Covey v State of Queensland [2017] QSC 23

SUPREME COURT OF QUEENSLAND CITATION: Covey v State of Queensland [2017] QSC 23 PARTIES: Amelia Anne COVEY (Plaintiff) v State of Queensland (Defendant) FILE NO/S: S49 of 2014 DIVISION: Trial INITIATING DOCUMENT: Claim ORIGINATING COURT: Supreme Court of Queensland at Townsville HEARING DATE/S: 9th, 10th, 11th, 12th June 2015 DELIVERED ON: 27 February 2017 DELIVERED AT: Townsville JUDGE: North J ORDER/S: 1. Judgment for the plaintiff against the defendant for $1,607,586.20. 2. Order that the defendant pay the plaintiff’s cost of and incidental to the claim, from 19th November 2013 to be assessed on the standard basis. CATCHWORDS: MASTER AND SERVANT – SAFE SYSTEM OF WORK – PERSONAL INJURIES – NEGLIGENCE – BREACH OF DUTY – BREACH OF CONTRACT – DAMAGES – CONTRIBUTORY NEGLIGENCE – where plaintiff stumbled on a flight of stairs at work – where risk of injury reasonable foreseeable – where inexpensive remedial measures would have been avoided the foreseeable risk – where inadvertence or inattention on the part of the plaintiff contributed to the incident occurring LEGISLATION CASES: ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 Bankstown Foundery Pty Ltd v Braistina (1986) 160 CLR 301 Campbell v CSR Ltd & Anor [2002] QSC 266 Foresti v Ace Ceramics Pty Ltd [2004] NSWCA 202 -- 1 of 37 -- 2 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McLean v Tedman (1984) 155 CLR 306 COUNSEL: Heyworth-Smith QC with D. Keane for the Plaintiff Ryall for the Defendant SOLICITORS: Murphy Schmidt for the Plaintiff McInnes Wilson Lawyers for the Defendant [1] The plaintiff claims damages from her employer for personal injury sustained on 31 May 2010 at work arising out of a stumble, loss of balance and a fall1 upon a stairway at the Charters Towers Hospital. She was 27 years at the time of the incident (DOB 7/7/82) and 32 at the time of trial. [2] At the time of the incident the plaintiff was employed as a physiotherapist as one of Queensland Health’s rural relief pool and had commenced duties at Charters Towers on about 18 January 2010. A lot of her duties were performed at a building on the facility called Eventide where she and those with whom she worked treated both inpatients and outpatients. Nearby was another building which contained the Charters Towers Hospital. The plaintiff’s duties also took her to this building to treat inpatients in the wards on the ground floor and for meetings on the upper first floor. [3] The hospital building had two floors. On the ground floor were the wards with inpatients. On the upper or first floor were the offices of a number of nurses including the community health nurse and the director of nursing. The effect of her evidence was that often as about once per week her duties would take her to the first floor for a meeting with someone who had an office there. There was a lift that operated between the ground floor and the first floor but the plaintiff preferred to use a stairway to reach the first floor as the lift was slow and also she preferred to walk. [4] On 31 May 2010, the plaintiff had to treat some patients in a ward on the ground floor of the hospital. She also had an appointment for a meeting with Karen Guinane, a community health clinical nurse, on the first floor. The stairway concerned is in fact a 1 My terms, to be more accurately described in accordance with the evidence below. -- 2 of 37 -- 3 set of fire stairs connecting the ground and the first floors. The stairway can be reached via two doors on the ground floor. Photographs of the doors as they appeared at the time of inspections subsequent to the incident can be seen in the report by the engineers, Mr Kahler and Dr Grigg.2 The stairway comprised five flights, with intervening landings with a handrail on the left as one ascends.3 The plaintiff’s evidence was that the incident happened on the second flight as one ascends.4 The plaintiff gave evidence that when she ascended the stairs from the ground floor she was walking at a normal walking pace.5 She was wearing shoes of the type displayed in Mr Kahler’s report of 30 January 2014.6 She described the incident in evidence:7 “I was at – first step from the top, and I had just clipped – stubbed my toe into the third tread from the top. I lost my balance, I grabbed the rail, and my balance was all put off, and I just kept travelling awkwardly up the stairs, and then fell. But I had my hand on the rail, and my arm was yanked, basically to the side, backwards.” She described an instant burning pain into her shoulder. She remained on the stairs for a couple of minutes and described an intense burning. Then she resumed walking up the stairs and went to meet Karen Guinane. [5] Further details concerning the incident and the subject stairway emerged in the plaintiff’s evidence. She described the lighting in the stairwell on the day as “noticeably dim and dull” compared to where she had been working around the nurses’ station and the hospital ward. By reference to some photographs taken by her at an inspection in about October 20118 she identified the step or tread where she stubbed her toe as the third from the top shown in photographs 1 and 3.9 She said that at the time of the incident the stairs did not have the tape on them shown in the October 2011 photographs, exhibit 3. When giving evidence by reference to these photographs she said that her right foot hit the top of the 2 Mr Kahler’s report of 30/1/14, exhibit 2 tab 13 and Dr Grigg’s report of 22/9/14, exhibit 16. 3 See generally the photographs at pages 11 to 14 of Mr Kahler’s report of 30/1/14, exhibit 2 tab 13. 4 Transcript 1-14 line 25. 5 Transcript 1-14 line 19. 6 See exhibit 2 tab 13, figure 1 on page 3. 7 Transcript 1-14 line 30-34. 8 Exhibit 3 tab 1. 9 See exhibit 3 tab 1 photos 1 & 3 and transcript 1-17 line 17ff. -- 3 of 37 -- 4 step on the edge.10 She was walking taking one step at a time and until she lost balance placing one foot successively onto the next step.11 [6] When the plaintiff attended the stairwell in about October 2011 she attempted to photograph the measurements she attempted to make of the height of the risers of the subject staircase.12 She next attended on 16 December 2013 with Mr Taylor for the purposes of his inspection resulting in his report of 30 January 2014.13 She described the lighting in the stairwell on 16 December 2013 as “dramatically different … a brilliant bright light” that wasn’t there before.14 To emphasise this she referred to a photograph of a light above the subject flight of stairs taken during the inspection on 16 December 201315 and said that it was “extremely bright” in comparison with how it was at the time of the fall.16 [7] When cross-examined the plaintiff was asked what she meant by the word “tread” in her description of the incident quoted at paragraph [4] above. This caused a deal of confusion and it was not clear that the plaintiff understood what was being asked of her or that counsel understood what she meant by her words17 although it became apparent that the word “tread” was meant to refer to “an entire step”18 and that the “lip” was the corner or angle where the horizontal and vertical surfaces met.19 In re-examination the plaintiff said that she stubbed her toe on the edge at the top of the step and that she almost cleared it.20 The plaintiff conceded that, notwithstanding she maintained she was paying attention to what she was doing when walking up the stairs, she was not looking down at her feet as she ascended the stairs.21 Nevertheless she was able to mark on the photograph of the step she spoke of the approximate place where her foot struck the step.22 Her evidence was that she was not in any particular hurry23 and that putting aside the paint markings 10 Transcript 1-16 line 40. 11 Transcript 1-17 line 1-10. See further at transcript 1-27 line 17-24. 12 See exhibit 3 tab 1 and transcript 1-17 line 30ff. 13 See exhibit 2 tab 13. 14 Transcript 1-19 line 21-24. 15 Exhibit 3 tab 2 number 17. 16 Transcript 1-20 line 7. 17 See for example transcript 1-37 line 1-35. 18 Transcript 1-37 line 41. See also transcript 1-69 line 15-20. 19 Transcript 1-37 line 45. 20 Transcript 1-69 line 45. 21 Transcript 1-38 line 1-19. 22 See transcript 1-70 line 10-28 and see exhibit 3 photograph 1 of tab 1. 23 Transcript 1-74 line 18. -- 4 of 37 -- 5 near the nose of the steps, the steps shown in the first photograph of exhibit 3 were, according to her recollection, much the same on the day in question. [8] Karen Guinane, a clinical nurse community health, at Charters Towers who worked with the plaintiff, confirmed that on 31 May 2011 she was to meet the plaintiff about a tai chi class. The meeting was to occur on the first floor of the hospital building. When the plaintiff arrived she appeared pale and to be in pain. The plaintiff was holding her arm and said she had had a fall on the stairs. In the days following Ms Guinane noted that the plaintiff appeared to be in pain. She was guarding her arm and could not do a lot of things.24 Coincidentally Ms Guinane was, in a health promotion, encouraging people and employees of the hospital to walk 10,000 steps per day. This was an initiative of the defendant a part of which involved handing out pedometers. This was taken up by a significant number of staff and Ms Guinane noticed that more staff used the stairwell. Ms Guinane herself sustained an injury when descending the stairway sometime after the plaintiff’s injury. Her ankle rolled and she sustained a swollen ankle.25 She was also aware of another employee who slipped off one of the lower stairs whilst descending. Both Ms Guinane and the plaintiff put in incident reports. It was after these reports that the non-skid strips were placed on each step and also changes were made to improve the lighting in the stairwell.26 [9] Two engineers were called to give expert evidence. Mr Roger Kahler was called as part of the plaintiff’s case27 and three reports were tendered.28 The defendant called Dr Frank Grigg29 and through him tendered a report.30 [10] Mr Kahler inspected the premises on 17 December 2013 with the plaintiff. His report of 30 January 2014 incorporated his observations, measurements and photographs that day. Dr Grigg’s inspection was 31 January 2014 resulting in his report of 22 September 2014. Three matters of significance were noted by both experts. Though they differed upon 24 Transcript 3-3 line 13. 25 Transcript 3-19 line 1-14. 26 Transcript 3-19 line 20 – 3-10 line 40. See also transcript 3-11 line 9-19. 27 Transcript 2-12ff. 28 Reports 30 January 2014, 1 May 2015 and 18 May 2015. Being exhibit 2 tabs 13, 14 and 15. 29 Transcript 3-14ff. 30 Dated 22 September 2014, exhibit 16. -- 5 of 37 -- 6 some matters, mostly of detail, in essence they agreed upon what I regard as matters of most significance. [11] Mr Kahler took measurements of the goings and risers of the stairs in the stairwell concentrating upon the flight where the plaintiff said she was injured.31 He concluded, based on his measurements32 “there is a significant inconsistency in the rise dimensions between successive risers”. Dr Grigg whose measurements upon the subject flight were different from Mr Kahler’s, but in light of their evidence not significantly, also commented that there was “quite a large variation” compared with the tolerance nominated in AS1657.33 In his report of 30 January 2014 Mr Kahler drew attention to the provisions of AS165734 which set a tolerance of plus or minus five millimetres and the Building Code of Australia 1990 which required that risers be consistent within flights.35 Both witnesses noted that the greatest variation in the height of the risers occurred where the plaintiff claims to have tripped or stumbled. Both engineers agreed that the reason for the concern with reducing the variation in the height of risers was that significant variation became a trip hazard increasing the risk of a fall when ascending or descending. This hazard has been known and recognised in the literature for many years, even decades.36 The significance of the reason for the consistency of riser height as, to repeat the term used by Dr Grigg, “recommended practice” was starkly emphasised by Dr Grigg in his evidence.37 But that was not the only matter the experts agreed. Both agreed that a rather simple and inexpensive way to correct the deficiencies was to cap the existing treads with appropriate thickness of concrete.38 The evidence of both the plaintiff and Ms Guinane was that the black and yellow nose capping tape had been added to the stairs subsequent to the incident. Both experts endorsed this alteration as one likely to assist in accurately in placing their foot on ascent.39 Both Mr Kahler and Dr Grigg commented that the illumination offered by the lights in the stairwell, when turned on, 31 See report 30 January 2014 at section 4.4 at page 20ff. 32 See report 30 January 2014 at page 23. 33 See exhibit 16 at para 2 page 6. As to AS1657 see exhibit 23 at 4.3.1(a). 34 The 1974, 1985 and 1992 editions. 35 See section 6 of the report at pages 24-28. 36 Kahler report at 18 May 2015 at R 2.9 especially at page 9. Grigg report, exhibit 16 para 13 at page 6 & conclusion para 4 at page 7. 37 See Dr Grigg’s evidence at transcript 3-27 line 1; transcript 3-28 line 31; 3-29 line 10. See also 3-28 line 30- 35. 38 Grigg report exhibit 16 at para 18, page 6 and Kahler report 18 May 2015 at part 2.5, page 8-9. 39 See Kahler report 30 January 2014 at page 28 and see Dr Grigg’s evidence at transcript 3-28 line 20. -- 6 of 37 -- 7 equalled or exceeded the recommendations of relevant standards.40 Both noted the observation of the plaintiff that the illumination available when lights were on was better than at the relevant time.41 [12] Mr John Barron, a maintenance electrician at the hospital facility since September 2004, was called by the defendant. He said that there was one other electrician at the hospital but he was the leading hand. There were other maintenance personnel at Charters Towers and three engineers available for consultation based in Townsville. He gave evidence that there was no change to the “daytime lighting” in the stairwell in the time he had been there but that in about December 2013 there began an upgrade in the emergency lighting throughout the facility. With respect to bulb replacement, Mr Barron said there was no routine bulb replacement programme but they were repaired or replaced if reported.42 [13] At the trial a lot of attention was paid to a difference between the experts whether any of the standards or building codes enforced at any time strictly speaking applied to this stairwell.43 The argument of Dr Grigg in his report at paragraphs 2 and 3 was received by myself for a limited basis only.44 Only one standard, AS1657 (1992) was tendered into evidence.45 Notwithstanding that the stairwell served the purpose as a fire stair it is not clear from the evidence that this stairwell was within a special provision for the escape from fire46 thus excluding it from the operation of the standard. I have already noted Dr Grigg’s reference to “recommended practice” in this context. In the unsatisfactory state of the evidence it is difficult to determine whether any standard or code referred to in the reports supplied at the time the stairwell was constructed. But, as I will explain later, they (or the object sought to be achieved by the standards) assist in informing the content of the duty of care owed to the plaintiff by the defendant at the time of the incident. Nor can I resolve the reason for the discrepancy between the measurements made by Dr Grigg and Mr Kahler of either the stairs or the illumination. Both noted this curiosity but neither could explain it. Both are experienced and competent engineers. I do not find that either was more or less careful than the other. In the upshot, for reasons that I will explain, I do 40 See Kahler report 30 January 2014 at para 7.2, page 30-32 and Grigg report exhibit 16 at conclusion 1. 41 It will be recalled this Ms Guinane’s evidence also. 42 Transcript 4-6 line 35ff. 43 See Grigg report exhibit 16 at paras 2 & 3 compared with section 2.2ff of Mr Kahler’s report of 18 May 2015. 44 See transcript 3-17 line 15 to 3-19 line 15. 45 Exhibit 23. 46 See scope at para 1.1 of exhibit 23. -- 7 of 37 -- 8 not think anything turns upon this. The effect of this evidence, as I understand it, is that there was no change to the lighting fixtures or fittings, save for emergency lighting. I understand “daytime lighting” to be a phrase Mr Barron used to refer to the lights operating when the lights in the stairwell were switched on. But his evidence did not exclude the possibility that bulbs had been replaced and upgraded subsequent to the incident with consequent improvement in illumination in the stairwell. [14] Upon the issue of liability the defendants submitted that the stairs were designed for emergency use and that there was no evidence either that they were being used in an emergency or that they were unsafe for that purpose. Further, relying upon Foresti v Ace Ceramics Pty Ltd47it could not be demonstrated that either AS1675 (1992) or any other code applied to this stairwell. Attention was drawn to the comparatively small height differences, a matter of millimetres, thus upon these premises, it was submitted that the plaintiff had neither demonstrated that any change should have been made to the stairway nor that such a measure would have avoided the incident. The defendant submitted that the exact circumstances or mechanism of the event was uncertain and that further the plaintiff was negligent in not looking down at her feet as she negotiated the stairway. For the plaintiff it was submitted that the stairway in general posed an obvious and foreseeable risk of injury and that the engineering evidence demonstrated the heightened risk of injury posed by the dimensional variation to persons ascending or descending. The plaintiff pointed to the inexpensive measures that the employer might have adopted to reduce the risk of a stumble, trip or fall.48 The plaintiff submitted that her injury was caused in the circumstance she described and that an inference should be drawn that it was occasioned because of the variation in the riser height. [15] I observed the plaintiff closely when she gave evidence and when under cross- examination. Whilst she demonstrated at times some concern or involvement with the nature or extent of her injury, disability and suffering I detected no indication that her evidence concerning the incident at work and her recollection of or use of the stairway in question was either embellished or the product of reconstruction. In certain important respects her evidence of the circumstances of the event were corroborated by the evidence of Ms Guinane, whose evidence I accept. In the upshot based upon her evidence and that 47 [2004] NSWCA 202 at [34]-[36]. 48 See for example Campbell v CSR Ltd & Anor [2002] QSC 266 at [22] & [25]. -- 8 of 37 -- 9 of Ms Guinane, I find the following. On the day in question the plaintiff approached and commenced ascending the stairway in question at a normal walking pace for a woman of her age and health. She was wearing the shoes described in evidence. She had used the stairway as often as once a week prior to this occasion and there is no evidence she had encountered any difficulty with the stairway. It is likely that the lights were on but I accept her evidence or the effect of her evidence to be that the lighting was dimmer than she noted on subsequent inspections. As she approached the top of the second flight of stairs her right foot at or about the toe of her shoe caught upon or bumped into the top of the stair indicated by her in a photographic evidence at or near the lip where the horizontal surface of the step and the vertical plane of the riser meet causing her to stumble and lose her balance forward in the manner described by her. As she lost her balance her left hand went out to take hold of the railing on the stairwell, which as she stumbled forward forced her arm to be backwards behind her in a manner indicated in her evidence. I accept the evidence of Ms Guinane that sometime shortly after the plaintiff presented to her and complained of the incident whilst exhibiting the signs of apparent injury or pain. I further accept Ms Guinane’s evidence that subsequent to this occasion she injured her ankle in the manner described when descending the stairway and that subsequent to both incidents she and the plaintiff lodged incident reports. Subsequent to those reports the markings were placed on the noses of the stairs in the stairway that can be seen in the photographs. I accept the evidence of Ms Guinane and the plaintiff in this regard that subsequently the stairwell appeared to be much brighter than it was at or about the time of the incident in question. I infer that it is likely that subsequent to this incident, steps were taken to review the lightbulbs and new or more powerful lightbulbs were installed. [16] The evidence of the plaintiff of the circumstances and place of the trip or stumble also finds support from the evidence of both Mr Kahler and Dr Grigg. This also fortifies me in my findings and acceptance of the plaintiff. The trip or stumble spoken of by the plaintiff is one of the types of accidents or events that the engineers say may occur when the heights of risers vary too much. Further the very step or nose where the plaintiff indicated she tripped or stumbled is the step or riser where both engineers say the variation in riser height is greatest and the danger or risk greatest.49 49 These factors are also relevant to the question of causation to be discussed below. -- 9 of 37 -- 10 [17] It is well established that one part of the content of the duty of care owed by an employer to an employee is to take reasonable care to ensure that the workplace premises are safe.50 In Bankstown Foundery Pty Ltd v Braistina51 the High Court observed: “It is as accurate today as it was thirty years ago to say that the duty ‘is that of a reasonable prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risk of injury’: Hamilton v Nuroof (W.A.) Pty. Ltd., per Dixon C.J. and Kitto J. We digress to remark upon the formulation preferred by Windeyer J., with whom McTiernan, Kitto, Taylor and Owen JJ. agreed, in Vozza v. Tooth & Co. Ltd., namely: ‘For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff rom the dangers of his task without unduly impeding its accomplishment.’ This passage has been repeated more than once in recent decisions of the Court: Raimondo v. South Australia; McLean’s Roylen Cruises Pty Ltd. It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, ‘without unduly impeding its accomplishment’, as furnishing an additional qualification to an employer’s liability independently of the question of what is reasonable in the circumstances. If protective measure are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken. 50 See for example ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372; “The Liabilities of Employers”, Glass, McHugh, Douglas 2nd ed page 52ff; “Fleming’s The Law of Torts” 10th ed para [24.40]. 51 (1985-1986) 160 CLR 301 at 307-309. -- 10 of 37 -- 11 Furthermore, it has long been recognized that what is a reasonable standard of care for an employee’s safety is ‘not a low one’: O’Connor v. Commissioner for Government Transport. Whether or not it will be found to have been satisfied is always a question of fact to be determined in the light of the circumstances of each case. It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparting the decisions in different cases because no two cases can provide true comparability in circumstances. The Court had occasion to make this point recently in Waugh v. Kippen, in distinguishing from the case in hand the decisions in Turner v. South Australia and Castro v. Transfield (Qld.) Pty. Ltd. On the other hand, being a question of fact, it is undoubtedly true, as McHugh J.A. said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ said in McLean v. Tedman: ‘Accident prevention is unquestionably one of the modern responsibilities of an employer.’ However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee: see Smith v. Broken Hill Pty. Co. Ltd; Da Costa v. Cockburn Salvage & Trading Pty Ltd.” (Footnotes omitted.) -- 11 of 37 -- 12 [18] In the observations I have quoted above members of the High Court repeated with evident approval the reasons of Mason, Wilson, Brennan & Dawson JJ in McLean v Tedman52: “If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his duties then this is a factor which the employer must take into account. That this is so was implicitly acknowledge by Taylor J. in Smith v Broken Hill Pty. Co. Ltd, when he referred to an employer contemplating ‘the possibility of thoughtlessness or inadvertence – or to use what is, perhaps, a stronger word, carelessness’. Of course in the present case the foreseeable risk of injury arose not merely from inadvertence or carelessness on the part of an employee, but more particularly from the possibility of negligence on the part of a motorist. It was the chosen method of performing the work that exposed the appellant to this risk of injury. The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed, pp. 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.” (Footnotes omitted.) [19] The compelling conclusion based upon the evidence of both Mr Kahler and Dr Grigg is that the flight of stairs was more dangerous for those descending or ascending than it might have been if built or constructed with consistent riser heights and it constituted a danger because of the trap inherent in any inconsistency making it difficult for someone walking up or down to judge the placement of feet. Further that this danger had been recognised decades ago leading to the stipulations found in the various standards and codes. The inference I draw from both engineers is that if, in the years or decades prior to this incident, someone of their experience (or for that matter an architect or a competent 52 (1984) 155 CLR 306 at 312-313. -- 12 of 37 -- 13 building surveyor) had been consulted, they would have drawn this danger to the attention of the employer. There is no evidence the employer, through its servants or agents, turned its mind to the safety of the stairway or sought advice. [20] Measures designed to reduce the risk crated by the variation in riser height were available, not expensive and not inconvenient. These include the non-skid strips subsequently placed on the noses or ridges of the steps. This measure would have assisted with the accurate judgment of where to place feet when ascending or descending. Another measure available is the capping of the steps to make the height of the risers uniform. I accept the evidence of both engineers about this measure. While it would not eliminate the inherent risk of a slip or fall when on the stairway, one that is known because of the nature of stairs, it would have eliminated the risk of a trip, stumble or fall as a result of the trap caused by riser height variation. Further, the evidence is that this measure was not expensive and there is no suggestion the implementation would have been unduly burdensome. [21] The danger I have been discussing was, to some extent aggravated in the circumstances by the lighting. I do accept that there is no evidence the lighting available did not comply with relevant standards. The engineers’ evidence is that at the time of their inspections the lighting did comply with standards. But I do accept that by that time it was noticeably brighter than at the time of the incident. I do not find that at that time the available illumination was so poor as to itself constituted a danger rather the evidence of both the plaintiff and Ms Guinane persuades me that it could have been brighter (and presumably without much expense or inconvenience) thus assisting a user to make an accurate judgment about the placement of feet. [22] The plaintiff had used the stairway before. Ms Guinane used it. It is likely other employees did. There is no evidence the employer prohibited its use by employees or warned of any risk if using it. It is likely the employer (being those persons in authority and management) knew that employees used the stairway regularly. The evidence of the 10,000 step campaign and the distribution of pedometers is evidence of changing social standards and increasing awareness in the community, at workplaces and in government of the health benefits in walking and exercise. An attentive employer would have known -- 13 of 37 -- 14 not only that the stairway had and was being used by employees but that its use might increase. [23] There is no evidence of any accident on the stairwell before the incident the plaintiff complains of. Nor is there evidence of any complaints to the employer concerning the stairwell before this incident. The frequency of use and the absence of accidents can, in certain circumstances speak eloquently for the safety of a stairway53 but this is not such a case. The evidence here is that there was a danger latent in the stairways. So the question becomes, in light of High Court authority quoted above, what should have been done by the employer acting reasonably albeit in the absence of any accident or complaint before the plaintiff’s injury? This inquiry and the related inquiry of breach must be judged prospectively and not simply retrospectively.54 [24] Here the plaintiff has not persuaded me that any of the codes or standards referred to in reports applied to the subject stairway. In this respect I follow Foresti v Ace Ceramics Pty Ltd55 but note the approach of Dutney J in Campbell v CSR Ltd & Anor56 where notwithstanding reservations concerning the applicability of codes or standards, his Honour’s approach was guided by the authorities bearing upon the liability of the employer.57 [25] The risk of a fall or stumble on the stairs was foreseeable and it was the obligation of the defendant as employer to “establish, maintain and enforce” a safe place at work as part of the system of work. One of the responsibilities was accident prevention. In this context the standard of reasonable care may change “with changing ideas of justice and increasing concern with safety in the community”. The routine ascent of a flight of stairs at the workplace which has been used without incident in the past can be the occasion of thoughtlessness, inadvertence, carelessness, inattention or misjudgement. In my view well before 31 May 2010 an employer in the position of this defendant was obliged as part of its duty of care to employees to “turn its mind” to the safety of the stairway being used by its employees. An inspection by an intelligent layman would have suggested the 53 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Priestly JA at 707. 54 See Roads and Traffic Authority of NSW v Dederer & Anor (2007) 234 CLR 330 at [65]-[67]. 55 [2004] NSWCA 202 at [34]-[36]. 56 [2002] QSC 66. 57 See Campbell v CSR Ltd & Anor [2002] QSC 266 at [18]-[25]. -- 14 of 37 -- 15 installation of the strips at the nose of the stairs and good lighting at the very least. But the exercise of care in this case would have suggested that the stairway be examined by a competent expert, the risk of falls on stairs being obvious, and in the absence of any prior examination. If this had been done by a competent, skilled expert, the defects in the stairway I have mentioned would, in all likelihood, have been identified and could without great expense been rectified. In all these circumstances including the known use of the stairway, the likelihood of its use increasing with time and in the absence of any evidence the employer turned its mind to the safety of the stairway, I find that the defendant breached the duty of care it owed the plaintiff. [26] The duty owed to the plaintiff and other employees to ensure the safety of the stairway to the extent reasonably possible, required the capping of the stairs in the stairwell so that dimensional inconsistency was minimised in accordance with, as Dr Grigg said, “recommended practice”. It also required the installation of the strips on the nose of the stairs and lighting of the brightness observed by the engineers. Consistent with my findings earlier58 I find that the plaintiff’s trip and stumble was caused by the defendant’s breach of duty and its failure to identify and remedy the trap created by the variation in riser height. This finding, to my mind is an inference reasonably open on the evidence particularly in light of the evidence of Mr Kahler and Dr Grigg and one open without impermissibly considering the matter with simplistic “post hoc” reasoning.59 [27] Turning to the question of contributory negligence, the principles applicable in the circumstances of this case were discussed by members of the High Court in Bankstown Foundery Pty Ltd v Braistina:60 “The law is that the damages recoverable by the respondent by reason of the fault of the appellant ‘shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’: Law Reform (Miscellaneous Provisions) Act 1965 (N.S.W.), S 10(1). A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose 58 See paragraphs [15] and [16]. 59 See in particular the evidence referred to [16]. See further the approach of Dutney J in Campbell v CSR Ltd & Anor [202] QSC 266 at [21] and the authorities referred to by his Honour in the footnote. 60 (1986) 160 CLR 301 at 310-11. -- 15 of 37 -- 16 himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage: see Podrebersek v. Australian Iron & Steel Pty. Ltd. In Podrebersek, the Court said: ‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v. Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.” (Footnotes omitted.) [28] My findings concerning the plaintiff’s manner in her approach to and ascent of the stairway, that she proceeded in a normal walking pace for a person for her health and fitness wearing the shoes she did, do not suggest negligence on her part. The defendant contended that her concession that she was not looking down at the stairs bespoke contributory negligence on her part. I reject that in every circumstance a person who ascends a flight of stairs that has been successfully negotiated in the past without any incident acts imprudently or fails to take reasonable care for their own safety by not looking down at the steps. The very nature of the hazard created by the steps, I have described it as a trap, is one that would be very difficult for a person to ascertain without resort to extraordinary measures. It is likely the plaintiff’s failure to pay particular attention to the height or position of each step was because she had successfully negotiated the steps in the past without any incident. Nor did the exercise of care on her part in the circumstances require that she take hold of the hand rail as she went up. As she commenced her ascent she had no reason for concern about the safety of the stairs or her -- 16 of 37 -- 17 capacity to negotiate them without incident. The evidence does not satisfy me that her trip or stumble and consequent injury would have been prevented if she had walked up holding the hand rail. Her conduct suggests “inadvertence, inattention or misjudgement” not negligence rendering her responsible in part for the incident and subsequent injury.61 The obligation of the employer with respect to safety requires that this possibility be taken into account when considering the workplace and the system of work. [29] The findings that the defendant breached the duty of care it owed to the plaintiff in the tort of negligence also sustains a finding that it breached the duty implied into the contract of employment. So do my findings concerning causation apply to the cause of action in contract. There should be judgment for the plaintiff against the defendant. I will turn to the assessment for damages. [30] The plaintiff was 27 when injured and 32 at trial. Much of her evidence about her injuries, suffering and loss was tendered in a quantum statement62 containing detailed schedules and calculations of claims. When she gave evidence, a lot of the detail and evidence in her statement was not challenged factually and much of the detail was not challenged in addresses63. But there was a challenge on a number of issues and submissions were directed to the recoverability of some claims or the methodology of the calculation of some claims. In what follows is a summary of the plaintiff’s history of her pain, suffering and loss of enjoyment of life. I will draw upon the quantum statement which is a summary of the plaintiff’s relevant background and the history of her pain, suffering and loss of enjoyment of life. I will then summarise the evidence from doctors and other witnesses (including lay evidence) before recording my findings and then proceeding to assessing the heads of damage or claim. [31] After completing her secondary education, the plaintiff embarked upon a dual degree course of Bachelor of Business Management and Exercise Science at Griffith University which she successfully completed in 2004. As a teenager at school she had been physically active and had enjoyed playing representative soccer. When she completed the dual degree in 2004, she embarked upon a course of study to complete a Bachelor’s 61 See paragraph [27] above and to the observations by members of the High Court in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 and the cases referred to. 62 Exhibit 1. 63 For example, special damages for past out of pocket expenses (including refunds), see Transcript 4-58, line 45. -- 17 of 37 -- 18 degree in a masters of physiotherapy at Griffith University which she completed in 2007. She was registered as a physiotherapist in September of 2007. Whilst at university, she worked at a Coles store at Mt Gravatt. On or about 4 February 2006 she sustained an injury to her lower back in a workplace accident. She made a claim for damages for personal injuries which was ultimately settled. At the time she was injured she was still studying and had not commenced her career as a physiotherapist. She found that the low back injury while affecting her ability to work as a physiotherapist did not prevent her from working as a physiotherapist64 and she managed her work as a physiotherapist, she said, by avoiding having to lift or manoeuvre heavier patients and avoiding standing in a static position for prolonged periods of time. Because of the back injury and consequent restrictions, she decided not to pursue a career in private practice as a physiotherapist and instead direct her attention to the public health system where, as she understood it, as a member of a team she could work in areas that were not as physically demanding and where there would be management or sedentary opportunities. After graduating at physiotherapy as she worked for a time in South-East Queensland including a graduate position with the Mater Public Hospital until January 2010. In January 2010 she commenced working as a physiotherapist in a rural relief pool for Queensland Health. As this position took her to placement, for example at Thursday Island and shortly after to Charters Towers when on or about 18 January 2010 she commenced work as a senior physiotherapist at Charters Towers. [32] In Exhibit 1, the plaintiff described her main injuries as physical injuries to her neck, left shoulder and left arm. She also complained of a psychiatric condition which she attributed to her physical injuries and with limitations resulting from them. Subsequent to the accident, she also claimed that she developed symptoms in her right shoulder, elbow and wrist occasioned by the use the plaintiff made of her right upper limb because of restrictions to her left upper limb. She described pain in her neck, left shoulder and left arm immediately after the incident and recalled the onset of a headache. She described the pain as a burning intense pain with some shooting pain. She continued to work on the day of the incident hoping that her symptoms would abate but she recalled a burning pain and a headache that evening, and trouble sleeping. She consulted a doctor at the Charters Towers Hospital Outpatients Clinic on 4 June 2010 and was prescribed 64 See Exhibit 1 at para 208; Transcript 1-47, line 36. -- 18 of 37 -- 19 medication. Eventually she consulted Dr Pritpal Bansi, an orthopaedic surgeon, on 23 July 2010 who recommended a course of treatment involving an ultrasound guided steroid injection to the left shoulder. Dr Bansi further reviewed her on 17 September and referred her for an MRI scan. Because of the continuation in her symptoms she was placed on restricted work duties but she still continued to experience symptoms in her neck, left shoulder and left arm. They were exacerbated by physical activity so she tried to avoid using her left arm. She described her symptoms from about the date of the accident up until about 20 April 2011 as: 1. Constant burning-type pain in the region of her neck and left shoulder, located just outside the outside of her shoulder with shooting pain down the top of her arm every time she used her arm; 2. A weak neck and left arm which would cause her to stop activities mid-task to try to relieve the sensation; 3. Regular headaches which were triggered by heightened pain in her left shoulder and neck. [33] At the recommendation of Dr Bansi, he performed surgery on 20 April 2011. The plaintiff recalled that upon waking up from the surgery the symptoms were different, her left shoulder and front side of her neck and to a lesser degree the back of her neck felt like they were on fire with a burning pain. This pain also shot down her left arm intermittently. The pain increased in severity over a period of approximately 6-9 weeks post-surgery and she experienced headaches of a severity that she had not experienced before the surgery. She continued to receive treatment from Dr Bansi but she developed symptoms in her shoulder and lost some function in her shoulder. Ultimately the doctor diagnosed a frozen shoulder secondary to the operation and referred her for treatment for this continued condition. In or about October 2011 she began to develop pain in her right shoulder and right arm that she had not previously experienced. At trial she described65 that her right wrist would start to ache with use and a constant low-level ache in her right elbow and shoulder which would increase with intensity with use. Comparison with her symptoms in her left shoulder and arm she described the right wrist, arm and shoulder 65 See Exhibit 1, para 181. -- 19 of 37 -- 20 symptoms as a nuisance. In 2012 she consulted a pain specialist, Dr Jason Day who recommended a course of treatment of injections which she was unable to undertake because WorkCover Queensland would not fund the treatment. She has also been treated at times by Dr James O’Callaghan, a pain specialist including a surgical procedure on 30 July 2013. [34] Notwithstanding the treatment and investigations at the time of trial the plaintiff described66 a burning type pain in her left neck and left shoulder which is always present but is of variable severity. At times the pain would travel down her left arm. If she sits with her left arm unsupported she reported the onset of heightened symptoms in her left shoulder and neck. In addition she complained of a stiff, aching pain in her left shoulder and persistent low-level headaches every day. The onset of a debilitating headache can be accompanied by vomiting and at trial she said67 that at least once a week on average she would experience heightened pain in her neck and the onset of a debilitating headache. [35] After the incident the plaintiff continued to work as a physiotherapist. She worked for some days until she sought medical treatment hoping that her symptoms would abate. Notwithstanding her condition and reported symptoms she continued to work as a physiotherapist for some time following the incident. Eventually the plaintiff came to the realisation that she could not continue to work as a physiotherapist because of the need to use her hands to perform tasks such as massaging, lifting, prodding and other manual manipulation of a patient and also the need to be able to hold her neck and other parts of her body in static positions of periods as she performs duties or if she has to demonstrate activities or techniques. She continued to seek employment or undergo work as part of a suitable duties program with different employers or organisations in 2012 and 2013. In 2011 she commenced study for a masters of public health majoring in Health Services Management through Flinders University. She completed part of the course but decided to cease studying for the masters when she came to the realisation that career prospects in that field might involve a physical component. In an endeavour to retrain in a more sedentary occupation in 2012 she commenced studying a Bachelor of Laws at the Queensland University of Technology. She completed that degree on 4 July 2014, graduating with a law degree with Honours, 2nd Class Division A, with a GPA of 5.667. 66 Exhibit 1, para 116ff. 67 Exhibit 1, para 125. -- 20 of 37 -- 21 By the time of trial she was attempting to complete a course in practical legal training but she was undertaking this course on a part-time basis as an external student because of her disabilities. The plaintiff described her attempts to obtain employment in a legal field68 but had been unable to obtain employment. Nor had she seen any graduate legal positions offered on a casual or part-time basis.69 [36] A number of specialists were called or reports by them were placed into evidence. Dr Pritpal Bansi, Orthopaedic Surgeon, was called.70 He gave evidence that on 20 April 2011 he performed two surgical procedures, the treatment of a tear in the biceps tendon of the left arm and a decompression of the left shoulder.71 Unfortunately, as a reaction to the surgery, the plaintiff developed a condition known as frozen shoulder. His evidence was that the plaintiff spoke of instant burning pain down her entire arm and pain in her neck when she described the effects of her injury. He did not record any complaint of headaches at this time. Notwithstanding the frozen shoulder, his evidence was that by 28 October 2011 the plaintiff reported that the pain was not waking her overnight and that by 17 January 2012 she reported a significant reduction in pain but still with some stiffness. There was no complaint of an increase in burning pain after the surgery whilst he treated her. In his letters or reports Dr Bansi had emphasised that his prognosis as to the plaintiff’s recovery was guarded. Dr John Cameron wrote a report or letters at the request of the defendant72. He reported that he could detect no neurological injury to the neck of the plaintiff. Her shoulder injuries appeared to be orthopaedic rather than neurological in Dr Cameron’s opinion. Dr Macgroarty, Orthopaedic Surgeon, wrote reports which were tendered by the plaintiff73. Overall he assessed the plaintiff as having sustained impairment in the order of 15% whole person as a result of her injuries. Dr Macgroarty noted an element of psychological overlay and chronic pain that might require long-term pain management. His opinion was that her symptoms were out of keeping with the objective clinical findings and he referred to psychological aspects and chronic pain. Further he noted that the psychological overlay may have had an impact on the impairment rating. From an orthopaedic perspective, Dr Macgroarty thought the 68 See exhibit 1, para 398-407. 69 See further the evidence of Mr Dare, a legal recruiter, T2-7ff and his report of 24 April 2015, Exhibit 2, tab 16. 70 See T1-48, line 45ff and his various reports or letters at Exhibit 2, tab 5. 71 See T1-51, line 50-45. 72 See Exhibit 12, reports 19 December 2011 & 15 February 2012. 73 Dated 5 December 2012, 29 October 2014 & 29 May 2015, Exhibit 2, tabs 10, 11 & 12. -- 21 of 37 -- 22 plaintiff ought to have been capable of working in a sedentary environment full-time but that that would be subject to her experiences of pain. Dr Brett Halliday, Orthopaedic Surgeon, wrote reports that were tendered by the plaintiff.74 Dr Halliday found that the plaintiff had suffered a work related injury to her left shoulder and neck and that her right arm symptoms were caused or contributed to because of the plaintiff’s inability to use her left arm. He expressed the opinion that the plaintiff’s neck or left shoulder injuries were primarily soft tissue injuries and that the frozen shoulder was secondary to the operation on her shoulder. In 2012 he expressed the opinion that the disabilities were affecting her capacity to work and might become permanent. [37] Reports from Dr Scott Campbell, Neurosurgeon, were tendered into evidence.75 Dr Campbell’s reports and attendance note concerned the plaintiff’s low back injury sustained in the work related incident at Coles in February 2006 where the plaintiff apparently sustained an L5/6 disc bulge. Dr Campbell expressed the opinion in his reports that the plaintiff had sustained a 10% impairment as a result of that injury and that there was some potential to affect her future as a physiotherapist. [38] Dr Mark Tadros, pain specialist, was called by the plaintiff.76 Dr Tadros, in his first report, diagnosed the plaintiff as suffering from a chronic cervical pain secondary to facet arthropathy with associated cervicogenic headaches, chronic upper limb pain secondary to thorasic outlet syndrome and adhesive capsulitis. In his second report he also diagnosed that the plaintiff suffered from a complex regional pain syndrome.77 He was of the view the syndrome would persist despite treatment to reduce pain and was productive of a whole person impairment of the order of 30%. He expressed the opinion that the plaintiff’s pain would interfere with her capacity to concentrate, process information and work as a lawyer. In his opinion the plaintiff could not work as a lawyer. In his opinion the plaintiff could not work as a physiotherapist. When cross-examined, Dr Tadros agreed that the diagnosis of neck facet arthropathy depended upon the reliability of the clinical history.78 He also expressed the view that the chronic cervical pain was secondary to the facet arthropathy. Dr Tadros recommended consideration for 74 See Exhibit 13, reports 5 March 2012 & 3 June 2015. 75 The defendant tendered a report dated 21 April 2007 and the plaintiff an attendance note, Exhibit 15. 76 See T2-31ff and see reports 24 March 2014, 17 June 2014 and 28 May 2015 found in Exhibit 2, tabs 6, 7 & 8. 77 Referring to AMA Guidelines 6th Edition. 78 T2-36, line 30. -- 22 of 37 -- 23 a range of treatments and investigations though he conceded that there was approximately a 15% chance that the plaintiff might require a spinal cord stimulator. Dr Tadros expressed the opinion that the plaintiff’s future treatment would involve a multi- disciplinary approach.79 [39] Dr Jason Ray, pain specialist, was called by the plaintiff. In 2012 he had been for a time the plaintiff’s treating specialist.80 As a result of his examination and investigations he formed the view that the cause of the plaintiff’s pain was cervicogenic headaches from facet joints in the neck.81 Dr Ray’s treatment of the plaintiff ended because WorkCover was not prepared to fund further treatment he recommended. [40] Dr Jennifer Lockwood, psychiatrist, was called by the plaintiff.82 In her reports Dr Lockwood diagnosed that the plaintiff had suffered from a major depressive disorder as a result of suffering from chronic pain. She diagnosed a major depressive disorder and a pain disorder with both psychological and a general medical condition. Dr Lockwood assessed a whole permanent impairment of 6% and expressed the opinion that the plaintiff may have difficulty tolerating full-time work as a lawyer. In evidence, Dr Lockwood explained her pain disorder as “her profound preoccupation with the pain and its symptoms cognitively was affecting her experience of pain; not necessarily making it worse but making it somehow more significant”.83 She agreed with the proposition that the concurrency of the pain disorder condition and the depression condition combined with the length of suffering affected the prognosis for a successful outcome following treatment.84 Dr Lockwood recommended treatment from a number of specialties including pain management, psychological and psychiatric experts.85 Dr Bradley Ng, psychiatrist, was called by the defendant.86 Dr Ng diagnosed the plaintiff as suffering from an adjustment disorder with depressed mood and anxiety from her shoulder injury. He expressed the opinion that it was not an aggravation of a pre-existing condition and his opinion was the plaintiff’s prognosis was guarded conceding that the plaintiff’s 79 T2-33, line 42ff. 80 Dr Ray treated the patient from about 18 April 2012 until 12 September 2013. 81 See T3-39ff and reports at Exhibit 2, tab 1. 82 T3-31ff and reports dated 28 February 2013, 17 September 2014 & 3 June 2015, Exhibit 2, tabs 2, 3 & 4. 83 See T3-35, line 37-39. 84 T3-36, line 30-45. 85 T3-37, line 3-13. 86 T3-37ff; see Exhibit 27 report dated 24 February 2012. -- 23 of 37 -- 24 condition might become entrenched with time. He agreed with the proposition that the plaintiff might require multi-disciplinary treatment in the future. Significantly, the plaintiff apparently reported to Dr Ng that when she saw him in 2012 she had no psychiatric history of note. To emphasise the inaccuracy of that last issue the defendants called two expert witness. Ms Penny Gordon, psychologist, was called by the defendant.87 Ms Gordon had seen the plaintiff in connection with the effects of the work injury at Coles. She had continued to treat the plaintiff for a period seeing her last in about 2009 for counselling. In her report in 2007 she expressed the opinion the plaintiff had suffered from a major depressive episode as a result of 2006 work injury. In evidence, she agreed that the plaintiff’s symptoms would have decreased with her transition to successful employment as a physiotherapist and if the plaintiff had been able to return to engage in sporting endeavours. Dr Ken Arthur, psychiatrist, was called by the defendant.88 In 2008 Dr Arthur had prepared his report in respect of the effects of the 2006 work injury. He expressed the opinion that the plaintiff suffered from an adjustment disorder with depressed mood. When cross-examined he agreed that he would expect an improvement in the plaintiff’s condition if the stressors that had affected her up until 2008 had abated. [41] An occupational therapist, Mr Sven Roehrs was called by the plaintiff.89 Mr Roehrs report followed an interview he conducted with the plaintiff on 5 July 2013. He gathered evidence from the plaintiff and from other sources as to the plaintiff’s pre-incident and post-incident requirements for care and assistance, noting the care and assistance apparently given by the plaintiff’s mother and by others subsequent to her surgery and discharge from hospital in 2011. He also performed a functional capacity assessment of the plaintiff where he observed the plaintiff undertaking a series of practical tasks which related to functional work demands such as walking, reaching, sitting, lifting and carrying. Following the findings set out in his report as a result of his assessment, Mr Roehrs expressed the opinion that in the three weeks post-discharge from surgery the plaintiff required nine hours a week of assistance and at other times she received approximately four hours gratuitous assisted care per week. He also expressed the opinion that she would require a similar level of future domestic assistance, the equivalent 87 T3-59ff and report, Exhibit 26 dated 12 October 2007. 88 T3-62ff, see also Exhibit 25 report dated 18 July 2008. 89 T2-23ff. See also his report of 5 September 2013 at Exhibit 2, tab 9. -- 24 of 37 -- 25 of four hours per week for commercial domestic support. He expressed the opinion that the plaintiff did not have the function or capacity as to re-engage in her prior occupation of physiotherapy and he considered that she was not capable of returning to any of her prior employments where the functional demands of these roles required standing, prolonged sitting and reaching beyond her assessed capacities. He considered her to have a potential work capacity of between 12 and 20 hours per week in sedentary employment where she would be able to work from home with flexible deadlines. He expressed the opinion that in future the plaintiff’s condition would be likely to preclude her from participating in leisure activities such as gym exercise, soccer, swimming, bike riding or tennis. When cross-examined, he was asked to assume that the plaintiff had been able to work for two days a week at eight hours a day taking a one hour lunch break and three 20 minute breaks in each day.90 In response, Mr Roehrs expressed the opinion that he would only change his opinion if it could be demonstrated she could work to that extent continuously over a period of three months.91 [42] The plaintiff’s mother, Ms Jillian McDowell, was called.92 She confirmed that she provided personal care to the plaintiff for three weeks post-surgery which involved showering, dressing, washing hair and other aspects of personal care. In addition she provided domestic assistance such as shopping, cleaning and cooking. She estimated that for four days, the plaintiff required a combined 10-12 hours per day and after that approximately five hours per day. After the initial three weeks post-surgery, the plaintiff’s week-to-week needs averaged between three and five hours per week. Though sometimes her needs were more when the plaintiff’s pain was more intense. [43] A statement from Ms Zara Woolley was tendered by consent by the plaintiff.93 Ms Woolley was a housemate of the plaintiff from December 2012 until November 2013. She reached an agreement with the plaintiff that in return for the plaintiff paying for utilities, she would perform household duties on behalf of both of them. Her duties required her to spend between one and half and two hours per week performing duties such as cleaning. She also noted the plaintiff had her groceries delivered and required assistance with any heavy lifting. 90 T2-25, line 44. 91 T2-26, line 43. 92 T2-18ff. 93 See Exhibit 10. -- 25 of 37 -- 26 [44] The plaintiff tendered a statement with attached documents from Ms Natalie O’Donoghue who was employed by MS Queensland in late 2012.94 In late 2012 the plaintiff worked at the office of MS Queensland performing a suitable duties program at the request of WorkCover Queensland. Ms O’Donoghue noted that the plaintiff did telephone and desk work. She noted that the plaintiff appeared to find the work difficult and to be physically uncomfortable. [45] Mr Anthony Dare, a legal recruiter, was called in the plaintiff’s case.95 Mr Dare expressed the opinion that so far as he could determine there was no market in Queensland for graduate employees with commercial employers on a part-time basis. He noted that some firms or organisations had the means or assistance available to employ established or experienced employees who could work part-time and from home but the same did not apply for recent graduates. [46] In the evidence of the plaintiff when cross-examined, a number of issues were raised. The plaintiff was challenged with the evidence of the injury and related disability from the workplace event in 2006 and the possibility that it might have compromised her capacity to work as a physiotherapist. Her evidence96 was that she had chosen a career within the public health system to meet this contingency and that she was managing to do the work. She was challenged that the first report of debilitating headaches was on or about 1 July 2011 when she was treated at a hospital. Her evidence was97 that she suffered headaches before the surgery of 20 April 2011, that they became worse after and that she was suffering debilitating headaches by July 2011. It was put to her that when she saw Dr Ng in 2012 she failed, when asked, to tell him of her prior psychiatric illness and psychological treatment.98 [47] It is now convenient to outline my findings concerning how the plaintiff’s evidence, her injuries and the effects upon her in the light of the medical evidence before proceeding to an assessment of damages for the particular heads of damage which will be informed by these findings and the particular evidence related to each head. 94 See Exhibit 11. 95 T2-7ff; see also report dated 24 April 2015, Exhibit 2, tab 16. 96 See, for example, Exhibit 1, para 208 and T1-47, line 36. 97 See T1-57, line 21-30. 98 See Exhibit 24 & T1-58, line 38 to T1-59, line 1. -- 26 of 37 -- 27 [48] In my reasons for accepting the plaintiff’s evidence concerning the circumstances of the incident99 I noted that the plaintiff at times exhibited some concern or involvement with the nature and extent of her injury, disability and suffering. I had that in mind when I noticed that she appeared to be holding or supporting her left arm when giving evidence from the witness box. I asked her if she considered using a sling to support her left arm. Her answer, which I accept, is that she had been advised not to use a sling in the particular circumstances.100 The plaintiff’s failure to give a full and frank answer to Dr Ng when he asked her whether she had any psychiatric history in the past is of concern. The evidence from Ms Gordon the psychologist and Dr Arthur the psychiatrist and the other evidence tendered concerning her claim for damages arising out of the 2006 incident makes it plain that it was not only part of her case that she had suffered a significant secondary psychiatric illness but that she had sought treatment for it for some time from Ms Gordon until about 2009. At once it should be acknowledged that the defendant did not invite me to make a finding adverse to the plaintiff generally on matters of credit because of this. Perhaps, on behalf of the plaintiff, it might be submitted that the precise question or enquiry from Dr Ng that he referred to in his report was not explored. In general, the approach I have determined and should be taken to the plaintiff’s evidence is that while I should be cautious and not necessarily embrace every detail of the plaintiff’s account of her pain and suffering, I should accept in broad terms her evidence. This acceptance is notwithstanding the concern I have because of the plaintiff’s answer to Dr Ng’s enquiry and some initial concern that her involvement with her injury and suffering exhibited in her demeanour in the witness box might have resulted in some exaggeration. My reason for my acceptance of the plaintiff is because the medical evidence overwhelmingly supports the substance of the plaintiff’s complaints. It explains her involvement or demeanour. The orthopaedic evidence from both Dr Halliday and Dr Macgroarty establishes that the plaintiff suffered a significant orthopaedic injury to her left shoulder and arm that required the treatment given to the plaintiff by Dr Bansi. Unfortunately, the treatment did not alleviate all her symptoms and for a time exacerbated them significantly and she suffered from the post-operative frozen shoulder. The orthopaedic evidence also supports the plaintiff’s complaint of right arm symptoms that subsequently developed because of her inability to use her left arm. The evidence from Dr Cameron’s report that there is no neurological explanation for the illnesses does not 99 See paragraphs 15 & 16 above. 100 T1-63, line 5-15. -- 27 of 37 -- 28 rule out an orthopaedic explanation for the plaintiff’s complaints as Dr Cameron acknowledged in his report. Further, the evidence from the pain specialists Drs Tadros and Ray and the evidence from the psychiatrist Dr Lockwood, whose evidence is not contradicted by the opinions of Dr Ng, offer an explanation for the reservations expressed by the orthopaedic surgeons in their reports that there appeared to be an element of psychological overlay and chronic pain requiring long-term pain management. It seems clear from Dr Lockwood’s evidence, which I accept, that the plaintiff has suffered from both a major depressive disorder and from a pain disorder. She diagnoses not only the depression but a pain disorder which has its effect cognitively upon the plaintiff by making the pain she suffers more significant. The concurrency of the pain disorder and the depression and the length of suffering of those conditions contributes to a guarded prognosis with respect to treatment. [49] Thus in summary there is ample evidence from the specialist orthopaedic surgeons, the pain specialists and from Dr Lockwood supporting the plaintiff’s complaints of pain and disability. It is for this reason therefore that I am prepared to accept the plaintiff that she suffered from headaches after the fall as she complains but that they did not become significant for her until her complaints of debilitating pain in July 2011. Her failure to mention the earlier occurrence of headaches to Dr Bansi can be explained by the circumstance that at that time the headaches did not intrude significantly upon the plaintiff’s enjoyment of life, rather her focus was on her shoulder and arm injury and disability. It should be noted that there is support for the plaintiff’s complaint of headaches in the evidence from Dr Jason Ray who suspected cervicogenic headaches secondary to facet joint disruption in the neck.101 [50] A number of doctors have expressed at best guarded hope for a successful treatment for the plaintiff. By the time of trial the plaintiff had suffered from her physical and psychological disabilities for years. Her treatment to then had been largely unsuccessful. A number of doctors recommended a multidisciplinary approach to further treatment102 and it seems likely to me that the prospects of some successful treatment for the plaintiff to alleviate her suffering, be it physical or psychological, will depend upon the treatment from experts in more than one discipline. The plaintiff has and will continue to suffer 101 I note also the evidence of Dr Tadros of a diagnosis of chronic cervical pain secondary to facet arthropathy. 102 For example, Dr Tadros, Dr Lockwood and Dr Ng. -- 28 of 37 -- 29 loss of left arm function and from significant debilitating pain because of her injury and that she has and may continue to suffer from an aggravation of her suffering because of the effects of her psychiatric condition or the pain disorder diagnosed by Dr Tadros. The injury and its consequential effects upon her effectively destroyed the plaintiff’s capacity to work as a physiotherapist and into the future. Her injury and the associated disabilities will continue to be productive of a loss of capacity to earn income.103 [51] The plaintiff has suffered from a significant combination of physical injuries combined with a depressive illness and a pain disorder. The latter may be the disorder diagnosed by Dr Lockwood together with the disorder diagnosed by Dr Tadros. She was 27 when injured, enjoying an active life after a good recovery from the 2006 workplace injury. It is likely that for the rest of her life she will continue to suffer from the physical disabilities and the prospects of any substantial recovery from the other conditions from which she suffers is guarded. While some adjustment in her prescribed drug regime and the multi- disciplinary treatment may help alleviate some of her suffering, she will continue to suffer pain and a considerable restriction in her physical capacities. I accept the plaintiff’s submission that an assessment for general damages at $90,000 is appropriate. I would attribute some $40,000 of that to past pain and suffering. Interest calculated at 2% for 6.75 years since the accident is $5,400. [52] Most of the plaintiff’s claims for special damages for out of pocket expenses and refunds for medical and rehabilitation expenses were admitted by the defendant. A small reduction for pharmaceutical expenses for one prescription unrelated to the injuries (some $75) should be made and the allowance for the refund to a health fund reduced to $2,756.66 to reflect the evidence (see Exhibit 20). The defendant submitted that the plaintiff’s claim of $47,734 for educational expenses should not be awarded. Most of this were the expenses incurred in the plaintiff’s law studies. Notwithstanding that it transpires that her prospects of significant income from employment as a lawyer are problematical (to be discussed below), the defendant has not demonstrated, nor was it suggested to the plaintiff in terms, that this expense was an unreasonable attempt by her to retrain when she realised that she could no longer work as a physiotherapist. In other words, the defendant has not persuaded me that this was an unreasonable attempt to 103 I will make more precise findings concerning this below. -- 29 of 37 -- 30 mitigate loss. I will allow this claim. The total special damages recoverable therefore (after making the adjustments) is $106,132.84. Of this sum, $56,547.07 are out-of-pocket expenses attracting an award of interest. I calculate interest at 5% for 6.75 years at $19,084.63. I allow that. [53] The calculations in support of the allowance for past economic loss by both parties adopted different methodologies. The plaintiff claimed past economic loss from the first working week after the incident on 31 May 2010. The defendant calculated it from 18 April 2011, being the day after the plaintiff last worked before her surgery on 20 April 2011. This made it difficult to compare the competing methodologies partly because the corresponding amount to be allowed for actual earnings received varied substantially. Further, the plaintiff’s calculations assumed that the automatic progression through the pay points provided for in the relevant certified agreements and awards (see Exhibits 17 and 27), the continuity of renewal of contracts and the continued work by the plaintiff casually at the Mater Hospital on weekends. The defendant contended that the amount claimed by the plaintiff in the calculations for her net weekly loss exceeded what she was capable of earning working at full capacity at a relevant pay point level. The defendant submitted that past economic loss should be calculated on the basis of a notional earning at $1,400 net per week less net actual earnings. This, it was submitted, compared favourably with the net average weekly earnings in the 2010 financial year of $1,248.92 (see Exhibit 1 at page 43). The defendant further submitted that the figure arrived at by its calculation should be discounted by 10% to meet the contingency that the plaintiff’s 2006 disability would have been productive of economic loss at sometime between 2010 and trial. I have difficulty in accepting the approaches adopted by either side. The plaintiff’s calculations do not find clear support in her earnings before or immediately after the incident (see Exhibit 1 at page 43) and assume automatic renewal of contracts and pay point progression. The defendant’s discount at 10% for the contingency mentioned is excessive. The plaintiff is an intelligent woman. She, by her training and re-training, demonstrated a capacity to adjust and to adopt work arrangements to minimise the risk of a back injury or aggravation. The weekly net loss of $1,400 suggested by the defendant seems reasonable as a reflection of the past loss incorporating a modest discount in more recent years, taking into account the hypotheticals of continuity -- 30 of 37 -- 31 of employment and pay point progression.104 Approximately 348 weeks have elapsed since the incident. The loss of $1,400 net per week since then is $487,200. I accept the plaintiff’s calculation of net past earnings from the day of injury to trial. An amount has to be added to that to allow for possible net earnings since the trial. In light of the evidence of past earnings an amount of $8,000 net per year (or $153.85 net per week) is reasonable. Net weekly income for the period from the incident to judgment is therefore $99,710.30. The difference between a loss and earnings, rounded up slightly, is $387,500. The further discount contended for by the defendant is excessive for the reasons I have given. However, a modest discount for this contingency is reasonable in light of the plaintiff’s work as a physiotherapist and the lower back injury she sustained in 2006. I will allow $375,000 for past loss of earning capacity. [54] Interest on past loss of income should be calculated at 5% for 6.75 years since the accident. After the deduction of the agreed $30,966 for tax paid on weekly compensation, the net weekly compensation paid to the plaintiff was $77,444.86 (see Exhibit 22). The plaintiff received a disability support pension during part of at least the 2013 and 2014 financial years (see Exhibit 1 at para 387). Payments totalling $15,244 are identified. After deducting the payments received from $375,000, the balance is $282,311.14. A simple calculation upon this arrives at a figure of $95,280. It is likely on the evidence of the table at Exhibit 1 at para 387 the plaintiff has received further Centrelink payments since the trial. Notwithstanding that the $15,244 is a gross of tax figure to meet the contingency that further payments have been received, the allowance for interest I will make is $90,000. [55] The employer made superannuation contributions at the rate of 12.75% (see Exhibit 1 at para 438). That loss on $375,000 is $47,812.50. Interest at 5% for 6.75 years is $16,136.67. [56] The component of the award for future economic loss must reflect the assessment of the extent to which the injuries and suffering of the plaintiff as a result of the defendant’s breach of duty is and may be productive of loss of income. As is often the case, in this matter, the figure is not capable of being precisely calculated. It is necessary however to 104 See Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639-640 and 642-3. -- 31 of 37 -- 32 arrive at a figure that appropriately reflects the extent to which the plaintiff’s capacity to earn income has been lost or impaired. The plaintiff is now 34.5 years of age. Assuming a notional retirement age at 62 (the plaintiff contended for retirement age at 67), the multiplier for the further 27.5 years is 789.9. The plaintiff’s capacity to earn income as a physiotherapist has been destroyed for the reasons I have discussed above. She retains however her considerable intelligence as demonstrated by the various university courses she has successfully passed and the Honours degree she obtained in her more recent law studies. She also retains a certain degree of resourcefulness, adaptability and resilience evidenced by her training and retraining in the past to meet contingencies in light of life’s vicissitudes and her successful law studies at a time when she was suffering from significant disabilities both physical and psychological. In a general sense therefore, because of these capacities the plaintiff retains a residual capacity to earn an income. The plaintiff’s submissions focused upon an elaborate calculation comparing the plaintiff’s emotional loss of earnings as a physiotherapist assuming she retired at age 67, but she remained in full-time employment, that she continued to progress through all pay scales and continued to an income for casual weekend work continuously. The figure arrived at for this calculation slightly exceeded $1,390,000. From that, the plaintiff deducted a notional income earning capacity calculated by reference to working part-time for between 12 to 20 hours105 per week earning approximately 60% of average weekly earnings. This calculation was approximately $605,000 which gave a net loss figure claimed of $784,000. While the plaintiff’s calculations and approach is an interesting example by demonstrating or one way of looking at an assessment of the plaintiff’s loss of capacity to an income, the net result is excessive. It fails to take into account any relevant contingency for an early retirement and any contingency for a forced early retirement or reduction in work as a physiotherapist because of the latent effects of the 2006 injury. Thus far I have mentioned contingencies negative to the plaintiff. Another factor that must be borne in mind is the contingency that the plaintiff may have changed or refocused her career somewhat as she became more experienced. It is well known that there are many career opportunities available to health professionals in management positions in organisations such as Queensland Health, hospital boards and private health funds and insurers and private suppliers of medical services. 105 Reflecting the evidence of Mr Roehrs, the Occupational Therapist. -- 32 of 37 -- 33 [57] For the defendant, submissions were focused on the possible notional weekly loss of approximately $1,000 net per week which was submitted as a reasonable guide to a likely loss. However the defendant contended for a global award of $250,000 based upon a multiplier of 231.5. The defendant did not explain why such a low global award should be arrived at although the defendant sought to emphasise that progression through pay point scales was not guaranteed. It may be noted, for the purposes of comparison however, if the defendant’s notional net weekly loss of $1,000 per week is adopted, that reflects in a figure, using the multiplier I have mentioned (to age 62), at $789,900. If that figure were discounted by say 20% for contingencies, a net loss of approximately $631,920 is arrived at. I do accept that the plaintiff will have difficulty obtaining gainful employment in the legal industry as a graduate whose capacities are, for the time being, limited to the working hours suggested by herself and the occupational therapist, Mr Roehrs. The evidence of the legal recruiter, Mr Dare, indicates there is little market for employment of graduate lawyers limited to part time work. The evidence of the plaintiff’s applications for jobs and positions which have been unsuccessful notwithstanding her good law degree, is further evidence of the difficulty in obtaining employment new graduates face in the current circumstances with the significant number of graduates coming into the market in recent years. Nevertheless the plaintiff has demonstrated intelligence and resourcefulness and fortitude in the past. This aspect of her capacity plus the prospects of some successful treatment (albeit guarded) suggests a realistic prospect of earning income. Thus it cannot be said that her capacity to earn an income as a lawyer is so low that little offset should be made for that against the demonstrated loss of a career as a physiotherapist. In all the circumstances, I consider that a global award of $650,000 for loss of earning capacity in the future is indicated in light of the evidence taking note of the calculations that I have referred to. [58] Future loss of superannuation should, for the reasons discussed in relation to past superannuation, be awarded at 12.75%. The allowance therefore for future loss of superannuation contributions will be $82,875. [59] At trial, the defendant conceded that the plaintiff had established an entitlement to recover damages for services provided to her both gratuitously and paid.106 The claim advanced 106 See Part 10 of Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003. -- 33 of 37 -- 34 by the plaintiff at trial in submissions as calculated accorded with the evidence of the plaintiff, the evidence of her mother, the evidence that came from Ms Woolley who had been a flatmate, and the evidence of Mr Roehrs. The rate of $32.00 per hour used in the calculations made in the claim is supported by evidence before me. That rate is a reasonable rate in all the circumstances. Allowing for an additional allowance for the period that has elapsed since trial, for a notional three hours per week for gratuitous care and assistance until judgment, an allowance for past care at $38,406.49 is indicated. Interest upon that sum calculated at 5% for 6.75 years is $12,962.19. [60] For future care and assistance, the plaintiff claimed $127,599.98 made up of claims in various categories. For house cleaning, she claimed a component upon a notional two hours per fortnight for 13 fortnights a year, and three hours a fortnight for the remaining 13 fortnights of the year for the remainder of her life, discounted by 10% for vicissitudes. Additionally, there was a claim for the cost of having her car washed at $30.00 per month for the remainder of her life, a small amount for the cost of having groceries delivered for the remainder of her life and the cost of three hours gratuitous care and assistance per week for the remainder of her life. As indicated, all of these calculations were discounted for 10% for contingencies. Because of the demonstrated low back injury sustained in 2006, the prospect that the plaintiff would have suffered from symptoms increasing in time and leading to some noticeable restriction in her capacity to clean and care for herself, wash her car and so forth is higher than a notional discount for vicissitudes at 10%. In my view, a discount for vicissitudes of the order of 20% more accords with the likelihood of the plaintiff’s need for care having increased in any event irrespective of the effects of the incident in 2010. While I accept that the heads or occasions for care or assistance claimed by the plaintiff are reasonable, the calculation for example of the cost of cleaning a car for the rest of the plaintiff’s life (an expectancy which will take her well into her late 80’s) is excessive. To take account of the vicissitudes and the other matters I have discussed, the allowance for future care and assistance is $110,000. [61] For future medical expenses, the plaintiff claimed $116,150 and further sums of $10,000 for future pharmaceutical expenses and $5,000 for travel expenses. The defendant did not dispute the claim for pharmaceutical expenses and in the circumstances of the number of medical attendances the plaintiff will have, the allowance over the balance of her life of $5,000 for travel expenses is reasonable and was not the subject of significant -- 34 of 37 -- 35 contention. In like vein the defendant admitted medical expenses of $5,500 for desensitisation in a rehabilitation unit and $12,500 for the plaintiff to participate in a pain management program. The plaintiff’s claim for $12,500 for psychiatric consultations is supported by Dr Lockwood’s report of 21 March 2013. And the defendant accepted that an allowance should be made for psychological counselling into the future though not in the sum of $50,000 claimed by the plaintiff. Dr Lockwood’s report suggests that psychological therapy of between $8,500 and $9,000 yearly for a number of years might be required. I propose to allow a component of $30,000 for future psychological counselling. The defendant did not contest a claim of $5,500 for future GP consultations. The need for this is demonstrated because of the nature and extent of the plaintiff’s injuries and suffering. The plaintiff contended for an allowance of $7,500 for future physiotherapy, massages and acupuncture treatment. I agree with the defendant’s submission that although an allowance is appropriate, a smaller allowance is appropriate as it is likely the focus of the plaintiff’s future treatment will be pain management and associated psychological and psychiatric care. In this category I will allow $2,500. The plaintiff advanced small claims for the chances that the plaintiff might require a trial of spinal cord stimulator or that she might undergo a procedure for the implantation of such a device. The evidence of Dr Tadros was that the likelihood that the plaintiff would come to that treatment or that he would recommend it was low, of the order of 15%. Combined with the noticeable reluctance of the plaintiff to agree to operative intervention in the light of unfortunate events of the past,107 I conclude that the chances of the plaintiff requiring a trial of a spinal cord stimulator or agreeing to its implementation are so low as to not warrant the allowance of any specific sum for this remote hypothetical.108 Therefore in summary for the costs of desensitisation at a rehabilitation unit, the pain management program, future consultations with the general practitioner, the need for recurrent psychiatric consultations and for future psychological treatment, future pharmaceutical expenses, travel expenses and allowance for physiotherapy, massages and acupuncture, I will allow a total of $83,500. [62] As indicated earlier, the Fox v Wood component to be included in damages for compensation for tax paid on compensation payments received is $30,966.00. 107 See T1-65, line 27-44. 108 Consider Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639-640 & 642-3. -- 35 of 37 -- 36 [63] The refund to WorkCover Queensland is $150,690.12. [64] In summary, the plaintiff’s recoverable damages are: General damages for pain & suffering $90,000.00 Interest $5,400.00 Special damages $106,132.84 Interest $19,084.63 Past loss of earnings $375,000.00 Interest $90,000.00 Past superannuation loss $47,812.50 Interest $16,136.67 Future loss of earnings $650,000.00 Future superannuation loss $82,875.00 Past care and assistance $38,406.49 Interest $12,962.19 Future care and assistance $110,000.00 Future special damages $83,500.00 Fox v Word $30,966.00 Subtotal $1,758,276.32 -- 36 of 37 -- 37 Less Refund to Work Cover Queensland $150,690.12 TOTAL $1,607,586.20 [65] Subject to any identifiable error of calculation there should be judgment for the plaintiff against the defendant for $1,607,586.20. [66] I will give the parties the opportunity to check the accuracy of the calculations and make submissions as to costs. -- 37 of 37 --