, the plaintiff must have walked through the foyer area almost immediately after the children obtained their fruit from their bags. It follows, that the plaintiff’s submission must be that the “system of inspection and cleaning” that she advances in support of her case, should have taken place immediately. Just how such a system could work is not clear however, given that the plaintiff’s case is that the number of people in that area at and around that time is great. For that reason, I am not satisfied that even if the defendant had engaged a person to inspect the area, immediately after the children had collected their fruit, that it is probable that one grape on the floor would have been detected. [89] Furthermore, as I have said, in my view the defendant did have a system in place that was appropriate given the circumstances. Additionally, Ms O’Brien CONFIRMED that the teachers that were responsible for the three classrooms that lead onto the foyer area were also responsible for ensuring that it was kept clean. 49 [90] I am satisfied therefore that the evidence demonstrates that the defendant had a system in place which was reasonable in the circumstances. In reaching that conclusion I did not rely on the fact that no evidence was led by the plaintiff as to what systems are in place at other schools which have a “fruit break”. The defendant has submitted that I could infer from the absence of such evidence, that any such evidence would not have assisted the plaintiff’s case.50 Whilst such an inference might be available, I have not relied upon it in reaching this conclusion because the inevitable differing physical circumstances that would vary from school to school might well render the drawing of such an inference unfair. Paragraph 8(f) Amended Statement of Claim – failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area [91] It is a matter of common sense and convenience that the children would store their bags in the racks immediately outside their classrooms. The plaintiff does not suggest otherwise, but rather suggests that the “fruit break” snacks should have been stored elsewhere. This would necessarily require the children to remove their “fruit break” snacks from their school bags for the purposes of such separate storage. This would require the children to remove such snacks from their bags in the same foyer area, thus not reducing the risk at all. In fact, given that the children would then have to go and collect their fruit and return it to the classroom, it would theoretically increase the risk by having the children carry the fruit through the foyer area twice. [92] Furthermore, no evidence was led as to whether there was a suitable alternative storage area. [93] It follows that this submission is without merit. Additional Submission – that the defendant could have refrained from having a “fruit break” and instead have the children wait for morning tea and eat their fruit in a designated area 49 Transcript p 2 – 12, ll 15 – 25. 50 Defendant’s written submissions [62]. -- 22 of 31 -- 23 [94] Whilst not specifically pleaded, the plaintiff has nevertheless advanced this submission. In my view however, given the evidence as to why a “fruit break” is considered beneficial, it would not be reasonable for the defendant to abolish such a break. I note that no evidence was led that challenged Mr Bentley’s evidence as to the potential benefit of a fruit break.51 [95] I am therefore not satisfied that the defendant breached its duty of care to the plaintiff. If the defendant did breach its duty of care, did it cause the injury to the plaintiff? [96] Given my conclusion that the defendant did not breach its duty of care, this question is irrelevant. Contributory negligence [97] Notwithstanding that I have found that the plaintiff has not established liability, I should briefly address the issue of contributory negligence in the event that my conclusions regarding liability are held to be in error. The provisions of the WCRA that relate to contributory negligence are : “Division 4 Contributory Negligence 305F Standard of care in relation to contributory negligence (1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the worker who sustained an injury has been guilty of contributory negligence in failing to take precautions against the risk of that injury. (2) For that purpose— (a) the standard of care required of the person who sustained an injury is that of a reasonable person in the position of that person; and (b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time. 305H Contributory Negligence (1) A court may make a finding of contributory negligence if the worker relevantly— … (f) undertook an activity involving obvious risk or failed, at the material time, so far as was practicable, to take account of obvious risk; or … 51 Transcript p 2 – 19, ll 25-35. -- 23 of 31 -- 24 (2) Sub-section (1) does not limit the discretion of a court to make a finding of contributory negligence in any other circumstances. (3) Without limiting sub-section (2), sub-section (1)(f) does not limit the discretion of a court to make a finding of contributory negligence if the worker— (a) undertook an activity involving risk that was less than obvious; or (b) failed, at the material time, so far as was practicable, to take account of risk that was less than obvious. 305I Meaning of obvious risk for Section 305H (1) For Section 305H, an obvious risk to a worker who sustains an injury is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the worker. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. (5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace or care for the thing, unless the failure itself is an obvious risk.” [98] A reduction of damages for contributory negligence is ordinarily not made in circumstances where the worker’s conduct amounts to mere inadvertence, inattention or misjudgement.52 [99] In this matter the plaintiff was walking from one classroom, through the foyer, to another whilst holding a large book to the front and was looking to the doorway in the direction she was walking.53 [100] This was an area with which she was very familiar, had a flat, even surface and was known by her to have no regular obstacles in her way. In such circumstances it cannot be said that the plaintiff failed to take reasonable care for her own safety by doing that which people do many times a day, every day. The evidence does not support 52 Podreberser v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493; McLean v Tedman (1984) 155 CLR 306 at 315; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311. 53 Transcript p 1 – 43, ll 25 – 30. -- 24 of 31 -- 25 the proposition that she was being inattentive nor that she was undertaking an activity involving an obvious risk (or for that matter a less than obvious risk). [101] The defendant has relied on comments made by Applegarth J in Samways v Workcover Queensland & Ors,54 to support its submission that the exercise of reasonable care for her own safety required the plaintiff to look where she was walking to avoid potential hazards. That case though involved the plaintiff walking head first into the raised bucket of a bobcat. That is a factual situation far removed from this and for that reason, is of no relevance or assistance in this matter. [102] I am not satisfied that the plaintiff contributed to her injury due to her own negligence. Quantum [103] Again, notwithstanding my findings regarding liability, I should nevertheless make brief comments on the various heads of damage. General damages [104] The plaintiff was born on 7 January 1962 and was therefore just over 53 years of age at the time her injury was sustained. At the time of trial she was aged 56 years and three months. A period of approximately 3.1 years has elapsed since she sustained her injury. [105] The parties agree that the plaintiff’s injury falls within Item 138 of the Workers Compensation and Rehabilitation Regulation 2014 and that an ISV of 10 is appropriate. [106] General damages are therefore agreed in the amount of $15,000. Economic Loss Past Economic Loss [107] The parties have agreed that the plaintiff’s past economic loss should be assessed in the amount of $118,634.90 which includes gross benefits paid by WorkCover. [108] Interest is agreed in the amount of $951.50. Future Economic Loss [109] The plaintiff has submitted: (a) she is no longer of capable of working full-time as a teacher or in a literacy coach role (b) she has permanent part-time work and currently earns $772.27 per week as a Teacher/Coaching Support;55 (c) her contract of employment at Clause 756 establishes that her full-time wage if she was able to do so, would be $3,535.00 gross per fortnight. 54 [2010] QSC 127 at [57]. 55 See Agreed Facts. 56 Exhibit 4; See also Transcript p 1 – 30, ll 10 – 30. -- 25 of 31 -- 26 This equates to $1,315.50 per week net.57 She is therefore suffering a loss of $543.23 per week, which for the next 11 years (until she reaches the eligible retirement age), discounted on the five per cent tables (444), less ten % for vicissitudes of life totals $217.074.71; (d) she remains at a distinct disadvantage in the labour market and would find it difficult to find alternative employment that would accommodate her injury; (e) that she has also lost the opportunity to perform relief teaching as a transition to full retirement beyond 67 years of age; and (f) that a total award of $350,000.00 for future economic loss would be appropriate. [110] The defendant has submitted: (a) that according to the payslip analysis58 and the Agreed Facts, the plaintiff’s net weekly income for the period 1 September 2017 to 30 April 2018 would have been $1,265.00 which is $492.73 greater than her current net weekly income of $772.27; (b) that loss, discounted on the five per cent tables for a period of 11 years equates to $218,772.12, which when discounted by the usual 15 per cent amounts to approximately $186,000.00. [111] The principal differences between the parties are therefore: (a) the amount of the current weekly loss; (b) the discount rates for vicissitudes of life; and (c) whether any amount should be allowed for a period following the plaintiff reaching the eligible retirement age. [112] The defendant has calculated its submissions by reference to the wages the plaintiff could have earned had she continued in her pre-accident employment, taking into account all wage increases up to the date of trial.59 [113] The plaintiff on the other hand asserts that her economic loss should be assessed by reference to what she could earn pursuant to her current employment agreement, if she were able to work in an unrestricted capacity. [114] In Woolworths Limited v Grimshaw,60 McMurdo P, with whom Applegarth and Flanagan JJ agreed, wrote: 57 $1,767.50 gross per week with a weekly withholding of tax amount of $452.00 according PAYG Weekly Tax Tables for payments made after 1 July 2017. 58 Exhibit 10. 59 Those amounts are identified from the Payslip Analysis Exhibit 10 and [1] – [4] of the Agreed Facts. 60 [2016] QCA 274. -- 26 of 31 -- 27 “[65] Woolworths emphasises that it is uncontentious that, as at the date of trial, Ms Grimshaw would have been earning $668.95 net per week if she had continued in her pre-injury employment… … “[69] The primary judge erred in failing to apply Todorovic and taking into account Ms Grimshaw’s future predicted wage increases had she continued in her pre-injury position with Woolworths in determining her future loss of earning capacity….” [115] In my view an assessment of economic loss is to be made by what the plaintiff could have earned if she had continued in her pre-injury employment. The evidence in this case is that if it were not for the injury sustained in the incident, the plaintiff intended to continue in her employment as a literacy coach. The only reason she ceased her employment with the defendant, after commencing a period of unpaid leave in June 2017, to recuperate from her injury, was because of her injury. She then accepted the offer of employment with her current employer, Bayside Christian College. [116] There is no evidence that at the time of the incident, the plaintiff had any plans to leave her employment with the defendant. Accordingly, in my view the plaintiff’s economic loss is to be assessed on the basis that if it were not for the injury sustained in the incident, she would have continued in her employment with the defendant. [117] The defendant has submitted that such an approach would also be consistent with the agreed allowance for past economic loss61 being calculated by reference to what the plaintiff could have earned in her employment with the defendant and not a potential higher wage in her contract with Bayside Christian College. [118] It follows that the loss the plaintiff suffers weekly is $492.73. [119] As to the discount rate, the plaintiff submits that, having regard to the relatively short work life ahead of the plaintiff, the demand for literacy coaches exceeding supply and the stable nature of employment in education, such a discount is inappropriate.62 [120] There is some merit to that submission, although it somewhat overlooks the fact that generally issues develop as people age and that the plaintiff is now at an age where the risk of other health issues arising is greater. [121] In my view, a fair approach would be to discount the amount at the rate of 12.5%. This would result in an amount of $191,425. [122] The relevant meaningful evidence in this matter is: (a) Dr Andrew McGee, Orthopaedic Surgeon, is of the opinion that the plaintiff will not be able to return to the full time duties she was performing at the time of the incident,63 nor any work that requires her 61 Which includes the period from June/July 2017 after cessation of her employment with the defendant, to trial. 62 Waller v McGrath & Anor [2009] QSC 158 where a discount of 12 percent was adopted for a 20 year old plaintiff. 63 T2-25, ll 34-45. -- 27 of 31 -- 28 to stand for too long, although she could do work of a sedentary nature;64 (b) Dr Mark Shaw, Orthopaedic Surgeon, held a similar view to Dr McGee and said that the plaintiff would be better able to accommodate her injuries if she could work from home, although he would defer to the opinion of an occupational therapist on the issue;65 (c) in a report dated 13 October 2016, Dr Anthony Ganko, Orthopaedic Surgeon, opined that he would not expect that the plaintiff would suffer any inhibition for classroom teaching, and that she could return to such teaching if she was able to have suitable rest periods;66 [123] The defendant has acknowledged that the weight of the medical evidence is that the plaintiff cannot return to her pre-accident employment in a full time capacity. [124] The plaintiff gave evidence that a big part of her role as a literacy coach was to mentor the teachers and explain to them as to how students should be taught.67 She claims that one impediment to her ability to perform her role as a literacy and academic coach effectively is that when mentoring teachers, she would have to sit down on the ground “because modelling is best behaviour”.68 She claims that she cannot effectively instruct teachers in the best way to teach because she cannot model how to sit on the floor. [125] I have considerable difficulty in accepting that evidence. The plaintiff is obviously an intelligent woman who was articulate in her evidence and more than capable of expressing herself with clarity. I do not accept that she would be unable to effectively communicate to a qualified teacher on this very basic instruction. I note that Mr Peaker was of the same view.69 I daresay that “modelling” instruction might constitute “best practice” but an inability to do so does not terminate that line of work. [126] As to the issue of working from home, the plaintiff agrees that being able to do so would assist her in continuing to work, although she expressed reservations about the potential availability of such work, the difficulties associated with it and the social isolation that would flow from it.70 [127] As I have already mentioned, the plaintiff has claimed a global award in addition to an ongoing weekly loss. She has submitted that an additional sum of approximately $133,000 should be awarded in that regard. [128] However, the plaintiff is currently in employment with a sympathetic employer who values her skills and abilities. There is no evidence before me to suggest that those skills and abilities could not be utilised on a part-time transition to retirement basis – much the same as the relief teaching role that she stated in evidence she would like to do were it not for her injury. I accept though that there would be less availability for “relief mentoring” than for relief teaching. 64 T2-26, ll 1-20. 65 T1-65, ll 15-45. 66 Exhibit 1 page 26-27. 67 T1-38, ll 25-35. 68 T1-21, ll 5-15. 69 T1-61, ll 1-25. 70 T1-53, ll 1-10; T1-55, ll 20-35; T1-57, l 45-T1-58, l 5. -- 28 of 31 -- 29 [129] Nevertheless, $130,000 seems excessive. In my opinion, the period of time for which this part of the claim should relate would be to age 70 – so a period of 4 years from the eligible retirement date. Given that the plaintiff proposes that this would be a transition to full-time retirement period, obviously she would be expecting to perform significantly less work during it. Adopting a global approach, in my view an amount of $30,000 would have been appropriate in all the circumstances. [130] Therefore, I assess the quantum of future economic loss as $221,425. Loss of superannuation entitlements Past [131] In accordance with the agreed facts, this amount is to be calculated at the rate of 9.25% which is $10,973.73. Future [132] In accordance with the agreed facts, this amount is to be calculated at the rate of 10.86% which is $24,046.75. Special damages [133] The parties have agreed that special damages should be calculated in the amount of $40,291.23. [134] Interest has also been agreed on the actual out-of-pocket expenses of $6,661.99 which is $274.67. Future expenses [135] It is agreed that the plaintiff has a further life expectancy of 32.48 years on the prospective life tables. The multiplier on a five percent discount table is 850.50. [136] The future expenses which the parties have agreed upon totals $31,107.96: (a) future shower modification expense $ 8,371.96 (b) future gardening and mowing expenses $11,892.12 (c) future pool cleaning expenses $10,843.88 [137] The parties agree that future physiotherapy expenses should be in the amount of $2,962.59. [138] The following future expenses insofar as the rate expended per week and the calculation for the remainder of the plaintiff’s life expectancy have been agreed. The parties are not in agreement as to whether any further discount ought be made on the amounts for the vicissitudes of life, and if so, to what extent: (a) future travel $ 8,000.00 (b) future Norspan $ 8,037.23 -- 29 of 31 -- 30 (c) future medical expenses $15,948.88 [139] The plaintiff has submitted that it would be appropriate to allow $7.50 per week for pharmaceutical expenses in addition to Norspan equating to an award of $6,378.75 for the remainder of the plaintiff’s life expectancy. [140] The defendant does not dispute this calculation but submits that discounting for contingencies in the order of 30 percent is appropriate. The plaintiff has submitted that no further discounting beyond the discount already applied on the basis of the 5% tables should occur. [141] In that regard, the plaintiff has submitted that the defendant’s submission that there is a “usual discounting rate” of 15 percent for future expenses is without foundation. She relies, in part, on the following statement by Gibbs and Stephen JJ in Sharman v Evans,71 “… once a probable life expectancy is determined (the vicissitudes of life) enter not at all into the assessment of future hospital expenses.” [142] In that regard, she submits that the economic reality that the cost of her attendance upon doctors, her medical and her travel expenses are likely to increase over the remaining 32 years of her life expectancy and that such increases offset any contingencies that may be said to decrease her future costs. [143] That approach however was rejected by the High Court in Todorovic v Waller,72 as was explained by McMurdo P in Woolworths Limited v Grimshaw:73 “[67] In Todorovic the High Court (Gibbs CJ, Stephen, Mason, Aickin, Wilson and Brennan JJ, Murphy J dissenting) held that, in a claim for damages for personal injuries, evidence as to the likely course of inflation, or of possible future changes in rates of wages or prices, is inadmissible. Where there has been a loss of earning capacity which is likely to lead to future economic loss, the present value of that loss should be discounted at three per cent, (subject to any relevant statutory provisions). This rate is to allow for inflation, for changing rates of wages and prices, and for tax (either actual or notional) upon income from investment of the sum awarded. The appropriate statutory discount rate in this case is five per cent.” [144] There is also somewhat of an inconsistency in the plaintiff’s submission that the expenses should not be discounted beyond the five percent tables as it ignores: (a) that she has accepted that her future physiotherapy expenses should be discounted by 15 percent for contingencies; (b) that the future pool cleaning expenses (now agreed at $10,843.88), and future gardening and mowing expenses (agreed at $11,892.12) reflect 71 (1977) 138 CLR 563 at 587. 72 (1981) 150 CLR 402. 73 [2016] QCA 274. -- 30 of 31 -- 31 a 15 percent reduction of those agreed future expenses, as detailed in paragraph 19 of the agreed facts; and (c) even though the plaintiff has accepted that her claim for future physiotherapy should be substantially discounted, she does not accept the obvious reduction that will also be required for her future travelling expenses. [145] Upon consideration of these matters, it is my view that further discounting beyond that applied by the five percent tables is appropriate and fair. I do not agree however that discounting of up of 30% is called for. In my view a discount of 12.5% across all categories (excluding the award for future Norspan which the defendant has submitted should be discounted at the rate of 10%) is appropriate. [146] Therefore, the following amounts are appropriate: (a) future medical attendances $13,955.27 (b) future Norspan $ 7,233.50 (c) future additional pharmaceutical expenses $ 5,581.40 (d) future travel $ 7,441.87 [147] I note that both parties agree that any award of damages would have to be less the amount of $105,297.83 for the Workcover Queensland refund. Orders [148] The plaintiff’s claim is dismissed. I will hear the parties as to costs and any submissions in that regard should be in writing and filed within 14 days. Alternatively, if the parties agree on the order as to costs a draft order to that effect should be filed within 14 days. -- 31 of 31 --